In a recent decision, the Singapore Copyright Tribunal struck out an application by Tiananmen KTV and three other KTV companies ("KTV companies") to challenge the fees they were required to pay the respondent Innoform Entertainment ("Innoform"), a collecting society, under a Karaokeon- Demand ("KOD") licence agreement.
This was not the first time the KTV companies have challenged the fees they had to pay for the licence granted by Innoform to reproduce cinematograph copies of music videos to be used on the KOD system. They had previously applied to a differently constituted Copyright Tribunal (in CT 1 of 2010) arguing that the charges and conditions imposed by Innoform were, among other things, "unreasonable, arbitrary and capricious". They requested that the Copyright Tribunal fix a reasonable sum and mode of payment instead. The Copyright Tribunal has a wide jurisdiction to preside over disputes arising out of licence schemes for all manner of work and subject-matter other than works, and all types of licence rights and acts, including the present case. However, the Copyright Tribunal refused to rule in favour of the KTV companies in CT 1 of 2010 because the KTV companies had failed to discharge its legal burden of proving that Innoform's licence scheme was not reasonable.
Notwithstanding the Copyright Tribunal's previous decision, the same KTV companies applied once more to the Copyright Tribunal in respect of the same licence, on 4th September 2012.
As a preliminary matter, the Copyright Tribunal had to first decide whether it actually had the jurisdiction to hear Innoform's striking out application. It determined that it did, after considering the Copyright Tribunals (Procedure) Regulations.
Having done so, it allowed Innoform's striking out application on the ground that the KTV companies were not at liberty to make a further reference as long as the licence subsisted.
It reasoned that while the Copyright Act provided for further references to the Tribunal with respect to proposed and existing licence schemes under certain circumstances, there was no such provision for licences themselves. It rejected the KTV companies' argument that this was a loophole. The Copyright Tribunal stated that the Copyright Act is clear on the issue. In any event, even if the KTV companies could have made a further reference, the Copyright Tribunal held that the KTV companies' application would still be struck out for being premature. The Copyright Act provides that a licence scheme should not be referred again to the Copyright Tribunal before the expiration of a 12 month period from the date of the order (if the order concerned was made so as to be in force indefinitely or for a period exceeding 15 months) without the leave of the Copyright Tribunal. Using that time period as a guide, the Copyright Tribunal noted that less than a year had passed between the decision in CT 1 of 2010 and the KTV companies' current application, and the KTV companies had not highlighted any material change in circumstances.
The KTV companies have filed a notice requesting reference to the High Court.
This case makes it clear that the Copyright Act does not allow an applicant to contest the reasonableness of the same licence twice, unlike with licence schemes where it appears that it is possible to take a second bite at the cherry. In such a situation, according to the Copyright Tribunal, the proper course is to terminate the licence and apply afresh for the appropriate relief.