The Copyright and Related Rights Regulations 1996

SCHEDULE 2A (1) (1) In Part II a “licensing scheme” means a scheme setting out— (a) the classes of case in which the operator of the scheme, or the person on whose behalf he acts, is willing to grant performers' property right licences, and (b) the terms on which licences would be granted in those classes of case; and for this purpose a “scheme” includes anything in the nature of a scheme, whether described as a scheme or as a tariff or by any other name. (2) In Part II a “licensing body” means a society or other organisation which has as its main object, or one of its main objects, the negotiating or granting, whether as owner or prospective owner of a performer’s property rights or as agent for him, of performers' property right licences, and whose objects include the granting of licences covering the performances of more than one performer. (3) In this paragraph “performers' property right licences” means licences to do, or authorise the doing of, any of the things for which consent is required under section 182A, 182B or 182C. (4) References in this Part to licences or licensing schemes covering the performances of more than one performer do not include licences or schemes covering only— (a) performances recorded in a single recording, (b) performances recorded in more than one recording where— (i) the performers giving the performances are the same, or (ii) the recordings are made by, or by employees of or commissioned by, a single individual, firm, company or group of companies. For purpose a group of companies means a holding company and its subsidiaries within the meaning of section 736 of the Companies Act 1985. (2) Paragraphs 3 to 8 (references and applications with respect to licensing schemes) apply to licensing schemes operated by licensing bodies in relation to a performer’s property rights which cover the performances of more than one performer, so far as they relate to licences for— (a) copying a recording of the whole or any substantial part of a qualifying performance, or (b) renting or lending copies of a recording to the public; and in those paragraphs “licensing scheme” means a licensing scheme of any of those descriptions. (3) (1) The terms of a licensing scheme proposed to be operated by a licensing body may be referred to the Copyright Tribunal by an organisation claiming to be representative of persons claiming that they require licences in cases of a description to which the scheme would apply, either generally or in relation to any description of case. (2) The Tribunal shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature. (3) If the Tribunal decides to entertain the reference it shall consider the matter referred and make such order, either confirming or varying the proposed scheme, either generally or so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances. (4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. (4) that person or organisation may refer the scheme to the Copyright Tribunal in so far as it relates to cases of that description. (1) If while a licensing scheme is in operation a dispute arises between the operator of the scheme and— (a) a person claiming that he requires a licence in a case of a description to which the scheme applies, or (b) an organisation claiming to be representative of such persons, (2) A scheme which has been referred to the Tribunal under this paragraph shall remain in operation until proceedings on the reference are concluded. (3) The Tribunal shall consider the matter in dispute and make such order, either confirming or varying the scheme so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances. (4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. (5) may refer the scheme again to the Tribunal so far as it relates to cases of that description. (1) Where the Copyright Tribunal has on a previous reference of a licensing scheme under paragraph 3 or 4, or under this paragraph, made an order with respect to the scheme, then, while the order remains in force— (a) the operator of the scheme, (b) a person claiming that he requires a licence in a case of the description to which the order applies, or (c) an organisation claiming to be representative of such persons, (2) A licensing scheme shall not, except with the special leave of the Tribunal, be referred again to the Tribunal in respect of the same description of cases— (a) within twelve months from the date of the order on the previous reference, or (b) if the order was made so as to be in force for 15 months or less, until the last three months before the expiry of the order. (3) A scheme which has been referred to the Tribunal under this paragraph shall remain in operation until proceedings on the reference are concluded. (4) The Tribunal shall consider the matter in dispute and make such order, either confirming, varying or further varying the scheme so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances. (5) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. (6) may apply to the Copyright Tribunal. (1) A person who claims, in a case covered by a licensing scheme, that the operator of the scheme has refused to grant him or procure the grant to him of a licence in accordance with the scheme, or has failed to do so within a reasonable time after being asked, may apply to the Copyright Tribunal. (2) A person who claims, in a case excluded from a licensing scheme, that the operator of the scheme either— (a) has refused to grant him a licence or procure the grant to him of a licence, or has failed to do so within a reasonable time of being asked, and that in the circumstances it is unreasonable that a licence should not be granted, or (b) proposes terms for a licence which are unreasonable, (3) A case shall be regarded as excluded from a licensing scheme for the purposes of sub-paragraph (2) if— (a) the scheme provides for the grant of licences subject to terms excepting matters from the licence and the case falls within such an exception, or (b) the case is so similar to those in which licences are granted under the scheme that it is unreasonable that it should not be dealt with in the same way. (4) If the Tribunal is satisfied that the claim is well-founded, it shall make an order declaring that, in respect of the matters specified in the order, the applicant is entitled to a licence on such terms as the Tribunal may determine