Strand, London, WC2A 2LL
B e f o r e :
| PHONOGRAPHIC PERFORMANCE LIMITED
|- and -
|THE BRITISH HOSPITALITY ASSOCIATION AND OTHER INTERESTED PARTIES
Robert Howe Q.C. and James Segan instructed by Denton Wilde Sapte LLP and Eversheds LLP for the Respondents
Hearing dates: 27-28 January 2010
Crown Copyright ©
MR JUSTICE ARNOLD :
"28. Though there seems to have been consultation both on the EU and national level regarding the change to CDPA '88, s 72, when it came to the procedure for integrating the implementation of the amendment into the framework of chapter VII of the CDPA '88, there seems (inexplicably) to have been no consultation or even discussion. Thus, the procedure which involves the Secretary of State making the reference to the Tribunal under s. 128A(2), is unusual (perhaps even unique) in intellectual property legislation in the UK. Moreover, the new procedure is not even adversarial; the imposition of an investigative (or inquisitorial) role on the Tribunal has a distinct civil law ring about it. We are aware that this burden resting upon the Chairman has been the subject of comment for a number of reasons.
29. The present Chairman has made extensive enquiries concerning the origins of these sections but has drawn no useful result whatever. Regarding s 128A and B, the learned editors of Copinger and Skone James on Copyright (15th edn) record with some understatement, that
'the purpose of adopting this machinery is not wholly clear.'"
I would add that the editors of Copinger went on to say:
"However, it may be that the Government considered that the users of broadcasts might not have sufficient resources to bring a reference to the Tribunal under the ordinary law."
"Sections 128A and 128B were intended to minimise costs for users in taking licensing schemes to the Tribunal. As the user is not a party to the proceedings, it does not have the risk of being liable for the costs of the other party in the event that it is successful in challenging the licence fees."
"Clearly the intention of the Government was to create a procedure which would minimise costs for users. Schemes are subject to consideration by the Secretary of State and then, where appropriate, investigation by the Tribunal with the result that users need not be party to the proceedings and so can avoid the risk of being liable for costs in the event of an unsuccessful challenge. In practice, however, it has created such difficulties that UKIPO considers the sections should be repealed. One such difficulty is that the Tribunal itself does not consider it has the appropriate remit or resources to cope with the procedure. Another is that the two track nature of the Tribunal's jurisdiction is overly complicated. A yet further difficulty, of direct relevance to this dispute, is the lack of clarity as to the scope of the jurisdiction conferred by the sections and the real practical problems this has created."
The Previous Tariffs
"I am delighted that after two and a half years of negotiations we have been able to reach a satisfactory and harmonious compromise which is undoubtedly in the interests of all our members."
The New Tariffs
The PRS Tariffs
History of the References
"This Practice Direction sets out the procedure that the Tribunal intends to adopt in considering references that are made to it by the Secretary of State for Trade and Industry under s. 128A of the Act and in the exercise of the powers conferred on the Tribunal pursuant to s. 128B of the Act.
1. The licensing body shall within 21 days of receipt of notice that the Secretary of State has referred a proposed licence or licensing scheme to the Tribunal:
a) serve on all other parties which to its knowledge have made representations to it or to the Secretary of State copies of all documents it has put before the Secretary of State; and
b) serve on the Secretary to the Tribunal (with copies to all such other parties) such other representations as it may wish to make to the Tribunal, together with a list of the names and addresses of the other parties.
2. Within 21 days of service of the documents specified in paragraph 1 above the other parties shall serve on the Secretary to the Tribunal (with copies to the licensing body) any further representations that they may wish to make to the Tribunal.
3. Within 14 days of service on it of any further representations pursuant to paragraph 2 above, the licensing body may make representations strictly in reply to any new matters raised in such further representations.
4. The Tribunal will then address such questions (if any) as it considers appropriate to the licensing body and/or any of the other parties and will inform any third party that it considers should be notified of the existence of the reference and shall set such time limits for the answering of such questions or for the making of representations by the third parties or further representations by the licensing body and/or the other parties as it sees fit.
