CDPA 1988 s.121 – Application for grant of licence in connection with licensing scheme

(1)A person who claims, in a case covered by a licensing scheme, that the operator of the scheme has refused to grant him or procure the grant to him of a licence in accordance with the scheme, or has failed to do so within a reasonable time after being asked, may apply to the Copyright Tribunal.

(2)A person who claims, in a case excluded from a licensing scheme, that the operator of the scheme either—

(a)has refused to grant him a licence or procure the grant to him of a licence, or has failed to do so within a reasonable time of being asked, and that in the circumstances it is unreasonable that a licence should not be granted, or

(b)proposes terms for a licence which are unreasonable,

may apply to the Copyright Tribunal.

(3)A case shall be regarded as excluded from a licensing scheme for the purposes of subsection (2) if—

(a)the scheme provides for the grant of licences subject to terms excepting matters from the licence and the case falls within such an exception, or

(b)the case is so similar to those in which licences are granted under the scheme that it is unreasonable that it should not be dealt with in the same way.

(4)If the Tribunal is satisfied that the claim is well-founded, it shall make an order declaring that, in respect of the matters specified in the order, the applicant is entitled to a licence on such terms as the Tribunal may determine to be applicable in accordance with the scheme or, as the case may be, to be reasonable in the circumstances.

(5)The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

Definitions used in section 121 4

licensing scheme

(1) In this Part a “licensing scheme” means a scheme setting out—

(a)the classes of case in which the operator of the scheme, or the person on whose behalf he acts, is willing to grant copyright licences, and

(b)the terms on which licences would be granted in those classes of case;

Defined in s.116(1) · see it in the full Act

and in those paragraphs “licensing scheme” means a licensing scheme of any of those descriptions.

Defined in Sch.2A para.2 · see it in the full Act

scheme

and for this purpose a “scheme” includes anything in the nature of a scheme, whether described as a scheme or as a tariff or by any other name.

Defined in s.116(1) · see it in the full Act

dealt with

(9) Expressions used in this paragraph (other than “dealt with”) have the same meaning as in section 36 and any provision made under section 174(2) with respect to the application of that section also applies for the purposes of this paragraph.

Defined in Sch.2 para.6ZA(9) · see it in the full Act

(7) Expressions used in this paragraph (other than “dealt with”) have the same meaning as in section 35 and any provision made under section 174(2) with respect to the application of that section also applies for the purposes of this paragraph.

Defined in Sch.2 para.6(7) · see it in the full Act

made

(2)Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

Defined in s.3(2) · see it in the full Act

Cases considering section 121 3

Phonographic Performance Ltd v Raine

[2014] EWHC 1398 (Ch) · 5 March 2014Limits

The judgment treated section 121 as conferring jurisdiction on the Copyright Tribunal to determine an applicant’s entitlement to a licence and the reasonable terms of that licence. The existence of that jurisdiction materially supported staying the infringement proceedings. (see paras [13], [17], [20], [27]) The court considered that the power under section 121(4) to make orders concerning entitlement to a licence and its terms was likely to be exercisable only by the Copyright Tribunal, or at least had not been shown to be available to the court. This supported awaiting the Tribunal’s determination. (see para [20])

The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors

[2010] EWHC 3099 (Ch) · 26 November 2010

Was identified as permitting a person refused a licence to refer the matter to the Tribunal. It forms part of the licensing-scheme background and was not applied to determine infringement. (see para [11])

1 more judgment, and what each says about section 121, are in the case-law panel in the full Act.