Phonographic Performance Ltd & Anor, Re Appeal of a Copyright Tribunal Decision

The Copyright Tribunal’s jurisdiction under sections 128A and 128B of the Copyright, Designs and Patents Act 1988 extends to a delivery-system-neutral licensing scheme as a whole where the scheme authorises the public playing of excepted sound recordings included in broadcasts. The scheme need not be divided into broadcast and non-broadcast components.

The Tribunal must consider all relevant factors when determining whether such a scheme is reasonable. It may confirm or vary the scheme in relation to cases of any description. Issues concerning the substantive reasonableness of the tariffs should be determined only after the parties have had the opportunity to present evidence and submissions on the merits.

Phonographic Performance Limited and the British Hospitality Association, the British Beer and Pub Association and other interested parties appealed against a decision of the Copyright Tribunal dated 26 February 2008.

The Tribunal had held that references under sections 128A and 128B were limited to the public performance of broadcast sound recordings. It had also held that it could not order repayments concerning users of recordings not contained in broadcasts, and had rejected the proposed schemes on a summary basis.

The central issue was whether a delivery-system-neutral licensing scheme had to be divided between broadcast and non-broadcast uses for the purposes of the statutory procedure.

1. Appeal allowed in part. The Tribunal erred in holding that its jurisdiction under sections 128A and 128B was confined to the broadcast elements of a delivery-system-neutral licensing scheme.
2. Section 116(1) defines a licensing scheme as a unitary scheme setting out the classes of case in which licences are granted and their terms. A tariff or scheme is not to be notionally divided into separate schemes merely because it covers different delivery systems.
3. Sections 128A(1) and (2) exclude schemes which do not authorise the public playing of excepted sound recordings included in broadcasts, but their language is sufficiently general to include a scheme which also covers recordings delivered by other systems. Where such a scheme is notified, it must be notified as a whole.
4. On referral, the Secretary of State refers the licensing scheme as a whole. Under section 128B, the Tribunal must consider the factors in section 128A(7), together with any other relevant factors, and may confirm or vary the scheme generally or in relation to cases of any description. Its jurisdiction is not limited to the broadcast component.
5. This construction gives effect to the apparent legislative intention of permitting one set of proceedings for a licensing scheme authorising the public playing of broadcast sound recordings. The contrary construction would require cumbersome and potentially expensive parallel proceedings and could require apportionment of a single charge between different forms of use.
6. The court declined to order that the established tariffs applied to users who did not wish to play broadcast sound recordings, or to direct repayments. The Tribunal had not considered the substantive merits and had made its tariff observations without the relevant evidence and submissions. The Tribunal’s decision was set aside and the references were remitted for further consideration and directions, preferably before a freshly constituted Tribunal.

• High Court (Chancery Division): appeals from the Copyright Tribunal’s decision dated 26 February 2008. The decision was set aside and the references were remitted for further consideration and directions.