The potentially serious consequences of playing unlicensed music in public were highlighted by the Court of Appeal in a recent case brought by music licensing organisation PPL involving unlicensed music played in a bar. The case confirms that breach of an injunction against playing unlicensed music can lead to both a prison sentence and also punitive damages.
Public performance licences
Phonographic Performance Limited (known as PPL) is a leading UK music licensing organisation which represents performers and record companies and collects royalties on recorded music on their behalf. Any business which plays or performs music to customers or staff through the radio or TV or in other ways will normally need a public performance licence from PPL. In practice this is now usually combined with a licence from PRS for Music, which acts on behalf of songwriters, composers and music publishers, into a single licence – TheMusicLicence.
PPL, which is active in enforcing copyright in relation to recorded music played by music venues and others, had obtained an injunction against Andrew Ellis restraining him from playing unlicensed recorded music in public at the Bla Bla Bar. Unfortunately, Mr Ellis continued to play unlicensed music in breach of the injunction, and a suspended prison sentence for contempt of court was imposed. As was its practice in such cases, PPL then applied to the judge for an award of additional damages for flagrant copyright infringement under S.97(2) Copyright, Designs and Patents Act 1988 (CDPA), arguing that infringement in breach of a court order constituted flagrant infringement.
A valuable deterrent effect
The Court confirmed that in the case of flagrant infringements, additional damages under S.97(2) CDPA could be imposed in addition to a custodial sentence (suspended in this case); additional damages have a punitive element and go beyond compensating the claimant for its loss. The court also confirmed that ‘in the ordinary way’ infringements which continue in the face of an injunction would be flagrant and so would attract additional damages. This established an important principle for PPL, which brings many such claims every year and had argued that additional damages have a valuable deterrent effect.
Extenuating circumstances in this case
However, the court held that in this particular case Mr Ellis had not intended to breach the court’s order. There appears to have been some uncertainty about who was responsible for obtaining a licence and a genuine misunderstanding on the part of Mr Ellis about ‘how these things work’. In such circumstances the infringements had not been flagrant and no additional damages should be awarded.
Case: Phonographic Performance Ltd v Andrew Ellis trading as Bla Bla Bar, 18/02/19  EWCA Civ 2812