5. The Tribunal, after considering all relevant materials, will issue its formal decision.
It should be noted that:-
(a) save in exceptional circumstances, the Tribunal will not hold any hearings; and
(b) where the Tribunal has pursuant to s. 128B(3) confirmed or varied a licence or licensing scheme, it is open to any relevant person to:
(i) lodge an appeal to the High Court pursuant to s. 152 of the Act; and/or
(ii) refer such licence or licensing scheme to the Tribunal pursuant to s. 120 of the Act."
"PPL's representations in support of this tariff were set out exhaustively in the consultation and notification documents. PPL relies upon its arguments in those documents and does not consider it necessary at this stage to advance further argument. PPL has seen no substantive representations subsequent to its detailed Response of 18 March 2005 and notes that the Secretary of State in his letter of 5 October 2005 gave no reasons for his decision to refer the licence and tariff to the Tribunal. Therefore this document is relatively brief."
"1. INTRODUCTORY COMMENTS
The nature of this document
1.2 … because many of the respondents who have participated in these references made very brief and in some cases no representations during the consultation process, and have only now stated their positions in any detail, this reply document is the first opportunity that PPL has had to deal with many of their points. That fact, as well as the diverse range of the respondents' submissions, explains the length of this reply document. The reply is also lengthy because the Practice Direction envisages, save in exceptional circumstances, a written rather than an oral procedure. This is a course which PPL welcomes both on grounds of cost effectiveness and speed.
13. THE NEXT STEPS
13.1 PPL's position is that there is sufficient information before the Tribunal for it to exercise its powers under Section 128B of the 1988 Act, although PPL would be happy to address any requests for information that the Tribunal may make.
13.3 Eversheds say that either the Historical Tariffs are accepted or a detailed review is required. PPL submits that this process is a detailed review. Leaving aside that the Historical Tariffs are no longer appropriate …, the need for an even more detailed review is wholly unclear…."
"in making a financial comparison, the best source of information in practice is the Interested Parties, who pay fees to both PPL and to the PRS. They have decided not to share that information because it no doubt does not assist their case."
Included within PPL's response was a table setting out a comparison between the fees payable by Hilton Hotels under the New Tariffs with those which PPL estimated were payable under the PRS Tariffs, namely £17,197.60 against £30,757.81.
"Quite apart from this, we are surprised by PPL's suggestion that the Interested Parties have failed to produce information about PRS rates. The information in question is not readily available to the Interested Parties, as PPL suggests, not least because a number of them are representative trade bodies. The Interested Parties cannot get information about the total fees raised by the Tariffs; they cannot get information about a decently representative proportion of the thousands of businesses paying under the New Tariffs without carrying out lengthy, costly and time-consuming surveys; and the position of individual licensees will inevitably be selective and unrepresentative. Furthermore, in the past, when the Interested Parties have carried out surveys of their members and/or produced information from specific licensees, PPL has contested the figures."
General principles applicable to Copyright Tribunal references
"49. The willing buyer/willing seller test. This is a classic test in this jurisdiction whose present applicability has been expressly endorsed by all concerned. In assessing a reasonable tariff, the Tribunal has frequently addressed the matter on the basis that the proper rate is that which would be negotiated between a willing licensor and a willing licensee of the copyright repertoire. Before examination of the relevant circumstances to be taken into account in this notional exercise, it is however common practice to identify an existing tariff as a starting point. If such a licence exists (and particularly, if it is recent) and addresses comparable subject matter—and even better, if it was freely negotiated (rather than being as it were, 'imposed' by the Tribunal), that may be particularly relevant and helpful in determining the right tariff (and other terms) of a licence. Such an agreement it has been said, is the best record of the market value of the relevant rights at the time (see below 'Comparators'). The Alliance submitted that this approach, though certainly not wrong, is simplistic since it often does not take into account the benefits to the licensee of collective bargaining. Nonetheless, our assessment of the centrality of this consideration and its relevance to this case, is undiminished.
