Copyright, Designs and Patents Act 1988

• (3) If, at any time after the end of the 50-year period, the producer, having met one or both of the conditions referred to in subsection (2), fails to do so, the performer may give a notice in writing to the producer of the performer’s intention to terminate the agreement.

• (4) If at the end of the period of 12 months beginning with the date of the notice, the producer has not met the conditions referred to in subsection (2), the agreement terminates and the copyright in the sound recording expires with immediate effect.

• (5) An agreement is of no effect in so far as it purports to exclude or restrict the right to give a notice under subsection (2) or (3).

• (6) A reference in this section to the assignment of rights includes any arrangement having that effect, whether made directly between the parties or through intermediaries.

• (7) In this section—

• “50-year period” meanswhere the sound recording is published during the initial period, the period of 50 years from the end of the calendar year in which the sound recording is first published, orwhere during the initial period the sound recording is not published but is made available to the public by being played in public or communicated to the public, the period of 50 years from the end of the calendar year in which it was first made available to the public,but in determining whether a sound recording has been published, played in public or communicated to the public, no account shall be taken of any unauthorised act,

• “initial period” means the period beginning on the date the recording is made and ending 50 years from the end of the calendar year in which the sound recording is made,

• “producer” means the person for the time being entitled to the copyright in the sound recording,

• “sufficient quantities” means such quantity as to satisfy the reasonable requirements of the public for copies of the sound recording,

• “unauthorised act” has the same meaning as in section 178.

Payment in consideration of assignment

191HB

• (1) A performer who, under an agreement relating to the assignment of rights referred to in section 191HA(1) (an “assignment agreement”), is entitled to a non-recurring payment in consideration of the assignment, is entitled to an annual payment for each relevant period from—

• (a) the producer, or

• (b) where the producer has granted an exclusive licence of the copyright in the sound recording, the licensee under the exclusive licence (the “exclusive licensee”).

• (2) In this section, “relevant period” means—

• (a) the period of 12 months beginning at the end of the 50-year period, and

• (b) each subsequent period of 12 months beginning with the end of the previous period, until the date on which copyright in the sound recording expires.

• (3) The producer or, where relevant, the exclusive licensee gives effect to the entitlement under subsection (1) by remitting to a collecting society for distribution to the performer in accordance with its rules an amount for each relevant period equal to 20% of the gross revenue received during that period in respect of—

• (a) the reproduction and issue to the public of copies of the sound recording, and

• (b) the making available to the public of the sound recording by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.

• (4) The amount required to be remitted under subsection (3) is payable within 6 months of the end of each relevant period and is recoverable by the collecting society as a debt.

• (5) Subsection (6) applies where—

• (a) the performer makes a written request to the producer or, where relevant, the exclusive licensee for information in that person’s possession or under that person’s control to enable the performer—

• (i) to ascertain the amount of the annual payment to which the performer is entitled under subsection (1), or

• (ii) to secure its distribution by the collecting society, and

• (b) the producer or, where relevant, the exclusive licensee does not supply the information within the period of 90 days beginning with the date of the request.

• (6) The performer may apply to the county court, or in Scotland to the sheriff, for an order requiring the producer or, where relevant, the exclusive licensee to supply the information.

• (7) An agreement is of no effect in so far as it purports to exclude or restrict the entitlement under subsection (1).

• (8) In the event of any dispute as to the amount required to be remitted under subsection (3), the performer may apply to the Copyright Tribunal to determine the amount payable.

• (9) Where a performer is entitled under an assignment agreement to recurring payments in consideration of the assignment, the payments must, from the end of the 50-year period, be made in full, regardless of any provision in the agreement which entitles the producer to withhold or deduct sums from the amounts payable.

• (10) In this section—

• “producer” and “50-year period” each has the same meaning as in section 191HA,

• “exclusive licence” has the same meaning as in section 92, and

• “collecting society” has the same meaning as in section 191G.

Infringement actionable by rights owner.

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 Chapter.

Provisions as to damages in infringement action.

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.

Injunctions against service providers

191JA

?

• (1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe a performer’s property right.

• (2) In determining whether a service provider has actual knowledge for the purpose of this section, a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, amongst other things, shall have regard to—

• (a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013); and

• (b) the extent to which any notice includes—

• (i) the full name and address of the sender of the notice;

• (ii) details of the infringement in question.

• (3) In this section “ service provider ” has the meaning given to it by regulation 2 of the Electronic Commerce ( EC Directive) Regulations 2002.

• (4) Section 177 applies in respect of this section as it applies in respect of Part 1.

Undertaking to take licence of right in infringement proceedings.

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.

Rights and remedies for exclusive licensee.

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 Chapter 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.

Exercise of concurrent rights.

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.

Non-property rights

Performers’ non-property rights.

192A

• (1) the rights conferred on a performer by -

• (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 Chapter 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.

Transmissibility of rights of person having recording rights.

192B

• (1) The rights conferred by this Chapter 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 Chapter on a person to whom the benefit of a contract or licence is assigned.

Consent.

193

• (1) Consent for the purposes of this Chapterby a person having a performer’s non-property rights, or by a person having recording rights, may be given in relation to a specific performance, a specified description of performances or performances generally, and may relate to past or future performances.

• (2) A person having recording rights in a performance is bound by any consent given by a person through whom he derives his rights under the exclusive recording contract or licence in question, in the same way as if the consent had been given by him.

• (3) Where a performer’s non-property right passes to another person, any consent binding on the person previously entitled binds the person to whom the right passes in the same way as if the consent had been given by him.

. . .

Infringement actionable as breach of statutory duty.

194

An infringement of —

• (a) a performer’s non-property rights, or

• (b) any right conferred by this Chapter on a person having recording rights,

is actionable by the person entitled to the right as a breach of statutory duty.

Delivery up or seizure of illicit recordings

Order for delivery up.

195

• (1) Where a person has in his possession, custody or control in the course of a business an illicit recording of a performance, a person having performer’s rights or recording rights in relation to the performance under this Chapter may apply to the court for an order that the recording be delivered up to him or to such other person as the court may direct.

• (2) An application shall not be made after the end of the period specified in section 203; and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section 204 (order as to disposal of illicit recording).

• (3) A person to whom a recording is delivered up in pursuance of an order under this section shall, if an order under section 204 is not made, retain it pending the making of an order, or the decision not to make an order, under that section.

• (4) Nothing in this section affects any other power of the court.

Right to seize illicit recordings.

196

• (1) An illicit recording of a performance which is found exposed or otherwise immediately available for sale or hire, and in respect of which a person would be entitled to apply for an order under section 195, may be seized and detained by him or a person authorised by him.

The right to seize and detain is exercisable subject to the following conditions and is subject to any decision of the court under section 204 (order as to disposal of illicit recording).

• (2) Before anything is seized under this section notice of the time and place of the proposed seizure must be given to a local police station.

