Court of Appeal backs Copyright Tribunal Judgment of CSC Media Group v Video Performance Limited
27 May 2011
The Court of Appeal has reinstated the decision of the Copyright Tribunal in respect of the royalty rate payable by CSC Media Group Limited (“CSC”) to Video Performance Limited (“VPL”) in respect of its use of music videos on its 7 music television channels.
The Court of Appeal confirmed the principle that appellate courts should be slow to overturn decisions of specialist tribunals which should only be attacked as an error of law “if no tribunal, properly directing itself to the evidence and the law, could have reached the conclusion or formed the view which the Tribunal did.”
On 7 September 2009 the Copyright Tribunal handed down a land-mark decision in relation to the terms on which VPL licenses the broadcast of music videos to music television channels.
The Tribunal reference was brought by CSC, which maintained that the historic licensing regime operated by VPL was unfair and unreasonable. CSC broadcasts the music TV channels “Chart Show”, “Dance Nation”, “Bliss”, “The Vault”, “NME TV”, “Scuzz” and “Flava”. At the heart of CSC’s challenge was the claim that VPL’s proposed royalty of 20% of “Gross Revenue” was unreasonably high.
This was the first time that a music television broadcaster had pursued its case all the way to the Copyright Tribunal. After a 3 week hearing the Tribunal reduced the level of royalty from 20% to 12.5% of “Gross Revenue”. The Tribunal also required VPL to make other changes to its licence terms which had the effect of further reducing the overall royalty burden.
In October 2009 VPL successfully appealed the Tribunal’s decision to the High Court (Mr. Justice Floyd) on the basis that the Tribunal had erred in law and the Court ordered that the case be remitted to the Copyright Tribunal to be heard again by a differently constituted Tribunal.
CSC applied for permission to appeal to the Court of Appeal. There are very limited circumstances in which the Court of Appeal will grant permission for a second appeal. It is necessary to show that either (a) the appeal would raise an important point of principle or practice; or (b) there is some other compelling reason for the Court of Appeal to hear it. In this case the Court of Appeal considered that CSC had identified “important points of principle and practice on the determination of an appeal from the specialist Copyright Tribunal sufficient to justify an appeal.”
In a Judgment handed down today the Court of Appeal determined that Mr. Justice Floyd had taken an “unrealistic and unjustified view of the Tribunal’s reasoning and [adopted] too prescriptive a view of the way in which cases such as the present one must be decided.” The Court of Appeal did not accept that the arguments relied upon by VPL disclosed an error of law which undermined the validity of the Tribunal’s decision.
In particular the Court of Appeal held that in determining licence terms which “are reasonable in the circumstances”, as long as the Tribunal has regard to comparable schemes and licences and all other relevant considerations, it does not have to carry out its analysis or address the material issues in a set order. It also held that it is unrealistic to think that the Tribunal would have fallen into error in applying the law it accurately set out. Lord Justice Etherton stated “it would be an unusual case to conclude that a specialist tribunal, in a lengthy, conscientious and detailed judgment, had ignored its own clear and proper statement of the correct legal approach.”
The Court of Appeal considered the other numerous criticisms that VPL made of the Tribunal’s decision and concluded that none of them disclosed an error of law.
Kevin Bays of Davenport Lyons said “the Tribunal spent 3 weeks listening to the evidence in this case and having set out the law correctly in its decision it would be quite surprising if the Tribunal would have then misapplied it.”
CSC was represented by music and media experts Davenport Lyons, with Kevin Bays leading the team assisted by Emily Barber. For the Court of Appeal Hearing Davenport Lyons instructed Michael Crane QC of Fountain Court and Edmund Cullen of Maitland Chambers. VPL was represented by Olswang.