Readers of this blog may recall a judgment from November 2019 in which TuneIn, which operates the TuneIn internet radio service, was found to infringe the copyright of several music companies by making unlicensed radio stations available to users in the UK. It was also found to be jointly liable with individual UK users who infringed copyright using the recording function.
That judgment on liability was largely upheld on appeal in March 2021 and the matter has now progressed to a damages hearing. A recent case management conference (CMC) focused on requests for disclosure by both sides to determine the nature and level of damages.
Broadly speaking, the claimant music companies argued that the correct approach was by reference to published Phonographic Performance Limited (PPL) rates for webcasters whereas TuneIn argued that a notional willing licensor and licensee would negotiate hypothetical licence terms.
Regarding the making of copies by UK users of TuneIn Radio, the claimants contended that damages should be assessed on a per-copy basis, while TuneIn favoured a flat fee or a percentage of UK revenue.
Seven principles
In a judgment following the first part of the CMC hearing, Deputy Master Raeburn usefully summarised seven principles governing extended disclosure that were apposite in this case:
Issues for disclosure are key issues to which is likely to be relevant and important to fairly resolving the claim.
Identifying issues for disclosure should not be a mechanical exercise but should arise from assessing the relevance of categories of documents.
An order for extended disclosure must be reasonable and proportionate having regard to the overriding objective.
Parties should avoid an unduly granular or complex approach to the issues for disclosure.
Clarity is of particular importance in relation to Model C requests, which should be limited in number, focused in scope and concise. [Model C disclosure requests concern disclosure of particular documents or narrow classes of documents]
Requests should not be used in a tactical or oppressive way.
In a complex and important case, the following are particularly important:
the likelihood of documents existing that will have probative value in supporting or undermining a party's claim or defence;
the number of documents involved; and
the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost.
What does this mean?
Based on these seven principles, the judge made findings regarding the specific requests for disclosure made by each party. The case management conference hearing was scheduled to be continued on 27 November 2023.
While this case clearly still has a long way to run, and the dispute is unusually large in scale, the principles set out by Deputy Master Raeburn are likely to be relevant in other copyright cases and more generally.
It is common for UK courts to decide liability and quantum in separate trials. However, in many cases damages are resolved between the parties following the decision on liability so it is welcome to get this level of detailed guidance on the principles of extended disclosure in damages hearings.
To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com