The Copyright Tribunal and Compulsory Licensing

When a company wishes to use recorded performances which are subject to protection of the performance right, a compulsory licence may be obtained from the Copyright Tribunal where the owner of recording rights cannot be identified or located.

Consent to Reproduce a Recorded Performance

Under s 190 of the Copyright Designs and Patents Act 1988, the Copyright Tribunal may give consent on behalf of rights owners to copy a recording of a performance where a reasonable enquiry has not been successful in revealing the identity or the location of the rights owner. A reasonable enquiry will usually include ascertaining whether the Musicians’ Union or relevant collecting society are aware of the owner of the recording rights. The Tribunal may require further enquiries to be made to persons or publishers whom it considers may have relevant information.

Factors Taken into Account

The Tribunal will take a view as to whether the original recording was made with the consent of the performer, and whether the person wishing to make the copy is lawfully in possession of the recording and whether making copies is consistent with the arrangements that were in place when the original recording was first made.

The Effect of an Order

In the event that the Copyright Tribunal makes an order granting consent, the order takes effect as though it was the performer themselves who grants the consent, and provides protection against any criminal liability for copying. The consent may be granted with conditions.

Additional Grounds for Consent

The Copyright, Designs and Patents Act empowers the Competition Commission, Office of Fair Trading and the Secretary of State to grant licence consents of the recording right where their jurisdiction allows them do to so.

These authorities may make orders where a rights owner refuses to grant licences to use on reasonable terms or include conditions restricting the uses to which the recording may be put. In such circumstances, the conditions may be modified, cancelled, or make the performer’s property rights available as of right. Where performance rights have expired and been revived due to the extension of the period of protection for performance rights on payment of reasonable remuneration.

For instance, the Secretary of State may also order that licences be made available for the purpose of lending to the public in exchange for reasonable royalty payments.

The Copyright Tribunal will settle the licence in the absence of agreement between the parties on an application by the person requesting the licence. The licence will be effective from the date of the application to the Copyright Tribunal.