ITV loses Copyright Tribunal appeal

UK national broadcaster ITV has lost its appeal to the  High Court appeal against the 2016 Copyright Tribunal ruling that set rates for the current (2014-2017) period with PRS for Music, the collection society which represents composers, lyricists and music publishers in the United Kingdom. The Tribunal agreed that PRS could increase the tariff beyond the 2013 fee payment of £23 million per annum to a new base rate of £24 million for all ITV uses (including breakfast TV) adjusted by (a) BARB viewing figures for ITV during each year and (b) the percentage change in RPIJ (the RPI inflation measure). On appeal the High Court told ITV that the Tribunal  "had not made an error of law in reaching its decision".

Commenting on the decision, PRS Commercial Director Paul Clements said: "In June 2016, the copyright tribunal decided a dispute over the terms of ITV's broadcast licence in PRS For Music's favour. The tribunal decision set down clear and compelling reasons for an increase in the licence fee, reflecting the right value for our members' music". "While ITV chose to appeal this decision, I am pleased that the High Court has now rejected their arguments and upheld the original tribunal decision" adding "This result is very real evidence of our commitment to secure the right value for our members' work".

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/532234/ct12714.pdf

http://www.musicweek.com/publishing/read/high-court-rejects-itv-appeal-over-prs-for-music-tribunal-win/067598

http://www.musiclawupdates.com/?p=6496

Temporary increase in PRS TV admin rates to cover Copyright Tribunal reference by ITV

UK collection society PRS for Music have written to members explaining an increase in administration rates for TV collections to cover the expected cost of a Copyright Tribunal referral by ITV, one of the UK's leading broadcasters and home to X-Factor, Coronation Street, Midsomer Murders and UEFA Cup football. Rates range from 12.5% for BBC collections to 16% for Channel 5, MTV and other satellite and cable channels. A peak hour's one minute play on BBC1 would currently generate £90.35 for the rights holder, whereas on Channel 5 it would generate £11.95.  The letter reads:
                             
"After careful consideration by the Executive Board, it has been agreed that there will be a temporary rise to our TV admin rates by an additional one percent for one year. This will be implemented to cover the expected costs associated with defending the recent Copyright Tribunal reference brought against PRS by the broadcaster ITV.
                             
Following prolonged negotiations, ITV referred the new deal (covering broadcasts from 1 January 2015), to the Copyright Tribunal. This was due to disagreements over the details of our licence renewal. We feel it is vital that we fully participate and vigorously defend this referral to secure a fair return for the use of our members’ work. Copyright Tribunals are costly but it’s important to protect and champion your work and ensure you are fairly remunerated whenever it is used.
                             
The Executive Board has therefore approved a proposal for a one percent increase in our TV admin rates for a period of one year, this being the fairest way of covering the expected costs in defending this referral. While the tribunal will only rule on the ITV licence, it is an important decision for all members whose music is played on TV, meaning we are sharing the cost across all our TV revenues.
                             
The increase is expected to take effect from October 2015. 

BBC and EOS "widely divergent" on Welsh licence fee

In British Broadcasting Corporation v EOS- Yr Asiantaeth Hawliau Darlledu Cyfyngedig CT121/1 (on which, see Ben's earlier post here) the Copyright Tribunal issued a provisional ruling last month that BBCCymru (BBC Wales) should pay a licence fee to EOC, the licensing body for Welsh language music. This ruling, part of an ongoing dispute between the parties about the terms of the BBC's licence for the EOS repertoire, marks the first time that rule 35 of the Copyright Tribunal Rules has been invoked by a party seeking an interim order to permit it to use the repertoire according to terms set by the Tribunal pending a substantive hearing.

Before the interim hearing, the BBC and EOS had agreed an interim licence in the BBC's favour, for £10,000 per month. The Tribunal, noting that it had a wide discretion, took into account what would happen if the amount it ordered by way of a provisional fee turned out to be wrong. Since EOS was in financial difficulties, any overpayment might be difficult for the BBC to recover. Bearing this in mind, the balance of justice was best served by maintaining the status quo by ordering an interim licence fee of £10,000 per month. A final order is expected before the end of the calendar year.

