United Broadcasting International Pty Limited v Turkplus Pty Limited

United Broadcasting International Pty Limited (UBI) and Turkuvaz Televizyon ve Radyo Isletmeciligi A.S. (Turkuvaz) brought an application for an interlocutory injunction against Turkplus Pty Ltd, Globecast Australia Pty Limited, and Suleyman Sami Bilge, seeking to restrain the respondents from infringing copyright in broadcasts made by Turkuvaz in Turkey that have been rebroadcast in Australia by UBI and, since February 2010, by Turkplus. The broadcasts are of a Turkish television channel known as the ATV Aurupa Channel (ATV Channel). The relief sought against Turkplus is an order restraining it from rebroadcasting the ATV Channel in Australia or communicating it to the public in Australia otherwise than by broadcasting. The principal issues for trial are whether Turkplus holds a valid and enforceable exclusive licence to rebroadcast the ATV Channel in Australia or, alternatively, whether Turkuvaz is estopped from denying that Turkplus and Turkuvaz are bound by such a licence. Justice Nicholas accepted that copyright subsists in the relevant broadcasts and that the copyright in them is owned by Turkuvaz. The High Court had established in Australian Broadcasting Corporation v O'Neill that the principles to be applied in determining whether or not to grant interlocutory relief involve two inquiries: whether the plaintiff has made out a prima facie case and whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs the injury which the defendant would suffer if an injunction were granted. The Court found that the applicants had a prima facie case for the relief which they seek and their case was a strong one. The evidence of UBI's Chief Executive Officer that it would be extremely difficult to quantify the loss of revenue if Turkplus is permitted to continue rebroadcasting the ATV Channel was accepted. The Court found that Turkplus's financial commitments under its agreements with Globecast were not as significant as it claimed and that its claims of likely loss of credibility in the marketplace were exaggerated. The Court ordered that the interlocutory injunctions be granted but stayed their operation for 7 days to enable the applicants to lodge an unconditional bank guarantee in the amount of $300,000 to secure the undertaking as to damages given by the applicants to the Court. The proceeding was stood over to 16 June 2010 before Yates J for directions. The respondents have liberty to apply on 3 days notice or on such shorter period of notice as a Judge of the Court allows for the purpose of obtaining a discharge or stay of the interlocutory injunctions in the event that the bank guarantee is not lodged with the Court. The applicants’ costs of the interlocutory application are to be their costs in the cause as against the first and third respondents. The costs of the interlocutory application, as between the applicants and the second respondent, are reserved.