• (3) A person may for the purpose of exercising the right conferred by this section enter premises to which the public have access but may not seize anything in the possession, custody or control of a person at a permanent or regular place of business of his and may not use any force.

• (4) At the time when anything is seized under this section there shall be left at the place where it was seized a notice in the prescribed form containing the prescribed particulars as to the person by whom or on whose authority the seizure is made and the grounds on which it is made.

• (5) In this section—

• “premises” includes land, buildings, fixed or moveable structures, vehicles, vessels, aircraft and hovercraft; and

• “prescribed” means prescribed by order of the Secretary of State.

• (6) An order of the Secretary of State under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Meaning of “illicit recording”.

197

• (1) In this Chapter “illicit recording”, in relation to a performance, shall be construed in accordance with this section.

• (2) For the purposes of a performer’s rights, a recording of the whole or any substantial part of a performance of his is an illicit recording if it is made, otherwise than for private purposes, without his consent.

• (3) For the purposes of the rights of a person having recording rights, a recording of the whole or any substantial part of a performance subject to the exclusive recording contract is an illicit recording if it is made, otherwise than for private purposes, without his consent or that of the performer.

• (4) For the purposes of sections 198 and 199 (offences and orders for delivery up in criminal proceedings), a recording is an illicit recording if it is an illicit recording for the purposes mentioned in subsection (2) or subsection (3).

• (5) In this Chapter “illicit recording” includes a recording falling to be treated as an illicit recording by virtue of any of the following provisions of Schedule 2—

but otherwise does not include a recording made in accordance with any of the provisions of that Schedule.

• (6) It is immaterial for the purposes of this section where the recording was made.

Presumptions relevant to recordings of performances

197A

• (1) In proceedings brought by virtue of this Part with respect to the rights in a performance, where copies of a recording of the performance as issued to the public bear a statement that a named person was the performer, the statement shall be admissible as evidence of the fact stated and shall be presumed to be correct until the contrary is proved.

• (2) Subsection (1) does not apply to proceedings for an offence under section 198 (criminal liability for making etc. illicit recordings); but without prejudice to its application in proceedings for an order under section 199 (order for delivery up in criminal proceedings).

Offences

Criminal liability for making, dealing with or using illicit recordings.

198

• (1) A person commits an offence who without sufficient consent—

• (a) makes for sale or hire, or

• (b) imports into the United Kingdom otherwise than for his private and domestic use, or

• (c) possesses in the course of a business with a view to committing any act infringing the rights conferred by this Chapter, or

• (d) in the course of a business—

• (i) sells or lets for hire, or

• (ii) offers or exposes for sale or hire, or

• (iii) distributes,

a recording which is, and which he knows or has reason to believe is, an illicit recording.

• (1A) A person (“P”) who infringes a performer's making available right in a recording commits an offence if P—

• (a) knows or has reason to believe that P is infringing the right, and

• (b) either—

• (i) intends to make a gain for P or another person, or

• (ii) knows or has reason to believe that infringing the right will cause loss to the owner of the right, or expose the owner of the right to a risk of loss.

• (1B) For the purposes of subsection (1A)—

• (a) “gain” and “loss”—

• (i) extend only to gain or loss in money, and

• (ii) include any such gain or loss whether temporary or permanent, and

• (b) “loss” includes a loss by not getting what one might get.

• (2) A person commits an offence who causes a recording of a performance made without sufficient consent to be—

• (a) shown or played in public, or

• (b) communicated to the public,

thereby infringing any of the rights conferred by this Chapter, if he knows or has reason to believe that those rights are thereby infringed.

• (3) In subsections (1) and (2) “sufficient consent” means—

• (a) in the case of a qualifying performance, the consent of the performer, and

• (b) in the case of a non-qualifying performance subject to an exclusive recording contract—

• (i) for the purposes of subsection (1)(a) (making of recording), the consent of the performer or the person having recording rights, and

• (ii) for the purposes of subsection (1)(b), (c) and (d) and subsection (2) (dealing with or using recording), the consent of the person having recording rights.

The references in this subsection to the person having recording rights are to the person having those rights at the time the consent is given or, if there is more than one such person, to all of them.

• (4) No offence is committed under subsection (1) or (2) by the commission of an act which by virtue of any provision of Schedule 2 may be done without infringing the rights conferred by this Chapter.

• (5) A person guilty of an offence under subsection (1)(a), (b) or (d)(iii) is liable—

• (a) on summary conviction to imprisonment for a term not exceeding six months or a fine, or both;

• (b) on conviction on indictment to a fine or imprisonment for a term not exceeding ten years, or both.

• (5A) A person guilty of an offence under subsection (1A) is liable—

• (a) on summary conviction to imprisonment for a term not exceeding three months or a fine, or both;

• (b) on conviction on indictment to a fine or imprisonment for a term not exceeding ten years, or both.

• (6) A person guilty of any other offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale or imprisonment for a term not exceeding six months, or both.

Enforcement by local weights and measures authority.

198A

• (1) It is the duty of every local weights and measures authority to enforce within their area the provisions of section 198.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Subsection (1) above does not apply in relation to the enforcement of section 198 in Northern Ireland, but it is the duty of the Department of Economic Development to enforce that section in Northern Ireland.

...

• (3A) For the investigatory powers available to a local weights and measures authority or the Department of Enterprise, Trade and Investment in Northern Ireland for the purposes of the duties in this section, see Schedule 5 to the Consumer Rights Act 2015.

• (4) Any enactment which authorises the disclosure of information for the purpose of facilitating the enforcement of the Trade Descriptions Act 1968 shall apply as if section 198 were contained in that Act and as if the functions of any person in relation to the enforcement of that section were functions under that Act.

• (5) Nothing in this section shall be construed as authorising a local weights and measures authority to bring proceedings in Scotland for an offence.

Order for delivery up in criminal proceedings.

199

• (1) The court before which proceedings are brought against a person for an offence under section 198 may, if satisfied that at the time of his arrest or charge he had in his possession, custody or control in the course of a business an illicit recording of a performance, order that it be delivered up to a person having performers’ rights or recording rights in relation to the performance or to such other person as the court may direct.

• (2) For this purpose a person shall be treated as charged with an offence—

• (a) in England, Wales and Northern Ireland, when he is orally charged or is served with a summons or indictment;

• (b) in Scotland, when he is cautioned, charged or served with a complaint or indictment.

• (3) An order may be made by the court of its own motion or on the application of the prosecutor (or, in Scotland, the Lord Advocate or procurator-fiscal), and may be made whether or not the person is convicted of the offence, but shall not be made—

• (a) after the end of the period specified in section 203 (period after which remedy of delivery up not available), or

• (b) if it appears to the court unlikely that any order will be made under section 204 (order as to disposal of illicit recording).

