The Copyright Tribunal – what is it and when can it be used?

The Copyright Tribunal was established as an independent tribunal in 1988 by the Copyright, Designs and Patents Act 1988 (CDPA). The Tribunal's primary function is to hear and determine disputes relating to the collective licensing of copyright works. 

It deals with commercial licensing disputes between collecting societies and commercial users of copyright material relating to the terms and conditions of licensing schemes, but does not deal with copyright infringement cases (which are instead dealt with by the civil courts). The Tribunal consists of a Chairman and two deputy Chairmen who are experienced lawyers, and eight lay members with commercial experience.

Collecting societies and licensing schemes

A collecting society is an organisation that licenses and manages copyrighted works on behalf of copyright owners, which includes collecting and distributing royalties. These are most common in the music and publishing sectors, where it would be impractical for organisations using a large amount of copyright material to identify and pay the individual owners of the copyright of all the material being used.

A licensing scheme is defined as a scheme setting out in which cases the operator of the scheme is willing to grant copyright licences. Licensing schemes also include the terms on which licences could be granted. Most collective licensing will fall under this definition.

Who can refer a dispute?

In general, only the party seeking a copyright licence (the licensee) can refer disputed matters to the Tribunal. Reference may be made to the Tribunal, for example, regarding the terms of an existing licensing scheme, or where a person considers that they have unreasonably been refused a licence. The licensing scheme can be prospective or an existing scheme.

However, where the Tribunal has already made a decision in a particular area, the collecting society as well as the licensee may apply to the Tribunal to change that decision, usually on the grounds that circumstances have changed materially since the Tribunal last considered the matter. Any party to a Tribunal hearing may appeal against its decision to the Court of Session in Scotland or the English High Court, but only on points of law.

Applications cost £50 in most cases, and parties are often legally represented, but this is not a requirement.

What powers does the Tribunal have?

The Tribunal may make an order confirming or varying a licensing scheme in relation to claims concerning the terms of a scheme. The Tribunal may, if it is satisfied that a claim concerning unfair refusal is well-founded, make an order declaring that the applicant is entitled to a licence on such terms as the Tribunal may determine.

Jurisdiction

In addition to cases involving collective licensing schemes, the Tribunal can hear and determine disputes relating to some other matters including:

• royalty or other remuneration to be paid in relation to re-transmission of broadcasts which include copyright work;
• equitable remuneration where a rental right is transferred;
• applications and references relating to use as of right of sound recordings in broadcasts; and
• applications to settle a royalty or other sum payable for the lending of certain works.

As set out above, the Tribunal has no jurisdiction over copyright infringement cases, which are dealt with by the civil courts.

Comment

With the digital age making it easier to duplicate and distribute copyrighted work, the work of collecting societies is increasingly important to ensure that their members receive appropriate royalties. Although the Tribunal does not deal with infringement directly, it plays a specific and important role in ensuring fairness when disputes arise in relation to collective licensing schemes.