50. Comparators. As noted above, s.129 of the Act requires the Tribunal to take into account schemes and licences 'to other persons in similar circumstances'. Mr Richard Boulton, the Applicants' principal expert, put the position with admirable clarity in his first Report, thus:
'The comparable royalties approach is often regarded as the best approach to use in circumstances where the parties do not agree on the level of royalty. Negotiations between a willing licensor and a willing licensee, in the circumstances, will provide, in theory, the best available information about the level of a reasonable royalty.'
51. In AIRC v PPL, the Tribunal stressed the importance of comparators:
'It is for the Tribunal in assessing the transactions cited as comparable to decide to what extent the rights licensed are of the same or a similar kind, whether the transactions were concluded at arm's length with neither side affected by stress, and whether they were affected by legal factors which do not apply in this case. It is then for the Tribunal to adapt any relevant comparators to the case under review.' [Emphasis added]
Thus, starting with a cited comparator, it is open to the Tribunal to take notice of it (or of parts of it) and to use it (or reject it entirely) as the case may require. The authorities show that whilst the utility of comparators has frequently occupied the Tribunal's time, in practice they appear to have been more of a legitimate quarry (or template) for particular terms and figures rather than as full precedents for a particular licence. In a few cases, comparators, particularly comparators from overseas, have proved to possess very little probative value whatever.
53. When one is dealing with the licensing of 'similar' rights, some comparators may be more relevant than others. For example, in cases where the exploitation of music requires licences both from the owners of the rights in the composition (i.e. the Alliance representing composers and publishers of music) and that of the owners of the rights in the sound recordings (i.e. the record companies or the PPL), the Tribunal has held that: (a) these two types of rights are legitimate comparators; and (b) there is no reason to treat one as being qualitatively superior to the other. …
54. Where there are sufficiently comparable licences, the Tribunal should adopt a similar rate 'absent any special circumstances': AEI v PPL at 256.
55. What one usually finds in the authorities is evidence of a degree of comparability, ranging from the superficial to the more realistic. iTunes submitted that even where the comparability was rather inexact, one could neverthless take the comparables into account, 'but scale them down because of the differences'.
56. Finally, this must be said of comparables: though the Tribunal may impose different rates upon different parties in respect of essentially the same rights, it must not thereby discriminate between licensees … unless there is 'a logical reason for it'."
The Tribunal's decision
"Factories and Offices were not represented before the Tribunal, and no formal opposition was received to the new Factories and Offices scheme. …. At the hearing before us the parties were agreed that we should treat the Factories and Offices scheme under Tariff 112 in the same way, and subject to the same principles, as Tariffs 110 and 111."
"15. The reference [in section 128B(1)] to the making of 'appropriate enquiries' indicates that the Tribunal is to act as an investigatory rather than adjudicatory body. This is a role which the Tribunal has not performed in the past, and which it is ill-equipped ever to perform. Kitchin J explained the purpose of this provision and the difficulties which it creates, in the Jurisdiction Judgment ...
16. In the present case we have had the benefit of numerous written representations and skeleton arguments from the parties, as well as oral submissions. This is clearly not a case where the Tribunal has been required to make its own investigations in the absence of assistance from the parties. Whilst, of course, we take into account the position of those parties who have made representations but had not appeared before us, and of factories and offices, otherwise we are satisfied that our duty to make appropriate enquiries in the present case is fulfilled by considering the information that the parties have put before us."
"The key issue between the parties is the amount of annual fees sought by PPL under the New Tariffs. The Interested Parties also do not accept the structure of the New Tariffs, and in particular the bandings, which are explained in more detail below. In addition there are two more minor issues concerning (a) the definition of 'audible area' in relation to pubs etc under New Tariff 110 and (b) whether there should be a surcharge for users who play sound recordings in public before obtaining a licence from PPL."
Principles applicable to an appeal from the Copyright Tribunal
"There are … certain well-known bases on which dissatisfaction with a finding of fact can be presented as a challenge on a point of law. Paragraph 70 of volume 1 of Halsbury's Laws, 4th ed., sets out the principle:
'Errors of law include misinterpretation of a statute or other legal document or a rule of common law; asking oneself and answering the wrong question, taking irrelevant considerations into account or failing to take relevant considerations into account when purporting to apply the law to the facts; …; giving reasons which disclose faulty legal reasoning or which are inadequate to fulfil any express duty to give reasons … Determination of the primary facts is not a matter of law, but to make a finding unsupported by any evidence is an error of law.'"