to be applicable in accordance with the scheme or, as the case may be, to be reasonable in the circumstances. (5) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. (7) (1) Where the Copyright Tribunal has made an order under paragraph 6 that a person is entitled to a licence under a licensing scheme, the operator of the scheme or the original applicant may apply to the Tribunal to review its order. (2) An application shall not be made, except with the special leave of the Tribunal— (a) within twelve months from the date of the order, or of the decision on a previous application under this paragraph, or (b) if the order was made so as to be in force for 15 months or less, or as a result of the decision on a previous application under this paragraph is due to expire within 15 months of that decision, until the last three months before the expiry date. (3) The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable having regard to the terms applicable in accordance with the licensing scheme or, as the case may be, the circumstances of the case. (8) shall be in force or, as the case may be, remain in operation, so far as it relates to the description of case in respect of which the order was made, so long as the order remains in force. (1) A licensing scheme which has been confirmed or varied by the Copyright Tribunal— (a) under paragraph 3 (reference of terms of proposed scheme), or (b) under paragraph 4 or 5 (reference of existing scheme to Tribunal), (2) While the order is in force a person who in a case of a class to which the order applies— (a) pays to the operator of the scheme any charges payable under the scheme in respect of a licence covering the case in question or, if the amount cannot be ascertained, gives an undertaking to the operator to pay them when ascertained, and (b) complies with the other terms applicable to such a licence under the scheme, shall be in the same position as regards infringement of performers' property rights as if he had at all material times been the holder of a licence granted by the rights owner in question in accordance with the scheme. (3) The Tribunal may direct that the order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than the date on which the reference was made or, if later, on which the scheme came into operation. If such a direction is made— (a) any necessary repayments, or further payments, shall be made in respect of charges already paid, and (b) the reference in sub-paragraph (2)(a) to the charges payable under the scheme shall be construed as a reference to the charges so payable by virtue of the order. No such direction may be made where sub-paragraph (4) below applies. (4) An order of the Tribunal under paragraph 4 or 5 made with respect to a scheme which is certified for any purpose under paragraph 16 has effect, so far as it varies the scheme by reducing the charges payable for licences, from the date on which the reference was made to the Tribunal. (5) Where the Tribunal has made an order under paragraph 6 (order as to entitlement to licence under licensing scheme) and the order remains in force, the person in whose favour the order is made shall if he— (a) pays to the operator of the scheme any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained, and (b) complies with the other terms specified in the order, be in the same position as regards infringement of performers' property rights as if he had at all material times been the holder of a licence granted by the rights owner in question on the terms specified in the order. (9) Paragraphs 10 to 13 (references and applications with respect to licensing by licensing bodies) apply to licences relating to a performer’s property rights which cover the performance of more than one performer granted by a licensing body otherwise than in pursuance of a licensing scheme, so far as the licences authorise— (a) copying a recording of the whole or any substantial part of a qualifying performance, or (b) renting or lending copies of a recording to the public; and references in those paragraphs to a licence shall be construed accordingly. (10) (1) The terms on which a licensing body proposes to grant a licence may be referred to the Copyright Tribunal by the prospective licensee. (2) The Tribunal shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature. (3) If the Tribunal decides to entertain the reference it shall consider the terms of the proposed licence and make such order, either confirming or varying the terms as it may determine to be reasonable in the circumstances. (4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. (11) (1) A licensee under a licence which is due to expire, by effluxion of time or as a result of notice given by the licensing body, may apply to the Copyright Tribunal on the ground that it is unreasonable in the circumstances that the licence should cease to be in force. (2) Such an application may not be made until the last three months before the licence is due to expire. (3) A licence in respect of which a reference has been made to the Tribunal shall remain in operation until proceedings on the reference are concluded. (4) If the Tribunal finds the application well-founded, it shall make an order declaring that the licensee shall continue to be entitled to the benefit of the licence on such terms as the Tribunal may determine to be reasonable in the circumstances. (5) An order of the Tribunal under this paragraph may be made so as to be in force indefinitely or for such period as the Tribunal may determine. (12) (1) Where the Copyright Tribunal has made an order under paragraph 10 or 11, the licensing body or the person entitled to the benefit of the order may apply to the Tribunal to review its order. (2) An application shall not be made, except with the special leave of the Tribunal— (a) within twelve months from the date of the order or of the decision on a previous application under this paragraph, or (b) if the order was made so as to be in force for 15 months or less, or as a result of the decision on a previous application under this paragraph is due to expire within 15 months of that decision, until the last three months before the expiry date. (3) The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable in the circumstances. (13) be in the same position as regards infringement of performers' property rights as if he had at all material times been the holder