The Court of Appeal allowed CSC's appeal. In its view the judge's criticisms of the Tribunal's arrival at the reduced window royalty rate took an unrealistic and unjustified view of its reasoning and adopted too prescriptive a view of the way such cases fell to be decided. This was because, before arriving at those figures, the Tribunal had surveyed the music video market and effectively rejected VPL's case that it had secured a freely negotiated voluntary acceptance of an alleged standard licensing approach of a headline 20 per cent royalty. Additionally, the Tribunal had made findings of fact which were directly relevant to its assessment of any comparables. This being so, it was unrealistic to subject the Tribunal's reasoning to a rigorous analysis which was based on the assumption that, when fixing the lower window, it had missed issues which it actually mentioned explicitly later on in its decision.
This would have been enough to bury Floyd J's decision by itself. However, having got up a reasonable momentum, the Court of Appeal was not going to be easy to stop. It would be odd, it added, to hold that a specialist Tribunal -- in a lengthy, conscientious and detailed judgment -- had ignored its own clear and proper statement of the correct legal approach. What's more, the Tribunal's findings of fact were capable of supporting a perfectly proper conclusion about the reduced window since the law did not compel the Tribunal to deploy any specific analytical structure and methodology. So long as it discharged its statutory duty under section 126, the precise way it carried out its analysis and the order in which it addressed the material issues in its decision could not undermine the validity of its conclusions.
It wasn't just the judge who came in for a bashing: VPL's criticisms of the Tribunal's approach to the reduced window royalty rate weren't worth a shout since they did not disclose any error of law which undermined the validity of its decision.