Memorandum 13
Submission from the British Beer and Pub
Association and the British Hospitality Association
THE WORK AND OPERATION OF THE COPYRIGHT TRIBUNAL
INTRODUCTION
The British Beer and Pub Association (BBPA)
represents just under two thirds of the 57,000 pubs and bars in
the UK. This sector contributes over £18 billion to the economy,
which equates to over 2% of GDP, and employs around 650,000 people
in full and part-time jobs. The British Hospitality Association
(BHA) represents 9,000 hotels, 11,000 restaurants and 18,000 contract
catering outlets, employing over 500,000 people.
Our Associations, along with a Consortium led
by the legal firm Eversheds, are currently pursuing a joint action
in the Copyright Tribunal challenging the implementation by Phonographic
Performance Ltd of the new copyright charge for broadcast music,
as introduced by the Copyright and Related Rights Regulations
2003 (SI No 2498) which amended Section 72 of the Copyright, Designs
and Patents Act 1988 (the 1988 Act). The new statutory regime
is contained in Section 128A of the 1988 Act, which requires PPL
to notify the Secretary of State of the details of any proposed
licence or licensing scheme for the excepted sound recordings
before it is introduced.
BRIEF SUMMARY
OF THE
BBPA.BHA CASE
In considering its licence terms under Section
128A of the 1988 Act, PPL took the opportunity to review its existing
public performance licence and tariff for public houses, restaurants
and cafes. The BBPA and the BHA believe that such an approach
is outside the scope of the 1988 Act, which is primarily concerned
with the collection of royalties for the new broadcast right.
Other background music royalties were already subject to an existing
tariff which had been fully negotiated with our sector, and the
new broadcast right should not have been used as a mechanism for
increasing current charges. The increases to the PPL background
music tariff on the basis of the new broadcast right, which average
between 200 to 400%, are neither fair nor reasonable and were
not subject to an appropriate level of consultation or negotiation
with the industry.
At our request, the Secretary of State for the
then Department of Trade and Industry referred the proposed PPl
scheme to the Copyright Tribunal on 10 October 2005 under Section
128A(4) of the 1988 Act, having given due consideration to a number
of statutory factors in respect of the PPL proposals.
THE COPYRIGHT
TRIBUNAL
Both the BBPA and the BHA are very supportive
of the role of the Copyright Tribunal in resolving disputes. However,
our experience since the referral of our case over two years ago
has been extremely frustrating, since until recently there was
little or no progress made towards resolving the dispute. Full
written submissions were made to the Tribunal by all parties,
which were supported by further skeleton arguments and correspondence
where necessary.
In hindsight, one of the main reasons for the
delay may have been the change of personnel at the Copyright Tribunal
a few months after the referral of the BBPA/BHA case. From discussions
with officials at the Patent Office (now the Intellectual Property
Office (IPO)) at the time, we understood that the judicial and
lay members of the Tribunal were originally briefed on the objectives
of the new referral procedure and subsequent process introduced
by Section 128B, namely that this was intended to by-pass the
need for a full referral to the Copyright Tribunal under section
199 of the 1988 Act by providing both the licensor and the licensee
a quick route to resolving disputes on schemes to collect monies
in respect of the new broadcast right. We are not sure, however,
that the new members of the Tribunal received such a briefing,
and therefore the background knowledge to the process was lost
following the handover. In our view the IPO should have ensured
that this did not happen.
While we recognise that the approach PPL have
taken to implementing the broadcast right has complicated the
consideration of the case somewhat, we would take this opportunity
to make the following points in light of our experience over the
last two years:
— The Copyright Tribunal appears to
receive a very low level of support from the IPO, particularly
with regard to administrative and secretarial support for the
Chairman of the Tribunal. We were concerned to learn recently
from the Chairman that certain correspondence relating to our
case, which was sent by our legal representatives to the secretariat
in Newport for his attention, did not appear to have been forwarded
to hime and he had never received it. The Chairman has also requested
assistance in the past from one of the parties in the case with
regard to arranging Tribunal files since he does not have the
necessary support in this area.
We consider that this low level of administrative
support for the Copyright Tribunal as a whole, and the Chairman
in particular, is unacceptable. While the situation has perhaps
been exacerbated by the relatively recent relocation of the IPO
to Wales, we believe that it must be addressed in order to ensure
the smooth running of the Tribunal and to relieve pressure on
the Chairman and the lay members.
Our suggested solution would be a dedicated,
London-based, administrative.secretariat resource which is available
to the Chairman and the Tribunal as and when necessary, especialy
during period of intense activity.
— The Copyright Tribunal is currently
severely understaffed. The Chairman does not presently have the
two Deputy Chairmen who would normally assist him, and there are
only two lay members when a full quorom would be eight. This places
unnecessary pressure on the existing Tribunal members, and means
unless all three are available to attend a hearing, then the Tribunal
risks being inquorate. Again, this is an unacceptable situation
for the Tribunal and needs to be resolved as soon as possible.
Both the BBPA ands the NHA are grateful for
the efforts of the Chairman of the Copyright Tribunal to move
our case forward in recent months, and are currently awaiting
a judgement on an issue of jurisdiction relating to the case following
an oral hearing on 8 November 2008. The delay in resolving the
dispute with PPL has been extremely costly for our Association
in terms of the legal fees (which are in the regional of £100,000
to date), and also for our member companies which have been paying
PPL under the revised traiff since January 2006.
We appreciate the opportunity to bring these
issues to the attention of the Committee and hope that our observations
will prove helpful to their Inquiry.
January 2008
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