Copyright, Database Rights and Rights in Performances
Licensing Schemes
Jane Lambert
Sep 2002
Last updated 26 March 2006
Chapter VII of the Copyright Designs and Patents Act 1988 ("the CDPA") provides machinery for regulating licensing schemes by licensing bodies. While licensing schemes are convenient for both copyright owners and potential licensees in that they identify the rights holders, avoid the need for lengthy enquiries and negotiations for relatively small amounts of money and ensure the equitable distribution of licensing income, they are open to abuse in that they are inherently monopolistic. To prevent abuse s.23 of the Copyright Act 1956 established the Performing Rights Tribunal to determine disputes between licensing bodies and persons requiring licences. That tribunal was re-named the Copyright Tribunal by s.145 (1) of the Copyright, Designs and Patents Act 1988.
Definitions
Licensing schemes are defined by
s.116 (1) as schemes setting out the classes of case in which the
operator of the scheme or his or her agent is willing to grant copyright
licences, and the terms on which such licences would be granted in each
case. The definition covers anything that falls within that description
whether described as a "scheme", "tariff" or by some other name. A
special clearance procedure for licensing particular restricted acts on
a case by case basis is manifestly not a licensing scheme within the
meaning of the Act but establishing such procedure does not deprive the
Copyright Tribunal of jurisdiction so long as the exception is within
the general ambit of a licensing scheme (see
Universities UK v Copyright
Licensing Agency and Another (Copyright Tribunal, 13 Dec
2001).
Licensing Bodies are defined by s. 116 (2) of the CDPA as societies or other organizations which have as their main object, or as one of their objects, the negotiation or granting of copyright licences either as owner or prospective owner of copyright works or as agents for such owners and whose objects include the granting of licences covering works of more than one author. Examples of such bodies include The Copyright Licensing Agency and the Performing Right Society.
Works of more than one Author
S.117 to s. 123 of the CDPA (as amended by reg. 15 (2) of The Copyright
and Related Rights Regulations 1996 (SI 1996 No. 2967)) regulate the
procedures by which licensing bodies grant licences to copy, rent or
borrow, perform, show or play or broadcast works of more than one
author.
References of Licensing Schemes
The terms upon which such licences are to be granted by a licensing body
under a prospective licensing scheme may be challenged by organizations
of prospective licensees through a reference to the Copyright Tribunal
pursuant to s.118 (1) of the CDPA. A reference to the tribunal can also
be made where a licensing scheme is in place in a dispute between an
applicant for a licence or an organization of such licensees pursuant to
s.119 (1). In either case, the tribunal may confirm or vary the scheme
as it thinks fit. Orders made under either s.118 or s.119 may be
referred back to the tribunal for further consideration while a
licensing scheme remains in force (s.120 CDPA).
A licensing scheme that has been confirmed or varied by the tribunal under any of the above orders shall continue in force or remain in operation so long as the order remains in force (s. 123 (1) CDPA). During that time, any person within the scope of the order who pays the appropriate charge to the operator (or if the amount cannot be ascertained, gives an undertaking to do so) and complies with all other applicable terms, shall be in the same position as if he held a licence in those terms from the owner of the copyright.
Applications with respect to entitlement
for a licence under a licensing scheme
In a case covered by a licensing scheme, a person who claims that the
operator has refused to grant or procure a licence in accordance with
the scheme, or has failed to do so within a reasonable time, may also
apply to the Copyright Tribunal pursuant to s. 121 (1). So, too, may a
person who claims that the operator has either refused to grant or
procure a licence or has failed to do so within a reasonable time in a
case excluded from such a scheme. Such person must establish that it is
unreasonable not to grant a licence in the circumstances. Alternatively,
he may show that the operator's proposed terms are unreasonable (s. 121
(2)).
A case is regarded as "excluded from a licensing scheme for the purposes of s. 121 (2) in either of the following circumstances. The first is where the scheme provides for the grant of licences subject to exceptions and the case falls within such an exception. The second is where the case is so similar to those in which licences have been granted that it is unreasonable not to deal with it in the same way.