According to the BBC (here):

""The parties have widely divergent views on what a reasonable licence fee should be -- the BBC says it should be £100,000 per annum and EOS says it should be £1.5m per annum. We are not in a position to pre-judge the final outcome of this matter and cannot now conclude with any certainty what the final fee may be".

Welsh music dispute heads to Tribunal

Three weeks ago we reported that German song collection society GEMA was taking YouTube to the arbitration board of the German Patent and Trade Mark Office over the alleged use of 1,000 unlicensed music tracks on the internet video platform, and for an independent decision on whether it’s demand for E1.6 million was appropriate. 

Now comes news that the BBC is taking new Welsh language music collection society Eos to the Copyright Tribunal in a row about BBC radio royalties which began back in 2007 when the Welsh songwriters and music publishers were still members of PRS for Music. A three-way discussion between the BBC, PRS and the affected welsh language music creators ensued and continued for a quite few years without resolution, until eventually over 300 Welsh-language creators and rights owners left the PRS and set up their own collecting society, Eos. There remains a ‘significant gap’ between what the musicians and publishers want, and what the BBC is prepared to pay, and currently BBC Welsh language programming is denied the use of the 30,000 songs is Eos’s database – previously core to is Welsh services - making it hard for the national broadcaster to meet Welsh language targets – and of course Welsh music isn’t being played on the radio in Wales, meaning Eos songwriters and publishers are not getting paid. 

Eos claimed they were being short-changed and the group has accused the BBC of conducting "sham" negotiations. The director of BBC Cymru Wales, Rhodri Talfan Davies, says the corporation is not trying to threaten Welsh language musicians in the dispute over royalties and the BBC now wants the Copyright Tribunal to resolve it's row with Eos,  and has even offered to contribute to the group's legal costs to "ensure that Eos is able to put its arguments to the independent copyright tribunal which is the established legal process to resolve commercial disputes of this nature in a fair and binding manner". Its appears the parties are continuing to negotiate. 

Eos chief executive, Dafydd Roberts, said the latest development was "disappointing" saying "We've taken legal advice .... so we'll be considering our position in terms of a Copyright Tribunal. But what's disappointing is that whilst we thought we were negotiating with the BBC on various terms, in fact all they were doing was preparing ground for the Copyright Tribunal". Roberts said that Eos will consider allowing BBC Radio Cymru to play its members' music pending any decision. 

http://www.bbc.co.uk/news/uk-wales-21351113

Copyright Tribunal's final decision in Meltwater now available

As readers of this Blog will remember, last February the Copyright Tribunal published its interim decision in the fascinating case of Meltwater Holding v The Newspaper Licensing Agency (see 1709 Blog's coverage here and here).

Now, the Tribunal has issued its final decision.

Controversy arose out of a new pair of licences promoted by NLA in 2010, called the Web Database Licence ("WDL”) and Web End Users Licence (“WEUL”). The WDL/WEUL relate to the particular type of media monitoring activity carried out by Meltwater. 

The NLA contended that the nature of Meltwater’s business meant that both it and its customers needed to take out WDL and WEUL agreements. Meltwater’s position was that it was prepared to enter into the WDL and undertook to do so, but that its customers did not have to enter into the WEUL at all. This was because Meltwater’s customers, by receiving the Meltwater service, did not commit any of the acts restricted by copyright and therefore did not need a licence. As clarified by the Tribunal in its interim decision, 

Surely there is more expectation about the 
Supreme Court's Meltwater ruling
than the release of The Dark Knight Rises ...
Definitely.

In a nutshell Meltwater’s point was that the material sent to customers was too insubstantial to be a copyright work or to be a substantial part of the original news article. Copying the material would not infringe (if there was no licence) and so copying the material was not a restricted act.

The findings of the Tribunal were however that 

end users of a headline only service should enter into the WEUL just like end users of the normal Meltwater News service of headlines plus extracts and should be subject to the same tariff rates.

This said, the Tribunal agreed with Meltwater and the PRCA's contention that the NLA's proposed licensing scheme was not reasonable and required amendment.

As reported by journalism.co.uk, since the interim decision of the Copyright Tribunal, the parties have worked together in close consultation to reach an agreement on the finer details of the licensing payment model, with a revised fixed price agreed upon.

Now, the Tribunal has accepted the terms proposed by the parties as "reasonable".

