“In this reference to what extent (if any) does the Tribunal have jurisdiction to set the terms of licences in issue (being the BBC Agreement, the DVD Licence and the DTO Licence as defined in the Reply on Jurisdiction) insofar as such licences concern copyrights subsisting under the laws of jurisdictions other than the United Kingdom?”
“Both the cases and general principle seem to suggest that, save in exceptional circumstances, three requirements have to be satisfied before an appeal, which is academic as between the parties, may (and I mean ‘may’) be allowed to proceed: (i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated.”
“(1) A licensee under a licence which is due to expire, by effluxion of time or as a result of notice given by the licensing body, may apply to the Copyright Tribunal on the ground that it is unreasonable in the circumstances that the licence should cease to be in force. (2) Such an application may not be made until the last three months before the licence is due to expire. (3) A licence in respect of which a reference has been made to the Tribunal shall remain in operation until proceedings on the reference are concluded. (4) If the Tribunal finds the application well-founded, it shall make an order declaring that the licensee shall continue to be entitled to the benefit of the licence on such terms as the Tribunal may determine to be reasonable in the circumstances. (5) An order of the Tribunal under this section may be made so as to be in force indefinitely or for such period as the Tribunal may determine.”
“…the nature of copyright as a legal right of property arising in any given jurisdiction from national legislation, common law or self-executing treaty means that it must be wrong to speak as if there were a single international copyright.”
“The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom— (a) to copy the work (see section 17); (b) to issue copies of the work to the public (see section 18); (ba) to rent or lend the work to the public (see section 18A); (c) to perform, show or play the work in public (see section 19); (d) to communicate the work to the public (see section 20); (e) to make an adaptation of the work or do any of the above in relation to an adaptation (see section 21); and those acts are referred to in this Part as the ‘acts restricted by the copyright’.”
“The United Kingdom Delegation accepts the provisions ofArticle 11 of the Convention on the understanding that His Majesty’s Government remains free to enact such legislation as they may consider necessary in the public interest to prevent or deal with any abuse of the monopoly rights conferred upon owners of copyright by the law of the United Kingdom.”
“Sections 118 to 123 (references and applications with respect to licensing schemes) apply to— (a) licensing schemes operated by licensing bodies in relation to the copyright in literary, dramatic, musical or artistic works or films (or film sound-tracks when accompanying a film) which cover works of more than one author, so far as they relate to licences for— (i) copying the work, (ii) performing, playing or showing the work in public, or (iii) broadcasting the work or including it in a cable programme service; (b) all licensing schemes in relation to the copyright in sound recordings (other than film sound-tracks when accompanying a film), broadcasts or cable programmes, or the typographical arrangement of published editions; and (c) all licensing schemes in relation to the copyright in sound recordings, films or computer programs so far as they relate to licences for the rental of copies to the public; and in those sections ‘licensing scheme’ means a licensing scheme of any of those descriptions.” (i) copying the work, (ii) performing, playing or showing the work in public, or (iii) broadcasting the work or including it in a cable programme service; and in those sections ‘licensing scheme’ means a licensing scheme of any of those descriptions.”
“Sections 125 to 128 (references and applications with respect to licensing by licensing bodies) apply to the following descriptions of licence granted by a licensing body otherwise than in pursuance of a licensing scheme – (a) licences relating to the copyright in literary, dramatic, musical or artistic works or films (or film sound-tracks when accompanying a film) which cover works of more than one author, so far as they authorise – (i) copying the work, (ii) performing, playing or showing the work in public, or (iii) broadcasting the work or including it in a cable programme service; (b) any licence relating to the copyright in a sound recording (other than a film sound-track when accompanying a film), broadcast or cable programme, or the typographical arrangement of a published edition; and (c) all licences in relation to the copyright in sound recordings, films or computer programs so far as they relate to the rental of copies to the public; and in those sections a ‘licence’ means a licence of any of those descriptions.” (i) copying the work, (ii) performing, playing or showing the work in public, or (iii) broadcasting the work or including it in a cable programme service; and in those sections a ‘licence’ means a licence of any of those descriptions.”
“117. Sections 118 to 123 (references and applications with respect to licensing schemes) apply to licensing schemes which are operated by licensing bodies and cover works of more than one author, so far as they relate to licences for— (a) copying the work, (b) rental or lending of copies of the work to the public, (c) performing, playing or showing the work in public, or (d) broadcasting the work or including it in a cable programme service; and references in those sections to a licensing scheme shall be construed accordingly. 124. Sections 125 to 128 (references and applications with respect to licensing by licensing bodies) apply to licences which are granted by a licensing body otherwise than in pursuance of a licensing scheme and cover works of more than one author, so far as they authorise- (a) copying the work, (b) rental or lending of copies of the work to the public, (c) performing, showing or playing the work in public, or (d) broadcasting the work or including it in a cable programme service; and references in those sections to a licence shall be construed accordingly.” (a) copying the work, (b) rental or lending of copies of the work to the public, (c) performing, playing or showing the work in public, or (d) broadcasting the work or including it in a cable programme service; and references in those sections to a licensing scheme shall be construed accordingly. (a) copying the work, (b) rental or lending of copies of the work to the public, (c) performing, showing or playing the work in public, or (d) broadcasting the work or including it in a cable programme service; and references in those sections to a licence shall be construed accordingly.”
