26 March 2006

Copyright, Database Rights and Rights in Performances: Licensing Pages Updated

I have transposed and updated pages that I first wrote in May 2004, Sep 2002 and Jan 2001 respectively on Copyright Licensing, Licensing Schemes and the decision of the Copyright Tribunal in Universities UK v Copyright Licensing Agency and Another.

A "licensing scheme" for anyone who is interested are essentially the terms and conditions upon which copyright licences (and for that matter licences to broadcast, tape or video a performance or extract or re-utilize the contents of a database) are made available. Since licensing schemes tend to be negotiated either by collecting societies, publishers and other big organizations they raise competition law as well as intellectual property issues.

In the UK and some other common law countries licensing schemes are regulated by references to special tribunals such as the British Copyright Tribunal. This method of regulation was devised a long time before the UK joined the EEC let alone before Parliament passed the Competition Act 1998. Although this is supposed to be an informal and cost effective way of disposing of disputes, the interim costs in Universities UK was not far short of £1 million. As I observed in my case note on that case, it may be sensible to repeal Chapters VII and VIII of the 1988 Act altogether and rely on the Competition Act 1998 to regulate licensing schemes. It is difficult to think of any licence term that would be varied or set aside by the Copyright Tribunal that would not also be a Chapter I or Chapter II prohibition. In addition, the Office of Fair Trading has considerable experience of dealing with unreasonable contract terms. Patent licensing was simplified by the repeal of ss.44 and 45 of the Patents Act 1977 by the Competition Act 1998. There seems no reason why copyright licensing should not similarly be rationalized.

There is at present a review of Copyright Tribunal practice and procedure. It has not exactly been overworked since 1989 (see Copyright Tribunal: decisions and orders issued, Applications and references currently before the Copyright Tribunal and Forthcoming Hearings). This may be a good time to consider whether we need the tribunal at all.

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