Copyright, Designs and Patents Act 1988, section 128

Effect of order of tribunal as to licence

Part I Copyright

(1)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.

(2)The benefit of the order may be assigned—

(a)in the case of an order under section 125, if assignment is not prohibited under the terms of the Tribunal’s order; and

(b)in the case of an order under section 126, if assignment was not prohibited under the terms of the original licence.

(3)The Tribunal may direct that an order under section 125 or 126, or an order under section 127 varying such an order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than the date on which the reference or application was made or, if later, on which the licence was granted or, as the case may be, was due to expire.

If such a direction is made—

(a)any necessary repayments, or further payments, shall be made in respect of charges already paid, and

(b)the reference in subsection (1)(a) to the charges payable in accordance with the order shall be construed, where the order is varied by a later order, as a reference to the charges so payable by virtue of the later order.

Definitions used in section 128 2

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
licensing body

(2) 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 the Collective Management of Copyright (EU Directive) Regulations 2016 .

Defined in s.116(2) · see it in the full Act

Cases considering section 128 3

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

[2018] EWHC 2931 (Ch) · 6 November 2018Interprets

Interprets the effect of a Tribunal order as equivalent to holding a licence for UK copyright infringement. It did not support a defence to claims concerning foreign copyright. (see paras [59], [65]-[66])

CSC Media Group Ltd v Video Performance Ltd

[2010] EWHC 2094 (Ch) · 10 August 2010Defines

Confirms the Tribunal’s power to make an order under section 126 effective from an earlier date, subject to the statutory temporal limits. The provision was identified as governing the Tribunal’s backdating power (see para [10]).

Phonographic Performance Ltd v British Hospitality Association & Ors

[2009] EWHC 209 (Ch) · 12 February 2010Limits

Confirms that the Tribunal may backdate an order, subject to the statutory limits. The Tribunal’s backdating of the licence was described in this context. (see paras [5]; [10])

What each judgment says about section 128 is in the case-law panel in the full Act.