He added at 822:
"It cannot be necessary for a Tribunal to mention expressly every relevant matter that has been placed before it in argument or in evidence. Remarks made by Lord Hoffmann in Piglowska v. Piglowski  1 WLR 1360, are apposite. Lord Hoffmann commented that: 'The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed …', and warned that: 'an appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself'."
"I would add this. Many of the questions faced by the Tribunal are of fact and degree, for instance whether a prior agreement or decision of the Tribunal can be used as a comparator for the case in hand. Adapting the words of Lord Simon of Glaisdale in the tax case of Ransom v Higgs  STC 359 at 561:
'There lies a "no man's land" of fact and degree where it is for the Tribunal to evaluate whether the prior agreement or decision is an appropriate comparator or not. The court can only interfere where the degree of fact is so inclined towards one frontier or the other as to lead it to believe that there is only one conclusion to which the Tribunal could reasonably have come.'"
"… This is an expert Tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert Tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the Tribunal will have got it right: see Cooke v Secretary of State for Social Security  EWCA Civ 734,  3 All E R 279 at . They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently."
"I cannot emphasise too strongly that the issue on an appeal from the Tribunal is not whether the appellate body agrees with its conclusions. It is this: as a matter of law, was the Tribunal entitled to reach its conclusions? It is a misconception of the very nature an appeal on a point of law to treat it, as too many appellants tend to do, as just another hearing of the self-same issue that was decided by the Tribunal."
Ground A: the investigatory obligations of the Tribunal
The circumstances in which the Previous Tariffs were negotiated or set
The financial implications of the PRS Tariffs
"82. We can now state our conclusions in relation to the PRS Tariffs as a comparator. First, we are satisfied that differences in the method of charging and calculation of bands make a direct comparison difficult, most particularly in relation to pubs, bars, restaurants and cafes and factories and offices. Nonetheless, we also conclude that the PRS Tariffs appear to be higher than the Previous Tariffs, most recently established in 2001. In relation to shops and stores, even assuming that the Interested Parties are correct in their submissions as to different exemptions, reductions etc it seems clear that the PRS rate is higher. This suggests that the PRS Tariffs for other commercial premises would also be higher, were a direct comparison possible.
83. We are not able to conclude, however, that the PRS Tariffs are necessarily the same as or higher than the New Tariffs because such a direct comparison of sufficient detail is not possible. Nor would it have made a difference to our overall conclusion even if we were satisfied that the PRS Tariffs were always the same as or higher than the New Tariffs, for the reasons set out below.
84. In our view, the differences between the PPL and PRS tariffs were known to PPL at all material times during the negotiations and agreements in respect of the Previous Tariffs for pubs, restaurants etc. These differences could have been (and in fact were) deployed by PPL in achieving agreements for increased rates which are contained in the Previous Tariffs. Accordingly, it seems to us that any differences between the PPL and PRS Tariffs have been considered and factored into agreements in respect of the Previous Tariffs. We do not accept PPL's submission that, with full knowledge of the differences between the PRS and PPL tariffs, they nonetheless undervalued their rights during negotiations, so that a very substantial increase from the Previous Tariffs is reasonable.
85. Furthermore, we accept the submission of the Interested Parties that the Previous Tariffs, voluntarily agreed, or based on voluntary agreements, in respect of PPL's rights in sound recordings, are a close comparable to the New Tariffs, and closer than the PRS tariffs. This does not mean that we have ignored the PRS Tariffs as a comparable. The fact that, generally, they appear to be higher than the Previous Tariffs is a point that we take into account when considering the level of increase for the new broadcast rights in sound recordings, as explained below."
The impact on Tariff 112 on factories and offices
"CHAIRMAN: I think our general thought was that we would probably treat factories the same as we treated the others. In other words you point out that although the basis of calculation, the banding, is different there does not seem to us to be a great difference, in principle. So, in other words, if we agreed with you in relation to shops, et cetera, we would probably agree with you in relation to factories.