• (4) An appeal lies from an order made under this section by a magistrates’ court—

• (a) in England and Wales, to the Crown Court, and

• (b) in Northern Ireland, to the county court;

and in Scotland, where an order has been made under this section, the person from whose possession, custody or control the illicit recording has been been removed may, without predudice to any other form of appeal under any rule of law, appeal against that order in the same manner as against sentence.

• (5) A person to whom an illicit recording is delivered up in pursuance of an order under this section shall retain it pending the making of an order, or the decision not to make an order, under section 204.

• (6) Nothing in in this section affects the powers of the court under section 153 of the Sentencing Code, Part II of the Proceeds of Crime (Scotland) Act 1995 or Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (general provisions as to forfeiture in criminal proceedings).

Search warrants.

200

• (1) Where a justice of the peace (in Scotland, a sheriff or justice of the peace) is satisfied by information on oath given by a constable (in Scotland, by evidence on oath) that there are reasonable grounds for believing—

• (a) that an offence under section 198(1) or (1A) (offences of making, importing , possessing, selling etc. or distributing illicit recordings) has been or is about to be committed in any premises, and

• (b) that evidence that such an offence has been or is about to be committed is in those premises,

he may issue a warrant authorising a constable to enter and search the premises, using such reasonable force as is necessary.

• (2) The power conferred by subsection (1) does not, in England and Wales, extend to authorising a search for material of the kinds mentioned in section 9(2) of the Police and Criminal Evidence Act 1984 (certain classes of personal or confidential material).

• (3) A warrant under subsection (1)—

• (a) may authorise persons to accompany any constable executing the warrant, and

• (b) remains in force for three months from the date of its issue.

• (3A) In executing a warrant issued under subsection (1) a constable may seize an article if he reasonably believes that it is evidence that any offence under section 198(1) or (1A) has been or is about to be committed.

• (4) In this section “premises” includes land, buildings, fixed or moveable structures, vehicles, vessels, aircraft and hovercraft.

False representation of authority to give consent.

201

• (1) It is an offence for a person to represent falsely that he is authorised by any person to give consent for the purposes of this Chapter in relation to a performance, unless he believes on reasonable grounds that he is so authorised.

• (2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both.

Offence by body corporate: liability of officers.

202

• (1) Where an offence under this Chapter committed by a body corporate is proved to have been committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

• (2) In relation to a body corporate whose affairs are managed by its members “director” means a member of the body corporate.

Supplementary provisions with respect to delivery up and seizure

Period after which remedy of delivery up not available.

203

• (1) An application for an order under section 195 (order for delivery up in civil proceedings) may not be made after the end of the period of six years from the date on which the illicit recording in question was made, subject to the following provisions.

• (2) If during the whole or any part of that period a person entitled to apply for an order—

• (a) is under a disability, or

• (b) is prevented by fraud or concealment from discovering the facts entitling him to apply,

an application may be made by him at any time before the end of the period of six years from the date on which he ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts.

• (3) In subsection (2) “disability”—

• (a) in England and Wales, has the same meaning as in the Limitation Act 1980;

• (b) in Scotland, means legal disability within the meaning of the Prescription and Limitations (Scotland) Act 1973;

• (c) in Northern Ireland, has the same meaning as in the Statute of Limitation (Northern Ireland) 1958.

• (4) An order under section 199 (order for delivery up in criminal proceedings) shall not, in any case, be made after the end of the period of six years from the date on which the illicit recording in question was made.

Order as to disposal of illicit recording.

204

• (1) An application may be made to the court for an order that an illicit recording of a performance delivered up in pursuance of an order under section 195 or 199, or seized and detained in pursuance of the right conferred by section 196, shall be—

• (a) forfeited to such person having performer’s rights or recording rights in relation to the performance as the court may direct, or

• (b) destroyed or otherwise dealt with as the court may think fit,

or for a decision that no such order should be made.

• (2) In considering what order (if any) should be made, the court shall consider whether other remedies available in an action for infringement of the rights conferred by this Chapter would be adequate to compensate the person or persons entitled to the rights and to protect their interests.

• (3) Provision shall be made by rules of court as to the service of notice on persons having an interest in the recording, and any such person is entitled—

• (a) to appear in proceedings for an order under this section, whether or not he was served with notice, and

• (b) to appeal against any order made, whether or not he appeared;

and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.

• (4) Where there is more than one person interested in a recording, the court shall make such order as it thinks just and may (in particular) direct that the recording be sold, or otherwise dealt with, and the proceeds divided.

• (5) If the court decides that no order should be made under this section, the person in whose possession, custody or control the recording was before being delivered up or seized is entitled to its return.

• (6) References in this section to a person having an interest in a recording include any person in whose favour an order could be made in respect of the recording

• (a) under this section or under section 114 or 231 of this Act;

• (b) under section 24D of the Registered Designs Act 1949;

• (c) under section 19 of Trade Marks Act 1994 ...; or

• (d) under regulation 1C of the Community Design Regulations 2005 (SI 2005/2339).

Forfeiture of illicit recordings: England and Wales or Northern Ireland

204A

• (1) In England and Wales or Northern Ireland where illicit recordings of a performance have come into the possession of any person in connection with the investigation or prosecution of a relevant offence, that person may apply under this section for an order for the forfeiture of the illicit recordings.

• (2) For the purposes of this section “relevant offence” means—

• (a) an offence under section 198(1) or (1A)(criminal liability for making or dealing with illicit recordings),

• (b) an offence under the Trade Descriptions Act 1968 (c. 29),

• (ba) an offence under the Business Protection from Misleading Marketing Regulations 2008,

• (bb) an offence under Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024, or

• (c) an offence involving dishonesty or deception.

• (3) An application under this section may be made—

• (a) where proceedings have been brought in any court for a relevant offence relating to some or all of the illicit recordings, to that court, or

• (b) where no application for the forfeiture of the illicit recordings has been made under paragraph (a), by way of complaint to a magistrates’ court.

• (4) On an application under this section, the court shall make an order for the forfeiture of any illicit recordings only if it is satisfied that a relevant offence has been committed in relation to the illicit recordings.

• (5) A court may infer for the purposes of this section that such an offence has been committed in relation to any illicit recordings if it is satisfied that such an offence has been committed in relation to illicit recordings which are representative of the illicit recordings in question (whether by reason of being part of the same consignment or batch or otherwise).

• (6) Any person aggrieved by an order made under this section by a magistrates’ court, or by a decision of such a court not to make such an order, may appeal against that order or decision—

• (a) in England and Wales, to the Crown Court, or

• (b) in Northern Ireland, to the county court.

• (7) An order under this section may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates’ Courts Act 1980 (c. 43) or Article 146 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1987/1675 (N.I. 26)) (statement of case)).

• (8) Subject to subsection (9), where any illicit recordings are forfeited under this section they shall be destroyed in accordance with such directions as the court may give.