If the tribunal is satisfied that the claim is well-founded, it must make an order declaring that the applicant is entitled to a licence on such terms as the tribunal may determine to be applicable in accordance with the scheme or, as the case may be, reasonable in the circumstances. An order under these provisions can also be reviewed upon the application of either party after 12 months or earlier with the special leave of the tribunal (s.122 CDPA).
A person in whose favour an order under s. 121 (1) is made is in the same position as if he had a licence granted from the owner of the copyright on the terms set out in the order. He must pay the appropriate charges to the operator of the scheme. If the amount of those charges cannot be ascertained, he must undertake to do so. He must also comply with all the other terms of the order.
Licences granted by Licensing Bodies
otherwise than pursuant to a Licensing Scheme
S.125 to s. 128 of the CDPA (as amended by reg. 15 (1) and (3) of The
Copyright and Related Rights Regulations 1996 (SI 1996 No. 2967))
regulate the procedures by which licensing bodies grant licences to
copy, rent or borrow, perform, show or play or broadcast copyright works
otherwise than in pursuance of a licensing scheme. Where the tribunal
makes an order under these provisions, the person entitled to the
benefit of the order shall be in the same position as regards
infringement of copyright as if he had held a licence from the owner of
the copyright on the terms specified in the order. He has, of course, to
pay all appropriate charges or, if the amount cannot be ascertained, to
undertake to do so. Also he must comply with the other terms of the
order (s.128 (1)). Unless prohibited by the order, or as the case may
be, the original licence, the benefit of an order under these provisions
may be assigned (s.128 (2)).
S.125 (1) permits a prospective licensee to refer the terms on which a
licensing body proposes to grant a licence to the tribunal. The Tribunal
must first decide whether to entertain the reference, and may decline to
do so on the ground that the reference is premature. If it decides to
entertain the reference it shall consider the terms of the proposed
licence and make such order, either confirming or varying them, as may
be reasonable in the circumstances.
An application may
also be made under s.126 (1) by a licensee under a licence that is due
to expire, either by effluxion of time or by notice given by the
licensing body, that it is unreasonable in all the circumstances for the
licence to end. If the tribunal finds the application well-founded, it
shall declare that the licensee shall continue to be entitled to the
benefit of the licence on such terms as the tribunal may determine.
Orders made under either s.125 or s.126 may be reviewed any time after
12 months have elapsed from the date of the order (or sooner with
special leave) any upon the application of either party pursuant to
s.127 (1).
Factors to be
taken into account
S.135 of the CDPA requires the Copyright Tribunal to have regard to all
relevant circumstances when considering applications or references.
Without prejudice to the generality of that requirement, they must
consider the following factors.
Availability of other Schemes and Licences S.129 (1) of the CDPA
requires the tribunal to have regard to the availability of other
schemes and the granting of other licences to other persons in similar
circumstances. It must consider the terms of those schemes or licences
and exercise its powers so as to secure that there is no unreasonable
discrimination between licensees, under those schemes and the subject of
the reference or application.
Reprographic Copying of Published Works
Where a reference relates to reprographic copying of published works or
typographical arrangements, s.130 requires the tribunal to have regard
to the extent to which published editions of those works are available,
the proportion of the work to be copied, and the nature of the use to
which the copies are likely to be put.
Educational Establishments
In relation to licences for educational establishments to record a
broadcast which includes copyright works, or make copies of such
recordings, for educational purposes, s.131 (2) requires the tribunal to
have regard to the extent to which owners of copyright in works included
in such broadcast have already received, or are entitled to receive,
payment in respect of such inclusion when considering what charges
should be paid for the licence.
Entertainments or other Events
Where a broadcast, film or sound recording includes an entertainment or
other events, s.132 (2) requires the tribunal to have regard to any
conditions imposed by the promoters of the event. It shall not hold a
refusal or failure to grant a licence to be unreasonable if it could
have been granted consistently with those conditions. However, the
tribunal need not have regard to any conditions that purport to regulate
charges for such licences, or payments to promoters of the event in
consideration of the grant of recording facilities.
