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  • Writer's pictureRosie Burbidge

When must a document be disclosed in copyright proceedings?

Updated: Dec 28, 2022

As part of the extensive copyright litigation over the popular song ‘Shape of You’ by Ed Sheeran, the defendants (Sami Chokri and others) asked the High Court to order the disclosure of a musicologist’s report and various other documents. The judge denied that disclosure request (Sheeran & Ors v Chokri & Ors [2022] EWHC 187 (Ch)). Find out why.

The musicologist’s report was said to have been prepared for US litigation relating to alleged copyright infringement of a song called ‘Amazing’, which was settled in 2017. Although the settlement included a denial of infringement, the defendants in this case (who are alleging that Sheeran has infringed their copyright) argued that it supports their case that the songwriters (including Sheeran) are engaged in “habitual copying”.

Disclosure denied

The settlement agreement itself has been disclosed, and involved a “very substantial payment” and a 35% share of the musical rights in ‘Photograph’, the allegedly infringing song. Moreover, both sides in the UK case have called musicologist experts.

In the light of this, the judge – The Honourable Sir Gerald Barling – said the musicologist’s report “would be likely to add very little to the weight of the evidence already available to be put before the court on the similar fact issue”. It would add to the burden on the trial judge without helping to resolve the case. Therefore, it would not be “reasonable or proportionate” to order disclosure.

Without prejudice

In addition, the judge said that without prejudice protection applied to the report, which was supplied to the claimants as part of settlement negotiations in the US. References to its existence were not sufficient to waive that protection. Adopting the six principles set out by Newey J in EMW Law LLP v Halborg, the judge concluded that the without prejudice protection applied to prevent the defendants obtaining an order for production of the report.

The defendants also sought copies of communications from Mr Guy Protheroe, a musicologist. However, the judge said the same principles applied and in any case the claimants stated that there was no report or findings by Mr Protheroe.

Guidance on disclosure

It is increasingly common for IP litigation to have a multinational dimension, and for proceedings and settlement negotiations to take place in various jurisdictions. This judgment in a high-profile copyright case helpfully sets out when documents used in other proceedings can be disclosed.

The lesson seems to be that it will depend very much on the relevance of the documents to the specific arguments before the court. In this case, the report was viewed as tangential to the UK proceedings and the judge declined to order it to be disclosed. In another case where it is more directly relevant, the outcome might be different.

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