BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom Statutory Instruments |
||
|
You are here: BAILII >> Databases >> United Kingdom Statutory Instruments >> The Copyright and Related Rights Regulations 1996 No. 2967 URL: http://www.bailii.org/uk/legis/num_reg/1996/uksi_19962967_en.html |
||
[New search] [Help]
Statutory Instruments
COPYRIGHT RIGHTS IN PERFORMANCES
Made
26th November 1996
Coming into force
1st December 1996
Whereas a draft of the following Regulations has been approved by resolution of each House of Parliament:
Now, therefore, the Secretary of State, being a Minister designated(1) for the purposes of section 2(2) of the European Communities Act 1972(2) in relation to measures relating to the protection of copyright and rights in performances, in exercise of powers conferred by section 2(2) and (4) of the said Act of 1972, hereby makes the following Regulations:-
1.-(1) These Regulations may be cited as the Copyright and Related Rights Regulations 1996.
(2) These Regulations come into force on 1st December 1996.
(3) These Regulations extend to the whole of the United Kingdom.
2. In these Regulations-
"EEA Agreement" means the Agreement on the European Economic Area signed at Oporto on 2nd May 1992(3), as adjusted by the Protocol signed at Brussels on 17th March 1993(4); and
"EEA state" means a state which is a contracting party to the EEA Agreement.
3. These Regulations make provision for the purpose of implementing-
(a)Council Directive No. 92/100/EEC of 19 November 1992(5) on rental right and lending right and on certain rights related to copyright in the field of intellectual property;
(b)Council Directive No. 93/83/EEC of 27 September 1993(6) on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission;
(c)the provisions of Council Directive No. 93/98/EEC of 29 October 1993(7) harmonizing the term of protection of copyright and certain related rights, so far as not implemented by the Duration of Copyright and Rights in Performances Regulations 1995(8); and
(d)certain obligations of the United Kingdom created by or arising under the EEA Agreement so far as relevant to the implementation of those Directives.
4. The Copyright, Designs, and Patents Act 1988(9) is amended in accordance with the provisions of Part II of these Regulations, subject to the savings and transitional provisions in Part III of these Regulations.
5. For section 6(4) (broadcasts: place where regarded as made) substitute-
"(4) For the purposes of this Part, the place from which a broadcast is made is the place where, under the control and responsibility of the person making the broadcast, the programme-carrying signals are introduced into an uninterrupted chain of communication (including, in the case of a satellite transmission, the chain leading to the satellite and down towards the earth).".
6.-(1) In section 6 (broadcasts), after subsection (4) insert-
"(4A) Subsections (3) and (4) have effect subject to section 6A (safeguards in case of certain satellite broadcasts)."
(2) After that section insert-
6A.-(1) This section applies where the place from which a broadcast by way of satellite transmission is made is located in a country other than an EEA State and the law of that country fails to provide at least the following level of protection-
(a)exclusive rights in relation to broadcasting equivalent to those conferred by section 20 (infringement by broadcasting) on the authors of literary, dramatic, musical and artistic works, films and broadcasts;
(b)a right in relation to live broadcasting equivalent to that conferred on a performer by section 182(1)(b) (consent required for live broadcast of performance); and
(c)a right for authors of sound recordings and performers to share in a single equitable remuneration in respect of the broadcasting of sound recordings.
(2) Where the place from which the programme-carrying signals are transmitted to the satellite ("the uplink station") is located in an EEA State-
(a)that place shall be treated as the place from which the broadcast is made, and
(b)the person operating the uplink station shall be treated as the person making the broadcast.
(3) Where the uplink station is not located in an EEA State but a person who is established in an EEA State has commissioned the making of the broadcast-
(a)that person shall be treated as the person making the broadcast, and
(b)the place in which he has his principal establishment in the European Economic Area shall be treated as the place from which the broadcast is made.".
7. In Chapter VII of Part I (provisions as to copyright licensing), after section 144 insert-
144A.-(1) This section applies to the right of the owner of copyright in a literary, dramatic, musical or artistic work, sound recording or film to grant or refuse authorisation for cable re-transmission of a broadcast from another EEA member state in which the work is included. That right is referred to below as "cable re-transmission right".
(2) Cable re-transmission right may be exercised against a cable operator only through a licensing body.
(3) Where a copyright owner has not transferred management of his cable re-transmission right to a licensing body, the licensing body which manages rights of the same category shall be deemed to be mandated to manage his right. Where more than one licensing body manages rights of that category, he may choose which of them is deemed to be mandated to manage his right.
(4) A copyright owner to whom subsection (3) applies has the same rights and obligations resulting from any relevant agreement between the cable operator and the licensing body as have copyright owners who have transferred management of their cable re-transmission right to that licensing body.
(5) Any rights to which a copyright owner may be entitled by virtue of subsection (4) must be claimed within the period of three years beginning with the date of the cable re-transmission concerned.
(6) This section does not affect any rights exercisable by the maker of the broadcast, whether in relation to the broadcast or a work included in it.
(7) In this section- "cable operator" means a person providing a cable programme service; and
"cable re-transmission" means the reception and immediate re-transmission by way of a cable programme service of a broadcast.".
8. In section 178 (minor definitions), in the definition of "wireless telegraphy" at the end insert ", but does not include the transmission of microwave energy between terrestrial fixed points".
9.-(1) Section 18 (infringement of copyright by issue of copies of work to public) is amended as follows.
(2) For subsections (2) and (3) (meaning of issue of copies to the public) substitute-
"(2) References in this Part to the issue to the public of copies of a work are to-
(a)the act of putting into circulation in the EEA copies not previously put into circulation in the EEA by or with the consent of the copyright owner, or
(b)the act of putting into circulation outside the EEA copies not previously put into circulation in the EEA or elsewhere.
(3) References in this Part to the issue to the public of copies of a work do not include-
(a)any subsequent distribution, sale, hiring or loan of copies previously put into circulation (but see section 18A: infringement by rental or lending), or
(b)any subsequent importation of such copies into the United Kingdom or another EEA state,
except so far as paragraph (a) of subsection (2) applies to putting into circulation in the EEA copies previously put into circulation outside the EEA.".
(3) After subsection (3) add-
"(4) References in this Part to the issue of copies of a work include the issue of the original.".
(4) In consequence of the above amendments, in section 27 (meaning of "infringing copy") omit subsection (3A) and the words "Subject to subsection (3A)," in subsection (3).
(5) In section 172A (meaning of EEA national and EEA state), for the sidenote and subsection (1) substitute-
(1) In this Part-
"the EEA" means the European Economic Area;
"EEA national" means a national of an EEA state; and
"EEA state" means a state which is a contracting party to the EEA Agreement.".
(6) In section 179 (index of defined expressions)-
(a)in the first column of the entry relating to the expressions "EEA national" and "EEA state", at the beginning insert "EEA,", and
(b)in the second column of the entry relating to the expression "issue of copies to the public" for "section 18(2)" substitute "section 18".
10.-(1) In section 16 (the acts restricted by copyright in a work), in subsection (1), after paragraph (b) insert-
"(ba)to rent or lend the work to the public (see section 18A);".
(2) After section 18 (infringement of copyright by issue of copies of work), insert-
18A.-(1) The rental or lending of copies of the work to the public is an act restricted by the copyright in-
(a)a literary, dramatic or musical work,
(b)an artistic work, other than-
(i)a work of architecture in the form of a building or a model for a building, or
(ii)a work of applied art, or
(c)a film or a sound recording.
(2) In this Part, subject to the following provisions of this section-
(a)"rental" means making a copy of the work available for use, on terms that it will or may be returned, for direct or indirect economic or commercial advantage, and
(b)"lending" means making a copy of the work available for use, on terms that it will or may be returned, otherwise than for direct or indirect economic or commercial advantage, through an establishment which is accessible to the public.
(3) The expressions "rental" and "lending" do not include-
(a)making available for the purpose of public performance, playing or showing in public, broadcasting or inclusion in a cable programme service;
(b)making available for the purpose of exhibition in public; or
(c)making available for on-the-spot reference use.
(4) The expression "lending" does not include making available between establishments which are accessible to the public.
(5) Where lending by an establishment accessible to the public gives rise to a payment the amount of which does not go beyond what is necessary to cover the operating costs of the establishment, there is no direct or indirect economic or commercial advantage for the purposes of this section.
(6) References in this Part to the rental or lending of copies of a work include the rental or lending of the original.".
(3) In section 178 (minor definitions), at the appropriate place insert-
""rental right" means the right of a copyright owner to authorise or prohibit the rental of copies of the work (see section 18A);";
and omit the definition of "rental".
(4) In section 179 (index of defined expressions), in the entry relating to the expression "rental" for "section 178" substitute "section 18A(2) to (6)"; and at the appropriate places insert-
"lending section 18A(2) to (6)"
"rental right section 178".