“In this Chapter a ‘licensing body’ means (a) a society or other organisation which has as its main object, or one of its main objects, the negotiation or granting, either as owner or prospective owner of copyright or as agent for him, of copyright licences, and whose objects include the granting of licences covering works of more than one author, or (b) any other organisation which is a collective management organisation as defined by regulation 2 of theCollective Management of Copyright (EU Directive) Regulations 2016 .”
“Where the Copyright Tribunal has made an order under section 125 or 126 and the order remains in force, the person entitled to the benefit of the order shall if he— (a) pays to the licensing body any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained, and (b) complies with the other terms specified in the order, be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.”
“Unlike s. 116(3), ‘licences’ in s. 124 are not limited to doing or authorising the doing of ‘any of the acts restricted by copyright’; and unlike s. 16(1), the authorisation provided for in s. 124 is not geographically limited to acts done in the United Kingdom.”
“Section 26.8: Law should not be subject to casual change (1) It is a principle of legal policy that law should be altered deliberately rather than casually, and that Parliament should not change either common law or statute law by a sidewind, but only by measured and considered provisions. In the case of common law, or Acts embodying common law, the principle is somewhat stronger than in other cases. It is also stronger the more fundamental the change is. (2) The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. The court should therefore strive to avoid adopting a construction which involves accepting that Parliament contravened the principle.”
“That the term [‘copyright licences’] is not used in section 124, and is restricted to section 116, suggests that it was a deliberate choice to refer only to ‘licences’ and remove the reference to ‘copyright’ licences, and that section 124 was not intended to contain a territorial restriction.”
“To limit the Tribunal's jurisdiction to setting the tariffs for licences of UK copyrights would severely impair the Tribunal's ability to curb the monopolistic power of collecting societies. When faced with an interconnected multi-jurisdictional activity such as broadcasting or on-line services, if a licensee considered that the collecting society was seeking exorbitant licence fees, that licensee would be caught between the devil and the deep blue sea. It would either have to accept the terms presented by the collecting society, or bring numerous actions before numerous regulatory bodies (where regulatory remedies exist) or negotiate specific licences from local bodies (or some combination of the two), and agree, or seek to have a regulatory body determine, specific values for acts that are not usually disaggregated in the value chain. This is self-evidently a difficult, time consuming and costly exercise. Timing issues alone would almost certainly force them to accept the terms offered, however unreasonable. In fact, the power of the collecting societies would be greatly increased in such a scenario, and interpreting the CDPA so as to limit the Tribunal’s jurisdiction in the manner advocated by the Respondents would thwart the primary policy behind the establishment and existence of the Copyright Tribunal.”
“42. If the Tribunal adopted the interpretation advocated by the Respondents and restricted its jurisdiction to setting the tariffs for UK copyrights only, the Tribunal would have to engage in a disaggregation exercise in order to be able to properly consider the comparable licences, and thereby set the tariff for the relevant acts occurring within the UK. This is because, in the context of integrated cross-border activity, as noted above, commercial licensing practice does not normally allocate, to any great extent, specific amounts in the value chain either by specific act or by territory. Contrary to the approach taken in the commercial world, in order to set a tariff, the Tribunal would need to consider precisely what acts take place in and are restricted under the laws of the UK and under other relevant countries. As the Tribunal must have regard to comparable licences and all relevant considerations in setting tariffs, when looking at comparable licences most or all of which would have an aggregate value, the Tribunal would need to determine, or make assumptions about, the value of those territorial elements outside its jurisdiction in order to determine the value of the UK elements only under the comparable licences. To do this it would also need to try to disaggregate the tariffs of the comparable licences put in evidence. Also, if in the ensuing negotiations concerning, or regulatory determinations of, the non-UK elements of the licence the UK collecting society (or other licensor or regulatory body) attributed a value to those elements outside the Tribunal's jurisdiction that differed from the Tribunal's assumed value of those elements, the licensee would need to return to the Tribunal for a review of the value of the UK element, as a key assumption underlying the Tribunal's valuation of the UK element (namely the value of the non-UK elements) had turned out to be incorrect. It is apparent that such a process for setting a tariff would be cumbersome, inefficient and time consuming, and correspondingly expensive. 43. The Respondents say that the practical convenience of licensees before the Tribunal is irrelevant to the interpretation of the CDPA, and that it would not be absurd or unworkable for the Tribunal to have jurisdiction to determine the tariffs of only UK copyrights, it would merely be less convenient and efficient. Whilst the convenience of licensees is not relevant to construing the words of the statute, the Tribunal does regard the policy of the statute, including its policy to have an efficient and cost effective process for determining tariffs, to be relevant to its interpretation. In particular, the Tribunal considers that it is unlikely that Parliament intended that the Tribunal would be obliged to engage in a cumbersome and expensive exercise when setting tariffs in the context of cross border licences granted by UK collecting societies. (See Bennion on Statutory Interpretation, Butterworths, 7th Edition (2017) Section 12.2 pp 363-365 citing inter alia Gill v Donald Humberstone & Co Ltd[1963] 1 WLR 929 at 933 per Lord Reid: ‘If the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result.’)”
