PRS for music wins high court appeal against the BBC and Sky

PRS for Music (PRSfM) has won its appeal against a decision of the Copyright Tribunal that it had jurisdiction to set the terms of the BBC’s licences with PRSfM to the extent that they concern foreign copyrights.

Following a two day hearing in the High Court in London, Mr Justice Arnold allowed PRSfM’s appeal and concluded that the Tribunal does not have jurisdiction under section 126 of the Copyright, Designs and Patents Act 1988 to set the terms of licences of foreign copyrights. The Judge also held, however, that the Tribunal does have the power in some circumstances to make an order in respect of the whole of a licence which covers both UK and foreign copyrights.

In late 2016 the BBC and BBC Worldwide commenced a reference before the Tribunal under s.126 of the 1988 Act to determine the terms of their various licences with PRSfM. As a preliminary issue, the Tribunal was asked to determine the scope of its jurisdiction to set the terms of three of those licences, to the extent they concerned foreign copyrights. Sky UK Limited (another licensee of PRSfM) intervened in the reference and participated in the appeal. The Tribunal decided that as a matter of construction of the 1988 Act, it had jurisdiction to set the terms of the licences in issue (the decision of the Tribunal can be found here).

PRSfM appealed that decision but before it was heard the parties reached a settlement of the underlying reference to the Tribunal. The Judge, however, was prepared to hear the appeal given that (amongst other things) it raised a point of general importance.

The Judge, having heard arguments from Leading Counsel from all of the parties to the appeal, decided that the 1988 Act could only be construed as conferring jurisdiction on the Tribunal to determine licences of UK copyrights and, accordingly, it had no power to decide the terms of licences to the extent that they concerned foreign copyrights. He went on to find that in some circumstances the Tribunal could make an order in respect of a whole licence which covers both UK and foreign copyrights and, in the present case, could have done so in respect of the BBCs primary broadcast licence, which also covered the BBC World Service.

The other two licences in issue (concerning the distribution and sale of DVDs and the provision of Download-To-Own services to suppliers, both in North America) were predominantly licences to carry out restricted acts in that territory (albeit that there was a small UK element) and accordingly the Tribunal had no jurisdiction to set the terms of those licences (save as they related to UK copyrights).

At the conclusion of his judgment, the Judge commented on the need for the statutory provisions governing the jurisdiction of the Copyright Tribunal to be reviewed and overhauled.

Simkins acted for PRSfM: Partner and Head of Litigation Paddy Gardiner lead the team which included Associates Jessica Welch and Rose Croshaw. Simkins instructed Robert Howe QC and James Segan, both of Blackstone Chambers.

A complete copy of the judgment can be found here.