11.-(1) In Chapter III of Part I (acts permitted in relation to copyright works), in the sections relating to education, after section 36 insert-
36A. Copyright in a work is not infringed by the lending of copies of the work by an educational establishment.".
(2) In the same Chapter, in the sections relating to libraries and archives, after section 40 insert-
40A.-(1) Copyright in a work of any description is not infringed by the lending of a book by a public library if the book is within the public lending right scheme. For this purpose-
(a)"the public lending right scheme" means the scheme in force under section 1 of the Public Lending Right Act 1979, and
(b)a book is within the public lending right scheme if it is a book within the meaning of the provisions of the scheme relating to eligibility, whether or not it is in fact eligible.
(2) Copyright in a work is not infringed by the lending of copies of the work by a prescribed library or archive (other than a public library) which is not conducted for profit."
(3) In the same Chapter for section 66 (rental of sound recordings, films and computer programs), and the heading preceding it, substitute-
66.-(1) The Secretary of State may by order provide that in such cases as may be specified in the order the lending to the public of copies of literary, dramatic, musical or artistic works, sound recordings or films shall be treated as licensed by the copyright owner subject only to the payment of such reasonable royalty or other payment as may be agreed or determined in default of agreement by the Copyright Tribunal.
(2) No such order shall apply if, or to the extent that, there is a licensing scheme certified for the purposes of this section under section 143 providing for the grant of licences.
(3) An order may make different provision for different cases and may specify cases by reference to any factor relating to the work, the copies lent, the lender or the circumstances of the lending.
(4) An order shall be made by statutory instrument; and no order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.
(5) Nothing in this section affects any liability under section 23 (secondary infringement: possessing or dealing with infringing copy) in respect of the lending of infringing copies.".
(4) In section 143(1) (certification of licensing schemes: relevant provisions), for paragraph (c) substitute-
"(c)section 66 (lending to public of copies of certain works),".
(5) In section 178 (minor definitions), insert at the appropriate place-
""public library" means a library administered by or on behalf of-
in England and Wales, a library authority within the meaning of the Public Libraries and Museums Act 1964;
in Scotland, a statutory library authority within the meaning of the Public Libraries (Scotland) Act 1955;
in Northern Ireland, an Education and Library Board within the meaning of the Education and Libraries (Northern Ireland) Order 1986;".
(6) In section 179 (index of defined expressions), at the appropriate place insert-
"public library section 178".
(7) The following provisions (which relate to lending by public libraries) are repealed-
section 4(2) of the Public Libraries (Scotland) Act 1955(10),
section 8(6) of the Public Libraries and Museums Act 1964(11),
Article 77(3) of the Education and Libraries (Northern Ireland) Order 1986(12),
paragraphs 6, 8 and 34 of Schedule 7 to the Copyright, Designs and Patents Act 1988(13) (which insert the above provisions).
12. In Chapter V of Part I (dealings with rights in copyright works), after section 93 insert-
93A.-(1) Where an agreement concerning film production is concluded between an author and a film producer, the author shall be presumed, unless the agreement provides to the contrary, to have transferred to the film producer any rental right in relation to the film arising by virtue of the inclusion of a copy of the author's work in the film.
(2) In this section "author" means an author, or prospective author, of a literary, dramatic, musical or artistic work.
(3) Subsection (1) does not apply to any rental right in relation to the film arising by virtue of the inclusion in the film of the screenplay, the dialogue or music specifically created for and used in the film.
(4) Where this section applies, the absence of signature by or on behalf of the author does not exclude the operation of section 91(1) (effect of purported assignment of future copyright).
(5) The reference in subsection (1) to an agreement concluded between an author and a film producer includes any agreement having effect between those persons, whether made by them directly or through intermediaries.
(6) Section 93B (right to equitable remuneration on transfer of rental right) applies where there is a presumed transfer by virtue of this section as in the case of an actual transfer.".
13.-(1) In section 133 (licences to reflect payments in respect of underlying rights), for subsection (1) (considerations relevant to rental of certain works) substitute-
"(1) In considering what charges should be paid for a licence-
(a)on a reference or application under this Chapter relating to licences for the rental or lending of copies of a work, or
(b)on an application under section 142 (royalty or other sum payable for lending of certain works), the Copyright Tribunal shall take into account any reasonable payments which the owner of the copyright in the work is liable to make in consequence of the granting of the licence, or of the acts authorised by the licence, to owners of copyright in works included in that work.".
(2) For section 142 (royalty or other sum payable for rental of sound recording, film or computer program), and the heading preceding it, substitute-
(1) An application to settle the royalty or other sum payable in pursuance of section 66 (lending of copies of certain copyright works) may be made to the Copyright Tribunal by the copyright owner or the person claiming to be treated as licensed by him.
(2) The Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.
(3) Either party may subsequently apply to the Tribunal to vary the order, and the Tribunal shall consider the matter and make such order confirming or varying the original order as it may determine to be reasonable in the circumstances.
(4) An application under subsection (3) shall not, except with the special leave of the Tribunal, be made within twelve months from the date of the original order or of the order on a previous application under that subsection.
(5) An order under subsection (3) has effect from the date on which it is made or such later date as may be specified by the Tribunal.".
(3) In section 149 (jurisdiction of the Copyright Tribunal), in paragraph (e) for "rental of sound recording, film or computer program" substitute "lending of certain works".
14.-(1) In Chapter V of Part I (dealings with rights in copyright works), after section 93A (inserted by regulation 12) insert-
93B.-(1) Where an author to whom this section applies has transferred his rental right concerning a sound recording or a film to the producer of the sound recording or film, he retains the right to equitable remuneration for the rental.
The authors to whom this section applies are-
(a)the author of a literary, dramatic, musical or artistic work, and
(b)the principal director of a film.
(2) The right to equitable remuneration under this section may not be assigned by the author except to a collecting society for the purpose of enabling it to enforce the right on his behalf.
The right is, however, transmissible by testamentary disposition or by operation of law as personal or moveable property; and it may be assigned or further transmitted by any person into whose hands it passes.
(3) Equitable remuneration under this section is payable by the person for the time being entitled to the rental right, that is, the person to whom the right was transferred or any successor in title of his.
(4) The amount payable by way of equitable remuneration is as agreed by or on behalf of the persons by and to whom it is payable, subject to section 93C (reference of amount to Copyright Tribunal).
(5) An agreement is of no effect in so far as it purports to exclude or restrict the right to equitable remuneration under this section.
(6) References in this section to the transfer of rental right by one person to another include any arrangement having that effect, whether made by them directly or through intermediaries.
(7) In this section a "collecting society" means a society or other organisation which has as its main object, or one of its main objects, the exercise of the right to equitable remuneration under this section on behalf of more than one author.
93C.-(1) In default of agreement as to the amount payable by way of equitable remuneration under section 93B, the person by or to whom it is payable may apply to the Copyright Tribunal to determine the amount payable.
(2) A person to or by whom equitable remuneration is payable under that section may also apply to the Copyright Tribunal-
(a)to vary any agreement as to the amount payable, or
(b)to vary any previous determination of the Tribunal as to that matter; but except with the special leave of the Tribunal no such application may be made within twelve months from the date of a previous determination.
An order made on an application under this subsection has effect from the date on which it is made or such later date as may be specified by the Tribunal.
(3) On an application under this section the Tribunal shall consider the matter and make such order as to the method of calculating and paying equitable remuneration as it may determine to be reasonable in the circumstances, taking into account the importance of the contribution of the author to the film or sound recording.
(4) Remuneration shall not be considered inequitable merely because it was paid by way of a single payment or at the time of the transfer of the rental right.
(5) An agreement is of no effect in so far as it purports to prevent a person questioning the amount of equitable remuneration or to restrict the powers of the Copyright Tribunal under this section.".
(2) In section 149 (jurisdiction of the Copyright Tribunal), before paragraph (a) insert-
"(zb)section 93C (application to determine amount of equitable remuneration under section 93B);".
15.-(1) Chapter VII of Part I (copyright licensing) is amended as follows.
(2) For section 117 (licensing schemes about which references and applications may be made) substitute-
Sections 118 to 123 (references and applications with respect to licensing schemes) apply to licensing schemes which are operated by licensing bodies and cover works of more than one author, so far as they relate to licences for-
(a)copying the work,
(b)rental or lending of copies of the work to the public,
(c)performing, showing or playing the work in public, or
(d)broadcasting the work or including it in a cable programme service;
and references in those sections to a licensing scheme shall be construed accordingly.".
(3) For section 124 (licences about which references and applications may be made) substitute-
Sections 125 to 128 (references and applications with respect to licensing by licensing bodies) apply to licences which are granted by a licensing body otherwise than in pursuance of a licensing scheme and cover works of more than one author, so far as they authorise-
(a)copying the work,
(b)rental or lending of copies of the work to the public,
(c)performing, showing or playing the work in public, or
(d)broadcasting the work or including it in a cable programme service;
and references in those sections to a licence shall be construed accordingly.".
