Owner of Dundee pub liable for copyright breach after customers watched football – but no damages due

About this case:

• Citation:
  [2024] CSOH 22
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Sky Ltd and Sky UK Ltd sought damages of £10,000 from publican Christopher Airlie for the infringement of their copyright in artistic works. The defender denied that he had shown any matches on TVs in the pub and said that any screens had been devices brought by customers for their personal use via the Sky Go app.

The case was heard by Lord Sandison in the Outer House of the Court of Session. Tariq, advocate, appeared for the pursuers while the defender appeared as a party litigant, although he had previously been legally represented.

Unsatisfactory evidence

The defender was the owner of the Troll Inn, a small pub located in a housing estate to the north of Dundee city centre described as having a typical attendance in the low double figures and possessing a large collection of troll memorabilia. It was alleged by the pursuers that broadcasts of football matches featuring copyright graphics held by the second pursuer were shown on TVs at the pub without the requisite commercial subscription to permit this.

It was the defender’s position that some of his customers had watched football matches in the pub using their own devices via the Sky Go app authorised by the pursuers, but that the offending matches had not been viewed on TV sets provided by the bar. The pursuers maintained that this still amounted to copyright infringement but did not seek to challenge the legal relevancy of the defences.

On behalf of the pursuers it was submitted that, even if the Sky Go app had been used by pub customers, the defender permitting them to bring laptops to the premises to stream the matches was a breach of the Copyright, Designs and Patents Act 1988. The second pursuer also sought publicity orders entitling it to publish advertisements stating the outcome of the action, at the defender’s expense.

The defender relied on a Note of Argument lodged by his previous legal representative. While he had authorised the conduct of his customers and thus it was difficult to say what his answer would have been to a case of secondary infringement, the pursuers had confined their argument to primary infringement. He had not communicated the copyrighted graphics to the public as the viewings were between friends with the Sky Go app.

In addition to these written observations, the defender added orally that the evidence of investigators hired by the pursuers was vague and unsatisfactory and so should not be relied upon. They were unable to distinguish between TVs and computer monitors, and had left unclear what the boundaries of the legitimate use of the Sky Go app were.

No attempt to establish loss

In his decision, Lord Sandison observed: “The defence to the case of copyright infringement advanced by the pursuers is in essence that what the defender allowed and indeed encouraged to take place at the Troll Inn was permissible according to the terms of the Sky Go app to which, it seems, those of his customers responsible for bringing and setting up the equipment used to show the second pursuer’s broadcasts subscribe. Most unfortunately in those circumstances, neither the pursuers nor the defender chose to lay those terms before the court, rendering it impossible for me to determine whether they do indeed have that effect.”

He continued: “It appears, both from the position he took when challenged about what was happening at his bar by the second pursuer’s representatives and their legal advisors, and from the tenor of his evidence at proof, that the defender did genuinely believe that the Sky Go app terms sanctioned what he was allowing, or at least that he considered that there was a reasonable argument to be had about that issue which the current action would resolve.”

Asking whether there was a primary copyright breach, Lord Sandison said: “Construing sections 16 and 20 of the 1988 Act in a manner consistent with their antecedents, the showing of matches broadcast by the second pursuer in the Troll Inn in circumstances where any member of the public who chose to enter the bar could view them constituted, irrespective of the precise technical means or process used, a communication to the public within the meaning of those sections, and thus infringed the first pursuer’s copyright in the graphics displayed in the course of the broadcasts.”

However, on the extent of damages, he concluded: “Even having selected the broadest of brushes to assist in the task of assessing any damages due, I find in the evidence before the court nothing at all with which to charge it. It might alternatively have been possible to assess damages in some way entirely different from the determination of a user-rent, but no attempt was made to establish any such loss, and indeed there was no evidence at all before the court of what the arrangements between the pursuers in fact are.”

Lord Sandison therefore granted perpetual interdict against the repetition of the infringing conduct but found the defender liable solely to the first pursuer for one-half of the expenses of process and the sum of £1,000 in respect of one publication in terms of the publicity order sought by the first defender.