• (9) On making an order under this section the court may direct that the illicit recordings to which the order relates shall (instead of being destroyed) be forfeited to the person having the performers’ rights or recording rights in question or dealt with in such other way as the court considers appropriate.

Forfeiture: Scotland

204B

• (1) In Scotland the court may make an order under this section for the forfeiture of any illicit recordings.

• (2) An order under this section may be made—

• (a) on an application by the procurator-fiscal made in the manner specified in section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46), or

• (b) where a person is convicted of a relevant offence, in addition to any other penalty which the court may impose.

• (3) On an application under subsection (2)(a), the court shall make an order for the forfeiture of any illicit recordings only if it is satisfied that a relevant offence has been committed in relation to the illicit recordings.

• (4) The court may infer for the purposes of this section that such an offence has been committed in relation to any illicit recordings if it is satisfied that such an offence has been committed in relation to illicit recordings which are representative of the illicit recordings in question (whether by reason of being part of the same consignment or batch or otherwise).

• (5) The procurator-fiscal making the application under subsection (2)(a) shall serve on any person appearing to him to be the owner of, or otherwise to have an interest in, the illicit recordings to which the application relates a copy of the application, together with a notice giving him the opportunity to appear at the hearing of the application to show cause why the illicit recordings should not be forfeited.

• (6) Service under subsection (5) shall be carried out, and such service may be proved, in the manner specified for citation of an accused in summary proceedings under the Criminal Procedure (Scotland) Act 1995.

• (7) Any person upon whom notice is served under subsection (5) and any other person claiming to be the owner of, or otherwise to have an interest in, illicit recordings to which an application under this section relates shall be entitled to appear at the hearing of the application to show cause why the illicit recordings should not be forfeited.

• (8) The court shall not make an order following an application under subsection (2)(a)—

• (a) if any person on whom notice is served under subsection (5) does not appear, unless service of the notice on that person is proved, or

• (b) if no notice under subsection (5) has been served, unless the court is satisfied that in the circumstances it was reasonable not to serve such notice.

• (9) Where an order for the forfeiture of any illicit recordings is made following an application under subsection (2)(a), any person who appeared, or was entitled to appear, to show cause why the illicit recordings should not be forfeited may, within 21 days of the making of the order, appeal to the High Court by Bill of Suspension.

• (10) Section 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995 shall apply to an appeal under subsection (9) as it applies to a stated case under Part 2 of that Act.

• (11) An order following an application under subsection (2)(a) shall not take effect—

• (a) until the end of the period of 21 days beginning with the day after the day on which the order is made, or

• (b) if an appeal is made under subsection (9) above within that period, until the appeal is determined or abandoned.

• (12) An order under subsection (2)(b) shall not take effect—

• (a) until the end of the period within which an appeal against the order could be brought under the Criminal Procedure (Scotland) Act 1995 (c. 46), or

• (b) if an appeal is made within that period, until the appeal is determined or abandoned.

• (13) Subject to subsection (14), illicit recordings forfeited under this section shall be destroyed in accordance with such directions as the court may give.

• (14) On making an order under this section the court may direct that the illicit recordings to which the order relates shall (instead of being destroyed) be forfeited to the person having the performers’ rights or recording rights in question or dealt with in such other way as the court considers appropriate.

• (15) For the purposes of this section—

• “relevant offence” means—an offence under section 198(1) or (1A) (criminal liability for making or dealing with illicit recordings),an offence under the Trade Descriptions Act 1968,an offence under the Business Protection from Misleading Marketing Regulations 2008,an offence under Chapter 1 of Part 4 of the Digital Markets, Competition and Consumers Act 2024, orany offence involving dishonesty or deception;

• “the court” means—in relation to an order made on an application under subsection (2)(a), the sheriff, andin relation to an order made under subsection (2)(b), the court which imposed the penalty.

Jurisdiction of county court and sheriff court.

205

• (1) In England and Wales the county court and in Northern Ireland a county court may entertain proceedings under—

• section 195 (order for delivery up of illicit recording), or

• section 204 (order as to disposal of illicit recording),

save that, in Northern Ireland, a county court may entertain such proceedings only where the value of the illicit recordings in question does not exceed the county court limit for actions in tort.

• (2) In Scotland proceedings for an order under either of those provisions may be brought in the sheriff court.

• (3) Nothing in this section shall be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.

Licensing of performers’ ... rights

Licensing of performers’ ... rights.

205A

The provisions of Schedule 2A have effect with respect to the licensing of performers’ ... rights.

Jurisdiction of Copyright Tribunal

Jurisdiction of Copyright Tribunal.

205B.

• (1) The Copyright Tribunal has jurisdiction under this Chapter 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);

• (cc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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 Chapter.

• (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.

Chapter 3 — MORAL RIGHTS

Right to be identified as performer

Right to be identified as performer

205C

• (1) Whenever a person—

• (a) produces or puts on a qualifying performance that is given in public,

• (b) broadcasts live a qualifying performance,

• (c) communicates to the public a sound recording of a qualifying performance, or

• (d) issues to the public copies of such a recording,

the performer has the right to be identified as such.

• (2) The right of the performer under this section is—

• (a) in the case of a performance that is given in public, to be identified in any programme accompanying the performance or in some other manner likely to bring his identity to the notice of a person seeing or hearing the performance,

• (b) in the case of a performance that is broadcast, to be identified in a manner likely to bring his identity to the notice of a person seeing or hearing the broadcast,

• (c) in the case of a sound recording that is communicated to the public, to be identified in a manner likely to bring his identity to the notice of a person hearing the communication,

• (d) in the case of a sound recording that is issued to the public, to be identified in or on each copy or, if that is not appropriate, in some other manner likely to bring his identity to the notice of a person acquiring a copy,

or (in any of the above cases) to be identified in such other manner as may be agreed between the performer and the person mentioned in subsection (1).

• (3) The right conferred by this section in relation to a performance given by a group (or so much of a performance as is given by a group) is not infringed—

• (a) in a case falling within paragraph (a), (b) or (c) of subsection (2), or

• (b) in a case falling within paragraph (d) of that subsection in which it is not reasonably practicable for each member of the group to be identified,

if the group itself is identified as specified in subsection (2).

• (4) In this section “group” means two or more performers who have a particular name by which they may be identified collectively.

• (5) If the assertion under section 205D specifies a pseudonym, initials or some other particular form of identification, that form shall be used; otherwise any reasonable form of identification may be used.

• (6) This section has effect subject to section 205E (exceptions to right).

Requirement that right be asserted

205D

• (1) A person does not infringe the right conferred by section 205C (right to be identified as performer) by doing any of the acts mentioned in that section unless the right has been asserted in accordance with the following provisions so as to bind him in relation to that act.

• (2) The right may be asserted generally, or in relation to any specified act or description of acts—

• (a) by instrument in writing signed by or on behalf of the performer, or

• (b) on an assignment of a performer's property rights, by including in the instrument effecting the assignment a statement that the performer asserts in relation to the performance his right to be identified.

