The High Court has confirmed the effectiveness of “non-precedential” clauses in relation to comparator licence agreements used before the Copyright Tribunal.
The jurisdiction of the Copyright Tribunal is to settle reasonable terms for licences of intellectual property granted by collecting societies. One of the techniques frequently used by the Tribunal is to refer to comparator licences, most pertinently those prior agreements (if any) concluded by the parties to a particular dispute before the Tribunal. In the ITV case, the parties relied upon two such prior licences: one from 2009, and one from 2012. The latter was concluded in settlement of a previous Tribunal reference and was expressly “non-precedential”. The High Court upheld the Copyright Tribunal’s decision not to use the 2012 agreement as a starting point for the settlement of a royalty, in view of the “non-precedential” clause. As Mr Justice Mann observed (at para 21):
“The Tribunal acts on the basis of evidence placed before it by the parties. Parties can agree that certain evidence should not, or should, be treated as evidence, and such an agreement, when implemented does not amount to ousting (or conferring) jurisdiction. It is an agreement which limits (or adds to) the material which the Tribunal has available to it in exercising its jurisdiction. It is no more than that.”