of a licence granted by the rights owner in question on the terms specified in the order. (1) Where the Copyright Tribunal has made an order under paragraph 10 or 11 and the order remains in force, the person entitled to the benefit of the order shall if he— (a) pays to the licensing body any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained, and (b) complies with the other terms specified in the order, (2) The benefit of the order may be assigned— (a) in the case of an order under paragraph 10, if assignment is not prohibited under the terms of the Tribunal’s order; and (b) in the case of an order under paragraph 11, if assignment was not prohibited under the terms of the original licence. (3) The Tribunal may direct that an order under paragraph 10 or 11, or an order under paragraph 12 varying such an order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than the date on which the reference or application was made or, if later, on which the licence was granted or, as the case may be, was due to expire. If such a direction is made— (a) any necessary repayments, or further payments, shall be made in respect of charges already paid, and (b) the reference in sub-paragraph (1)(a) to the charges payable in accordance with the order shall be construed, where the order is varied by a later order, as a reference to the charges so payable by virtue of the later order. (14) and shall exercise its powers so as to secure that there is no unreasonable discrimination between licensees, or prospective licensees, under the scheme or licence to which the reference or application relates and licensees under other schemes operated by, or other licences granted by, the same person. (1) In determining what is reasonable on a reference or application under this Schedule relating to a licensing scheme or licence, the Copyright Tribunal shall have regard to— (a) the availability of other schemes, or the granting of other licences, to other persons in similar circumstances, and (b) the terms of those schemes or licences, (2) This does not affect the Tribunal’s general obligation in any case to have regard to all relevant circumstances. (15) (1) An application to settle the royalty or other sum payable in pursuance of paragraph 14A of Schedule 2 (lending of certain recordings) may be made to the Copyright Tribunal by the owner of a performer’s property rights or the person claiming to be treated as licensed by him. (2) The Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances. (3) Either party may subsequently apply to the Tribunal to vary the order, and the Tribunal shall consider the matter and make such order confirming or varying the original order as it may determine to be reasonable in the circumstances. (4) An application under sub-paragraph (3) shall not, except with the special leave of the Tribunal, be made within twelve months from the date of the original order or of the order on a previous application under that sub-paragraph. (5) An order under sub-paragraph (3) has effect from the date on which it is made or such later date as may be specified by the Tribunal. (16) (1) A person operating or proposing to operate a licensing scheme may apply to the Secretary of State to certify the scheme for the purposes of paragraph 14A of Schedule 2 (lending of certain recordings). (2) The Secretary of State shall by order made by statutory instrument certify the scheme if he is satisfied that it— (a) enables the works to which it relates to be identified with sufficient certainty by persons likely to require licences, and (b) sets out clearly the charges (if any) payable and the other terms on which licences will be granted. (3) The scheme shall be scheduled to the order and the certification shall come into operation for the purposes of paragraph 14A of Schedule 2— (a) on such date, not less than eight weeks after the order is made, as may be specified in the order, or (b) if the scheme is the subject of a reference under paragraph 3 (reference of proposed scheme), any later date on which the order of the Copyright Tribunal under that paragraph comes into force or the reference is withdrawn. (4) A variation of the scheme is not effective unless a corresponding amendment of the order is made; and the Secretary of State shall make such an amendment in the case of a variation ordered by the Copyright Tribunal on a reference under paragraph 3, 4 or 5, and may do so in any other case if he thinks fit. (5) The order shall be revoked if the scheme ceases to be operated and may be revoked if it appears to the Secretary of State that it is no longer being operated according to its terms. (17) the powers conferred by Part I of Schedule 8 to the Fair Trading Act 1973 (powers exercisable for purpose of remedying or preventing adverse effects specified in report of Commission) include power to cancel or modify those conditions and, instead or in addition, to provide that licences in respect of the performer’s property rights shall be available as of right. (1) Where the matters specified in a report of the Monopolies and Mergers Commission as being those which in the Commission’s opinion operate, may be expected to operate or have operated against the public interest include— (a) conditions in licences granted by the owner of a performer’s property rights restricting the use to which a recording may be put by the licensee or the right of the owner to grant other licences, or (b) a refusal of an owner of a performer’s property rights to grant licences on reasonable terms, (2) The references in sections 56(2) and 73(2) of that Act, and sections 10(2)(b) and 12(5) of the Competition Act 1980, to the powers specified in that Part of that Schedule shall be construed accordingly. (3) A Minister shall only exercise the powers available by virtue of this paragraph if he is satisfied that to do so does not contravene any Convention relating to performers' rights to which the United Kingdom is a party. (4) The terms of a licence available by virtue of this paragraph shall, in default of agreement, be settled by the Copyright Tribunal on an application by the person requiring the licence; and terms so settled shall authorise the licensee to do everything in respect of which a licence is so available. (5) Where the terms of a licence are settled by the Tribunal, the licence has effect from the date on which the application to the Tribunal was made.

