Copyright, Designs and Patents Act 1988, section 129

General considerations: unreasonable discrimination

Part I Copyright

In determining what is reasonable on a reference or application under this Chapter relating to a licensing scheme or licence, the Copyright Tribunal shall have regard to—

(a)the availability of other schemes, or the granting of other licences, to other persons in similar circumstances, and

(b)the terms of those schemes or licences,

and shall exercise its powers so as to secure that there is no unreasonable discrimination between licensees, or prospective licensees, under the scheme or licence to which the reference or application relates and licensees under other schemes operated by, or other licences granted by, the same person.

Definitions used in section 129 2

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

Cases considering section 129 6

CSC Media Group Ltd v Video Performance Ltd

[2011] EWCA Civ 650 · 27 May 2011Interprets

Interprets: the Tribunal must have regard to comparable schemes and licences and must avoid unreasonable discrimination between licensees. The duty did not prescribe a particular analytical sequence (see paras [10], [71], [74]). Interprets: the Tribunal must have regard to the availability of other schemes and licences granted to persons in similar circumstances. This made comparable licensing arrangements a mandatory consideration (see paras [10], [74]). Interprets: the Tribunal must have regard to the terms of comparable schemes and licences when determining reasonable royalty terms (see para [10]).

Phonographic Performance Limited v Candy Rock Recording Limited

[2000] EWCA Civ 97 · 30 March 2000Interprets

Section 129 required regard to comparable licences and avoidance of unreasonable discrimination. It did not require fair competition, but required the Tribunal to consider how the licences operated commercially, including differences in the licensor’s revenue streams. (see paras [13]; [29]-[32])

CSC Media Group Ltd v Video Performance Ltd

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

Interprets the obligation to have regard to other schemes and licences in similar circumstances and to avoid unreasonable discrimination. The Tribunal’s failure to give proper weight to the most relevant comparable licence constituted an error in applying this obligation (see paras [11], [46]-[52]).

What each judgment says about section 129 is in the case-law panel in the full Act.