16.-(1) A person who after the expiry of copyright protection, publishes for the first time a previously unpublished work has, in accordance with the following provisions, a property right ("publication right") equivalent to copyright.
(2) For this purpose publication includes any communication to the public, in particular-
(a)the issue of copies to the public;
(b)making the work available by means of an electronic retrieval system;
(c)the rental or lending of copies of the work to the public;
(d)the performance, exhibition or showing of the work in public; or
(e)broadcasting the work or including it in a cable programme service.
(3) No account shall be taken for this purpose of any unauthorised act.
In relation to a time when there is no copyright in the work, an unauthorised act means an act done without the consent of the owner of the physical medium in which the work is embodied or on which it is recorded.
(4) A work qualifies for publication right protection only if-
(a)first publication is in the European Economic Area, and
(b)the publisher of the work is at the time of first publication a national of an EEA state. Where two or more persons jointly publish the work, it is sufficient for the purposes of paragraph (b) if any of them is a national of an EEA state.
(5) No publication right arises from the publication of a work in which Crown copyright or Parliamentary copyright subsisted.
(6) Publication right expires at the end of the period of 25 years from the end of the calendar year in which the work was first published.
(7) In this regulation a "work" means a literary, dramatic, musical or artistic work or a film.
(8) Expressions used in this regulation (other than "publication") have the same meaning as in Part I.
17.-(1) The substantive provisions of Part I relating to copyright (but not moral rights in copyright works), that is, the relevant provisions of-
Chapter II (rights of copyright owner),
Chapter III (acts permitted in relation to copyright works),
Chapter V (dealings with rights in copyright works),
Chapter VI (remedies for infringement), and
Chapter VII (copyright licensing),
apply in relation to publication right as in relation to copyright, subject to the following exceptions and modifications.
(2) The following provisions do not apply-
(a)in Chapter III (acts permitted in relation to copyright works), sections 57, 64, 66A and 67;
(b)in Chapter VI (remedies for infringement), sections 104 to 106;
(c)in Chapter VII (copyright licensing), section 116(4).
(3) The following provisions have effect with the modifications indicated-
(a)in section 107(4) and (5) (offences of making or dealing in infringing articles, &c.), the maximum punishment on summary conviction is imprisonment for a term not exceeding three months or a fine not exceeding level 5 on the standard scale, or both;
(b)in sections 116(2), 117 and 124 for "works of more than one author" substitute "works of more than one publisher".
(4) The other relevant provisions of Part I, that is-
in Chapter I, provisions defining expressions used generally in Part I,
Chapter VIII (the Copyright Tribunal),
in Chapter IX-
section 161 (territorial waters and the continental shelf), and
section 162 (British ships, aircraft and hovercraft), and in Chapter X-
section 171(1) and (3) (savings for other rules of law, &c.), and
sections 172 to 179 (general interpretation provisions),
apply, with any necessary adaptations, for the purposes of supplementing the substantive provisions of that Part as applied by this regulation.
(5) Except where the context otherwise requires, any other enactment relating to copyright (whether passed or made before or after these regulations) applies in relation to publication right as in relation to copyright.
In this paragraph "enactment" includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978(14).
18.-(1) In section 9(2) (person to be taken to be author of work), for paragraph (a) (sound recordings and films) substitute-
"(aa)in the case of a sound recording, the producer;
(ab)in the case of a film, the producer and the principal director;".
(2) In section 10 (works of joint authorship), after subsection (1) insert-
"(1A) A film shall be treated as a work of joint authorship unless the producer and the principal director are the same person.".
(3) In section 11 (first ownership of copyright), in subsection (2) (work made by employee in course of employment) after "literary, dramatic, musical or artistic work" insert ", or a film,".
(4) In section 105 (presumptions relevant to sound recordings and films)-
(a)in subsections (2)(a) and (5)(a) for "author or director" substitute "director or producer",
(b)in subsection (5), after paragraph (a) insert-
"(aa)that a named person was the principal director of the film, the author of the screenplay, the author of the dialogue or the composer of music specifically created for and used in the film, or,".
and
(c)after subsection (5) add-
"(6) For the purposes of this section, a statement that a person was the director of a film shall be taken, unless a contrary indication appears, as meaning that he was the principal director of the film.".
(5) In section 178 (minor definitions), at the appropriate place insert-
""producer", in relation to a sound recording or a film, means the person by whom the arrangements necessary for the making of the sound recording or film are undertaken;".
(6) In section 179 (index of defined expressions), at the appropriate place insert-
"producer (in relation to a sound recording or film) section 178".
19. Any question arising, in relation to photographs which were existing works within the meaning of Schedule 1, as to who is to be regarded as the author for the purposes of-
(a)regulations 15 and 16 of the Duration of Copyright and Rights in Performances Regulations 1995(15) (duration of copyright: application of new provisions subject to general saving), or
(b)regulation 19(2)(b) of those regulations (ownership of revived copyright),
is to be determined in accordance with section 9 as in force on the commencement of those regulations (and not, by virtue of paragraph 10 of Schedule 1, in accordance with the law in force at the time when the work was made).
20.-(1) For section 182 (performers' rights: consent required for recording or live transmission of performance) substitute-
(1) A performer's rights are infringed by a person who, without his consent-
(a)makes a recording of the whole or any substantial part of a qualifying performance directly from the live performance,
(b)broadcasts live, or includes live in a cable programme service, the whole or any substantial part of a qualifying performance,
(c)makes a recording of the whole or any substantial part of a qualifying performance directly from a broadcast of, or cable programme including, the live performance.
(2) A performer's rights are not infringed by the making of any such recording by a person for his private and domestic use.
(3) In an action for infringement of a performer's rights brought by virtue of this section damages shall not be awarded against a defendant who shows that at the time of the infringement he believed on reasonable grounds that consent had been given.".
(2) After that section insert-
182A.-(1) A performer's rights are infringed by a person who, without his consent, makes, otherwise than for his private and domestic use, a copy of a recording of the whole or any substantial part of a qualifying performance.
(2) It is immaterial whether the copy is made directly or indirectly.
(3) The right of a performer under this section to authorise or prohibit the making of such copies is referred to in this Part as "reproduction right".
182B.-(1) A performer's rights are infringed by a person who, without his consent, issues to the public copies of a recording of the whole or any substantial part of a qualifying performance.
(2) References in this Part to the issue to the public of copies of a recording are to-
(a)the act of putting into circulation in the EEA copies not previously put into circulation in the EEA by or with the consent of the performer, or
(b)the act of putting into circulation outside the EEA copies not previously put into circulation in the EEA or elsewhere.
(3) References in this Part to the issue to the public of copies of a recording do not include-
(a)any subsequent distribution, sale, hiring or loan of copies previously put into circulation (but see section 182C: consent required for rental or lending), or
(b)any subsequent importation of such copies into the United Kingdom or another EEA state,
except so far as paragraph (a) of subsection (2) applies to putting into circulation in the EEA copies previously put into circulation outside the EEA.
(4) References in this Part to the issue of copies of a recording of a performance include the issue of the original recording of the live performance.
(5) The right of a performer under this section to authorise or prohibit the issue of copies to the public is referred to in this Part as "distribution right".
182C.-(1) A performer's rights are infringed by a person who, without his consent, rents or lends to the public copies of a recording of the whole or any substantial part of a qualifying performance.
(2) In this Part, subject to the following provisions of this section-
(a)"rental" means making a copy of a recording available for use, on terms that it will or may be returned, for direct or indirect economic or commercial advantage, and
(b)"lending" means making a copy of a recording available for use, on terms that it will or may be returned, otherwise than for direct or indirect economic or commercial advantage, through an establishment which is accessible to the public.
(3) The expressions "rental" and "lending" do not include-
(a)making available for the purpose of public performance, playing or showing in public, broadcasting or inclusion in a cable programme service;
(b)making available for the purpose of exhibition in public; or
(c)making available for on-the-spot reference use.
(4) The expression "lending" does not include making available between establishments which are accessible to the public.
(5) Where lending by an establishment accessible to the public gives rise to a payment the amount of which does not go beyond what is necessary to cover the operating costs of the establishment, there is no direct or indirect economic or commercial advantage for the purposes of this section.
(6) References in this Part to the rental or lending of copies of a recording of a performance include the rental or lending of the original recording of the live performance.
(7) In this Part-
"rental right" means the right of a performer under this section to authorise or prohibit the rental of copies to the public, and
"lending right" means the right of a performer under this section to authorise or prohibit the lending of copies to the public.
182D.-(1) Where a commercially published sound recording of the whole or any substantial part of a qualifying performance-
(a)is played in public, or
(b)is included in a broadcast or cable programme service,
the performer is entitled to equitable remuneration from the owner of the copyright in the sound recording.
(2) The right to equitable remuneration under this section may not be assigned by the performer except to a collecting society for the purpose of enabling it to enforce the right on his behalf.
The right is, however, transmissible by testamentary disposition or by operation of law as personal or moveable property; and it may be assigned or further transmitted by any person into whose hands it passes.