• (3) The persons bound by an assertion of the right under subsection (2) are—

• (a) in the case of an assertion under subsection (2)(a), anyone to whose notice the assertion is brought;

• (b) in the case of an assertion under subsection (2)(b), the assignee and anyone claiming through him, whether or not he has notice of the assertion.

• (4) In an action for infringement of the right the court shall, in considering remedies, take into account any delay in asserting the right.

Exceptions to right

205E

• (1) The right conferred by section 205C (right to be identified as performer) is subject to the following exceptions.

• (2) The right does not apply where it is not reasonably practicable to identify the performer (or, where identification of a group is permitted by virtue of section 205C(3), the group).

• (3) The right does not apply in relation to any performance given for the purposes of reporting current events.

• (4) The right does not apply in relation to any performance given for the purposes of advertising any goods or services.

• (5) The right is not infringed by an act which by virtue of any of the following provisions of Schedule 2 would not infringe any of the rights conferred by Chapter 2—

• (a) paragraph 2(1A) (news reporting);

• (b) paragraph 3 (incidental inclusion of a performance or recording);

• (c) paragraph 4(2) (things done for the purposes of examination);

• (d) paragraph 8 (parliamentary and judicial proceedings);

• (e) paragraph 9 (Royal Commissions and statutory inquiries).

Right to object to derogatory treatment

Right to object to derogatory treatment of performance

205F

• (1) The performer of a qualifying performance has a right which is infringed if—

• (a) the performance is broadcast live, or

• (b) by means of a sound recording the performance is played in public or communicated to the public,

with any distortion, mutilation or other modification that is prejudicial to the reputation of the performer.

• (2) This section has effect subject to section 205G (exceptions to right).

Exceptions to right

205G

• (1) The right conferred by section 205F (right to object to derogatory treatment of performance) is subject to the following exceptions.

• (2) The right does not apply in relation to any performance given for the purposes of reporting current events.

• (3) The right is not infringed by modifications made to a performance which are consistent with normal editorial or production practice.

• (4) Subject to subsection (5), the right is not infringed by anything done for the purpose of—

• (a) avoiding the commission of an offence,

• (b) complying with a duty imposed by or under an enactment, or

• (c) in the case of the British Broadcasting Corporation, avoiding the inclusion in a programme broadcast by them of anything which offends against good taste or decency or which is likely to encourage or incite crime or lead to disorder or to be offensive to public feeling.

• (5) Where—

• (a) the performer is identified in a manner likely to bring his identity to the notice of a person seeing or hearing the performance as modified by the act in question; or

• (b) he has previously been identified in or on copies of a sound recording issued to the public,

subsection (4) applies only if there is sufficient disclaimer.

• (6) In subsection (5) “sufficient disclaimer”, in relation to an act capable of infringing the right, means a clear and reasonably prominent indication—

• (a) given in a manner likely to bring it to the notice of a person seeing or hearing the performance as modified by the act in question, and

• (b) if the performer is identified at the time of the act, appearing along with the identification,

that the modifications were made without the performer's consent.

Infringement of right by possessing or dealing with infringing article

205H

• (1) The right conferred by section 205F (right to object to derogatory treatment of performance) is also infringed by a person who—

• (a) possesses in the course of business, or

• (b) sells or lets for hire, or offers or exposes for sale or hire, or

• (c) distributes,

an article which is, and which he knows or has reason to believe is, an infringing article.

• (2) An “infringing article” means a sound recording of a qualifying performance with any distortion, mutilation or other modification that is prejudicial to the reputation of the performer.

Supplementary

Duration of rights

205I

• (1) A performer's rights under this Chapter in relation to a performance subsist so long as that performer's rights under Chapter 2 subsist in relation to the performance.

• (2) In subsection (1) “performer's rights” includes rights of a performer that are vested in a successor of his.

Consent and waiver of rights

205J

• (1) It is not an infringement of the rights conferred by this Chapter to do any act to which consent has been given by or on behalf of the person entitled to the right.

• (2) Any of those rights may be waived by instrument in writing signed by or on behalf of the person giving up the right.

• (3) A waiver—

• (a) may relate to a specific performance, to performances of a specified description or to performances generally, and may relate to existing or future performances, and

• (b) may be conditional or unconditional and may be expressed to be subject to revocation,

and if made in favour of the owner or prospective owner of a performer's property rights in the performance or performances to which it relates, it shall be presumed to extend to his licensees and successors in title unless a contrary intention is expressed.

• (4) Nothing in this Chapter shall be construed as excluding the operation of the general law of contract or estoppel in relation to an informal waiver or other transaction in relation to either of the rights conferred by this Chapter.

Application of provisions to parts of performances

205K

• (1) The right conferred by section 205C (right to be identified as performer) applies in relation to the whole or any substantial part of a performance.

• (2) The right conferred by section 205F (right to object to derogatory treatment of performance) applies in relation to the whole or any part of a performance.

Moral rights not assignable

205L

The rights conferred by this Chapter are not assignable.

Transmission of moral rights on death

205M

• (1) On the death of a person entitled to a right conferred by this Chapter—

• (a) the right passes to such person as he may by testamentary disposition specifically direct,

• (b) if there is no such direction but the performer's property rights in respect of the performance in question form part of his estate, the right passes to the person to whom the property rights pass,

• (c) if or to the extent that the right does not pass under paragraph (a) or (b) it is exercisable by his personal representatives.

• (2) Where a performer's property rights pass in part to one person and in part to another, as for example where a bequest is limited so as to apply—

• (a) to one or more, but not all, of the things to which the owner has the right to consent, or

• (b) to part, but not the whole, of the period for which the rights subsist,

any right which by virtue of subsection (1) passes with the performer's property rights is correspondingly divided.

• (3) Where by virtue of subsection (1)(a) or (1)(b) a right becomes exercisable by more than one person—

• (a) it is, in the case of the right conferred by section 205F (right to object to derogatory treatment of performance), a right exercisable by each of them and is satisfied in relation to any of them if he consents to the treatment or act in question, and

• (b) any waiver of the right in accordance with section 205J by one of them does not affect the rights of the others.

• (4) A consent or waiver previously given or made binds any person to whom a right passes by virtue of subsection (1).

• (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.

Remedies for infringement of moral rights

205N

• (1) An infringement of a right conferred by this Chapter is actionable as a breach of statutory duty owed to the person entitled to the right.

• (2) Where—

• (a) there is an infringement of a right conferred by this Chapter,

• (b) a person falsely claiming to act on behalf of a performer consented to the relevant conduct or purported to waive the right, and

• (c) there would have been no infringement if he had been so acting,

that person shall be liable, jointly and severally with any person liable in respect of the infringement by virtue of subsection (1), as if he himself had infringed the right.

