US musicians lose challenge over UK performers' rights restrictions

The High Court has dismissed a judicial review challenge by US musicians' unions seeking to overturn regulations restricting their entitlement to equitable remuneration when recordings are played in the UK. The decision reinforces fundamental constitutional principles about the relationship between international treaties and domestic law.

The American Federation of Musicians, SAG-AFTRA, and SoundExchange challenged The Copyright and Performances (Application to Other Countries) (Amendment) (No. 2) Order 2024. This subordinate legislation denies US performers equitable remuneration for broadcasts and public performances of their recordings in the UK, principally because US law does not afford equivalent rights to British performers.

The claimants argued the Order breached the UK's obligations under three unincorporated treaties: the Rome Convention 1961, the WIPO Performances and Phonograms Treaty 1996, and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership 2018. They contended that where recordings are published simultaneously in multiple countries—including states party to these treaties—US performers should receive the same treatment as UK performers.

The justiciability question

Lord Justice Males, delivering the leading judgement, held that the claim was fundamentally non-justiciable. The court reaffirmed the long-established constitutional principle that unincorporated treaties do not form part of UK domestic law and cannot create enforceable rights for individuals.

The claimants attempted to rely on exceptions recognised in cases such as R v Secretary of State for the Home Department, ex parte Launder, where courts have examined compliance with international obligations. However, Males LJ distinguished those authorities, noting they were confined to human rights contexts where the European Convention on Human Rights was soon to be incorporated and an established body of Strasbourg jurisprudence existed.

The court rejected arguments that ministerial statements about ensuring compliance with international obligations created a "domestic foothold" enabling judicial scrutiny. Such statements, Males LJ observed, were "no substitute for statutory incorporation" and did not transform treaty provisions into sources of domestic rights.

Ultra vires challenge dismissed

The claimants additionally argued the Order was ultra vires, claiming it improperly removed rights conferred by the Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Act 2024. Males LJ rejected this submission, noting that Parliament had expressly contemplated restrictions through section 5(3) of that Act, which authorised Orders in Council to limit performers' rights in precisely these circumstances.

Consultation process upheld

Permission to amend the claim to challenge the consultation process was refused. The claimants argued the Government had failed to disclose its intention to make a new reservation to the Rome Convention. Males LJ found this possibility had not reached the stage of a sufficiently developed policy option requiring disclosure, and sophisticated consultees could be expected to understand that treaty reservations remained possible.

Constitutional implications

The judgement emphasises that policy choices balancing international obligations with domestic economic and cultural interests remain matters for Parliament and the executive. The court noted that remuneration paid to US producers is often retained by UK affiliates and reinvested in British artists—a legitimate policy consideration supporting differential treatment between producers and performers.

Mr Justice Bourne agreed with the leading judgement. The decision reinforces parliamentary sovereignty whilst recognising that questions of treaty compliance may ultimately be addressed through international dispute resolution mechanisms rather than domestic courts.

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