(3) The amount payable by way of equitable remuneration is as agreed by or on behalf of the persons by and to whom it is payable, subject to the following provisions.
(4) In default of agreement as to the amount payable by way of equitable remuneration, the person by or to whom it is payable may apply to the Copyright Tribunal to determine the amount payable.
(5) A person to or by whom equitable remuneration is payable may also apply to the Copyright Tribunal-
(a)to vary any agreement as to the amount payable, or
(b)to vary any previous determination of the Tribunal as to that matter;
but except with the special leave of the Tribunal no such application may be made within twelve months from the date of a previous determination.
An order made on an application under this subsection has effect from the date on which it is made or such later date as may be specified by the Tribunal.
(6) On an application under this section the Tribunal shall consider the matter and make such order as to the method of calculating and paying equitable remuneration as it may determine to be reasonable in the circumstances, taking into account the importance of the contribution of the performer to the sound recording.
(7) An agreement is of no effect in so far as it purports-
(a)to exclude or restrict the right to equitable remuneration under this section, or
(b)to prevent a person questioning the amount of equitable remuneration or to restrict the powers of the Copyright Tribunal under this section.".
(3) In Schedule 2 (rights in performances: permitted acts), after paragraph 6 insert-
6A.-(1) The rights conferred by Part II are not infringed by the lending of copies of a recording of a performance by an educational establishment.
(2) Expressions used in this paragraph have the same meaning as in section 36A; and any provision with respect to the application of that section made under section 174(2) (instruction given elsewhere than an educational establishment) applies also for the purposes of this paragraph.
6B.-(1) The rights conferred by Part II are not infringed by the lending of copies of a recording of a performance by a prescribed library or archive (other than a public library) which is not conducted for profit.
(2) Expressions used in this paragraph have the same meaning as in section 40A(2); and any provision under section 37 prescribing libraries or archives for the purposes of that section applies also for the purposes of this paragraph.";
and after paragraph 14 insert-
14A.-(1) The Secretary of State may by order provide that in such cases as may be specified in the order the lending to the public of copies of films or sound recordings shall be treated as licensed by the performer subject only to the payment of such reasonable royalty or other payment as may be agreed or determined in default of agreement by the Copyright Tribunal.
(2) No such order shall apply if, or to the extent that, there is a licensing scheme certified for the purposes of this paragraph under paragraph 16 of Schedule 2A providing for the grant of licences.
(3) An order may make different provision for different cases and may specify cases by reference to any factor relating to the work, the copies lent, the lender or the circumstances of the lending.
(4) An order shall be made by statutory instrument; and no order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.
(5) Nothing in this section affects any liability under section 184(1)(b) (secondary infringement: possessing or dealing with illicit recording) in respect of the lending of illicit recordings.
(6) Expressions used in this paragraph have the same meaning as in section 66.".
(4) In section 212 (index of defined expressions: Part II), at the appropriate places insert-
"distribution right section 182B(5)"
"lending right section 182C(7)"
"rental right section 182C(7)"
"reproduction right section 182A(3)".
21.-(1) After section 191 insert-
191A.-(1) The following rights conferred by this Part on a performer-
reproduction right (section 182A),
distribution right (section 182B),
rental right and lending right (section 182C),
are property rights ("a performer's property rights").
(2) References in this Part to the consent of the performer shall be construed in relation to a performer's property rights as references to the consent of the rights owner.
(3) Where different persons are (whether in consequence of a partial assignment or otherwise) entitled to different aspects of a performer's property rights in relation to a performance, the rights owner for any purpose of this Part is the person who is entitled to the aspect of those rights relevant for that purpose.
(4) Where a performer's property rights (or any aspect of them) is owned by more than one person jointly, references in this Part to the rights owner are to all the owners, so that, in particular, any requirement of the licence of the rights owner requires the licence of all of them.
191B.-(1) A performer's property rights are transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.
(2) An assignment or other transmission of a performer's property rights may be partial, that is, limited so as to apply-
(a)to one or more, but not all, of the things requiring the consent of the rights owner;
(b)to part, but not the whole, of the period for which the rights are to subsist.
(3) An assignment of a performer's property rights is not effective unless it is in writing signed by or on behalf of the assignor.
(4) A licence granted by the owner of a performer's property rights is binding on every successor in title to his interest in the rights, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Part to doing anything with, or without, the licence of the rights owner shall be construed accordingly.
191C.-(1) This section applies where by an agreement made in relation to a future recording of a performance, and signed by or on behalf of the performer, the performer purports to assign his performer's property rights (wholly or partially) to another person.
(2) If on the rights coming into existence the assignee or another person claiming under him would be entitled as against all other persons to require the rights to be vested in him, they shall vest in the assignee or his successor in title by virtue of this subsection.
(3) A licence granted by a prospective owner of a performer's property rights is binding on every successor in title to his interest (or prospective interest) in the rights, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser.
References in this Part to doing anything with, or without, the licence of the rights owner shall be construed accordingly.
(4) In subsection (3) "prospective owner" in relation to a performer's property rights means a person who is prospectively entitled to those rights by virtue of such an agreement as is mentioned in subsection (1).
191D.-(1) In this Part an "exclusive licence" means a licence in writing signed by or on behalf of the owner of a performer's property rights authorising the licensee to the exclusion of all other persons, including the person granting the licence, to do anything requiring the consent of the rights owner.
(2) The licensee under an exclusive licence has the same rights against a successor in title who is bound by the licence as he has against the person granting the licence.
191E. Where under a bequest (whether general or specific) a person is entitled beneficially or otherwise to any material thing containing an original recording of a performance which was not published before the death of the testator, the bequest shall, unless a contrary intention is indicated in the testator's will or a codicil to it, be construed as including any performer's rights in relation to the recording to which the testator was entitled immediately before his death.
191F.-(1) Where an agreement concerning film production is concluded between a performer and a film producer, the performer shall be presumed, unless the agreement provides to the contrary, to have transferred to the film producer any rental right in relation to the film arising from the inclusion of a recording of his performance in the film.
(2) Where this section applies, the absence of signature by or on behalf of the performer does not exclude the operation of section 191C (effect of purported assignment of future rights).
(3) The reference in subsection (1) to an agreement concluded between a performer and a film producer includes any agreement having effect between those persons, whether made by them directly or through intermediaries.
(4) Section 191G (right to equitable remuneration on transfer of rental right) applies where there is a presumed transfer by virtue of this section as in the case of an actual transfer.
191G.-(1) Where a performer has transferred his rental right concerning a sound recording or a film to the producer of the sound recording or film, he retains the right to equitable remuneration for the rental.
The reference above to the transfer of rental right by one person to another includes any arrangement having that effect, whether made by them directly or through intermediaries.
(2) The right to equitable remuneration under this section may not be assigned by the performer except to a collecting society for the purpose of enabling it to enforce the right on his behalf.
The right is, however, transmissible by testamentary disposition or by operation of law as personal or moveable property; and it may be assigned or further transmitted by any person into whose hands it passes.
(3) Equitable remuneration under this section is payable by the person for the time being entitled to the rental right, that is, the person to whom the right was transferred or any successor in title of his.
(4) The amount payable by way of equitable remuneration is as agreed by or on behalf of the persons by and to whom it is payable, subject to section 191H (reference of amount to Copyright Tribunal).
(5) An agreement is of no effect in so far as it purports to exclude or restrict the right to equitable remuneration under this section.
(6) In this section a "collecting society" means a society or other organisation which has as its main object, or one of its main objects, the exercise of the right to equitable remuneration on behalf of more than one performer.
191H.-(1) In default of agreement as to the amount payable by way of equitable remuneration under section 191G, the person by or to whom it is payable may apply to the Copyright Tribunal to determine the amount payable.
(2) A person to or by whom equitable remuneration is payable may also apply to the Copyright Tribunal-
(a)to vary any agreement as to the amount payable, or
(b)to vary any previous determination of the Tribunal as to that matter;
but except with the special leave of the Tribunal no such application may be made within twelve months from the date of a previous determination.
An order made on an application under this subsection has effect from the date on which it is made or such later date as may be specified by the Tribunal.
(3) On an application under this section the Tribunal shall consider the matter and make such order as to the method of calculating and paying equitable remuneration as it may determine to be reasonable in the circumstances, taking into account the importance of the contribution of the performer to the film or sound recording.
(4) Remuneration shall not be considered inequitable merely because it was paid by way of a single payment or at the time of the transfer of the rental right.
(5) An agreement is of no effect in so far as it purports to prevent a person questioning the amount of equitable remuneration or to restrict the powers of the Copyright Tribunal under this section.
191I.-(1) An infringement of a performer's property rights is actionable by the rights owner.
(2) In an action for infringement of a performer's property rights all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.
(3) This section has effect subject to the following provisions of this Part.
191J.-(1) Where in an action for infringement of a performer's property rights it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that the rights subsisted in the recording to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.
