Examination of Witnesses (Questions 41-59)
HIS HONOUR
JUDGE FYSH
QC SC, MR IAN
FLETCHER, MR
EDMUND QUILTY
AND MR
ANDREW LAYTON
28 JANUARY 2008
Q41 Chairman: Thank you very, very indeed
for coming along. I think you were here for the first part so
you have seen the formalities of the whole situation; you are
very welcome to say what you like. I will ask you first of all
to introduce yourselves.
His Honour Judge Fysh: My name
is Michael Fysh. I am the Judge of the Patents County Court for
England and Wales. I have a science background but, like all the
patents judges, we regard ourselves rather as failed scientists,
nonetheless we do our best. I am also Chairman, of course, of
the Copyright Tribunal, a job that I have had for just over a
year now. I have had a number of cases, one major case which might
interest the Committee is the Downloading Case which yielded a
decision of some 70 or 80 pages and that was delivered at the
end of last year. I have a couple of cases sub judice and one
of them affects one of the sections which is very much part of
the discussion.
Mr Fletcher: I am Ian Fletcher;
I am the Chief Executive of the Intellectual Property Office.
Mr Quilty: I am Edmund Quilty;
I am Director of Copyright and Enforcement in the Intellectual
Property Office.
Mr Layton: I am Andrew Layton;
I am Director of Trade Marks and Designs in the Intellectual Property
Office.
Q42 Chairman: Thank you very much.
Let me lead off with the first question about the Copyright Tribunal
operating under rules which were described in the IOP Report as
"pernickety, repetitious, at times otiose and restrictive".
Did you write that?
His Honour Judge Fysh: No, I did
not; I disagreed with it. We have a judge's report which you may
have seen. I was asked by the Chancellor and Lord Justice Jacob
and a few other judges to take their opinions and to write not
in any way a counter-blast but a report of our own. The rules
have evolved over the years. My predecessors and the deputy chairmen
have worked on these rules—I worked on the last lot before
I actually took over—and they have, like other tribunal
rules (for example the Asylum and Immigration Appeals Tribunal
with whom I share a court building), evolved specifically to cater
for the needs and aspirations of those who are our punters and
our clients. It may appear pernickety in some ways in detail;
they undergo constant revision; we look at them, the deputy chairman
and I, and we tweak them and improve them as we go along. I do
not agree that they are so characterised.
Q43 Mr Boswell: Could you just comment
on any difficulty in transferring the formal jurisdictional sponsorship
of your Tribunal to the Department of Justice? Clearly there is
an important input and I think there has been a centralisation
of most tribunals. There is no difficulty in that that you see
provided the budget transfers with it.
His Honour Judge Fysh: I see no
immediate difficulty but 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.
Mr Fletcher: I think the history
of this is that the Copyright Tribunal was looked at 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, as we were hearing before, where the parties were generally
representative bodies with UK-wide coverage and a good level of
representation. As Judge Fysh has said, resources 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.
Mr Quilty: This is not a question
with a yes or a no answer; there is no right answer. There will
obviously be some reasons you could develop for moving it and
there are other reasons why it stays where it is. I do not see
there is anyone making a critically compelling argument for moving
it now.
Q44 Chairman: Somebody in your organisation
made those comments about it being pernickety, otiose and restrictive;
who was it and why? Do they stand by it?
Mr Layton: I think those comments
were written by the two inter-parties hearing officers. They are
hearing officers in the Trade Marks Tribunal who were commissioned
to review the operations of the Copyright Tribunal. I think what
they were talking about there were the rules that underpin the
Tribunal. The point I would like to make is, as Judge Fysh has
said, the rules are subject to incremental change and have been
since 1988. They have not prevented the operation of the Tribunal
but, as with all legislation, it is a good idea to subject them
to regular review to ensure that they remain fit for purpose.
I think a number of areas were identified during the review where
the rules perhaps were not fit for purpose and could be tidied
up. We would support a review of the rules.
Q45 Chairman: Do you think the Copyright
Tribunal hearings are in general fair or do they seem biased in
side of one favour rather than the other? Judge Fysh, you obviously
think it is fair.
His Honour Judge Fysh: Certainly,
sir. I noticed that and reject completely the notion that there
is bias. I had never heard such a complaint and I did appear before
the Tribunal as a barrister. I do not know where it came from.
Q46 Chairman: Where did it come from?
Mr Layton: I do not think anyone
is saying that the Tribunal is unfair in our reports. What they
are seeking to preserve is the balance of the Tribunal and they
came up with a number of recommendations that they thought would
help do that.
His Honour Judge Fysh: The origin
of this was, because the references are made in the way they are,
the referee was always looked upon as the bully, in other words
the collecting societies were felt to be the cause of all the
trouble and hence we had to redress it. I think that is where
it started, but I have never heard of a complaint in action of
the Tribunal being unfair.
Q47 Chairman: So you were pretty
incandescent when you saw it, were you?
His Honour Judge Fysh: I thought
it was wrong.
Mr Fletcher: I think there are
two or three separate things here. The Review that was published
in 2007 looked at the Tribunal's rules and, as you have heard,
that has triggered a debate about what those rules ought to be
and Judge Fysh's own contribution is absolutely central to that.
Where we have got to is that there is also a wider question about
the scope of what the Tribunal does which is quite significant
as we look at the relevance in keeping the copyright framework
of the UK up to date.
Q48 Chairman: What is the record
of the Tribunal? Can you give you give us some quantitative idea
of what happens? How many cases have there been since time immemorial
and what has happened to them?
Mr Layton: Since 1988 there have
been 106 references to the Tribunal. A case might involve, as
I understand it, more than one reference, but there have been
106 references. Ninety-five of those references have been dealt
with in one way or another and 11 references are still outstanding.
