British Broadcasting Corporation & Anor v Mechanical-Copyright Protection Society Ltd & Ors

A statutory tribunal has only the jurisdiction conferred by its enabling legislation. The Copyright Tribunal’s jurisdiction under sections 124 and 126 of the Copyright, Designs and Patents Act 1988 does not extend to setting terms for licences of foreign copyrights. However, where a single, commercially indivisible licence predominantly concerns UK copyright but has incidental foreign effects, the Tribunal may in an appropriate case consider the licence as a whole.

The BBC and BBC Worldwide referred expiring licences to the Copyright Tribunal under section 126 of the Copyright, Designs and Patents Act 1988. The licences concerned publicly funded broadcasting services, television programme sales, DVDs and download-to-own services. The Tribunal held that it had jurisdiction even so far as the licences concerned foreign copyrights.

MCPS and PRS appealed. The underlying reference was later settled, but the appeal proceeded because it raised a point of general importance. Sky advanced an alternative argument that commercially indivisible licences could be considered as a whole.

1. The appeal was allowed in part. The Copyright Tribunal had no jurisdiction under sections 124 and 126 of the Copyright, Designs and Patents Act 1988 to set terms for licences of foreign copyrights.
2. A statutory tribunal is a creature of statute and has no inherent jurisdiction. Its jurisdiction is determined solely by the relevant statute properly construed.
3. The statutory references to copying, rental, performance, broadcasting and communication lead back to section 16(1), which concerns acts in the United Kingdom. Section 117 was confined to licensing schemes relating to UK copyright, and it would be anomalous to construe section 124 as extending to foreign copyrights.
4. The territorial nature of copyright, the presumption against extraterritoriality, legislative history, comity and the Tribunal’s specialist focus on UK copyright supported the narrower construction. Practical convenience and the policy of curbing collecting societies’ monopoly power could not overcome the statutory language.
5. In an appropriate case, the Tribunal may consider a commercially indivisible licence as a whole where it predominantly concerns UK copyright and the foreign elements are incidental. The BBC Agreement fell within that category. The DVD and DTO Licences predominantly concerned restricted acts in Canada and the USA and did not.

• Copyright Tribunal: held that it had jurisdiction to determine terms concerning foreign copyrights.
• High Court (Chancery Division): allowed the appeal in part and confined the Tribunal’s jurisdiction as set out above.