(2) The court may in an action for infringement of a performer's property rights having regard to all the circumstances, and in particular to-
(a)the flagrancy of the infringement, and
(b)any benefit accruing to the defendant by reason of the infringement,
award such additional damages as the justice of the case may require.
191K.-(1) If in proceedings for infringement of a performer's property rights in respect of which a licence is available as of right under paragraph 17 of Schedule 2A (powers exercisable in consequence of competition report) the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the Copyright Tribunal under that paragraph-
(a)no injunction shall be granted against him,
(b)no order for delivery up shall be made under section 195, and
(c)the amount recoverable against him by way of damages or on an account of profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.
(2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.
(3) Nothing in this section affects the remedies available in respect of an infringement committed before licences of right were available.
191L.-(1) An exclusive licensee has, except against the owner of a performer's property rights, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment.
(2) His rights and remedies are concurrent with those of the rights owner; and references in the relevant provisions of this Part to the rights owner shall be construed accordingly.
(3) In an action brought by an exclusive licensee by virtue of this section a defendant may avail himself of any defence which would have been available to him if the action had been brought by the rights owner.
191M.-(1) Where an action for infringement of a performer's property rights brought by the rights owner or an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the rights owner or, as the case may be, the exclusive licensee may not, without the leave of the court, proceed with the action unless the other is either joined as plaintiff or added as a defendant.
(2) A rights owner or exclusive licensee who is added as a defendant in pursuance of subsection (1) is not liable for any costs in the action unless he takes part in the proceedings.
(3) The above provisions do not affect the granting of interlocutory relief on an application by the rights owner or exclusive licensee alone.
(4) Where an action for infringement of a performer's property rights is brought which relates (wholly or partly) to an infringement in respect of which the rights owner and an exclusive licensee have or had concurrent rights of action-
(a)the court shall in assessing damages take into account-
(i)the terms of the licence, and
(ii)any pecuniary remedy already awarded or available to either of them in respect of the infringement;
(b)no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement; and
(c)the court shall if an account of profits is directed apportion the profits between them as the court considers just, subject to any agreement between them; and these provisions apply whether or not the rights owner and the exclusive licensee are both parties to the action.
(5) The owner of a performer's property rights shall notify any exclusive licensee having concurrent rights before applying for an order under section 195 (order for delivery up) or exercising the right conferred by section 196 (right of seizure); and the court may on the application of the licensee make such order under section 195 or, as the case may be, prohibiting or permitting the exercise by the rights owner of the right conferred by section 196, as it thinks fit having regard to the terms of the licence.".
(2) For section 192 (transmission of rights) substitute-
(1) the rights conferred on a performer by-
section 182 (consent required for recording, &c. of live performance),
section 183 (infringement of performer's rights by use of recording made without consent), and
section 184 (infringement of performer's rights importing, possessing or dealing with illicit recording),
are not assignable or transmissible, except to the following extent.
They are referred to in this Part as "a performer's non-property rights".
(2) On the death of a person entitled to any such right-
(a)the right passes to such person as he may by testamentary disposition specifically direct, and
(b)if or to the extent that there is no such direction, the right is exercisable by his personal representatives.
(3) References in this Part to the performer, in the context of the person having any such right, shall be construed as references to the person for the time being entitled to exercise those rights.
(4) Where by virtue of subsection (2)(a) a right becomes exercisable by more than one person, it is exercisable by each of them independently of the other or others.
(5) Any damages recovered by personal representatives by virtue of this section in respect of an infringement after a person's death shall devolve as part of his estate as if the right of action had subsisted and been vested in him immediately before his death.
(1) The rights conferred by this Part on a person having recording rights are not assignable or transmissible.
(2) This does not affect section 185(2)(b) or (3)(b), so far as those provisions confer rights under this Part on a person to whom the benefit of a contract or licence is assigned.".
(3) In section 193 (consent)-
(a)in subsection (1), after "Consent for the purposes of this Part" insert "by a person having a performer's non-property rights, or by a person having recording rights,"; and
(b)in subsection (3), for "a right conferred by this Part" substitute "a performer's non-property right".
(4) In section 194 (infringement actionable as breach of statutory duty), for "any of the rights conferred by this Part" substitute
a performer's non-property rights, or
any right conferred by this Part on a person having recording rights,".
(5) The headings in Part II falsified by the above amendments are amended as follows-
(a)for the heading before section 191 substitute-
(b)omit the heading before section 194;
(c)before section 195 insert the heading-
(6) In section 212 (index of defined expressions: Part II), at the appropriate places insert-
"consent of performer (in relation to performer's property rights) section 191A(2)"
"performer's non-property rights section 192A(1)"
"``performer's property rights section 191A(1)"
"rights owner (in relation to performer's property rights) section 191A(3) and (4)".
22.-(1) In Part II (performers' rights), after section 205 insert-
205A. The provisions of Schedule 2A have effect with respect to the licensing of performers' property rights.".
(2) After Schedule 2 insert-
1.-(1) In Part II a "licensing scheme" means a scheme setting out-
(a)the classes of case in which the operator of the scheme, or the person on whose behalf he acts, is willing to grant performers' property right licences, and
(b)the terms on which licences would be granted in those classes of case;
and for this purpose a "scheme" includes anything in the nature of a scheme, whether described as a scheme or as a tariff or by any other name.
(2) In Part II a "licensing body" means a society or other organisation which has as its main object, or one of its main objects, the negotiating or granting, whether as owner or prospective owner of a performer's property rights or as agent for him, of performers' property right licences, and whose objects include the granting of licences covering the performances of more than one performer.
(3) In this paragraph "performers' property right licences" means licences to do, or authorise the doing of, any of the things for which consent is required under section 182A, 182B or 182C.
(4) References in this Part to licences or licensing schemes covering the performances of more than one performer do not include licences or schemes covering only-
(a)performances recorded in a single recording,
(b)performances recorded in more than one recording where-
(i)the performers giving the performances are the same, or
(ii)the recordings are made by, or by employees of or commissioned by, a single individual, firm, company or group of companies. For purpose a group of companies means a holding company and its subsidiaries within the meaning of section 736 of the Companies Act 1985.
2. Paragraphs 3 to 8 (references and applications with respect to licensing schemes) apply to licensing schemes operated by licensing bodies in relation to a performer's property rights which cover the performances of more than one performer, so far as they relate to licences for-
(a)copying a recording of the whole or any substantial part of a qualifying performance, or
(b)renting or lending copies of a recording to the public;
and in those paragraphs "licensing scheme" means a licensing scheme of any of those descriptions.
3.-(1) The terms of a licensing scheme proposed to be operated by a licensing body may be referred to the Copyright Tribunal by an organisation claiming to be representative of persons claiming that they require licences in cases of a description to which the scheme would apply, either generally or in relation to any description of case.
(2) The Tribunal shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature.
(3) If the Tribunal decides to entertain the reference it shall consider the matter referred and make such order, either confirming or varying the proposed scheme, either generally or so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
(4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.
4.-(1) If while a licensing scheme is in operation a dispute arises between the operator of the scheme and-
(a)a person claiming that he requires a licence in a case of a description to which the scheme applies, or
(b)an organisation claiming to be representative of such persons,
that person or organisation may refer the scheme to the Copyright Tribunal in so far as it relates to cases of that description.
(2) A scheme which has been referred to the Tribunal under this paragraph shall remain in operation until proceedings on the reference are concluded.
(3) The Tribunal shall consider the matter in dispute and make such order, either confirming or varying the scheme so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
(4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.
5.-(1) Where the Copyright Tribunal has on a previous reference of a licensing scheme under paragraph 3 or 4, or under this paragraph, made an order with respect to the scheme, then, while the order remains in force-
(a)the operator of the scheme,
(b)a person claiming that he requires a licence in a case of the description to which the order applies, or
(c)an organisation claiming to be representative of such persons,
may refer the scheme again to the Tribunal so far as it relates to cases of that description.
(2) A licensing scheme shall not, except with the special leave of the Tribunal, be referred again to the Tribunal in respect of the same description of cases-
(a)within twelve months from the date of the order on the previous reference, or
(b)if the order was made so as to be in force for 15 months or less, until the last three months before the expiry of the order.
(3) A scheme which has been referred to the Tribunal under this paragraph shall remain in operation until proceedings on the reference are concluded.
(4) The Tribunal shall consider the matter in dispute and make such order, either confirming, varying or further varying the scheme so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
(5) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.
6.-(1) A person who claims, in a case covered by a licensing scheme, that the operator of the scheme has refused to grant him or procure the grant to him of a licence in accordance with the scheme, or has failed to do so within a reasonable time after being asked, may apply to the Copyright Tribunal.
(2) A person who claims, in a case excluded from a licensing scheme, that the operator of the scheme either-
(a)has refused to grant him a licence or procure the grant to him of a licence, or has failed to do so within a reasonable time of being asked, and that in the circumstances it is unreasonable that a licence should not be granted, or
(b)proposes terms for a licence which are unreasonable,
may apply to the Copyright Tribunal.
