Departmental responsibility for
the Copyright Tribunal
51. The 2007 IPO Review considered whether departmental
responsibility for the Copyright Tribunal should be transferred
from the Intellectual Property Office to what is now the Ministry
of Justice. The Report was "agnostic" but identified
as key issues that the [Copyright Tribunal] "has the resources
and structure to do its job efficiently; that is the proof of
52. PPL pressed for a move as "a matter of propriety"
to separate the policy making functions of the Intellectual Property
Office from the court function of the Copyright Tribunal.
Judge Fysh saw "no immediate difficulty" with a transfer
but pointed out that "historically this Tribunal has always
been different. We have always been with the Patent Office for
historical reasons and I think frankly that is the way we would
like to stay".
The Intellectual Property Office said that the position of the
Copyright Tribunal was examined as:
part of the package of reforms or the package of
work that led up to the tribunal reforms in 2003 and it was seen
as a tribunal in those days which dealt with a specialist jurisdiction
and it dealt with cases [
] where the parties were generally
representative bodies with UK-wide coverage and a good level of
representation. [R]esources were provided by the Patent Office,
as then was, and there was a sense that this was not a problem
that needed to be fixed.
53. In our view, having the Intellectual Property
Office with responsibility for the Copyright Tribunal has not
given, and does not appear to give, rise to conflicts of interest
or propriety that require responsibility to be transferred to
the Ministry of Justice. During the course of our deliberations
management, rather than propriety, of the Copyright Tribunal came
to the fore. The question which we kept coming back to was why
it had not been reformed in the past 20 years. The Libraries and
Archives Copyright Alliance thought no one had tried.
Mr McGonigal from PPL supported this view: "until last year
nobody really looked at it and now the IP Office has done the
report which is a very thorough report and went back through every
single case that the Tribunal has ever looked at, all the evidence,
all the judgments et cetera. I think that is really the
first time that has been done".
At the end of the oral evidence session we asked Ian Fletcher,
Chief Executive of the Intellectual Property Office, about his
plans for the Copyright Tribunal over the next year. He hoped
that at the end of a year the Tribunal would be taking on a wider
range of cases as part of a process by Government to ensure that
the whole copyright framework was "fit for purpose".
54. In our view there is a compelling reason against
transfer. As we explain in this Report, changes in the operation
of the Copyright Tribunal are needed and the Intellectual Property
Office, led by Mr Fletcher and his relatively new team, has shown
a long overdue appreciation of the need to make changes. A transfer
of responsibility is bound to set back the changes to the Tribunal
which are clearly needed and which the Intellectual Property Office
started in 2007. We recommend
that responsibility for the Copyright Tribunal remain with the
Intellectual Property Office.