Summary

Section 129 Copyright, Designs and Patents Act 1988 was not limited to a comparison between licences granted by the same person. The fact that narrowcasters were exempt from the site licence fee which commercial dubbers had to pay was a relevant factor for the Copyright Tribunal to consider when deciding on the royalty rate that a dubbing company should pay to Phonographic Performance Ltd. * Leave to appeal to the House of Lords refused.

Facts

Appeal by Phonographic Performance } Ltd ('PPL') from the order of the Vice-Chancellor, which in part dismissed its appeal against conclusions reached in an interim decision of the Copyright Tribunal. PPL submitted that the Tribunal had erred in law in the way it had determined the royalty to be paid by Candy Rock Recording Ltd ('Candy Rock'). The main issue was whether the Tribunal was correct to set a rate which took account of the fact that narrowcasters were exempt from the site licence fee which commercial dubbers (such as Candy Rock) had to pay.

Held

(1) The task for the Tribunal was to arrive at terms for the licence which were reasonable in all the circumstances (s.125 Copyright Designs and Patents Act 1988), having regard to all relevant considerations (s.135 of the Act). (2) Section 129 of the Act was not limited to a comparison between licences granted by the same person. The Tribunal had to seek to secure that there was no unreasonable discrimination; that would depend on the terms of the respective licences when operated. To divorce the licences from commercial reality would prevent the Tribunal achieving its overall objective of a licence containing reasonable terms. Thus, to compare the narrowcast licence with the proposed licence for a dubber, without having regard to the way that PPL obtained its revenue for background music, would amount to a false comparison. The site licence factor was a factor which was relevant for the Tribunal to take into account when seeking to secure that there was no unreasonable discrimination between licensees. (3) Section 129 of the Act did not require the Tribunal to secure fair competition and the Tribunal should not have expressed their opinion in a way that suggested that that was what it was doing. In the event, however, the Tribunal had not misdirected itself. (4) The court noted that in this case the site licence factor had not been properly pleaded and therefore relevant evidence had not been considered. If further references relating to background music came before the Tribunal, it should be pleaded.

Appeal dismissed.

* The House of Lords refused an application by Phonographic Performance Ltd for leave to appeal in this case on 24 July 2000.