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British Broadcasting Corporation and BBC Worldwide Limited v Mechanical-Copyright Protection Society Limited and Performing Right Society Limited; Sky UK Limited and ITV Networks Limited intervening [2018] EWHC 2931 (Ch)

Case Summary  |  Judgment  |  24 October 2018


Lindsay Lane QC, alongside Rhodri Thompson QC of Matrix Chambers, appeared for the Respondents, the BBC. Martin Howe QC and Michael Conway appeared for Sky, intervening.
The appeal related to decision of the Copyright Tribunal on a preliminary issue in a reference brought by the BBC, concerning the Tribunal’s jurisdiction to settle the terms of copyright licenses insofar as they concerned copyrights subsisting under the laws of jurisdictions other than the United Kingdom.
The Appellants (PRS) argued that the Tribunal’s jurisdiction to settle licence terms exclusively related to licenses of UK copyright, and that accordingly the Tribunal had wrongly held that it had jurisdiction over those parts of the BBCs licenses that related to acts restricted by non-UK copyrights.
Arnold J, allowing the Appeal, held that under Sections 124 and 126 of the Copyrights Designs and Patents Act 1988, the Tribunal has no jurisdiction to set the terms of licences of foreign copyrights. Although Section 124 did not specifically refer to acts in the UK, this limitation could be implied from Sections 16 and 117 of the Act.
However, in relation to an alternative argument put forward by Sky, he held that the Tribunal has the authority in certain circumstances to determine licences which cover both UK copyrights and foreign copyrights. Whether the Copyright Tribunal has jurisdiction to determine such licences in a particular case is fact-sensitive and will depend on the nature of the reference to the Tribunal.
In Sky’s paradigm case of a single licence to broadcast copyright works from the UK for reception abroad, where the licence terms are indivisible, the Tribunal would have jurisdiction to determine terms. This approach would become less justifiable the further one moved from the paradigm case.
In the present case the Judge held that the Tribunal would have had jurisdiction to settle one of the licences in issue (the “BBC Agreement”), but not two other licenses (the “DVD Licence” and the “DTO Licence”), which he held were predominantly licences to restricted acts in the US and Canada.