Is an injunction available if licence fees have been paid?
Should an injunction be granted when the licence fees which were the reason for a claim being issued have all been paid? What about if further licence fee payments (incurred after the claim form was issued) have not been paid?
Phonographic Performance Limited (or PPL) "licenses recorded music played in public or broadcast and then distributes the licence fees to its performer and recording rightsholder members." It is one of the most regular users of the IP Enterprise Court.
One of its recent targets, Mr Gaughan, runs a bar called the Watkins Folly. The owner, Mr Gaughan reached a settlement with PPL shortly after service of the claim form. He paid the licence fee for past infringements but: (i) did not set up the agreed Direct Debit to cover payments over the following year and; (ii) continued to play sound recordings to the public.
After failed attempts to persuade Mr Gaughan to pay up, PPL applied to the court for judgment in default and to lift the automatic stay which applies six months after the period for filing a defence has expired. The big question was not whether Mr Gaughan was in default (he had not filed a defence) but whether an injunction should be granted in these circumstances i.e. where payment has been made for all the infringements which existed at the time the proceedings were issued.
PPL had run into similar difficulties with JJPB Limited in relation to a cocktail bar called Keystones. Once again these defendants are in default but have paid outstanding licence fees up to the date the claim form was issued and no acknowledgement of service or defence has been filed.
Injunctions were granted against both Mr Gaughan and JJPB because:
an injunction is ordered to stop an infringement happening in the future on the basis of a the existence of a threat and intention to do that;
because the injunction looks to the future and is based on a threat and intention to infringe, generally the fact that a defendant has infringed in the past is sufficient to establish the necessity of an injunction;
it can be appropriate to take account of events after the claim was issued - the position on the date of issue is not the whole story;
both Defendants were continuing to infringe but did not have a licence so it is appropriate for the court to grant an injunction; and
requiring fresh proceedings would elevate form over substance and simply add to everyone's costs.