Memorandum 10
Submission from T-Mobile
THE WORK AND OPERATION OF THE COPYRIGHT TRIBUNAL
1. EXECUTIVE
SUMMARY
T-Mobile welcomes the opportunity to respond
to the Sub-Committee's inquiry into the work of the Copyright
Tribunal. T-Mobile intervened in the recent Copyright Tribunal
reference in relation to the appropriate royalty for the sale
of digital music. T-Mobile respectfully suggests that the Committee
considers ways to simplify procedure with a view to reducing the
costs involved and therefore improving access to the Tribunal.
2. BACKGROUND
2.1 T-Mobile International (UK) Limited
("T-Mobile") is part of T-Mobile International which
is wholly owned by Deutsche Telekom AG.
2.2 T-Mobile was an intervening party in
Copyright Tribunal reference CT 84-90/05 BPI (and others) v MCPS-PRS
Alliance (and other) in relation the to Joint Online Licence.[27]
T-Mobile was involved as it offers full track music downloads
to its customers over its mobile phone network.
2.3 Initially 02 and then T-Mobile co-ordinated
the involvement of the participating UK mobile networks.
2.4 T-Mobile considers it appropriate to
set out a number of observations based on its experiences in that
Copyright Tribunal reference, in case they may be of assistance.
3. T-MOBILE'S
EXPERIENCES OF
THE COPYRIGHT
TRIBUNAL
3.1 T-Mobile's experience of the Copyright
Tribunal was comparable to large scale High Court proceeding rather
than an arbitration.
3.2 This may have been due to the complexity
of the issues, the number of parties or the individuals involved,
but the proceedings were akin to High Court proceedings in terms
of formal procedure, cross examination of witnesses, tactics,
time spent (including at the oral hearing) and, crucially, costs
involved.
3.3 T-Mobile has not had previous involvement
with the Tribunal and therefore does not know if its experience
is unusual but it considers that the prospect of engaging in such
a daunting exercise might serve as a very substantial deterrent
on smaller licensees wishing to challenge the terms of a licence.
3.4 T-Mobile's recommendations are focussed
on identifying ways to improve access to the Copyright Tribunal
and to "de-formalise" its procedures.
4. T-MOBILE RECOMMENDATIONS
4.1 In considering the work and operation
of the Copyright Tribunal T-Mobile recommends that the Committee
consider the following issues:
4.1.1 Number of Parties—15 parties
were involved in this reference, which led directly to an increased
burden on the parties, the schedule and the members of the Tribunal
themselves. It is appropriate to consider whether this burden
could be reduced by, for example, limiting the number of parties
(on a case by case basis) and encouraging intervening parties
to give evidence in support of one party instead.
4.1.2 Length of hearing/number of witness—this
reference lasted for 20 days and involved five expert witnesses.
In order to improve the efficiency of the Tribunal it is reasonable
to question whether there should be a limit on the length of the
final hearing and the number of witnesses (including expert witnesses)
called to give oral evidence and to be cross-examined.
4.1.3 Procedure—greater transparency
of procedure would benefit parties to the Tribunal. The rules
are of course set out in The Copyright Tribunal Rules 1989 (as
amended) and a short practice direction accompanies them. However
for parties engaging in the Tribunal for the first time, a more
"hands-on" practice direction drawing those two sources
together and adding any new appropriate procedural rules would
be very useful. T-Mobile would be happy to participate in any
consultation about such a document.
5. CONCLUSION
5.1 T-Mobile commends the important work
of the Copyright Tribunal, which leads the way in Europe in providing
a vital recourse for music licensees in the UK.
5.2 T-Mobile hopes that its brief views
are useful to the Committee and is happy to provide further information
to the Committee, whether written or verbal.
January 2008
27 (1)The British Phonographic Industry Limited (2)
Musicnet (UK) Limited (3) Yahoo! UK Limited (4) AOL (UK) Limited
(5) Real Networks Limited (6) Napster LLC (&) Sony United
Kingdom Limited (8) iTunes SARL (9) O2 (UK) Limited (10) T-Mobile
International (UK) Limited (11) Vodafone UK Content Services Limited
(12) Orange Personal Communications Services Limited -v- (1) Mechanical
Copyright Protection Society Limited (2) Performing Right Society
Limited (3) British Academy of Composers and Songwriters. Back
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