Performers' rights in commercial music use: unauthorised public playing of songs triggered injunction and accounts, but no damages.

Commercial playing of recorded songs in a restaurant without royalty payment or clearance from the authorised performers' rights holder was held to infringe performers' rights under the Copyright Act, including the right to communicate performances to the public and to receive royalties for commercial use. On the unrebutted evidence, the defendant's use of the repertoire was unauthorised, so a permanent injunction followed to restrain continued exploitation and rendition of accounts was ordered for monies earned from the use. Damages were declined because substantive proof of loss was not produced.

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Issues: (i) Whether playing songs in a commercial establishment without payment of royalties or obtaining clearance from the performers' rights society infringed the performers' rights and the right to receive royalties of its members; (ii) Whether the plaintiff was entitled to a permanent injunction and rendition of accounts, and whether damages were proved.

Issue (i): Whether playing songs in a commercial establishment without payment of royalties or obtaining clearance from the performers' rights society infringed the performers' rights and the right to receive royalties of its members.

Analysis: The Copyright Act, as amended, recognises performers' rights, including the right to communicate a performance to the public and the statutory entitlement to royalties for commercial use. The plaintiff's members had executed exclusive authorisations in favour of the plaintiff, and unrebutted evidence showed that the defendant's restaurant played recorded performances from the plaintiff's repertoire without obtaining a clearance certificate or paying royalties. The Court accepted the investigator's evidence and held that such commercial public communication amounted to unauthorised exploitation of the performances.

Conclusion: The issue was decided in favour of the plaintiff, and the defendant's conduct was held to infringe the performers' right and the right to receive royalties.

Issue (ii): Whether the plaintiff was entitled to a permanent injunction and rendition of accounts, and whether damages were proved.

Analysis: Once infringement was established, injunctive relief followed to prevent continued unauthorised communication of the repertoire. The Court also found it appropriate to direct rendition of accounts of monies earned from the use of the repertoire. However, damages were declined because substantive evidence of loss was not produced in the proceedings.

Conclusion: The plaintiff was granted a permanent injunction and a direction for rendition of accounts, while the claim for damages was rejected.

Final Conclusion: The suit succeeded substantially, with injunctive and accounting relief granted against unauthorised commercial use of performers' repertoire, but without an award of damages.

Ratio Decidendi: Commercial public performance of recorded songs in a business establishment without royalty payment or clearance from the authorised performers' rights holder constitutes infringement of performers' rights and justifies injunctive relief and rendition of accounts.

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