(3) A case shall be regarded as excluded from a licensing scheme for the purposes of sub-paragraph (2) if-
(a)the scheme provides for the grant of licences subject to terms excepting matters from the licence and the case falls within such an exception, or
(b)the case is so similar to those in which licences are granted under the scheme that it is unreasonable that it should not be dealt with in the same way.
(4) If the Tribunal is satisfied that the claim is well-founded, it shall make an order declaring that, in respect of the matters specified in the order, the applicant is entitled to a licence on such terms as the Tribunal may determine to be applicable in accordance with the scheme or, as the case may be, to be reasonable in the circumstances.
(5) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.
7.-(1) Where the Copyright Tribunal has made an order under paragraph 6 that a person is entitled to a licence under a licensing scheme, the operator of the scheme or the original applicant may apply to the Tribunal to review its order.
(2) An application shall not be made, except with the special leave of the Tribunal-
(a)within twelve months from the date of the order, or of the decision on a previous application under this paragraph, or
(b)if the order was made so as to be in force for 15 months or less, or as a result of the decision on a previous application under this paragraph is due to expire within 15 months of that decision, until the last three months before the expiry date.
(3) The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable having regard to the terms applicable in accordance with the licensing scheme or, as the case may be, the circumstances of the case.
8.-(1) A licensing scheme which has been confirmed or varied by the Copyright Tribunal-
(a)under paragraph 3 (reference of terms of proposed scheme), or
(b)under paragraph 4 or 5 (reference of existing scheme to Tribunal),
shall be in force or, as the case may be, remain in operation, so far as it relates to the description of case in respect of which the order was made, so long as the order remains in force.
(2) While the order is in force a person who in a case of a class to which the order applies-
(a)pays to the operator of the scheme any charges payable under the scheme in respect of a licence covering the case in question or, if the amount cannot be ascertained, gives an undertaking to the operator to pay them when ascertained, and
(b)complies with the other terms applicable to such a licence under the scheme,
shall be in the same position as regards infringement of performers' property rights as if he had at all material times been the holder of a licence granted by the rights owner in question in accordance with the scheme.
(3) The Tribunal may direct that the order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than the date on which the reference was made or, if later, on which the scheme came into operation.
If such a direction is made-
(a)any necessary repayments, or further payments, shall be made in respect of charges already paid, and
(b)the reference in sub-paragraph (2)(a) to the charges payable under the scheme shall be construed as a reference to the charges so payable by virtue of the order. No such direction may be made where sub-paragraph (4) below applies.
(4) An order of the Tribunal under paragraph 4 or 5 made with respect to a scheme which is certified for any purpose under paragraph 16 has effect, so far as it varies the scheme by reducing the charges payable for licences, from the date on which the reference was made to the Tribunal.
(5) Where the Tribunal has made an order under paragraph 6 (order as to entitlement to licence under licensing scheme) and the order remains in force, the person in whose favour the order is made shall if he-
(a)pays to the operator of the scheme any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained, and
(b)complies with the other terms specified in the order,
be in the same position as regards infringement of performers' property rights as if he had at all material times been the holder of a licence granted by the rights owner in question on the terms specified in the order.
9. Paragraphs 10 to 13 (references and applications with respect to licensing by licensing bodies) apply to licences relating to a performer's property rights which cover the performance of more than one performer granted by a licensing body otherwise than in pursuance of a licensing scheme, so far as the licences authorise-
(a)copying a recording of the whole or any substantial part of a qualifying performance, or
(b)renting or lending copies of a recording to the public;
and references in those paragraphs to a licence shall be construed accordingly.
10.-(1) The terms on which a licensing body proposes to grant a licence may be referred to the Copyright Tribunal by the prospective licensee.
(2) The Tribunal shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature.
(3) If the Tribunal decides to entertain the reference it shall consider the terms of the proposed licence and make such order, either confirming or varying the terms as it may determine to be reasonable in the circumstances.
(4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.
11.-(1) A licensee under a licence which is due to expire, by effluxion of time or as a result of notice given by the licensing body, may apply to the Copyright Tribunal on the ground that it is unreasonable in the circumstances that the licence should cease to be in force.
(2) Such an application may not be made until the last three months before the licence is due to expire.
(3) A licence in respect of which a reference has been made to the Tribunal shall remain in operation until proceedings on the reference are concluded.
(4) If the Tribunal finds the application well-founded, it shall make an order declaring that the licensee shall continue to be entitled to the benefit of the licence on such terms as the Tribunal may determine to be reasonable in the circumstances.
(5) An order of the Tribunal under this paragraph may be made so as to be in force indefinitely or for such period as the Tribunal may determine.
12.-(1) Where the Copyright Tribunal has made an order under paragraph 10 or 11, the licensing body or the person entitled to the benefit of the order may apply to the Tribunal to review its order.
(2) An application shall not be made, except with the special leave of the Tribunal-
(a)within twelve months from the date of the order or of the decision on a previous application under this paragraph, or
(b)if the order was made so as to be in force for 15 months or less, or as a result of the decision on a previous application under this paragraph is due to expire within 15 months of that decision, until the last three months before the expiry date.
(3) The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable in the circumstances.
13.-(1) Where the Copyright Tribunal has made an order under paragraph 10 or 11 and the order remains in force, the person entitled to the benefit of the order shall if he-
(a)pays to the licensing body any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained, and
(b)complies with the other terms specified in the order,
be in the same position as regards infringement of performers' property rights as if he had at all material times been the holder of a licence granted by the rights owner in question on the terms specified in the order.
(2) The benefit of the order may be assigned-
(a)in the case of an order under paragraph 10, if assignment is not prohibited under the terms of the Tribunal's order; and
(b)in the case of an order under paragraph 11, if assignment was not prohibited under the terms of the original licence.
(3) The Tribunal may direct that an order under paragraph 10 or 11, or an order under paragraph 12 varying such an order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than the date on which the reference or application was made or, if later, on which the licence was granted or, as the case may be, was due to expire.
If such a direction is made-
(a)any necessary repayments, or further payments, shall be made in respect of charges already paid, and
(b)the reference in sub-paragraph (1)(a) to the charges payable in accordance with the order shall be construed, where the order is varied by a later order, as a reference to the charges so payable by virtue of the later order.
14.-(1) In determining what is reasonable on a reference or application under this Schedule relating to a licensing scheme or licence, the Copyright Tribunal shall have regard to-
(a)the availability of other schemes, or the granting of other licences, to other persons in similar circumstances, and
(b)the terms of those schemes or licences,
and shall exercise its powers so as to secure that there is no unreasonable discrimination between licensees, or prospective licensees, under the scheme or licence to which the reference or application relates and licensees under other schemes operated by, or other licences granted by, the same person.
(2) This does not affect the Tribunal's general obligation in any case to have regard to all relevant circumstances.
15.-(1) An application to settle the royalty or other sum payable in pursuance of paragraph 14A of Schedule 2 (lending of certain recordings) may be made to the Copyright Tribunal by the owner of a performer's property rights or the person claiming to be treated as licensed by him.
(2) The Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.
(3) Either party may subsequently apply to the Tribunal to vary the order, and the Tribunal shall consider the matter and make such order confirming or varying the original order as it may determine to be reasonable in the circumstances.
(4) An application under sub-paragraph (3) shall not, except with the special leave of the Tribunal, be made within twelve months from the date of the original order or of the order on a previous application under that sub-paragraph.
(5) An order under sub-paragraph (3) has effect from the date on which it is made or such later date as may be specified by the Tribunal.
16.-(1) A person operating or proposing to operate a licensing scheme may apply to the Secretary of State to certify the scheme for the purposes of paragraph 14A of Schedule 2 (lending of certain recordings).
(2) The Secretary of State shall by order made by statutory instrument certify the scheme if he is satisfied that it-
(a)enables the works to which it relates to be identified with sufficient certainty by persons likely to require licences, and
(b)sets out clearly the charges (if any) payable and the other terms on which licences will be granted.
(3) The scheme shall be scheduled to the order and the certification shall come into operation for the purposes of paragraph 14A of Schedule 2-
(a)on such date, not less than eight weeks after the order is made, as may be specified in the order, or
(b)if the scheme is the subject of a reference under paragraph 3 (reference of proposed scheme), any later date on which the order of the Copyright Tribunal under that paragraph comes into force or the reference is withdrawn.
(4) A variation of the scheme is not effective unless a corresponding amendment of the order is made; and the Secretary of State shall make such an amendment in the case of a variation ordered by the Copyright Tribunal on a reference under paragraph 3, 4 or 5, and may do so in any other case if he thinks fit.
(5) The order shall be revoked if the scheme ceases to be operated and may be revoked if it appears to the Secretary of State that it is no longer being operated according to its terms.