Of the 95 dealt with, 44 were withdrawn, 28 were resolved after
a hearing, 14 were settled before a hearing, eight were dismissed
and one was struck out.
Q49 Chairman: Are there any waiting
in limbo?
Mr Layton: There are 11 outstanding
cases.
Q50 Chairman: How long have they
been outstanding?
Mr Layton: I do not have the detail
for that but we can send it to you.
Q51 Chairman: Weeks? Days? Hours?
Mr Layton: I cannot say.
His Honour Judge Fysh: I am adjudicating
one that started a year and a half to two years ago; I am writing
the judgment for it now. There are a couple that are sitting on
my desk that are at the evidence stage and they are moving along,
albeit somewhat slowly.
Q52 Chairman: What is it like being
Chairman of this Tribunal? It is just a side job really; it takes
a lot of time, you do not get paid for it.
His Honour Judge Fysh: I do not
get paid for it, no.
Q53 Chairman: Why do you do it then?
His Honour Judge Fysh: Because
my life has been in intellectual property and I actually enjoy
adjudicating these disputes. I find it intellectually stimulating—those
are the usual reasons—and I do most of this work in my spare
time.
Q54 Chairman: That seems very rare
for the world we live in.
His Honour Judge Fysh: A busy
court like my Patents County Court takes most of my time.
Q55 Chairman: I have to say I am
getting incandescent with frustration here, Judge Fysh. There
was a review of the organisation 12 months ago which, in fact,
made swingeing criticisms of the organisation and said an awful
lot of things had to happen. You basically said to us in evidence
that all is absolutely perfect; that is how I sum up what you
said. There are cases that have been standing for at least three
years without a decision; that seems to be inefficient to put
it mildly. Out of 106 cases that Mr Layton said had actually come
to the Tribunal only 20 have actually had a decision. There have
been 15 directions and there are 71 where either people have withdrawn
them out of sheer frustration or indeed there has been nothing
happening at all. That is a record which I would not like to be
proud of.
His Honour Judge Fysh: With great
respect that is simply untrue and wrong. They have not been withdrawn,
to take one point, out of sheer frustration; there are complex
machinations going on between the users of music and other intellectual
property rights and the big organisations, the collecting societies,
of which we only see the tip of iceberg. They are complex, on-going
discussions involving lots of people and lots of interests. We,
in the Tribunal, get given a fait accompli. The references have
been withdrawn. An order is made; I get presented with the order
drafted by the parties, "Would you kindly put your moniker
on the top" and I do. It is not out of sheer frustration.
Yes, it takes a long time but you must appreciate, with great
respect, that we are seeing here the combination of the British
common law legal process coupling, if you like, with this discipline
of copyright IP adjudication. I have to abide by the common law
system. If I make an order that evidence has to be delivered within
six weeks and the parties agree that they cannot in due course
possibly meet this and they want six months—which has happened—then
that is the way it is. The evidence in my Downloading Case was
over three metres high; this is an enormous amount of work. I
certainly push them on. We have case management conferences, as
we do in the court; I push people on, I try to put limits down.
They miss the limits, we come back again.
Q56 Chairman: I always hear this
from the legal profession, with the greatest of respect; there
is always a reason why things cannot move more speedily. Surely
that is your job as the Chairman of the Tribunal to make sure
they do move quickly. We do not have a case that we had with T-Mobile
where 15 parties were involved in a relatively simple case; 20
days of witnesses were brought before the Tribunal. That is alright
for big companies like T-Mobile, but for the small person actually
coming to the Tribunal it just simply gets squashed aside. I would
jump in the Thames.
His Honour Judge Fysh: I agree
with you; it can be devastating for a small person. I had a funeral
parlour owner who telephoned me recently saying he had been presented
with a bill for playing no doubt Rachmaninov or something suitable
in his parlour; he could not possibly pay it and what was he to
do. I explained to him about how you made a reference and so on.
He asked how much that would cost and you can imagine his reaction.
I have full sympathy with that, but what can I do? These are huge
organisations; it is a quasi-legal proceeding and we cannot say,
as some continental judges can, "Okay, I've got the general
idea; I'm going to give a decision now". We have to give
a rational decision. If you look at my 70 or 80 pages in the Downloading
hearing it is hugely complex. We have professors come in; there
are people called forensic accountants who are hideously expensive,
they give very complex evidence, maybe 30 or 40 pages of evidence
with 200 exhibits. What is the next stage? The next stage is the
professor of statistics; he comes in to answer that, he is an
even bigger one. In no time we have this amazing multiplication
of evidence. I cannot stop it. I can look at it and say, "What
is the relevance of that?" and I do. Sometimes I say, "I
don't want to hear that".
Q57 Chairman: Surely one of the key
roles that you have as Chairman—indeed that Ian has as Chief
Executive—is to actually speak out about that, to say that
this is unacceptable and something has to be done about it, and
to make some recommendations as to how that process can in fact
be simplified because that has been going on for 20 years. Simply
saying, "Woe is us, I've got six metres more work" is
not the answer, is it? What should we do?
His Honour Judge Fysh: With respect,
you want to see the last couple of paragraphs of my last judgment;
when I discovered the costs had exceeded £12 million I blew
my top.
Q58 Chairman: For one case?
His Honour Judge Fysh: There were
a lot of lawyers involved, a lot of forensic accountants, a lot
of professors; we even had some lawyers over from Brooklyn. I
gave permission for a New York team to address the Tribunal.
Q59 Chairman: With all these hundred-odd
cases, what do you think that adds up to?
His Honour Judge Fysh: I do not
know; it is awfully difficult to say.
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