Rental and Lending Rights
S. 133 (1) of the CDPA (as amended by reg. 13 (1) of the Copyright and
Related Rights Regulations 1996) requires the tribunal to take into
account when considering what charges should be made for a licence for
renting or lending copies of the work, any reasonable payment that the
copyright owner has to make for granting the licence, or acts authorized
by the licence, to owners of copyrights in works included in the work.
Performances included in Broadcasts, Films or Sound Recordings Where a
reference or application relates to a broadcast, film or sound recording
of a performance, s.133 (2) requires the tribunal to take into account
when considering what charges should be paid for such licence, any
reasonable payments that the copyright owner has to make for granting
the licence or acts authorized by the licence, in respect of the
performance.
Licences for including Works in
Re-Transmissions
In applications for licences to include artistic, dramatic, literary or
musical works, films or sound recordings in a re-transmission (that is
to say where one broadcast is received and immediately re-broadcast) the
tribunal should have regard to the extent to which the copyright owner
has received, or would be entitled to receive, for including his works
in the original broadcast or cable transmission when considering what
(if any) additional charges should be paid to him (s.134 (2) CDPA).
Licences for Sound Recordings in
Broadcasts
S.175 (1) of the Broadcasting Act 1990 inserts 8 new sections into the
CDPA which are numbered s.135A to 135H respectively. These provide a
procedure for obtaining licences from licensing bodies to include sound
recordings in a broadcast where the licensing body concerned could
either grant or procure a licence but either refuses to do so altogether
or offers only a licence with inadequate needle time. For the purpose of
these provisions, broadcast, cable programme and sound recording may be
given a wider or narrower definition than elsewhere in the Act for s.
135H (1) gives the Secretary of State power to amend by statutory
instrument ss. 135A to 135G to include in any reference to sound
recordings any works of a description specified in the order or to
exclude from any reference to a broadcast or cable programme service
particular descriptions of broadcasts or cable programmes.
Notification of Licensing Bodies
Such a licence is available as of right pursuant to s.135C (1) provided
that notice is given to the licensing body stating an intention to
exercise that right and requesting terms of payment (s.135B (1) (a)). As
soon as the licensing body responds, or within a reasonable time of the
notification, a further notice should be served indicating precisely
when the sound recording is to be included and the proposed terms of
payment (s.135B (1) (b)). Before the right can be exercised, reasonable
notice must also be given to the Copyright Tribunal of an intention to
exercise this right with the date upon which it is to be exercised
together with an application to the tribunal to settle the terms of
payment (s. 135B (3) (b)).
Scope of
Licences
Anyone who follows this procedure shall be in the same position as if he
had a licence from the copyright owner with effect from the date
specified in the notice (s.135C (1)). He must. of course, comply with
all reasonable conditions of which he has notice (s.135C (1) (a)). He
must supply the licensing body with such information about the inclusion
of the sound recordings as they may reasonably require (s. 135C (1)
(b)). He must, of course, make such payments as may be determined by the
tribunal, or failing such determination, requested by the licensing body
or in default of such request offered by the applicant in his original
notice (s.135 (c) (3). Such payments should be made at not less than
quarterly instalments in arrears (s. 135C (2)).
Settling Licence Fees
Upon an application under s.135B the Copyright Tribunal shall consider
the matter and make such order as it may determine to be reasonable in
the circumstances. The tribunal must have regard to the terms of any
order that it has made in any similar case and exercise its powers to
avoid unreasonable discrimination between applicants for licences under
this procedure but it is not entitled to be guided by any order that it
may have made under any enactment in settling terms of payment. Finally,
it must take into account any moneys already paid or due to be paid to a
copyright owner when considering the element due for re-transmission
(s.135G).
Settling other Conditions
The tribunal will consider whether any licence term offered by a
licensing body in response to a notification or any information that
such body requires is reasonable upon an application by the person
seeking to invoke these provisions pursuant to s.135E (1) and (2). The
factors that it has to take account are the same as for settling licence
fees.
Review
Orders made by the tribunal in respect of fees or other conditions may
be reviewed by the tribunal upon the application of either party any
time after 12 months or sooner with special leave (s,135F (1) and (2)).
Orders made by the tribunal will take effect from the date upon which
they are made or such later date as the tribunal may specify (s.135F
(4)).
