ITV loses Copyright Tribunal appeal

UK national broadcaster ITV has lost its appeal to the  High Court appeal against the 2016 Copyright Tribunal ruling that set rates for the current (2014-2017) period with PRS for Music, the collection society which represents composers, lyricists and music publishers in the United Kingdom. The Tribunal agreed that PRS could increase the tariff beyond the 2013 fee payment of £23 million per annum to a new base rate of £24 million for all ITV uses (including breakfast TV) adjusted by (a) BARB viewing figures for ITV during each year and (b) the percentage change in RPIJ (the RPI inflation measure). On appeal the High Court told ITV that the Tribunal  "had not made an error of law in reaching its decision".

Commenting on the decision, PRS Commercial Director Paul Clements said: "In June 2016, the copyright tribunal decided a dispute over the terms of ITV's broadcast licence in PRS For Music's favour. The tribunal decision set down clear and compelling reasons for an increase in the licence fee, reflecting the right value for our members' music". "While ITV chose to appeal this decision, I am pleased that the High Court has now rejected their arguments and upheld the original tribunal decision" adding "This result is very real evidence of our commitment to secure the right value for our members' work".

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/532234/ct12714.pdf

http://www.musicweek.com/publishing/read/high-court-rejects-itv-appeal-over-prs-for-music-tribunal-win/067598

http://www.musiclawupdates.com/?p=6496

The CopyKat

U.S. Internet provider Windstream is asking a New York federal court to shield the company from broad piracy accusations. The ISP filed a complaint against BMG and Rightscorp after it was accused of direct and contributory copyright infringement. The lawsuit follows on the heels of a similar complaint by fellow Internet provider RCN, which also seeks legal clarity in the wake of several conflicting decisions on whether or not Internet provider can be held liable for subscribers who share pirated file - but clearly prompted by the decision of a Virginia federal jury - in a case brought by BMG Rights Management against Cox Communications - who answered in the affirmative. 

PRS for Music has won the Copyright Tribunal reference brought against it by ‎ITV in July 2014 - a final hearing took place for two weeks in November 2015. The decision concerns, amongst other things, the annual sum ITV must pay to PRS for Music to use musical works in its programmes and broadcasts. In August 2015, PRS wrote to its members to announce it would be temporarily increasing the admin fees it charges on royalties collected from TV companies in order to fund the legal costs of the Copyright Tribunal hearing. The Tribunal decided that the base royalty (beginning in 2010) would be some £24 million for all ITV uses (including breakfast TV) adjusted by (a) BARB viewing figures for ITV during each year and (b) the percentage change in RPIJ (the RPI inflation measure). Michael Simkins LLP (now Simkins), who acted for the PRS, said the Tribunal's decision "is the most significant decision relating to such rights for almost 20 years, since the 1997 BSkyB case."

PRS for Music has also written to its members saying that from the end of June the BBC will need to seek prior approval from publishers for use of North American repertoire. Why? well it seems the BBC’s blanket licence with PRS for Music and a number of BBC Worldwide’s MCPS licences are due to expire on 30 June 2016 and whilst negotiations with the BBC to agree new licences continues, and the PRS have agreed that the existing licences will be extended for a 6 month period from 1 July 2016 to 31 December 2016, as a condition of extending BBC Worldwide’s TV Programme Sales licence, the MCPS Board has asked that the BBC seek prior approval from publishers for uses of North American repertoire in programmes which are sold into the US and Canada on a trial basis, although if approved any licence will be at MCPS rates. See more on use rates here and existing approvals here. 

New copyright legislation has come into effect in Cayman to provide greater legal protection for Cayman’s musicians, visual artists and others in the creative fields, and is the first step in modernising intellectual property legislation. Commerce Minister Wayne Panton said government had plans to present more bills in September to update existing trade mark legislation for local registration and design rights. 

Asparagus - yes - and copyright: A New Zealand company, Oraka Technologies has been awarded $4.1 million in damages in a copyright case involving an automatic asparagus grading machine. Tired of grading asparagus by hand, Oraka Technologies owner Michael Schwarz developed the first automatic asparagus sorter, known as the Oraka Grader, in the early 1980s and asked Napier Tool & Die to prepare drawings for a cup that transported the asparagus for the Oraka Grader, and Napier began manufacturing it for Oraka Technologies. But a rival company Geostel Vision used Napier to manufacture their own cup assembly that was alleged to be substantially copy of Oraka's design and in 2013 the Court of Appeal found that Geostel and Napier Tool & Die copied part of the machine. 

And staying "down under", Australia’s Full Federal Court has confirmed digital data streams are not protected by the Copyright Act. The court upheld Justice Annabelle Bennett’s December 2014 ruling that held that copyright did not subsist in digitally streamed broadcasts. The case is actually a taxation case (Commissioner of Taxation v Seven Network Limited), which revolved around whether payments made to the International Olympic Committee for broadcasting rights by Seven were royalties and therefore taxable. The court found that “a cinematograph film in which copyright subsisted under the Copyright Act is not made until the first copy is made” and that there was no way for the broadcast to be reproduced without an external receiving device. More on IPPro here and the judgment can be found here. Seven Network Limited v Commissioner of Taxation [2014] FCA 1411, 

New 'per minute' rates from MCPS for UK TV

From distributions this month,  the UK's mechanical rights collection society, the MCPS, will be updating the ‘per minute’ rates for music broadcast on ITV1, BBC1 and BBC2, both regionally and nationally.  The total revenues that will be collected and distributed remain the same, but the change is in the way revenues are allocated to members.