• (3) Where proceedings for infringement of the right conferred on a performer by this Chapter, it shall be a defence to prove—

• (a) that a person claiming to act on behalf of the performer consented to the defendant's conduct or purported to waive the right, and

• (b) that the defendant reasonably believed that the person was acting on behalf of the performer.

• (4) In proceedings for infringement of the right conferred by section 205F the court may, if it thinks it an adequate remedy in the circumstances, grant an injunction on terms prohibiting the doing of any act unless a disclaimer is made, in such terms and in such manner as may be approved by the court, dissociating the performer from the broadcast or sound recording of the performance.

Chapter 4 — QUALIFICATION FOR PROTECTION, EXTENT AND INTERPRETATION

Qualification for protection and extent

Qualifying countries, individuals and persons.

206

• (1) In this Part—

• “qualifying country” means—

• (a) the United Kingdom,

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (ba) the Channel Islands, the Isle of Man or Gibraltar, or

• (bb) a country which is a party to the Rome Convention, or

• (c) to the extent that an Order under section 208 so provides, a country designated under that section as enjoying reciprocal protection;

• “qualifying individual” means a citizen or subject of, or an individual resident in, a qualifying country; and

• “qualifying person” means a qualifying individual or a body corporate or other body having legal personality which—

• (a) is formed under the law of a part of the United Kingdom or another qualifying country, and

• (b) has in any qualifying country a place of business at which substantial business activity is carried on.

• (2) The reference in the definition of “qualifying individual” to a person’s being a citizen or subject of a qualifying country shall be construed—

• (a) in relation to the United Kingdom, as a reference to his being a British citizen, and

• (b) in relation to a colony of the United Kingdom, as a reference to his being a British Dependent Territories’ citizen by connection with that colony.

• (3) In determining for the purpose of the definition of “qualifying person” whether substantial business activity is carried on at a place of business in any country, no account shall be taken of dealings in goods which are at all material times outside that country.

• (4) Her Majesty may by Order in Council—

• (za) make provision for the application of this Part to a country by virtue of paragraph (a) or (ba) of the definition of “qualifying country” in subsection (1) to be subject to specified restrictions, but those restrictions may only relate to rights which would otherwise apply as a result of—

• (i) a performance being a qualifying performance because it meets Condition C or Condition D in section 181, and

• (ii) that condition being met by way of a connection to such a country;

• (a) make provision for the application of this Part to a country by virtue of paragraph (bb) or (c) of the definition of “qualifying country” in subsection (1) to be subject to specified restrictions;

• (b) amend the definition of “qualifying country” in subsection (1) so as to add a country which is not a party to the Rome Convention;

• (c) make provision for the application of this Part to a country added under paragraph (b) to be subject to specified restrictions.

• (5) A statutory instrument containing an Order in Council under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

• (6) In this section, “the Rome Convention” means the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations done at Rome on 26 October 1961.

Countries to which this Part extends.

207

This Part extends to England and Wales, Scotland and Northern Ireland.

Countries enjoying reciprocal protection.

208

• (1) Her Majesty may by Order in Council designate as enjoying reciprocal protection under this Part—

• (a) a Convention country, or

• (b) a country as to which Her Majesty is satisfied that provision has been or will be made under its law giving adequate protection for British performances.

• (2) A “Convention country” means a country which is a party to a Convention relating to performers’ rights to which the United Kingdom is also a party.

• (3) A “British performance” means a performance—

• (a) given by an individual who is a British citizen or resident in the United Kingdom, or

• (b) taking place in the United Kingdom.

• (4) If the law of that country provides adequate protection only for certain descriptions of performance, an Order under subsection (1)(b) designating that country shall contain provision limiting to a corresponding extent the protection afforded by this Part in relation to performances connected with that country.

• (5) The power conferred by subsection (1)(b) is exercisable in relation to ... any colony of the United Kingdom, as in relation to a foreign country.

• (6) A statutory instrument containing an Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Territorial waters and the continental shelf.

209

• (1) For the purposes of this Part the territorial waters of the United Kingdom shall be treated as part of the United Kingdom.

• (2) This Part applies to things done in the United Kingdom sector of the continental shelf on a structure or vessel which is present there for purposes directly connected with the exploration of the sea bed or subsoil or the exploitation of their natural resources as it applies to things done in the United Kingdom.

• (3) The United Kingdom sector of the continental shelf means the areas designated by order under section 1(7) of the Continental Shelf Act 1964.

British ships, aircraft and hovercraft.

210

• (1) This Part applies to things done on a British ship, aircraft or hovercraft as it applies to things done in the United Kingdom.

• (2) In this section—

• “British ship” means a ship which is a British ship for the purposes of the Merchant Shipping Act 1995 otherwise than by virtue of registration in a country outside the United Kingdom; and

• “British aircraft” and “British hovercraft” mean an aircraft or hovercraft registered in the United Kingdom.

210A

Requirement of signature: application in relation to body corporate

• (1) The requirement in the following provisions that an instrument be signed by or on behalf of a person is also satisfied in the case of a body corporate by the affixing of its seal—

• section 191B(3) (assignment of performer's property rights);

• section 191C(1) (assignment of future performer's property rights);

• section 191D(1) (grant of exclusive licence).

• (2) The requirement in the following provisions that an instrument be signed by a person is also satisfied in the case of a body corporate by signature on behalf of the body or by the affixing of its seal—

• section 205D(2)(a) (assertion of performer's moral rights);

• section 205J(2) (waiver of performer's moral rights).

Interpretation

Expressions having same meaning as in copyright provisions.

211

• (1) The following expressions have the same meaning in this Part as in Part I (copyright)—

• assignment (in Scotland),

• broadcast,

• business,

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• communication to the public,

• country,

• defendant (in Scotland),

• delivery up (in Scotland),

• the EEA,

• EEA state,

• film,

• injunction (in Scotland)

• literary work,

• published, . . .

• signed,

• sound recording, and

• wireless broadcast.

• (2) The provisions of—

• (a) section 5B(2) and (3) (supplementary provisions relating to films), and

• (b) section 6(3) to (5A) and section 19(4) (supplementary provisions relating to broadcasting),

apply for the purposes of this Part, and in relation to an infringement of the rights conferred by this Part, as they apply for the purposes of Part I and in relation to an infringement of copyright.

Index of defined expressions.

212

The following Table shows provisions defining or otherwise explaining expressions used in this Part (other than provisions defining or explaining an expression used only in the same section)—

Supplementary

Power to amend in consequence of changes to international law

212A

• (1) The Secretary of State may by order amend this Part in consequence of changes to international law in the area of performance rights.

• (2) An order under this section must be made by statutory instrument; and no order may be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

Part III — Design Right

Chapter I — Design right in original designs

Introductory

Design right.

213

• (1) Design right is a property right which subsists in accordance with this Part in an original design.

• (2) In this Part “design” means the design of ... the shape or configuration (whether internal or external) of the whole or part of an article.