17.-(1) Where the matters specified in a report of the Monopolies and Mergers Commission as being those which in the Commission's opinion operate, may be expected to operate or have operated against the public interest include-
(a)conditions in licences granted by the owner of a performer's property rights restricting the use to which a recording may be put by the licensee or the right of the owner to grant other licences, or
(b)a refusal of an owner of a performer's property rights to grant licences on reasonable terms,
the powers conferred by Part I of Schedule 8 to the Fair Trading Act 1973 (powers exercisable for purpose of remedying or preventing adverse effects specified in report of Commission) include power to cancel or modify those conditions and, instead or in addition, to provide that licences in respect of the performer's property rights shall be available as of right.
(2) The references in sections 56(2) and 73(2) of that Act, and sections 10(2)(b) and 12(5) of the Competition Act 1980, to the powers specified in that Part of that Schedule shall be construed accordingly.
(3) A Minister shall only exercise the powers available by virtue of this paragraph if he is satisfied that to do so does not contravene any Convention relating to performers' rights to which the United Kingdom is a party.
(4) The terms of a licence available by virtue of this paragraph shall, in default of agreement, be settled by the Copyright Tribunal on an application by the person requiring the licence; and terms so settled shall authorise the licensee to do everything in respect of which a licence is so available.
(5) Where the terms of a licence are settled by the Tribunal, the licence has effect from the date on which the application to the Tribunal was made.".
23.-(1) Section 190 (power of tribunal to give consent on behalf of performer in certain cases) is amended as follows.
(2) For subsection (1) substitute-
"(1) The Copyright Tribunal may, on the application of a person wishing to make a copy of a recording of a performance, give consent in a case where the identity or whereabouts of the person entitled to the reproduction right cannot be ascertained by reasonable inquiry.".
(3) In subsection (2) for "the performer" substitute "the person entitled to the reproduction right".
(4) Omit subsection (4).
(5) In subsection (6)-
(a)for "the performer" in the first place where it occurs substitute "the person entitled to the reproduction right", and
(b)for "the performer" in the second place where it occurs substitute "that person".
24.-(1) After section 205A (inserted by regulation 22(1)) insert-
205B-(1) The Copyright Tribunal has jurisdiction under this Part to hear and determine proceedings under-
(a)section 182D (amount of equitable remuneration for exploitation of commercial sound recording);
(b)section 190 (application to give consent on behalf of owner of reproduction right);
(c)section 191H (amount of equitable remuneration on transfer of rental right);
(d)paragraph 3, 4 or 5 of Schedule 2A (reference of licensing scheme);
(e)paragraph 6 or 7 of that Schedule (application with respect to licence under licensing scheme);
(f)paragraph 10, 11 or 12 of that Schedule (reference or application with respect to licensing by licensing body);
(g)paragraph 15 of that Schedule (application to settle royalty for certain lending);
(h)paragraph 17 of that Schedule (application to settle terms of licence available as of right).
(2) The provisions of Chapter VIII of Part I (general provisions relating to the Copyright Tribunal) apply in relation to the Tribunal when exercising any jurisdiction under this Part.
(3) Provision shall be made by rules under section 150 prohibiting the Tribunal from entertaining a reference under paragraph 3, 4 or 5 of Schedule 2A (reference of licensing scheme) by a representative organisation unless the Tribunal is satisfied that the organisation is reasonably representative of the class of persons which it claims to represent.".
(2) In section 149 (jurisdiction of the Tribunal)-
(a)in the opening words for "The function of the Copyright Tribunal is" substitute "The Copyright Tribunal has jurisdiction under this Part";
(b)omit paragraphs (g) and (h).
(3) In paragraph 5 of Schedule 6 (determination by Tribunal of royalty or other remuneration to be paid), after sub-paragraph (4) add-
"(5) The provisions of Chapter VIII of Part I (general provisions relating to the Copyright Tribunal) apply in relation to the Tribunal when exercising any jurisdiction under this paragraph.".
25.-(1) In this Part-
"commencement" means the commencement of these Regulations; and
"existing", in relation to a work or performance, means made or given before commencement.
(2) For the purposes of this Part a work of which the making extended over a period shall be taken to have been made when its making was completed.
(3) In this Part a "new right" means a right arising by virtue of these Regulations, in relation to a copyright work or a qualifying performance, to authorise or prohibit an act.
The expression does not include-
(a)a right corresponding to a right which existed immediately before commencement, or
(b)a right to remuneration arising by virtue of these Regulations.
(4) Expressions used in this Part have the same meaning in relation to copyright as they have in Part I of the Copyright, Designs and Patents Act 1988(16), and in relation to performances as in Part II of that Act.
26.-(1) Subject to anything in regulations 28 to 36 (special transitional provisions and savings), these regulations apply to copyright works made, and to performances given, before or after commencement.
(2) No act done before commencement shall be regarded as an infringement of any new right, or as giving rise to any right to remuneration arising by virtue of these Regulations.
27.-(1) Except as otherwise expressly provided, nothing in these Regulations affects an agreement made before 19th November 1992.
(2) No act done in pursuance of any such agreement after commencement shall be regarded as an infringement of any new right.
28. The provisions of-
regulation 5 (place where broadcast treated as made) and
regulation 6 (safeguards in relation to certain satellite broadcasts),
have effect in relation to broadcasts made after commencement.
29.-(1) This regulation applies to an agreement concluded before 1st January 1995-
(a)between two or more co-producers of a film, one of whom is a national of an EEA state, and
(b)the provisions of which grant to the parties exclusive rights to exploit all communication to the public of the film in separate geographical areas.
(2) Where such an agreement giving such exclusive exploitation rights in relation to the United Kingdom does not expressly or by implication address satellite broadcasting from the United Kingdom, the person to whom those exclusive rights have been granted shall not make any such broadcast without the consent of any other party to the agreement whose language-related exploitation rights would be adversely affected by that broadcast.
30.-(1) Any new right conferred by these Regulations in relation to a qualifying performance is exercisable as from commencement by the performer or (if he has died) by the person who immediately before commencement was entitled by virtue of section 192(2) to exercise the rights conferred on the performer by Part II in relation to that performance.
(2) Any remuneration or damages received by a person's personal representatives by virtue of a right conferred on them by paragraph (1) shall devolve as part of that person's estate as if the right had subsisted and been vested in him immediately before his death.
31. Where before commencement-
(a)the owner or prospective owner of copyright in a literary, dramatic, musical or artistic work has authorised a person to make a copy of the work, or
(b)the owner or prospective owner of performers' rights in a performance has authorised a person to make a copy of a recording of the performance, any new right in relation to that copy shall vest on commencement in the person so authorised, subject to any agreement to the contrary.
32.-(1) Sections 93A and 191F (presumption of transfer of rental right in case of production agreement) apply in relation to an agreement concluded before commencement.
As section 93A so applies, the restriction in subsection (3) of that section shall be omitted (exclusion of presumption in relation to screenplay, dialogue or music specifically created for the film).
(2) Sections 93B and 191G (right to equitable remuneration where rental right transferred) have effect accordingly, but subject to regulation 33 (right to equitable remuneration applicable to rental after 1st April 1997).
33. No right to equitable remuneration under section 93B or 191G (right to equitable remuneration where rental right transferred) arises-
(a)in respect of any rental of a sound recording or film before 1st April 1997, or
(b)in respect of any rental after that date of a sound recording or film made in pursuance of an agreement entered into before 1st July 1994, unless the author or performer (or a successor in title of his) has before 1st January 1997 notified the person by whom the remuneration would be payable that he intends to exercise that right.
34.-(1) Any new right in relation to a copyright work does not apply to a copy of the work acquired by a person before commencement for the purpose of renting or lending it to the public.
(2) Any new right in relation to a qualifying performance does not apply to a copy of a recording of the performance acquired by a person before commencement for the purpose of renting or lending it to the public .
35. Until the making of regulations under section 37 of the Copyright, Designs and Patents Act 1988(17) for the purposes of section 40A(2) of that Act (lending of copies by libraries or archives), the reference in section 40A(2) (and in paragraph 6B of Schedule 2) to a prescribed library or archive shall be construed as a reference to any library or archive in the United Kingdom prescribed by paragraphs 2 to 6 of Part A of Schedule 1 to the Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations 1989(18).
36.-(1) Regulation 18 (authorship of films) applies as from commencement in relation to films made on or after 1st July 1994.
(2) It is not an infringement of any right which the principal director has by virtue of these Regulations to do anything after commencement in pursuance of arrangements for the exploitation of the film made before 19th November 1992.
This does not affect any right of his to equitable remuneration under section 93B.
Ian Taylor,
Parliamentary Under-Secretary of State for Science and Technology,
Department of Trade and Industry
26th November 1996
(This note is not part of the Regulations)
These Regulations implement the provisions of Council Directive No. 92/100/EEC of 19 November 1992 (O.J. No. L346, 27.11.92, page 61) on rental right and lending right and on certain rights related to copyright in the field of intellectual property ("the Rental Directive") and of Council Directive No. 93/83/EEC of 27 September 1993 (O.J. No. L248, 6.10.93, page 15) on the co-ordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable re-transmission ("the Satellite and Cable Directive"). They also implement certain provisions of Council Directive No. 93/98/EEC (O.J. No. L290, 24.11.93, p. 9) ("the Duration Directive") harmonising the term of protection of copyright and certain related rights. The Regulations come into force on 1st December 1996.
