| COPYRIGHT — Copyright Tribunal — Jurisdiction — Collective licensing body proposing new licensing schemes for delivery system neutral excepted sound recordings — Secretary of state referring schemes to Copyright Tribunal — Whether tribunal's jurisdiction extending to consideration of schemes covering broadcast and non broadcast sound recordings — Copyright, Designs and Patents Act 1988, ss 128A, 128B (as inserted by Copyright and Related Rights Regulations 2003 (SI 2003/2498))
In re Phonographic Performance Ltd [2008] EWHC 2715 (Ch); [2008] WLR (D) 363
Ch D: Kitchin J: 21 November 2008
On a reference by the Secretary of State, pursuant to s 128A of the Copyright, Designs and Patents Act 1988, of a proposed licensing scheme for excepted sound recordings, the Copyright Tribunal had jurisdiction, under s 128B of the Act, to consider a delivery system neutral licensing scheme as a whole and was not limited to a consideration of the terms of a licensing scheme referred thereto only in so far as the scheme related to excepted sound recordings in broadcasts.
Kitchin J so held when allowing in part an appeal by Phonographic Performance Ltd (PPL) against a decision of the Copyright Tribunal that a reference under s 128A of the Act was limited to a consideration of a licensing scheme in so far as it concerned the public performance of broadcast sound recordings only and that it had no power under s 128B to order back payments in respect of users who used sound recordings not contained in a broadcast. The Secretary of State had referred to the tribunal pursuant to s 128A of the Act various new delivery system neutral licensing schemes, issued by PPL for the licensing of the public performance as background music of sound recordings in public houses, bars, restaurants, cafes, shops, stores, factories and offices, being excepted recordings thus enabling commercial entities to play broadcasts of those sound recordings within their premises without the permission of the copyright owners. Since the proposed schemes were delivery system neutral they encompassed not only the licensing of broadcast sound recordings but all ways of playing background music in public.
KITCHIN J said that the terms of ss 128A and 128B were cast in sufficiently general terms to embrace delivery system neutral schemes that not only authorised the playing in public of excepted sound recordings included in broadcasts but also sound recordings delivered by other systems. Essentially, the scheme had to be notified as a whole to the Secretary of State. Once the Secretary of State had completed his considerations, he must under s 128A(5) either refer the licensing scheme to the tribunal for a determination of whether it was reasonable in the circumstances or notify the licensing body that he did not intend to do so. If he decided to refer the scheme then that subsection appeared to contemplate that it must be referred as a whole. The tribunal then had to establish whether it was reasonable in accordance with the procedure set out in s 128B, at which point the tribunal had to take into account not only the factors referred to in s 128A(7) but also any other factors it considered relevant, as further emphasised by ss 129 and 135 and, under the terms of s 128A(3), it had to confirm or vary the scheme in so far as it related to cases of any description. There was nothing in those provisions to suggest the jurisdiction of the tribunal was limited to a consideration of the terms of the licensing scheme only in so far as they related to excepted recordings included in sound broadcasts. In fact, the tribunal’s jurisdiction under s 128B seemed as broad as its general jurisdiction under ss 118 and 119, which respectively dealt with licensing schemes which were proposed or in operation.
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