MR SAINI: We respectfully agree with that as the appropriate approach. As far as factories are concerned, we have not provided a comparative table because the real fight here was on the pubs' tariff and the shops' tariff, but as far as factories are concerned there is, again, very, very favourable comparisons with the PRS.
CHAIRMAN: The same point.
MR SAINI: The same point arising.
THE CHAIRMAN: Mr Howe, do you agree with Mr Saini that the factories, this being a decision of principle, the factories should be treated in the same way as the other applicants?
MR HOWE: Yes.
THE CHAIRMAN: In the sense they are not represented.
MR HOWE: Yes.
THE CHAIRMAN: But the logic would appear to be the same.
MR HOWE: It is the same, sir, yes. I obviously have not said anything on their behalf.
THE CHAIRMAN: No. no.
MR HOWE: I was not briefed to do so, but there is –
THE CHAIRMAN: It would follow.
MR HOWE: It would follow as a matter of principle."
Ground B: the PRS Tariffs
Ground C: the Previous Tariffs
Ground D: market reaction
Ground E: measurement of audience
Ground F: the statutory factors
"(a) the extent to which the broadcasts to be shown or played by a potential licensee in circumstances mentioned in subsection (1) are likely to include excepted sound recordings;
(b) the size and the nature of the audience that a licence or licensing scheme would permit to hear the excepted sound recordings;
(c) what commercial benefit a potential licensee is likely to obtain from playing the excepted sound recordings; and
(d) the extent to which the owners of copyright in the excepted sound recordings will receive equitable remuneration, from sources other than the proposed licence or licensing scheme, for the inclusion of their recordings in the broadcasts to be shown or played in public by a potential licensee."
Ground G: the concessionary discount
Ground H: costs
72 Free public showing or playing of broadcast
(1) The showing or playing in public of a broadcast to an audience who have not paid for admission to the place where the broadcast is to be seen or heard does not infringe any copyright in—
(a) the broadcast;
(b) any sound recording (except so far as it is an excepted sound recording) included in it; or
(c) any film included in it.
(1A) For the purposes of this Part an 'excepted sound recording' is a sound recording–
(a) whose author is not the author of the broadcast in which it is included; and
(b) which is a recording of music with or without words spoken or sung.
(1B) Where by virtue of subsection (1) the copyright in a broadcast shown or played in public is not infringed, copyright in any excepted sound recording included in it is not infringed if the playing or showing of that broadcast in public–
(a) forms part of the activities of an organisation that is not established or conducted for profit; or
(b) is necessary for the purposes of–
(i) repairing equipment for the reception of broadcasts;
(ii) demonstrating that a repair to such equipment has been carried out; or
(iii) demonstrating such equipment which is being sold or let for hire or offered or exposed for sale or hire.
(2) The audience shall be treated as having paid for admission to a place—
(a) if they have paid for admission to a place of which that place forms part; or
(b) if goods or services are supplied at that place (or a place of which it forms part)—
(i) at prices which are substantially attributable to the facilities afforded for seeing or hearing the broadcast, or
(ii) at prices exceeding those usually charged there and which are partly attributable to those facilities.
(3) The following shall not be regarded as having paid for admission to a place—
(a) persons admitted as residents or inmates of the place;
(b) persons admitted as members of a club or society where the payment is only for membership of the club or society and the provision of facilities for seeing or hearing broadcasts is only incidental to the main purposes of the club or society.
(4) Where the making of the broadcast was an infringement of the copyright in a sound recording or film, the fact that it was heard or seen in public by the reception of the broadcast shall be taken into account in assessing the damages for that infringement.
116 Licensing schemes and licensing bodies
(1) In this Part a 'licensing scheme' means a scheme setting out—
(a) the classes of case in which the operator of the scheme, or the person on whose behalf he acts, is willing to grant copyright licences, and
(b) the terms on which licences would be granted in those classes of case;
and for this purpose a 'scheme' includes anything in the nature of a scheme, whether described as a scheme or as a tariff or by any other name.
(2) In this Chapter a 'licensing body means a society or other organisation which has as its main object, or one of its main objects, the negotiation or granting, either as owner or prospective owner of copyright or as agent for him, of copyright licences, and whose objects include the granting of licences covering works of more than one author.