The Rental Directive requires in particular: that exclusive rental and lending rights (which are defined in the Directive) are granted to authors in respect of all literary, musical and dramatic works and most artistic works; that similar rights are granted to performers in respect of recordings of their performances; and that authors and performers who transfer or are presumed to transfer their exclusive rental rights in sound recordings and films to producers of these works, nevertheless retain a right to equitable remuneration for rental of the sound recording or film. However, the Directive permits derogations to be made in respect of the grant of exclusive lending rights, provided that at least authors are remunerated in respect of lending. The Directive further requires that performers, in addition to producers, are remunerated for broadcasting or other communication to the public of commercially published sound recordings of their performances, and that they are also granted exclusive rights in respect of distribution of recordings of their performances.
The Satellite and Cable Directive harmonises the application of national copyright laws to satellite broadcasts. Since a satellite broadcast may be received in more than one Member State of the European Economic Area, the Directive contains provisions which determine the applicable law in respect of a broadcast. It also contains provisions requiring the cable re-transmission rights of persons other than broadcasting organisations to be exercised collectively only through a licensing body.
Most of the provisions of the Duration Directive were implemented by the Duration of Copyright and Rights in Performances Regulations 1995 (S.I. 1995/3297). However, the Duration Directive also requires a new 25 year protection (called "publication right" in the Regulations) for works in which copyright has expired but which have never before been published; it also maintains and broadens provisions in the Rental Directive and in the Satellite and Cable Directive requiring principal directors of films to be treated for copyright purposes as authors of those works.
The Copyright, Designs and Patents Act 1988 ("the Act") already grants some of the rights required by the Directives. These regulations amend and extend the Act insofar as its provisions do not conform to or comply with them.
In particular, the Regulations-
(a)determine in the European Economic Area the applicable law in relation to broadcasts (regulations 5 and 6);
(b)provide that where the provider of a cable programme service merely receives and immediately re-transmits a broadcast made from another EEA State, the owner of the transmission right in any copyright work included in the broadcast must exercise that right against the service provider through a licensing body except where the owner of that right is a broadcasting organisation (regulation 7);
(c)modify an existing exclusive right to issue copies of a work to the public, in particular so as to provide an exclusive right of first distribution within the European Economic Area of copies which is not exhausted by the previous distribution of those copies outside that area (regulation 9);
(d)extend rental and lending rights to all literary, musical and dramatic works and most artistic works (regulation 10);
(e)except from lending right the lending by any public library of works subject to the public lending right scheme and any lending by educational establishments and certain other libraries and archives (regulation 11);
(f)modify an existing power of the Secretary of State to enable him to make orders that the lending of copies of certain copyright works be treated as licensed subject to the payment of royalties (regulation 11);
(g)provide that where a contract is concluded between an author and a film producer, any exclusive rental right in the film of which the author is or would be owner, is presumed to be transferred to the producer unless the contract provides to the contrary (regulation 12);
(h)provide that in any case in which an author has transferred or is presumed to have transferred his exclusive rental right in a film or a sound recording to the producer thereof, that right is replaced by an unwaivable right to equitable remuneration in respect of any rental of the films or sound recordings (regulation 14);
(i)provide modified and new definitions (as the case may be) in respect of wireless telegraphy, copies, rental and lending (regulations 8, 9 and 10);
(j)create a new "publication right" in respect of works which, although protected by copyright at some time in the past, are out of copyright and have never previously been made available to the public; this right expires at the end of the period of 25 years from the end of the year in which the work is first published; the work must be first published in the European Economic Area for the right to arise; the right entitles its owner to exclusive rights similar to those granted by copyright but no moral rights attach to it (regulations 16 and 17);
(k)amend section 9 of the Act to make the principal director of a film an author of it for copyright purposes in addition to the current author, the producer (regulation 18);
(l)make an amendment to section 11 of the Act, consequential upon making the principal director of a film an author of it, providing that where the director is an employee, his employer is the first owner of the copyright, as in the case of other employed authors (regulation 18);
(m)clarify the application of regulations 15, 16 and 19 of the Duration of Copyright and Rights in Performances Regulations 1995 in relation to pre-1989 photographs (regulation 19);
(n)transform an existing statutory right requiring the consent of a performer to the making of copies of a recording of a performance of his, into a new performer's property right, transmissible as personal or moveable property, and introduce new property rights for a performer requiring his consent to the issue to the public and the rental and lending of copies of recordings of his performance corresponding to the rights granted to an author under regulations 9 and 10 (regulation 20);
(o)give a performer a right to equitable remuneration in respect of the inclusion in a broadcast or cable programme service or the playing in public of a commercially published sound recording of a performance of his (regulation 20);
(p)except from any lending right, lending by educational establishments and certain libraries and archives, and modify an existing power of the Secretary of State to enable him to make orders that the lending of copies of films or sound recordings is to be treated as licensed subject to the payment of royalties (regulation 20(3));
(q)make provision for dealings, rights and remedies in respect of the new performer's property rights (regulation 21);
(r)provide that where a contract is concluded between a performer and a film producer, any exclusive rental right in the film of which the performer is the owner is presumed to be transferred to the producer, unless the contract provides to the contrary (regulation 21);
(s)provide that in any case in which a performer has transferred or is presumed to have transferred his exclusive rental right in a film or a sound recording to the producer thereof, that right is replaced by an unwaivable right to equitable remuneration in respect of any rental of the film or the sound recording (regulation 21);
(t)make provision for licensing schemes and licensing bodies in respect of performer's property rights similar to those which exist in respect of copyright (regulation 22);
(u)in respect of both copyright and performer's rights, make consequential modifications to existing provisions in respect of the jurisdiction of the Copyright Tribunal (regulations 14 and 24).
The Regulations come into force on 1st December 1996 and in Part III-
(a)subject as expressly provided in the special transitional provisions and savings (regulations 28 to 36), make provision for and apply to works made and performances given before that date; except as expressly provided, nothing in the Regulations affects any agreement entered into before 19th November 1992 (the date of the adoption by the EC Council of the Rental Directive); acts done before 1st December 1996 do not infringe any new right arising under the Regulations nor do they give rise to any remuneration arising by virtue of these regulations, and acts done after 1st December 1996 in pursuance of an agreement made before 19th November 1992, do not infringe any new right arising under the Regulations (regulations 25, 26 and 27);
(b)have effect in relation to broadcasts made after 1st December 1996 and make provision in respect of language-related satellite broadcasting exploitation rights in international co-production agreements made before 1st January 1995 (regulations 28 and 29);
(c)ensure that the new rights in relation to a performance conferred by these Regulations are exercisable by the performer from 1st December 1996 (regulation 30);
(d)where before 1st December 1996 the owner of the copyright in a literary, dramatic, musical, or artistic work or the owner of performer's rights in a performance, authorises a person to make a copy of the work or a copy of a recording of the performance, subject to any agreement to the contrary, any new rights in the copies made vest on 1st December 1996 in the person so authorised (regulation 31);
(e)ensure that the presumption of transfer of rental rights by an author or performer applies to agreements concluded before 1st December 1996 subject to the right to equitable remuneration and the transitional provisions relating thereto (regulation 32);
(f)limit the right to equitable remuneration to the rental after 1st April 1997 of films and sound recordings but provide also that where the rental after that date is in pursuance of an agreement made before 1st July 1994, the right arises only if the author or performer gives notice before 1st January 1997 of his intention to exercise that right (regulation 33);
(g)provide that the new rights under the Regulations do not apply to existing copies of literary, dramatic, musical or artistic works, films or sound recordings or copies of recordings of a performance which have been acquired before commencement for the purpose of renting or lending to the public (regulation 34);
(h)make the principal director of a film an author of it from 1st December 1996 in respect of a film made on or after 1st July 1994. However, it is not to be an infringement of any new right acquired by a principal director under the Regulations to do anything after 1st December 1996 in pursuance of arrangements for the exploitation of the film made prior to 19th November 1992 (regulation 36).
S.I. 1993/595.
1972 c. 68; by virtue of the amendment of section 1(2) of that Act by section 1 of the European Economic Area Act 1993 (c. 51) regulations may be made under section 2(2) to implement obligations of the United Kingdom arising under the EEA Agreement.
Cm 2073.
Cm 2183.
O.J. No. L346, 27.11.92, p. 61.
O.J. No. L248, 6.10.93, p. 15.
O.J. No. L290, 24.11.93, p. 9.
S.I. 1995/3297.
S.I. 1986/594 (N.I.3).
S.I. 1995/3297.
S.I. 1989/1212.
