Performing Right Society Limited v. Kwik-Fit Group Ltd [2007] CSOH 167

Debate - Copyright, Designs and Patents Act 1988:- In this action the pursuers sought interedict and damages in respect of the playing of music at Kwik-Fit service centres all over the country, that was said, constituted the "playing" or "performance" of such works "in public" for the purposes of section 16 of the Copyright, Designs and Patents Act 1988 and such alleged long term infringement rendered the defenders guilty of copyright infringement either directly or through others authorised by them. At procedure roll the defenders sought dismissal of the action as irrelevant or, alternatively, on the basis that the pursuers' averments did not provide fair notice of the case they had to meet in that:- (1) failure to prove that the defenders themselves actually "played" or "performed" any musical works for the purposes of section 16 of the Act; (2) failure to aver facts and circumstances capable of setting up "authorisation" for the purposes of section 16(2); (3) lack of specification of the precise date, location and nature of each alleged instance of infringement; and (4) failure to aver either the permission or the state of mind necessary for secondary liability under section 26(3). It was submitted on behalf of the pursuers that the defenders' averments of a 10-year company policy prohibiting the use of personal radios in the workplace did not constitute a relevant defence to the action. Here the court considered whether the pursuers' averments, as a whole, were irrelevant in the sense that, if they were all fully proved, the case would be bound to fail.