• (3) Design right does not subsist in—

• (a) a method or principle of construction,

• (b) features of shape or configuration of an article which—

• (i) enable the article to be connected to, or placed in, around or against, another article so that either article may perform its function, or

• (ii) are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part, or

• (c) surface decoration.

• (4) A design is not “original” for the purposes of this Part if it is commonplace in a qualifying country in the design field in question at the time of its creation; and “qualifying country” has the meaning given in section 217(3) .

• (5) Design right subsists in a design only if the design qualifies for design right protection by reference to—

• (a) the designer or the person by whom the designer was employed (see sections 218 and 219), or

• (b) the person by whom and country in which articles made to the design were first marketed (see section 220),

or in accordance with any Order under section 221 (power to make further provision with respect to qualification).

• (5A) Design right does not subsist in a design which consists of or contains a controlled representation within the meaning of the Olympic Symbol etc. (Protection) Act 1995.

• (6) Design right does not subsist unless and until the design has been recorded in a design document or an article has been made to the design.

• (7) Design right does not subsist in a design which was so recorded, or to which an article was made, before the commencement of this Part.

The designer.

214

• (1) In this Part the “designer”, in relation to a design, means the person who creates it.

• (2) In the case of a computer-generated design the person by whom the arrangements necessary for the creation of the design are undertaken shall be taken to be the designer.

Ownership of design right.

215

• (1) The designer is the first owner of any design right in a design which is not created ... in the course of employment.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Where ... a design is created by an employee in the course of his employment, his employer is the first owner of any design right in the design.

• (4) If a design qualifies for design right protection by virtue of section 220 (qualification by reference to first marketing of articles made to the design), the above rules do not apply and the person by whom the articles in question are marketed is the first owner of the design right.

Duration of design right.

216

• (1) Design right expires—

• (a) fifteen years from the end of the calendar year in which the design was first recorded in a design document or an article was first made to the design, whichever first occurred, or

• (b) if articles made to the design are made available for sale or hire within five years from the end of that calendar year, ten years from the end of the calendar year in which that first occurred.

• (2) The reference in subsection (1) to articles being made available for sale or hire is to their being made so available anywhere in the world by or with the licence of the design right owner.

Qualification for design right protection

Qualifying individuals and qualifying persons.

217

• (1) In this Part—

• ...

• “ qualifying person ” means—

• (a) an individual habitually resident in a qualifying country, or

• (b) a body corporate or other body having legal personality which—

• (i) is formed under the law of a part of the United Kingdom or another qualifying country, and

• (ii) has in any qualifying country a place of business at which substantial business activity is carried on.

• (2) References in this Part to a qualifying person include the Crown and the government of any other qualifying country.

• (3) In this section “qualifying country” means—

• (a) the United Kingdom,

• (b) a country to which this Part extends by virtue of an Order under section 255, or

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) to the extent that an Order under section 256 so provides, a country designated under that section as enjoying reciprocal protection.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) In determining for the purpose of the definition of “qualifying person” whether substantial business activity is carried on at a place of business in any country, no account shall be taken of dealings in goods which are at all material times outside that country.

Qualification by reference to designer.

218

• (1) This section applies to a design which is not created ...in the course of employment.

• (2) A design to which this section applies qualifies for design right protection if the designer is ... a qualifying person.

• (3) A joint design to which this section applies qualifies for design right protection if any of the designers is ... a qualifying person.

• (4) Where a joint design qualifies for design right protection under this section, only those designers who are ... qualifying persons are entitled to design right under section 215(1) (first ownership of design right: entitlement of designer).

Qualification by reference to employer.

219

• (1) A design qualifies for design right protection if it is created in the course of employment with a qualifying person.

• (2) In the case of ... joint employment a design qualifies for design right protection if any of the ... employers is a qualifying person.

• (3) Where a design which is ... created in the course of joint employment qualifies for design right protection under this section, only those ... employers who are qualifying persons are entitled to design right under section 215(3) (first ownership of design right: entitlement of ... employer).

Qualification by reference to first marketing.

220

• (1) A design which does not qualify for design right protection under section 218 or 219 (qualification by reference to designer... or employer) qualifies for design right protection if the first marketing of articles made to the design—

• (a) is by a qualifying person ..., and

• (b) takes place in the United Kingdom or, another country to which this Part extends by virtue of an Order under section 255, ....

• (2) If the first marketing of articles made to the design is done jointly by two or more persons, the design qualifies for design right protection if any of those persons meets the requirement specified in subsection (1)(a).

• (3) In such a case only the persons who meet that requirement are entitled to design right under section 215(4) (first ownership of design right: entitlement of first marketer of articles made to the design).

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to make further provision as to qualification.

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• (1) Her Majesty may, with a view to fulfilling an international obligation of the United Kingdom, by Order in Council provide that a design qualifies for design right protection if such requirements as are specified in the Order are met.

• (2) An Order may make different provision for different descriptions of design or article; and may make such consequential modifications of the operation of sections 215 (ownership of design right) and sections 218 to 220 (other means of qualification) as appear to Her Majesty to be appropriate.

• (3) A statutory instrument containing an Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Dealings with design right

Assignment and licences.

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• (1) Design right is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.

• (2) An assignment or other transmission of design right may be partial, that is, limited so as to apply—

• (a) to one or more, but not all, of the things the design right owner has the exclusive right to do;

• (b) to part, but not the whole, of the period for which the right is to subsist.

• (3) An assignment of design right is not effective unless it is in writing signed by or on behalf of the assignor.

• (4) A licence granted by the owner of design right is binding on every successor in title to his interest in the right, 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 design right owner shall be construed accordingly.

Prospective ownership of design right.

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• (1) Where by an agreement made in relation to future design right, and signed by or on behalf of the prospective owner of the design right, the prospective owner purports to assign the future design right (wholly or partially) to another person, then if, on the right coming into existence, the assignee or another person claiming under him would be entitled as against all other persons to require the right to be vested in him, the right shall vest in him by virtue of this section.

• (2) In this section—

• “future design right” means design right which will or may come into existence in respect of a future design or class of designs or on the occurrence of a future event; and

• “prospective owner” shall be construed accordingly, and includes a person who is prospectively entitled to design right by virtue of such an agreement as is mentioned in subsection (1).

• (3) A licence granted by a prospective owner of design right is binding on every successor in title to his interest (or prospective interest) in the right, 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 design right owner shall be construed accordingly.

Assignment of right in registered design presumed to carry with it design right.

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Where a design consisting of a design in which design right subsists is registered under the Registered Designs Act 1949 and the proprietor of the registered design is also the design right owner, an assignment of the right in the registered design shall be taken to be also an assignment of the design right, unless a contrary intention appears.

Exclusive licences.