Performers' rights: power of Copyright Tribunal to give consent

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• (1) Section 190 (power of tribunal to give consent on behalf of performer in certain cases) is amended as follows.

• (2) For subsection (1) substitute—

(1) The Copyright Tribunal may, on the application of a person wishing to make a copy of a recording of a performance, give consent in a case where the identity or whereabouts of the person entitled to the reproduction right cannot be ascertained by reasonable inquiry.

• (3) In subsection (2) for “the performer” substitute “the person entitled to the reproduction right”.

• (4) Omit subsection (4).

• (5) In subsection (6)—

• (a) for “the performer” in the first place where it occurs substitute “the person entitled to the reproduction right”, and

• (b) for “the performer” in the second place where it occurs substitute “that person”.

Performers' rights: jurisdiction of Copyright Tribunal

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• (1) After section 205A (inserted by regulation 22(1)) insert—

(205B) (1) The Copyright Tribunal has jurisdiction under this Part to hear and determine proceedings under— (a) section 182D (amount of equitable remuneration for exploitation of commercial sound recording); (b) section 190 (application to give consent on behalf of owner of reproduction right); (c) section 191H (amount of equitable remuneration on transfer of rental right); (d) paragraph 3, 4 or 5 of Schedule 2A (reference of licensing scheme); (e) paragraph 6 or 7 of that Schedule (application with respect to licence under licensing scheme); (f) paragraph 10, 11 or 12 of that Schedule (reference or application with respect to licensing by licensing body); (g) paragraph 15 of that Schedule (application to settle royalty for certain lending); (h) paragraph 17 of that Schedule (application to settle terms of licence available as of right). (2) The provisions of Chapter VIII of Part I (general provisions relating to the Copyright Tribunal) apply in relation to the Tribunal when exercising any jurisdiction under this Part. (3) Provision shall be made by rules under section 150 prohibiting the Tribunal from entertaining a reference under paragraph 3, 4 or 5 of Schedule 2A (reference of licensing scheme) by a representative organisation unless the Tribunal is satisfied that the organisation is reasonably representative of the class of persons which it claims to represent.

• (2) In section 149 (jurisdiction of the Tribunal)—

• (a) in the opening words for “The function of the Copyright Tribunal is” substitute “The Copyright Tribunal has jurisdiction under this Part”;

• (b) omit paragraphs (g) and (h).

• (3) In paragraph 5 of Schedule 6 (determination by Tribunal of royalty or other remuneration to be paid), after sub-paragraph (4) add—

(5) The provisions of Chapter VIII of Part I (general provisions relating to the Copyright Tribunal) apply in relation to the Tribunal when exercising any jurisdiction under this paragraph.

PART III — TRANSITIONAL PROVISIONS AND SAVINGS

General provisions

Introductory

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• (1) In this Part—

• “commencement” means the commencement of these Regulations; and

• “existing”, in relation to a work or performance, means made or given before commencement.

• (2) For the purposes of this Part a work of which the making extended over a period shall be taken to have been made when its making was completed.

• (3) In this Part a “new right” means a right arising by virtue of these Regulations, in relation to a copyright work or a qualifying performance, to authorise or prohibit an act.

The expression does not include—

• (a) a right corresponding to a right which existed immediately before commencement, or

• (b) a right to remuneration arising by virtue of these Regulations.