“In relation to jurisdiction it was also pointed out that Parliament seems to have created an odd situation. The restricted acts relevant to the activities of making and selling records are two-fold, namely copying the work (restricted by section 17) and issuing copies of the work to the public (restricted by section 18). The rights given by the sections can conveniently be labelled the ‘copying right’ and the ‘distribution right’ respectively. However section 117 says that sections 118–123 relate to licensing schemes ‘so far as they relate to licences for … copying the work’ and certain other restricted acts. There is no reference to the distribution right. Accordingly, at first sight, it would be open to the MCPS to refuse to grant any licences under the distribution right save on its terms and outside the jurisdiction of this Tribunal. The MCPS could provide a scheme for manufacture only. Such a scheme would in effect be a licence only to fill warehouses with records or export them. This would make no commercial sense. The MCPS has sensibly not promulgated such a scheme. Its scheme provides for licences to manufacture records for retail sale. The MCPS mildly suggests that the fact that two restricted acts are licensed by the scheme whereas under the statutory scheme only a reproduction right was in effect licensed should in itself result in an increased payment. It goes on to point out that, in the case of some major record companies who press their records in continental Europe, all it is in effect licensing in the UK is the distribution right and the making of the master recording where that occurs here; and, it says, that it is only because it, the MCPS, is a member of a wide international system with links with foreign copyright holders, that it is able to put forward a single comprehensive licensing scheme. Whilst this is true, we do not consider that it makes any difference to the questions we have to decide. We think that the fact that the rate is a payment for the licence to carry out both forms of restricted act, and the system terms likewise relate to both forms of restricted act, means that we can look at the scheme as whole. The omission by Parliament of an express jurisdiction in relation to the distribution right makes no difference to the commercial issues raised in this reference. And commercial considerations are relevant as being part of all the circumstances of the case. In fact all the parties' evidence was founded on the basis that the distribution right was an inseparable part of one single licence and that its value was a matter for us to consider in connection with the associated copying right.”
“23. Turning to s. 128A, subsection (1) makes clear it only applies to a proposed licence or licensing scheme that will authorise the playing in public of excepted sound recordings included in broadcasts. Similarly, subsection (2) requires the licensing body to notify the Secretary of State of the details of any such proposed licence or licensing scheme for excepted sound recordings before it comes into operation. Clearly the subsections exclude licensing schemes which do not authorise the playing in public of sound recordings included in broadcasts. But I believe their terms are cast in sufficiently general terms as to embrace delivery system neutral schemes which not only authorise the playing in public of excepted sound recordings included in broadcasts but also sound recordings delivered by other systems. Moreover, I see no warrant in the language to qualify the definition of licensing scheme and so permit a delivery system neutral scheme to be notionally divided into those portions which authorise the playing in public of excepted sound recordings included in broadcasts and those which authorise the playing in public of sound recordings exploited in other ways. On a natural reading of the subsections, the scheme must be notified as a whole, as happened in this case. … 27. I believe the consequences of PPL’s arguments are unsatisfactory in two further respects. First, in considering a delivery system neutral scheme the Tribunal would be required to divide the scheme into a licence to play sound recordings which are broadcast and a licence to play sound recordings which are not. Its jurisdiction to consider the scheme under s.128B would be limited to the former. Yet in exercising that jurisdiction it would inevitably have to assess the reasonableness of the licence fee for the playing of sound recordings on, for example, tapes and CDs and then compare it to the fee for the playing of broadcast sound recordings. 28. Second, I foresee real practical problems in the implementation of s.128B(4). This confers on the Tribunal a power to direct that its order, in so far as it reduces the amount of charges payable, has effect from a date before that on which it is made. It also provides that if such a direction is made then any necessary repayments to a licensee must be made in respect of charges already paid. If the Tribunal were to make such a direction in relation to the schemes in issue in this case and if, as PPL contends, the jurisdiction of the Tribunal under s. 128B is limited to a consideration of such schemes only in so far as they relate to broadcast recordings, it would then have to try to apportion the single charge into a payment in respect of different forms of usage, a self evidently complex and difficult exercise. 29. In the light of these matters and despite the focus in s.128A(7) upon the broadcast of excepted sound recordings, I have reached the conclusion that the submission of the Interested Parties is to be preferred and that the Tribunal does have jurisdiction under s.128B to consider a delivery system neutral licensing scheme as a whole. …”