Some copyright enthusiasts are already camping
outside the Supreme Court,
waiting for the start of the Meltwater's hearings

Compared to the first licensing scheme, the agreement now includes - inter alia - reduced rates for the very smallest users (low number of employees) and, in parallel to this, increased rates for the users with high numbers of employees.

Co-founder of the Meltwater Group Jens-Petter Glittenberg explained that the NLA and Meltwater are now committed to ensuring that UK end users of such monitoring services are licensed quickly, fairly and efficiently. 

So far so good -- but fans of this saga will have to keep holding their breath for a year or so. Meltwater and PRCA appealed aspects of the Court of Appeal's decision on web browsing to the Supreme Court (see here). Release of the sequel is expected in early 2013.

When appeal loses its appeal: CSC turn tables on VPL

CSC Media Group Ltd (formerly Chart Show Channels Ltd) v Video Performance Ltd [2011] EWCA Civ 650, 27 May 2011, is a decision of the Court of Appeal for England and Wales which is not yet available on BAILII (this note being taken from a helpful alert on LexisNexis) but which raises important implications for anyone thinking of appealing against a decision of the UK's Copyright Tribunal.

In August 2010 Mr Justice Floyd heard an appeal against the first decision of the Tribunal on the going rate for broadcasting music videos. The appellant, Video Performance Ltd (VPL), was not very happy when the Tribunal said that the correct royalty rate payable by TV channel operator CSC should be somewhere in the region of 10% to 15% since an earlier licence between VPL and BSkyB set a more comfortably remunerative rate of 20%.  Floyd J allowed VPL's appeal and held that, when the Tribunal assesses the amount the licensee must pay under the Copyright, Designs and Patents Act 1988 s.129, it must give proper weight to the terms of other comparable licences. In this case the Tribunal had taken account of the BSkyB licence only after it had reached its position that 10-15% was correct. Even if the Tribunal had reservations about the BSkyB licence, it couldn't just be shunted into the background since it was the single most significant piece of evidence as to what the proper royalty rate should be. The correct approach involved starting with the most relevant comparable licence, then adapting it to the circumstances of the present case. Since the Tribunal had not only taken the wrong view concerning the earlier licence but had also erred in not applying the pro-rating formula which the parties had themselves agreed while having no proper or rational basis for departing from that formula, the case would be remitted to a differently-constituted Tribunal for reconsideration.

This time it was CSC's turn to appeal, submitting that Floyd J had (i) failed to attribute to the Tribunal awareness, in fixing the reduced window, of its subsequent discussion of comparables and (ii) failed to appreciate that the Tribunal's treatment of the relevance and weight of those comparables was coloured by its earlier discussion of the law and of the music video market.

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.

Copyright Tribunal: new regime gets first outing

Archive Media Publishing Ltd v MCPS is the first ruling of the newly-streamlined version of the UK's Copyright Tribunal. Decisions of the tribunal are held on the Intellectual Property Office website and you can find this one here. As Copyright Tribunals go, it's of historical importance, being the first decision under the small applications track, the matter being decided entirely on paper and without a hearing.

The tribunal consisted of Judge Colin Birss QC (whose real job is that of Patents County Court judge), Mrs Sam Madden and Manny Lewis. The dispute itself related to a Mechanical-Copyright Protection Society (MCPS) licence which DVD manufacturer Archive Media accepted as recently as August 2010 but to which it objected shortly thereafter on the grounds that its terms were unfair and discriminatory. The licence required payment of an estimated first-year royalty on monthly pay-as-you-go terms.

The ruling, just 15 sides long, dismissed the licensee's application. MCPS was entitled to require pay-as-you-go payments from a licensee which was a small business with no previous track record. However, it could have explained more effectively why it needed to do so and its terms were by no means clear. MCPS's application for costs is now pending: it has to keep its submission to just two sides and the tribunal reminded it that this was a (bargain basement) paper-based hearing.

Copyright Tribunal "small merger announced: not much change"

The UK Government has just announced its intention to merge the Copyright Tribunal with the Tribunals Service. The announcement explains:

"As part of its wider commitment to increasing the accountability of public bodies, reducing theirnumber and cost, and handing power and ownership back to local communities, the Government is keen to amalgamate as many Tribunals as possible within the Tribunals Service, which was created to provide a unified administration for the tribunals system.