The current process means a flat ‘per minute’ rate is used to calculate the royalty for music licensed for both UK-wide and regional programming (e.g. National news is UK-wide, local news is specific to an individual region). The MCPS rightly point out that this method does not recognise regional differences in audience size or the amount of music that is used in each region.  The collection society says that the update "will introduce a fairer way of distributing broadcast royalties. The amount [your] royalties will increase or decrease will depend on where your music is used. Based on our analysis, the difference will be less than £50 per year for approximately 83 percent of those who see a change."

The table below shows the current and estimated new ‘per minute’ rate paid if your musical work is used across the entire BBC or ITV network.

Broadcaster	Current Peak rate(£/min)	Peak rate from October 2015 dist.  (£/min)*
ITV1 Network	£5.30	£28.10
BBC1 Network	£45.27	£58.23
BBC2 Network	£10.73	£12.69

*Forecast based on current ‘per minute’ rates

While the network rate has increased, the ‘per minute’ rate for an individual region has now decreased to reflect actual audience size and music usage. Please see the table below for the estimated new regional rates: 

Broadcaster	Current Peak rate(£/min)	Peak rate from October 2015 dist.  (£/min)*
BBC1 Channel Islands	£45.27	£0.14
BBC1 East (Norwich)	£45.27	£3.84
BBC1 East Midlands (Nottingham)	£45.27	£1.84
BBC1 Hull	£45.27	£4.91
BBC1 London	£45.27	£6.84
BBC1 North (Leeds)	£45.27	£4.91
BBC1 North East (Newcastle)	£45.27	£2.77
BBC1 North West (Manchester)	£45.27	£5.26
BBC1 Northern Ireland	£45.27	£1.15
BBC1 Oxford	£45.27	£1.49
BBC1 Scotland	£45.27	£5.37
BBC1 South (Southampton)	£45.27	£4.19
BBC1 South East (Tunbridge Wells)	£45.27	£2.31
BBC1 South West (Plymouth)	£45.27	£2.41
BBC1 Wales	£45.27	£3.87
BBC1 West (Bristol)	£45.27	£2.20
BBC1 West Midlands (Birmingham)	£45.27	£4.73
BBC2 England	£10.73	£10.48
BBC2 Northern Ireland	£10.73	£0.23
BBC2 Scotland	£10.73	£1.17
BBC2 Wales	£10.73	£0.81
ITV1 Anglia	£5.30	£1.95
ITV1 Border	£5.30	£0.87
ITV1 London (Carlton/LWT)	£5.30	£3.47
ITV1 Central	£5.30	£4.04
ITV1 Channel	£5.30	£0.05
ITV1 STV North (Formerly GRAMPIAN)	£5.30	£0.69
ITV1 STV Central (Formerly STV)	£5.30	£2.01
ITV1 Granada	£5.30	£4.60
ITV1 Cymru Wales (Formerly HTV)	£5.30	£3.03
ITV1 Meridian	£5.30	£2.37
ITV1 Tyne Tees	£5.30	£2.05
ITV1 UTV (Formerly ULSTER)	£5.30	£1.40

*Forecast based on current ‘per minute’ rates

http://www.prsformusic.com/creators/memberresources/mcpsroyalties/pages/mcps.aspx

  

Temporary increase in PRS TV admin rates to cover Copyright Tribunal reference by ITV

UK collection society PRS for Music have written to members explaining an increase in administration rates for TV collections to cover the expected cost of a Copyright Tribunal referral by ITV, one of the UK's leading broadcasters and home to X-Factor, Coronation Street, Midsomer Murders and UEFA Cup football. Rates range from 12.5% for BBC collections to 16% for Channel 5, MTV and other satellite and cable channels. A peak hour's one minute play on BBC1 would currently generate £90.35 for the rights holder, whereas on Channel 5 it would generate £11.95.  The letter reads:
                             
"After careful consideration by the Executive Board, it has been agreed that there will be a temporary rise to our TV admin rates by an additional one percent for one year. This will be implemented to cover the expected costs associated with defending the recent Copyright Tribunal reference brought against PRS by the broadcaster ITV.
                             
Following prolonged negotiations, ITV referred the new deal (covering broadcasts from 1 January 2015), to the Copyright Tribunal. This was due to disagreements over the details of our licence renewal. We feel it is vital that we fully participate and vigorously defend this referral to secure a fair return for the use of our members’ work. Copyright Tribunals are costly but it’s important to protect and champion your work and ensure you are fairly remunerated whenever it is used.
                             
The Executive Board has therefore approved a proposal for a one percent increase in our TV admin rates for a period of one year, this being the fairest way of covering the expected costs in defending this referral. While the tribunal will only rule on the ITV licence, it is an important decision for all members whose music is played on TV, meaning we are sharing the cost across all our TV revenues.
                             
The increase is expected to take effect from October 2015.