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Wednesday, 18 August 2010

Paying for music video broadcasts: back to the Tribunal

Still catching up on some earlier decisions, the IPKat is pleased to make mention of CSC Media Group Ltd v Video Performance Ltd [2010] EWHC 2094 (Ch), a Chancery Division for England and Wales decision of Mr Justice Floyd on 10 August 2010. In short, this was an appeal against the first decision of the UK's Copyright Tribunal on the going rate for broadcasting music videos (for some useful background and an explanation of the Tribunal decision see Ben Challis's post on the 1709 Blog here). The appellant, Video Performance Ltd (VPL), was not very happy when the Tribunal said that the correct royalty rate should be somewhere in the region of 10% and 15% since an earlier licence between VPL and BSkyB set a more comfortably remunerative rate of 20%.

Allowing the appeal, Floyd J 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. According to the judge, 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.

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