18. Views on the fairness of the Copyright Tribunal
varied. SCONUL, representing users, considered that "whether
the complainant or the rightholder is correct in their view of
the price, the Tribunal has no presumption either way".
PPL, a collecting society, took a different view:
The Copyright Tribunal has often appeared to make
a number of presumptions that mitigate against a fair hearing.
Collective licensing societies are often perceived as large and
powerful, while users are portrayed as small organisations with
little bargaining power. The reality is usually the reverse.
Judge Fysh rejected "completely the notion that
there is bias".
19. What we found were allegations that the procedures
of the Copyright Tribunal were not fair to all the parties. The
British Copyright Council, representing creators, submitted in
its written evidence:
the Copyright Tribunal does not deal even-handedly
with collecting societies and users. The Review of the Copyright
Tribunal identified a number of areas where the two sides in a
dispute are treated differently and made Recommendations to address
these. For example, a user may refer a proposed licence to the
Tribunal whereas a collecting society may not.
The collecting societies giving oral evidence echoed
this view. ALCS told us that many of the recommendations in the
2007 IPO Review were "aimed at rebalancing the function provided
by the Tribunal" and it cited the same recommendation that
collecting societies should be able to make references to the
PPL considered that the unfairness
goes back to when the Tribunal was set up. The mere
fact that it is called a Tribunal implies there was a feeling
that collecting societies were monopolies, they needed to be controlled
in some way and the [
] user needed somebody to look after
them. In fact the cases that come before the Tribunal are between
large parties, between a licensing society [
] and a big
organisation be it a broadcaster or [association representing
an] industry. They are major parties that are in a commercial
The Libraries and Archives Copyright Alliance, representing
users, while expressing qualifications, agreed that a body to
which one side could appeal but not the other did seem unfair.
20. The British Copyright Council pressed for the
implementation of the Review's recommendation to allow the collecting
societies to make references to the Copyright Tribunal without
further delay "as there is increasing reluctance by users
to take out a licence in the online environment".
The Design and Artists' Copyright Society explained a change was
When negotiating licensing schemes or licences, collecting
societies are often confronted with the situation to either redraft
a proposal according to the stipulations of the licensee or to
risk a referral to the Tribunal, which results in costly and lengthy
proceedings or that member's rights will be infringed without
a real possibility of legally enforcing the member's rights when
the licensee is simply refusing to accept the proposal.
The possibility for collecting societies to refer
proposed licensing schemes or licenses will therefore adjust this
imbalance and introduce a more fair and even-handedly procedure
which will support the collecting societies to avoid delays and
uncertainties for their members.
21. We conclude that the nub of the allegations concerning
unfairness in the operation of the Copyright Tribunal is the imbalance
in the rights of collecting societies and users to make reference
to the Copyright Tribunal.
The 2007 IPO Review of the Copyright Tribunal recommended that
collecting societies as well as users have the right to make reference.
We support this recommendation. In addition, we recommend that
the Government implement this recommendation ahead of the others
in the 2007 IPO Review.