The Copyright Tribunal will benefit from being served by this specialist organisation and from being seen to be part of the judicial system. It will retain the necessary technical expertise. Copyright Tribunal users should see little or no disruption to its operations.

A timetable for the move has not been set".

Influence and the Copyright Tribunal

In a 14-page ruling in Meltwater Holding BV v The Newspaper Licensing Agency Ltd, CT114/09, 10 June 2010, which you can read in full here, the UK's Copyright Tribunal has confirmed that leading barrister Henry Carr QC -- one of the Tribunal's two deputy chairmen -- can represent a client in proceedings before the three-person Tribunal (the chairman is a lawyer; the other members are laymen). The proceedings in question are part of the big battle between contentious news monitoring service Meltwater Holding BV, which is among other things seeking improved terms for a new web database licence offered by the National Licensing Agency Ltd (NLA).

Obviously, if he was representing Meltwater, Carr wouldn't be able to chair the Tribunal at the same time. Accordingly the hearing of Meltwater's application was scheduled to take place before the other deputy chairman, Colin Birss QC. But might the Tribunal's lay members be likely to be affected by the authority of, and pay undue deference to, Henry Carr's submissions of law?

Presumably influenced by Tribunal chairman Judge Michael Fysh QC -- though, we imagine, not unduly so -- the Tribunal concluded that the NLA had not shown sufficiently that there was any real possibility of unconscious bias arising in the lay member's minds. Certainly there was not enough to lead to a real perception of possible bias to the fair-minded and informed observer. Crucial in this decision was the fact that Henry Carr had not actually sat together with the two lay members (Lucy Connors and Philip Eve) whose turn it was to sit with Colin Birss.

You can check out the full complement of Copyright Tribunal members here.

Meltwater: no sign of a thaw in dispute with Times Online

Yesterday the Copyright Tribunal's decision and order in Meltwater Holding BV and other interested parties - NLA Ltd were posted on the Copyright Tribunal page of the Intellectual Property Office website (you can read it in full here). The Tribunal members were Lucy Connors, Philip Eve and Colin Birss QC.

According to paidContent yesterday:

"Public relations news monitor Meltwater has come out fighting - but not too hard - after ... it had been blocked from indexing News International’s Times Online.

It’s issued a 259-word statement in response that says… well, not much. The essential point: Meltwater is sticking to its guns and waiting for what it hopes will be an industry-standard ruling in its favour from the UK’s Copyright Tribunal, to which it took the Newspaper Licensing Agency’s (NLA) new online use license.

The sticking point: News International’s Times Online, here, is operating a similar principle to the NLA, of which it is a member - but it’s not operating the agency’s new licenses; it’s acting unilaterally…"...”

The blocking has been effected by updating Times Online's robots.txt file to block Meltwater, along with NewsNow, which was previously blocked.

The Meltwater statement reads as follows:

"Earlier this week, Times Online, published by News International, took the step of blocking Meltwater from indexing its website. We find this move both surprising and disappointing as Meltwater has sought a ruling by the UK Copyright Tribunal to provide clarity on current UK copyright law. Yet, despite the fact that the Tribunal is still months away from reaching a decision, News International has chosen not to wait for a judgment, but to pursue its own course of action unilaterally.

Meltwater acknowledges that there are different interpretations of the current UK copyright law today. However, we firmly believe that our services do not infringe upon anyone’s copyright because our services do not keep nor provide our clients with copyrighted content. To create clarity on this issue, Meltwater has brought the NLA’s (Newspaper Licensing Authority) proposed licensing scheme for online news to the UK copyright tribunal (Meltwater press release). Meltwater believes that the entire industry will benefit from a clear ruling on this complex issue, which is so important for all players in the online media industry. The Copyright Tribunal recently rejected the NLA’s claim that Meltwater was not entitled to have its case heard.

Times Online’s recent action is just the latest development in the ongoing copyright discussions in the UK market, a discussion that is far from over. Meltwater continues to serve the needs of its customers and we are reviewing all the options available to us – including the relevant technical and legal considerations – to ensure we continue serving our clients long into the future".

