Additional damages for flagrant copyright infringement welcomed by performing right association

Article  \  15 Jan 2019

In the past, copyright infringers may have thought that there was little risk to waiting for a lawsuit before considering a licence. However, the High Court has now signalled that significant additional damages can, and will, be awarded in cases that warrant increased penalty: Australasian Performing Right Association Ltd v 3228 Business Ltd [2018] NZHC 3088.

Rocksalt Bar and Restaurant was recently sued for continuing to play copyright music without permission, despite several warnings. The songs played by the bar as background tracks included “Stuck in a Moment You Can’t Get Out of”, “So Beautiful”, and “Into the Dark”. The Australasian Performing Right Association (APRA), responsible for collecting royalties on behalf of music artists, sued Rocksalt for copyright infringement. On 27 November 2018, Justice Palmer in the High Court held in favour of APRA, awarding both compensatory damages for lost annual licence fees (NZ$4,605.61), plus additional damages for the flagrancy of the breach (NZ$18,000).

In evidence, APRA showed that it had numerous interactions with Rocksalt from November 2016, including letters educating Rocksalt that permission was required from APRA before songs could be played in public. APRA offered a Hospitality Licence to Rocksalt, in five letters from 2017 to 2018, and even offered to backdate the licence. Rocksalt refused and continued to infringe. Its contempt towards the copyright regime continued with its active avoidance of the service of documents and lack of appearance in court.

Justice Matthew Palmer accordingly granted a permanent injunction restraining Rocksalt from performing or authorising performance of any APRA songs.  His Honour noted:

Copyright is an important means of recognising the rights of songwriters. APRA is a not-for-profit royalty-collecting society for songwriters, which holds copyright for the performance or broadcast of virtually all currently-played musical works.

In addition to the injunction, Rocksalt and its director were ordered to pay a total of NZ$22,605, comprising compensatory damages of NZ$4,605 for the required annual licence fees, plus additional damages of NZ$18,000 for the flagrancy of the breach, the importance of the music as attracting customers to Rocksalt, and its contempt towards the copyright regime.

This case sends a strong message that copyright infringement, and the copyright licensing regime, should be taken seriously. If you have any concerns about copyright infringement, please contact one of our experts.