(3) In this section 'copyright licences' means licences to do, or authorise the doing of, any of the acts restricted by copyright.
(4) References in this Chapter to licences or licensing schemes covering works of more than one author do not include licences or schemes covering only—
(a) a single collective work or collective works of which the authors are the same, or
(b) works made by, or by employees of or commissioned by, a single individual, firm, company or group of companies.
For this purpose a group of companies means a holding company and its subsidiaries, within the meaning of section 736 of the Companies Act 1985.
References and applications with respect to licensing schemes
(1) The terms of a licensing scheme proposed to be operated by a licensing body may be referred to the Copyright Tribunal by an organisation claiming to be representative of persons claiming that they require licences in cases of a description to which the scheme would apply, either generally or in relation to any description of case.
(2) The Tribunal shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature.
(3) If the Tribunal decides to entertain the reference it shall consider the matter referred and make such order, either confirming or varying the proposed scheme, either generally or so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
(4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.
119 Reference of licensing scheme to tribunal
(1) If while a licensing scheme is in operation a dispute arises between the operator of the scheme and—
(a) a person claiming that he requires a licence in a case of a description to which the scheme applies, or
(b) an organisation claiming to be representative of such persons,
that person or organisation may refer the scheme to the Copyright Tribunal in so far as it relates to cases of that description.
(2) A scheme which has been referred to the Tribunal under this section shall remain in operation until proceedings on the reference are concluded.
(3) The Tribunal shall consider the matter in dispute and make such order, either confirming or varying the scheme so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
(4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.
120 Further reference of scheme to tribunal
(1) Where the Copyright Tribunal has on a previous reference of a licensing scheme under section 118, 119 or 128A, or under this section, made an order with respect to the scheme, then, while the order remains in force—
(a) the operator of the scheme,
(b) a person claiming that he requires a licence in a case of the description to which the order applies, or
(c) an organisation claiming to be representative of such persons,
may refer the scheme again to the Tribunal so far as it relates to cases of that description.
(2) A licensing scheme shall not, except with the special leave of the Tribunal, be referred again to the Tribunal in respect of the same description of cases—
(a) within twelve months from the date of the order on the previous reference, or
(b) if the order was made so as to be in force for 15 months or less, until the last three months before the expiry of the order.
(3) A scheme which has been referred to the Tribunal under this section shall remain in operation until proceedings on the reference are concluded.
(4) The Tribunal shall consider the matter in dispute and make such order, either confirming, varying or further varying the scheme so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
(5) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.
128A Notification of licence or licensing scheme for excepted sound recordings
(1) This section only applies to a proposed licence or licensing scheme that will authorise the playing in public of excepted sound recordings included in broadcasts, in circumstances where by reason of the exclusion of excepted sound recordings from section 72(1), the playing in public of such recordings would otherwise infringe the copyright in them.
(2) A licensing body must notify the Secretary of State of the details of any proposed licence or licensing scheme for excepted sound recordings before it comes into operation.
(3) A licence or licensing scheme, which has been notified under subsection (2), may not be operated by the licensing body until 28 days have elapsed since that notification.
(4) Subject to subsection (5), the Secretary of State shall take into account the matters set out in subsection (6) and then either –
(a) refer the licence or licensing scheme to the Copyright Tribunal for a determination of whether the licence or licensing scheme is reasonable in the circumstances, or
(b) notify the licensing body that he does not intend to refer the licence or licensing scheme to the Tribunal.
(5) If the Secretary of State becomes aware –
(a) that a licensing body has failed to notify him of a licence or licensing scheme under subsection (2) before it comes into operation; or
(b) that a licence or licensing scheme has been operated within 28 days of a notification under subsection (2),
subsection (4) does not apply, but the Secretary of State may at any time refer the licence or licensing scheme to the Tribunal for a determination of whether the licence or licensing scheme is reasonable in the circumstances, or may notify the licensing body that he does not intend to refer it to the Tribunal.