• (4) Expressions used in this Part have the same meaning in relation to copyright as they have in Part I of the Copyright, Designs and Patents Act 1988¹⁶, and in relation to performances as in Part II of that Act.

General rules

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• (1) Subject to anything in regulations 28 to 36 (special transitional provisions and savings), these regulations apply to copyright works made, and to performances given, before or after commencement.

• (2) No act done before commencement shall be regarded as an infringement of any new right, or as giving rise to any right to remuneration arising by virtue of these Regulations.

Saving for certain existing agreements

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• (1) Except as otherwise expressly provided, nothing in these Regulations affects an agreement made before 19th November 1992.

• (2) No act done in pursuance of any such agreement after commencement shall be regarded as an infringement of any new right.

Special provisions

Broadcasts

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The provisions of—

• regulation 5 (place where broadcast treated as made) and

• regulation 6 (safeguards in relation to certain satellite broadcasts),

• have effect in relation to broadcasts made after commencement.

Satellite broadcasting: international co-production agreements

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• (1) This regulation applies to an agreement concluded before 1st January 1995—

• (a) between two or more co-producers of a film, one of whom is a national of an EEA state or a national of the United Kingdom, and

• (b) the provisions of which grant to the parties exclusive rights to exploit all communication to the public of the film in separate geographical areas.

• (2) Where such an agreement giving such exclusive exploitation rights in relation to the United Kingdom does not expressly or by implication address satellite broadcasting from the United Kingdom, the person to whom those exclusive rights have been granted shall not make any such broadcast without the consent of any other party to the agreement whose language-related exploitation rights would be adversely affected by that broadcast.

New rights: exercise of rights in relation to performances

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• (1) Any new right conferred by these Regulations in relation to a qualifying performance is exercisable as from commencement by the performer or (if he has died) by the person who immediately before commencement was entitled by virtue of section 192(2) to exercise the rights conferred on the performer by Part II in relation to that performance.

• (2) Any remuneration or damages received by a person’s personal representatives by virtue of a right conferred on them by paragraph (1) shall devolve as part of that person’s estate as if the right had subsisted and been vested in him immediately before his death.

New rights: effect of pre-commencement authorisation of copying

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Where before commencement—

• (a) the owner or prospective owner of copyright in a literary, dramatic, musical or artistic work has authorised a person to make a copy of the work, or

• (b) the owner or prospective owner of performers' rights in a performance has authorised a person to make a copy of a recording of the performance, any new right in relation to that copy shall vest on commencement in the person so authorised, subject to any agreement to the contrary.

New rights: effect of pre-commencement film production agreement

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• (1) Sections 93A and 191F (presumption of transfer of rental right in case of production agreement) apply in relation to an agreement concluded before commencement.

As section 93A so applies, the restriction in subsection (3) of that section shall be omitted (exclusion of presumption in relation to screenplay, dialogue or music specifically created for the film).

• (2) Sections 93B and 191G (right to equitable remuneration where rental right transferred) have effect accordingly, but subject to regulation 33 (right to equitable remuneration applicable to rental after 1st April 1997).

Right to equitable remuneration applicable to rental after 1st April 1997

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No right to equitable remuneration under section 93B or 191G (right to equitable remuneration where rental right transferred) arises—

• (a) in respect of any rental of a sound recording or film before 1st April 1997, or

• (b) in respect of any rental after that date of a sound recording or film made in pursuance of an agreement entered into before 1st July 1994, unless the author or performer (or a successor in title of his) has before 1st January 1997 notified the person by whom the remuneration would be payable that he intends to exercise that right.

Savings for existing stocks

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• (1) Any new right in relation to a copyright work does not apply to a copy of the work acquired by a person before commencement for the purpose of renting or lending it to the public.

• (2) Any new right in relation to a qualifying performance does not apply to a copy of a recording of the performance acquired by a person before commencement for the purpose of renting or lending it to the public .

Lending of copies by libraries or archives

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Until the making of regulations under section 37 of the Copyright, Designs and Patents Act 1988¹⁷ for the purposes of section 40A(2) of that Act (lending of copies by libraries or archives), the reference in section 40A(2) (and in paragraph 6B of Schedule 2) to a prescribed library or archive shall be construed as a reference to any library or archive in the United Kingdom prescribed by paragraphs 2 to 6 of Part A of Schedule 1 to the Copyright (Librarians and Archivists) (Copying of Copyright Material) Regulations 1989¹⁸.

