MRS JUSTICE PROUDMANApproved Judgment
NLA v. Meltwater and PRCA
Despite questions from the Court it has not been made clear whether it is still allegedthat PRCA itself requires a licence. PRCA says it is not a customer of Meltwater anddoes not receive Meltwater News. Mr Howe QC says it does not matter very muchand I ought to concentrate on the position of PRCA’s members.10.
Meltwater does not currently have a licence and was offered a Web Database Licence(“WDL”) by NLA under which Meltwater would be licensed to carry out itsmonitoring activities.11.
Under CDPA the Tribunal exercises control over licensing bodies in accordance withits jurisdiction set out in s. 149 CDPA. Under s. 118 and 119, the terms of any new or existing licensing scheme can be referred to the Tribunal by a potential licensee (or under s. 121 by a person who has been refused a licence) for adjudication on whether those terms are reasonable in the circumstances of the case. A licensor cannot makesuch a reference.12.
On 16 December 2009 Meltwater commenced a reference under s. 119, challenging anumber of aspects of the WDL as unreasonable. PRCA intervened in the reference onbehalf of its members, adopting some of Meltwater’s objections in relation to theWEUL. Meltwater and PRCA make common cause and are represented by the samelawyers. In the Tribunal PRCA has formally appointed Meltwater to act as its agent.13.
Importantly, Meltwater asserts that it does not require a licence at all as its activitiesdo not infringe the Publishers’ copyright. However Meltwater took the position thatnotwithstanding this contention it would enter into the WDL on such terms that theTribunal determined were reasonable. Both Meltwater and PRCA deny that PRCA’smembers require WEULs.14.
Pausing there I make two observations about the effect of CDPA. First, it is commonground that under s. 129 the Tribunal must exercise its powers to ensure that there isno unreasonable discrimination between licensees or prospective licensees under anyproposed scheme, ensuring a level playing field and avoiding the abuse potentiallyinherent in the dominant position held by a collective licensing body.15.
Secondly, there is a dispute between the parties as to the effect of an award once it ismade. PRCA asserts that under s. 123 CDPA the person obtaining the licence isdeemed to be in the same position as regards infringement as if he had at all materialtimes after the making of the reference, not the Order, been the holder of the licence.In other words, it is asserted that the licence is backdated to the start of the referenceso that the licensee cannot be sued for infringement in respective of any subsequentperiod. NLA says that is not the case save in the restricted circumstances provided for by s. 123 (3). That is where the Tribunal has exercised its statutory power to backdatethe effect of its order only where it has ordered a variation in the charges payableunder the scheme. I do not find it necessary to adjudicate on that question of statutoryconstruction.16.
The terms of any licence are a matter for the Tribunal. The Tribunal refused to order (as sought by NLA) that it should not entertain Meltwater’s reference to the extentthat it related to the existence and infringement of copyright. However the Tribunalobserved that the question of whether the End Users required a licence was one whichrequired “careful thought”. There was a suggestion in the judgment that the Tribunal