The High Court struck out Phonographic Performance (Ireland) Ltd’s claim against Jonathan Bourke after the company finished presenting its evidence in a trial over music played at the Savoy nightclub in Cork.
Mr Justice David Keane ruled on 3 December 2015 that PPI had not made a prima facie case that Mr Bourke authorised or participated in copyright infringement. PPI’s claim against Southlinch Theatres Ltd had already resulted in a judgment in default of defence, with damages still to be assessed. The ruling concerned only Mr Bourke’s application for a non-suit; it did not determine the remaining claim against another defendant.
PPI sought €50,367.44, calculated as invoices totalling €116,948.83 less payments of €66,581.39. It alleged that the defendants infringed copyright in sound recordings played at the Savoy, authorised infringement, acted as joint tortfeasors or conspired. At trial, PPI did not pursue its claims for continuing infringement, additional damages or an injunction. It had also withdrawn a pleaded claim concerning an undertaking to pay remuneration, saying it had been included in error.
PPI’s evidence included testimony that Bourke was a director and 37 per cent shareholder in Southlinch, and that he had signed some company cheques relating to payments for the music licence. Its witnesses also described dealings with Eoin Foyle and correspondence about payment. The judge noted that some documents relied on by PPI had not been formally proved. PPI accepted that the payments made to it had come from a Southlinch bank account.
The judge said signing a small number of cheques, or being a director and shareholder, did not establish that Bourke controlled Southlinch’s alleged infringement. Nor was there evidence that he directed or procured the company to play the recordings, or joined a common design to infringe copyright. The court also found no evidence that Southlinch acted as Bourke’s agent.
The judgment noted uncertainty about who had invoked the statutory right to play recordings while a payment dispute was resolved. The court observed that PPI had brought a copyright infringement claim rather than a claim for unpaid remuneration or breach of a settlement agreement. It did not decide the merits of those alternative claims.
The court therefore granted Bourke’s application and ordered the claim against him struck out. The ruling followed the plaintiff’s case, before Bourke presented any defence evidence; his counsel had said he intended to do so if the application were refused.