PRS for Music (PRSfM), which represents composers and publishers of music, has successfully defended an appeal by ITV to the High Court following a Copyright Tribunal decision in 2016.
In 2014 ITV made a reference to the Copyright Tribunal for it to determine, amongst other things, the annual licence fee that ITV should pay to PRSfM to use its musical works in programmes and broadcasts. A two week hearing took place in late 2015 and the Tribunal issued its decision last summer, finding in favour of PRSfM and ordering ITV to pay a fee of £27.9 million for 2014, adjusted for subsequent years, as well as royalty back payments and interest of over £10 million.
ITV appealed that decision to the High Court on a point of law. It argued that an earlier licence agreement between the two parties (“the 2012 Agreement”) should have been taken into account by the Tribunal in determining the fee payable by ITV, even though the parties had expressly agreed that the terms of the 2012 Agreement, including the licence fee payable under it, were “non-precedential”.
Mr Justice Mann, who heard that appeal in January 2017, has found in favour of PRSfM. He held that the Copyright Tribunal had not made an error of law in reaching its decision. The 2012 Agreement was excluded by agreement between the parties from consideration as a relevant piece of evidence and the Tribunal was therefore correct to disregard it in reaching its decision. Accordingly, the court upheld the non-precedential agreement between the parties, dismissed ITV’s appeal and ordered it to pay PRSfM’s costs.
PRS for Music instructed Paddy Gardiner (Head of Disputes at Simkins), who lead a team including Tom Iverson and Jessica Welch. Simkins instructed Robert Howe QC and James Segan of Blackstone Chambers.
“ITV failed before the Tribunal to argue successfully that, as a matter of construction, “non-precedential” effectively meant “precedential”. So ITV took a change of approach before the High Court on appeal, raising new arguments – for example, that the parties had sought to oust the jurisdiction of the Tribunal, or that the Tribunal should still have taken the 2012 agreement into account (albeit to some lesser degree than as a “starting point”). Despite those contentions, however, the High Court rightly appreciated that the net result would still be to allow ITV to do the exact opposite of what it had agreed not to do under the 2012 agreement.”
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