The Copyright and Related Rights Regulations 1996

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 designated¹ for the purposes of section 2(2) of the European Communities Act 1972² 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:—

PART I — INTRODUCTORY PROVISIONS

Citation, commencement and extent.

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• (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.

Interpretation

2

In these Regulations—

• “EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2nd May 1992³, as adjusted by the Protocol signed at Brussels on 17th March 1993⁴; and

• “EEA state” means a member State, Iceland, Liechtenstein or Norway.

• “national of the United Kingdom” has the meaning given by section 178 of the Copyright, Designs and Patents Act 1988;

Implementation of Directives, &c.

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These Regulations make provision for the purpose of implementing—

• (a) Council Directive No. 92/100/EEC of 19 November 1992⁵ 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 1993⁶ 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 1993⁷ 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 1995⁸; 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.

Scheme of the regulations

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The Copyright, Designs, and Patents Act 1988⁹ 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.

PART II — AMENDMENTS OF THE COPYRIGHT, DESIGNS AND PATENTS ACT 1988

Satellite broadcasts and cable re-transmission

Place where broadcast treated as made

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).

Safeguards in relation to certain satellite broadcasts

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• (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.

Exercise of rights in relation to cable re-transmission

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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.

Meaning of wireless telegraphy.

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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”.

Distribution right

Issue of copies of work to the public: extension of right

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• (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—

(172A) (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”.

Rental and lending right

Rental or lending of copyright work

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• (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

Permitted lending of copyright works

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• (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 1955¹⁰,

• section 8(6) of the Public Libraries and Museums Act 1964¹¹,

• Article 77(3) of the Education and Libraries (Northern Ireland) Order 1986¹²,

• paragraphs 6, 8 and 34 of Schedule 7 to the Copyright, Designs and Patents Act 1988¹³ (which insert the above provisions).

Presumption of transfer of rental right in case of film production agreement

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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.

Rental and lending: applications to Copyright Tribunal

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• (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—

(142) (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”.

Right to equitable remuneration where rental right transferred

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• (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);

Consequential modification of provisions relating to licensing

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• (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—

(117) 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—

(124) 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.

Publication right

Publication right

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• (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 making available 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) communicating the work to the public.

• (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 or in the United Kingdom, and

• (b) the publisher of the work is at the time of first publication a national of an EEA state or a national of the United Kingdom. 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 or a national of the United Kingdom.

• (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 and regulation 17A 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.

Application of copyright provisions to publication right

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• (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 1978¹⁴.

Authorship of films and certain photographs

Authorship of films

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• (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

Clarification of transitional provisions relating to pre-1989 photographs

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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 1995¹⁵ (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).

Performers' rights

Extension of performers' rights

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• (1) For section 182 (performers' rights: consent required for recording or live transmission of performance) substitute—

(182) (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) 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. (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, (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) the performer is entitled to equitable remuneration from the owner of the copyright in the sound recording. (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, (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)

Performers' property rights

21

• (1) After section 191 insert—

(191A) are property rights (“a performer’s property rights”). (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), (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) award such additional damages as the justice of the case may require. (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, (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—

(192A) (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. (192B) (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)

Licensing of performers' property rights

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—