Read the full judgment text of HCCT 45/2012 on BabelCite. This 高等法院原訟法庭 judgment was delivered on 7 November 2013 before Hon L Chan J in Chambers.
Copyright law — Licensing scheme — Interim payment — Arbitration Ordinance (Cap 609) s.45(2) — Copyright Ordinance (Cap 528) ss.155, 156, 158, 162, 163, 164 — Interim measure — UNCITRAL Model Law article 17 — Payment into court — Application for interim payment by plaintiff licensing body against defendant karaoke operator pending determination of Copyright Tribunal ruling (CT 2/2010). The plaintiff, representing record companies, operates a licensing scheme for karaoke music videos. The defendant applied for a licence but disputed the terms and did not pay licence fees since 1 July 2010, while continuing to use the plaintiff’s KMVs. The plaintiff sought court-ordered interim payment of HK$94,410,000 pending the tribunal’s decision under s.45(2) of the Arbitration Ordinance and Copyright Tribunal Rules. The court held that it lacked jurisdiction under s.45(2) to order interim payment, as the Copyright Ordinance specifically limits interim payment orders to references under sections 162 and 163, not section 156 references. Following analogous UK authority in Performing Right Society Ltd v CIU, the tariff remains payable pending tribunal determination, removing the need for interim payment. The court further found that interim payment is not an "interim measure" under article 17 of the UNCITRAL Model Law, confirmed by UN Working Group reports that exclude such payments from the scope of interim measures. However, the court held it could order payment into court as an interim protective measure under article 17A to secure royalties at risk from non-payment and financial instability of operator companies. Consequently, the court refused the application for interim payment, but ordered the defendant to pay sums totaling HK$50 million into court within two weeks and annual further payments thereafter, securing plaintiff’s interest pending the tribunal’s decision. Costs were ordered in favour of the plaintiff with a certificate for two counsel.
Legal issues: Jurisdiction to order interim payment under section 45(2) of the Arbitration Ordinance · Whether interim payment constitutes an interim measure under section 45(2) of the Arbitration Ordinance · Power to order payment into court under Article 17A of the Model Law
Outcome: The court refuses to order interim payment. It has no jurisdiction under section 45(2) to make such order. The court orders the defendant to pay specified sums into court as security pending determination of CT 2/2010. Costs of the application are ordered on an indemnity basis with a certificate for two counsel.
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