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• (1) In this Part an “exclusive licence” means a licence in writing signed by or on behalf of the design right owner authorising the licensee to the exclusion of all other persons, including the person granting the licence, to exercise a right which would otherwise be exercisable exclusively by the design right owner.

• (2) The licensee under an exclusive licence has the same rights against any successor in title who is bound by the licence as he has against the person granting the licence.

Chapter II — Rights of Design Right Owner and Remedies

Infringement of design right

Primary infringement of design right.

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• (1) The owner of design right in a design has the exclusive right to reproduce the design for commercial purposes—

• (a) by making articles to that design, or

• (b) by making a design document recording the design for the purpose of enabling such articles to be made.

• (2) Reproduction of a design by making articles to the design means copying the design so as to produce articles exactly or substantially to that design, and references in this Part to making articles to a design shall be construed accordingly.

• (3) Design right is infringed by a person who without the licence of the design right owner does, or authorises another to do, anything which by virtue of this section is the exclusive right of the design right owner.

• (3A) But design right in a design is not infringed where a person does, or authorises another to do, anything relating to an article that is made to the design if the article has been put on the market in the United Kingdom or the European Economic Area with the licence of the design right owner.

• (4) For the purposes of this section reproduction may be direct or indirect, and it is immaterial whether any intervening acts themselves infringe the design right.

• (5) This section has effect subject to the provisions of Chapter III (exceptions to rights of design right owner).

Secondary infringement: importing or dealing with infringing article.

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• (1) Design right is infringed by a person who, without the licence of the design right owner—

• (a) imports into the United Kingdom for commercial purposes, or

• (b) has in his possession for commercial purposes, or

• (c) sells, lets for hire, or offers or exposes for sale or hire, in the course of a business,

an article which is, and which he knows or has reason to believe is, an infringing article.

• (2) This section has effect subject to the provisions of Chapter III (exceptions to rights of design right owner).

Meaning of “infringing article”.

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• (1) In this Part “infringing article”, in relation to a design, shall be construed in accordance with this section.

• (2) An article is an infringing article if its making to that design was an infringement of design right in the design.

• (3) An article is also an infringing article if—

• (a) it has been or is proposed to be imported into the United Kingdom, and

• (b) its making to that design in the United Kingdom would have been an infringement of design right in the design or a breach of an exclusive licence agreement relating to the design.

• (4) Where it is shown that an article is made to a design in which design right subsists or has subsisted at any time, it shall be presumed until the contrary is proved that the article was made at a time when design right subsisted.

• (5) Nothing in subsection (3) shall be construed as applying to an article which—

• (a) may lawfully be imported into the United Kingdom by virtue of anything which forms part of assimilated law as a result of section 3 of the European Union (Withdrawal) Act 2018, or

• (b) has been or is proposed to be imported into the United Kingdom after being put on the market in the European Economic Area by or with the licence of the design right owner.

• (5A) In subsection (5)(a), the reference to assimilated law is to be read, until the coming into force of paragraph 2(6) of Schedule 2 to the Retained EU Law (Revocation and Reform) Act 2023, as a reference to retained EU law.

• (6) The expression “infringing article” does not include a design document, notwithstanding that its making was or would have been an infringement of design right.

Remedies for infringement

Rights and remedies of design right owner.

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• (1) An infringement of design right is actionable by the design right owner.

• (2) In an action for infringement of design right 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) The court may in an action for infringement of design right, 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.

• (4) This section has effect subject to section 233 (innocent infringement).

Order for delivery up.

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• (1) Where a person—

• (a) has in his possession, custody or control for commercial purposes an infringing article, or

• (b) has in his possession, custody or control anything specifically designed or adapted for making articles to a particular design, knowing or having reason to believe that it has been or is to be used to make an infringing article,

the owner of the design right in the design in question may apply to the court for an order that the infringing article or other thing be delivered up to him or to such other person as the court may direct.

• (2) An application shall not be made after the end of the period specified in the following provisions of this section; and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section 231 (order as to disposal of infringing article, &c.).

• (3) An application for an order under this section may not be made after the end of the period of six years from the date on which the article or thing in question was made, subject to subsection (4).

• (4) If during the whole or any part of that period the design right owner—

• (a) is under a disability, or

• (b) is prevented by fraud or concealment from discovering the facts entitling him to apply for an order,

an application may be made at any time before the end of the period of six years from the date on which he ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts.

• (5) In subsection (4) “disability”—

• (a) in England and Wales, has the same meaning as in the Limitation Act 1980;

• (b) in Scotland, means legal disability within the meaning of the Prescription and Limitation (Scotland) Act 1973;

• (c) in Northern Ireland, has the same meaning as in the Statute of Limitations (Northern Ireland) 1958.

• (6) A person to whom an infringing article or other thing is delivered up in pursuance of an order under this section shall, if an order under section 231 is not made, retain it pending the making of an order, or the decision not to make an order, under that section.

• (7) Nothing in this section affects any other power of the court.

Order as to disposal of infringing articles, &c.

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• (1) An application may be made to the court for an order that an infringing article or other thing delivered up in pursuance of an order under section 230 shall be—

• (a) forfeited to the design right owner, or

• (b) destroyed or otherwise dealt with as the court may think fit,

or for a decision that no such order should be made.

• (2) In considering what order (if any) should be made, the court shall consider whether other remedies available in an action for infringement of design right would be adequate to compensate the design right owner and to protect his interests.

• (3) Provision shall be made by rules of court as to the service of notice on persons having an interest in the article or other thing, and any such person is entitled—

• (a) to appear in proceedings for an order under this section, whether or not he was served with notice, and

• (b) to appeal against any order made, whether or not he appeared;

and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.

• (4) Where there is more than one person interested in an article or other thing, the court shall make such order as it thinks just and may (in particular) direct that the thing be sold, or otherwise dealt with, and the proceeds divided.

• (5) If the court decides that no order should be made under this section, the person in whose possession, custody or control the article or other thing was before being delivered up . . . is entitled to its return.

• (6) References in this section to a person having an interest in an article or other thing include any person in whose favour an order could be made in respect of it

• (a) under this section or under section 114 or 204 of this Act;

• (b) under section 24D of the Registered Designs Act 1949;

• (c) under section 19 of Trade Marks Act 1994 ...; or

• (d) under regulation 1C of the Community Design Regulations 2005 (SI 2005/2339).

Jurisdiction of county court and sheriff court.

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• (1) In England and Wales the county court and in Northern Ireland a county court may entertain proceedings under—

• section 230 (order for delivery up of infringing article, &c.),

• section 231 (order as to disposal of infringing article, &c.), or

• section 235(5) (application by exclusive licensee having concurrent rights),

save that, in Northern Ireland, a county court may entertain such proceedings only where the value of the infringing articles and other things in question does not exceed the county court limit for actions in tort.

• (2) In Scotland proceedings for an order under any of those provisions may be brought in the sheriff court.

• (3) Nothing in this section shall be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.

Innocent infringement.

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