Authorship of films

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• (1) Regulation 18 (authorship of films) applies as from commencement in relation to films made on or after 1st July 1994.

• (2) It is not an infringement of any right which the principal director has by virtue of these Regulations to do anything after commencement in pursuance of arrangements for the exploitation of the film made before 19th November 1992.

This does not affect any right of his to equitable remuneration under section 93B.

Signed

Ian Taylor, — Parliamentary Under-Secretary of State for Science and Technology, — 1996-11-26

Explanatory note

(This note is not part of the Regulations)

These Regulations implement the provisions of Council Directive No. 92/100/EEC of 19 November 1992 (O.J. No. L346, 27.11.92, page 61) on rental right and lending right and on certain rights related to copyright in the field of intellectual property (“the Rental Directive”) and of Council Directive No. 93/83/EEC of 27 September 1993 (O.J. No. L248, 6.10.93, page 15) on the co-ordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable re-transmission (“the Satellite and Cable Directive”). They also implement certain provisions of Council Directive No. 93/98/EEC (O.J. No. L290, 24.11.93, p. 9) (“the Duration Directive”) harmonising the term of protection of copyright and certain related rights. The Regulations come into force on 1st December 1996.

The Rental Directive requires in particular: that exclusive rental and lending rights (which are defined in the Directive) are granted to authors in respect of all literary, musical and dramatic works and most artistic works; that similar rights are granted to performers in respect of recordings of their performances; and that authors and performers who transfer or are presumed to transfer their exclusive rental rights in sound recordings and films to producers of these works, nevertheless retain a right to equitable remuneration for rental of the sound recording or film. However, the Directive permits derogations to be made in respect of the grant of exclusive lending rights, provided that at least authors are remunerated in respect of lending. The Directive further requires that performers, in addition to producers, are remunerated for broadcasting or other communication to the public of commercially published sound recordings of their performances, and that they are also granted exclusive rights in respect of distribution of recordings of their performances.

The Satellite and Cable Directive harmonises the application of national copyright laws to satellite broadcasts. Since a satellite broadcast may be received in more than one Member State of the European Economic Area, the Directive contains provisions which determine the applicable law in respect of a broadcast. It also contains provisions requiring the cable re-transmission rights of persons other than broadcasting organisations to be exercised collectively only through a licensing body.

Most of the provisions of the Duration Directive were implemented by the Duration of Copyright and Rights in Performances Regulations 1995 (S.I. 1995/3297). However, the Duration Directive also requires a new 25 year protection (called “publication right” in the Regulations) for works in which copyright has expired but which have never before been published; it also maintains and broadens provisions in the Rental Directive and in the Satellite and Cable Directive requiring principal directors of films to be treated for copyright purposes as authors of those works.

The Copyright, Designs and Patents Act 1988 (“the Act”) already grants some of the rights required by the Directives. These regulations amend and extend the Act insofar as its provisions do not conform to or comply with them.

In particular, the Regulations—

• (a) determine in the European Economic Area the applicable law in relation to broadcasts (regulations 5 and 6);

• (b) provide that where the provider of a cable programme service merely receives and immediately re-transmits a broadcast made from another EEA State, the owner of the transmission right in any copyright work included in the broadcast must exercise that right against the service provider through a licensing body except where the owner of that right is a broadcasting organisation (regulation 7);

• (c) modify an existing exclusive right to issue copies of a work to the public, in particular so as to provide an exclusive right of first distribution within the European Economic Area of copies which is not exhausted by the previous distribution of those copies outside that area (regulation 9);

• (d) extend rental and lending rights to all literary, musical and dramatic works and most artistic works (regulation 10);

• (e) except from lending right the lending by any public library of works subject to the public lending right scheme and any lending by educational establishments and certain other libraries and archives (regulation 11);

• (f) modify an existing power of the Secretary of State to enable him to make orders that the lending of copies of certain copyright works be treated as licensed subject to the payment of royalties (regulation 11);

• (g) provide that where a contract is concluded between an author and a film producer, any exclusive rental right in the film of which the author is or would be owner, is presumed to be transferred to the producer unless the contract provides to the contrary (regulation 12);