In brief, the Tribunal has upheld Meltwater's right to challenge Times Online's Web Database Licence/Web End User Licence set-up: Meltwater has the credentials to make its application and the Tribunal has jurisdiction to hear it. The Tribunal has also set a timetable for hearing the dispute. The main diary dates are June 2009 (case management), October 2009 (pre-trial hearing) and 7 February 2011, where a hearing of between 5 and 7 days' duration is expected.

This one will run and run ...

Copyright Tribunal: more lovable from 6 April

A press release from the UK's Intellectual Property Office announces that the resolution of disputes by the little-loved Copyright Tribunal will make it "faster, cheaper and fairer". According to the Office:

"Collecting societies, small businesses and individuals will soon find it simpler, cheaper and quicker to resolve disputes about copyright licensing schemes through the Copyright Tribunal. Simplified and modernised rules of procedure, on which licensing societies, industry and consumer groups were consulted last year, will come into effect from the 6th April 2010.

These changes seek to

* Promote the effective resolution of disputes in a fast-changing business environment by introducing procedures in line with the Civil Procedure Rules 1998.

* Improve access to the Tribunal for small businesses and individuals by introducing a small applications track for quick and economical resolution of small cases.

* Reduce costs and delays in large-scale litigation by providing for active and robust case management. ...

The revised rules will enable the Tribunal to deal with cases justly and fairly but more rapidly. This will be done by ensuring the parties are on equal footing; saving expense; dealing with cases on a proportionate level according to the complexity, amount of money, and financial position of each party; and by dealing with cases quickly, fairly and with the best use of time and resource.

The revisions to the Tribunal's Rules of Procedure take into account recommendations made by the then Innovation, Universities and Skills Select Committee in its Report of March 2008, recommendations made by an internal Intellectual Property Office Review of 2007, and comments made by stakeholders in response to these reviews".

Of all these things, I'm most pleased about the promise of 'robust case management' -- particularly if has the effect of reducing the volume of technical analysis relating to royalty calculations, market impacts etc which some of us have been known to pretend to understand before preparing to flip a coin ...

VPL lose key Copyright Tribunal case

In a market where nineteen out of every twenty of your 'sales' are illegal and therefore not paid for, just how important is promotion? Well, according to the Copyright Tribunal, promotion still seems to have its place. CSC Media Group, the company that operates a number of UK TV music channels including Chart Show TV, Flava, The Vault and NME TV, has scored a notable victory at the Copyright Tribunal which will see the broadcaster's royalty obligations to collection society Video Performance Limited (VPL) considerably reduced.

VPL's ongoing deal for the public performance of music videos with CSC is based on the broadcaster paying the collection society a percentage of gross revenue for using promotional videos; the collecting society had been demanding a 20% cut of the revenues, a figure which CSC argued was "unreasonably high" putting forward the argument that their service provides promotional benefits to the record labels who own the material licensed by VPL. After negotiations failed to reach an agreement (with VPL maintaining the 20% share and CSC looking for a royalty of 8%) CSC took the issue to the Tribunal. CSC's legal team argued that the record companies received a promotional benefit from having their videos played on their channels and this benefit had not been taken into consideration by VPL before deciding on the revenue cut which it demanded.

It seems the Tribunal agreed with CSC and it set a royalty rate of 12.5% of gross revenue, more than the broadcaster was hoping to pay, but substantially less than the 20% VPL had been demanding. It is interesting that the Tribunal accepted CSC’s arguments, at least in part, saying that there was “uncontroverted evidence … that promotion remains a significant part” of the role of music videos. The record music industry is seen by many as being in terminal decline and that the very existence of record labels is almost certainly dependent on the industry finding new ways to monetise copyrights – and one clear way to do this is to develop income streams from a broadcast models – which is undermined by the very idea of a huge benefit in ‘promoting’ record sales which no longer exist. The record labels would surely argue that is becoming more and more difficult to accept ‘promotional benefit’ as a reason why broadcasters should get free use of copyrights - this is the same argument which has allowed US FM and AM radio stations to avoid paying for sound recording copyrights and this model is now finally under attack in the USA. Perhaps the principles behind the CSC decision will be ready for the Copyright Tribunal to revisit in the not too distant future.

http://www.musicweek.com/story.asp?sectioncode=1&storycode=1038624&c=1
http://www.billboard.biz/bbbiz/content_display/industry/e3i087771e1f66603648b826b4250e87d2d