Copyright Tribunal

From: Alan Story <>
Date: Wed, 19 Jul 2000 14:22:52 +0100


F.Y.I. - I thought you might be interested in this "post"
to the "copyrights" list yesterday. Interesting debates on
Forum 98....

Alan Story

Dear "Copyrights" List Members:

In the most significant development in HE (and FE)
copyright licensing for the last 10 years, the Committee of
Vice Chancellors and Principals (CVCP) has just informed
the Copyright Licensing Agency (CLA) that it will ask the
Copyright Tribunal (CT) to determine the terms, costs, and
conditions of the future licence and HECA agreement.

Under the terms of the Copyright Designs and Patents Act
1988, the Tribunal has the statutory power to vary or to
confirm the terms of a copyright licensing scheme such as
that operated by the CLA.

If the CT decides to hear the CVCP's reference, the rate
structures and provisions of the existing license, set to
expire in January 2001, will continue until the Tribunal
makes its decision. The CT's decision will be binding on
both parties, although either side can ask for judicial
review on points of law. The existing three-year licence,
agreed in 1998, is more restrictive towards users than
any previous agreements.

The stakes are high for the CLA. The CLA's various licences
with the educational sector provide it with 90 per cent of
its revenues and are the largest copyright licensing
schemes in the UK, excepting music copyright schemes. Last
year, the CLA's revenues from HE increased by 27 per cent
over the previous year. Only 10 per cent of the CLA's
revenues from the photocopying of copyright-protected
materials is derived from government and business

The CVCP will shortly submit its formal Statement of
Claim in the case and will ask that a wide number of
issues -- costs, per page charges, access, exemptions,
course pack provision, the DACS protocol and other issues
--- be reviewed by the Tribunal.

This reference is distinctly different from most other
cases heard by the CT in that the authors of much of the
copyright-protected and licensed material --- principally
academics, including UK academics --- are also the main
users, as teachers, of this material.

Copyright tribunals operate in numerous countries
because of concerns about the potential abuse of
copyright, due to the monopoly powers of collecting and
licensing agencies, and because of the recognition that
proper access and use of knowledge and information is a
matter of critical public interest.

In this sense, then, the UK Tribunal plays the same role as
other government agencies that regulate the provision of
water, electricity, television, and railways.
The CVCP's decision to refer the terms of the licence to
the CT represents a serious setback for the CLA and
provides an indication of the widespread dissatisfaction
with the licence across the whole of Higher Education
community ---- from cash-strapped students who cannot
afford the high copyright royalties charged for course
packs to lectures who are being prevented from teaching the
best possible courses to universities administrators who
have been questioning the costs and benefits of the current
arrangements. Copyright royalties fees, most of which go to
publishers, often account for 70 per cent of the total cost
of a course pack.

Ten days ago, Peter Shepherd, chief executive of the CLA,
said in a widely-distributed statement that he expected
there would be "a smooth and painless rollover" from the
existing licence to the next licence.

But,in fact, dissatisfaction about the overall philosophy,
the day-to-day operation, and the costs of the current
scheme has been building in the HE community over
the past few years. The disagreement has been exacerbated
by the CLA's restrictive attitude towards what photocopying
is permitted as "fair dealing", and by the CLA's unilateral
modification of the licence by purporting to exclude
illustrations, published in licensed publications, for
which an additional licence and payment to the CLA would be
necessary (the DACS protocol).

Earlier this month the CLA changed course by offering to
postpone introduction of this additional DACS licence
until the main licence is renewed in January 2001.
However, this offer was subject to conditions that the
CVCP accept renewal of the main Licence with no
substantial changes, and with an `uplift' (additional
payment) for artistic works.

Observers viewed it as merely an attempt to lock
universities into an agreement which they had already
clearly told CLA required fundamental renegotiation.

The CVCP's decision to refer the terms of the licence to
the Tribunal was therefore the only possible riposte in the
face of the CLA's continuing intransigence. A CVCP
spokesperson was recently quoted in the Times Higher as
saying that the current scheme requires a "root-and-branch

The decision of the CT on the CVCP's reference will also
likely have important ramifications for the FE sector as
its own licence is closely modeled on the HE license.

The CVCP is being represented by Baker McKenzie, a major
City (and international) firm of solicitors. Henry Carr,QC,
an intellectual property specialist, has drafted the
Statement of Claim and will represent the CVCP before the

To read further on the powers and procedures of the
Copyright Tribunal, consult sections 116-152 of the CDPA

"Copyrights" will attempt to provide list members with all
relevant documents related to this reference and welcomes
reactions, comments, and analyses from list members.

Alan Story

For The Copyright in Higher Education Workgroup (CHEW)

Note: No copyright is claimed in this "post" and you are
welcome to distribute it to whomever you wish.

Alan Story
Kent Law School
Eliot College
University of Kent Canterbury
Kent UK CT2 7NS
+44 (0)1227 823316
Received on Mon Jan 24 2000 - 19:17:43 GMT

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