ترينيداد وتوباغو

This case concerns a dispute concerning the quantum of license fees payable to the respondent.

The applicants filed a notice seeking a declaration that they should (a) be granted a general license to record certain copyrighted musical works and performances and to make reproductions, records and copies for sale, (b) be granted a declaration that the terms and conditions that the responded seeks to grant the applicants general licenses as defined by section 54 of the Copyright Act 1985 are unreasonable and (c) that the court should determine the terms and conditions upon which the license should be granted to the applicants.

The second applicant, Prime Radio, had been operating for 16 months without a license or without making payment of fees to the respondent. Upon the applicant making two separate payments equally of TTD$50,000, an interim license was granted by the respondent. There was still however an outstanding balance which the applicants admitted to owing. The applicants expressed concern over the formula the respondent used to arrive at the fee; it was their submission that the fee should be negotiated between the parties. According to the applicant, not all of the revenue generated was from music, but also from programs where there was no musical input.

When the National Carnival Commission (NCC) sold its broadcasting rights to the 1993 carnival to Prime Radio, the respondent argued that in order for the contract to be exercised, Prime Radio needed its authorization to use its repertoire of music. The respondent also noted that Prime Radio required their permission to make audio tapes for commercial purposes within the four-month period of the release of the latest piece of music on the said tape (see s. 36(2) of the Copyright Act 1985). The respondent wanted the applicant to sign backdated agreements for broadcasting licenses and to pay all outstanding license fees according to their stipulated formula. Two notifications were also sent to applicant to desist from making use of copyrighted music on its airways.

The court’s approach was to consider the standards businesspersons would hold for themselves to determine what was reasonable. In doing so, the court dismissed the Originating Motion on the grounds of insufficient evidence. The court conclusively held that the application failed and that the Originating Motion was to be dismissed.