(6) The matters referred to in subsection (4) are –
(a) whether the terms and conditions of the proposed licence or licensing scheme have taken into account the factors set out in subsection (7);
(b) any written representations received by the Secretary of State;
(c) previous determinations of the Tribunal;
(d) the availability of other schemes, or the granting of other licences, to other persons in similar circumstances, and the terms of those schemes or licences; and
(e) the extent to which the licensing body has consulted any person who would be affected by the proposed licence or licensing scheme, or organisations representing such persons, and the steps, if any, it has taken as a result.
(7) The factors referred to in subsection (6) are –
(a) the extent to which the broadcasts to be shown or played by a potential licensee in circumstances mentioned in subsection (1) are likely to include excepted sound recordings;
(b) the size and the nature of the audience that a licence or licensing scheme would permit to hear the excepted sound recordings;
(c) what commercial benefit a potential licensee is likely to obtain from playing the excepted sound recordings; and
(d) the extent to which the owners of copyright in the excepted sound recordings will receive equitable remuneration, from sources other than the proposed licence or licensing scheme, for the inclusion of their recordings in the broadcasts to be shown or played in public by a potential licensee.
(8) A proposed licence or licensing scheme that must be notified to the Secretary of State under subsection (2) may only be referred to the Tribunal under section 118 or 125 before such notification takes place.
(9) A proposed licensing scheme that has been notified to the Secretary of State under subsection (2) may only be referred to the Tribunal under section 119 after the Secretary of State has notified the licensing body that he does not intend to refer the licensing scheme to the Tribunal.
(10) If a reference made to the Tribunal under section 118 or 125 is permitted under subsection (8) then –
(a) the reference shall not be considered premature only because the licence or licensing scheme has not been notified to the Secretary of State under subsection (2); and
(b) where the Tribunal decides to entertain the reference, subsection (2) to (5) shall not apply.
(11) Nothing in this section shall be taken to prejudice any right to make a reference or application to the Tribunal under sections 120 to 122, 126 or 127.
(12) This section applies to modifications to an existing licence or licensing scheme as it applies to a proposed licence or licensing scheme.
(13) In this section and in section 128B, any reference to a 'licence' means a licence granted by a licensing body otherwise than in pursuance of a licensing scheme and which covers works of more than one author.
128B References to the Tribunal by the Secretary of State under section 128A
(1) The Copyright Tribunal may make appropriate enquiries to establish whether a licence or licensing scheme referred to it by the Secretary of State under section 128A(4)(a) or (5) is reasonable in the circumstances.
(2) When considering the matter referred, and after concluding any such enquiries, the Tribunal shall take into account –
(a) whether the terms and conditions of the proposed licence or licensing scheme have taken into account the factors set out in section 128A(7);
(b) any other factors it considers relevant,
and shall then make an order under subsection (3).
(3) The Tribunal shall make such order -
(a) in the case of a licensing scheme, either confirming or varying the proposed scheme, either generally or so far as it relates to cases of any description; or
(b) in the case of a licence, either confirming or varying the proposed licence,
as the Tribunal may determine to be reasonable in the circumstances.
(4) The Tribunal may direct that the order, so far as it reduces the amount of charges payable, has effect from a date before that on which it is made. If such a direction is made, any necessary repayments to a licensee shall be made in respect of charges already paid.
(5) The Tribunal may award simple interest on repayments, at such rate and for such period, ending not later than the date of the order, as it thinks fit.
Factors to be taken into account in certain classes of case
129 General considerations: unreasonable discrimination
In determining what is reasonable on a reference or application under this Chapter relating to a licensing scheme or licence, the Copyright Tribunal shall have regard to—
(a) the availability of other schemes, or the granting of other licences, to other persons in similar circumstances, and
(b) the terms of those schemes or licences,
and shall exercise its powers so as to secure that there is no unreasonable discrimination between licensees, or prospective licensees, under the scheme or licence to which the reference or application relates and licensees under other schemes operated by, or other licences granted by, the same person.
135 Mention of specific matters not to exclude other relevant considerations
The mention in sections 129 to 134 of specific matters to which the Copyright Tribunal is to have regard in certain classes of case does not affect the Tribunal's general obligation in any case to have regard to all relevant considerations