• (h) provide that in any case in which an author has transferred or is presumed to have transferred his exclusive rental right in a film or a sound recording to the producer thereof, that right is replaced by an unwaivable right to equitable remuneration in respect of any rental of the films or sound recordings (regulation 14);

• (i) provide modified and new definitions (as the case may be) in respect of wireless telegraphy, copies, rental and lending (regulations 8, 9 and 10);

• (j) create a new “publication right” in respect of works which, although protected by copyright at some time in the past, are out of copyright and have never previously been made available to the public; this right expires at the end of the period of 25 years from the end of the year in which the work is first published; the work must be first published in the European Economic Area for the right to arise; the right entitles its owner to exclusive rights similar to those granted by copyright but no moral rights attach to it (regulations 16 and 17);

• (k) amend section 9 of the Act to make the principal director of a film an author of it for copyright purposes in addition to the current author, the producer (regulation 18);

• (l) make an amendment to section 11 of the Act, consequential upon making the principal director of a film an author of it, providing that where the director is an employee, his employer is the first owner of the copyright, as in the case of other employed authors (regulation 18);

• (m) clarify the application of regulations 15, 16 and 19 of the Duration of Copyright and Rights in Performances Regulations 1995 in relation to pre-1989 photographs (regulation 19);

• (n) transform an existing statutory right requiring the consent of a performer to the making of copies of a recording of a performance of his, into a new performer’s property right, transmissible as personal or moveable property, and introduce new property rights for a performer requiring his consent to the issue to the public and the rental and lending of copies of recordings of his performance corresponding to the rights granted to an author under regulations 9 and 10 (regulation 20);

• (o) give a performer a right to equitable remuneration in respect of the inclusion in a broadcast or cable programme service or the playing in public of a commercially published sound recording of a performance of his (regulation 20);

• (p) except from any lending right, lending by educational establishments and certain libraries and archives, and modify an existing power of the Secretary of State to enable him to make orders that the lending of copies of films or sound recordings is to be treated as licensed subject to the payment of royalties (regulation 20(3));

• (q) make provision for dealings, rights and remedies in respect of the new performer’s property rights (regulation 21);

• (r) provide that where a contract is concluded between a performer and a film producer, any exclusive rental right in the film of which the performer is the owner is presumed to be transferred to the producer, unless the contract provides to the contrary (regulation 21);

• (s) provide that in any case in which a performer has transferred or is presumed to have transferred his exclusive rental right in a film or a sound recording to the producer thereof, that right is replaced by an unwaivable right to equitable remuneration in respect of any rental of the film or the sound recording (regulation 21);

• (t) make provision for licensing schemes and licensing bodies in respect of performer’s property rights similar to those which exist in respect of copyright (regulation 22);

• (u) in respect of both copyright and performer’s rights, make consequential modifications to existing provisions in respect of the jurisdiction of the Copyright Tribunal (regulations 14 and 24).

The Regulations come into force on 1st December 1996 and in Part III—

• (a) subject as expressly provided in the special transitional provisions and savings (regulations 28 to 36), make provision for and apply to works made and performances given before that date; except as expressly provided, nothing in the Regulations affects any agreement entered into before 19th November 1992 (the date of the adoption by the EC Council of the Rental Directive); acts done before 1st December 1996 do not infringe any new right arising under the Regulations nor do they give rise to any remuneration arising by virtue of these regulations, and acts done after 1st December 1996 in pursuance of an agreement made before 19th November 1992, do not infringe any new right arising under the Regulations (regulations 25, 26 and 27);

• (b) have effect in relation to broadcasts made after 1st December 1996 and make provision in respect of language-related satellite broadcasting exploitation rights in international co-production agreements made before 1st January 1995 (regulations 28 and 29);

• (c) ensure that the new rights in relation to a performance conferred by these Regulations are exercisable by the performer from 1st December 1996 (regulation 30);

• (d) where before 1st December 1996 the owner of the copyright in a literary, dramatic, musical, or artistic work or the owner of performer’s rights in a performance, authorises a person to make a copy of the work or a copy of a recording of the performance, subject to any agreement to the contrary, any new rights in the copies made vest on 1st December 1996 in the person so authorised (regulation 31);

• (e) ensure that the presumption of transfer of rental rights by an author or performer applies to agreements concluded before 1st December 1996 subject to the right to equitable remuneration and the transitional provisions relating thereto (regulation 32);

• (f) limit the right to equitable remuneration to the rental after 1st April 1997 of films and sound recordings but provide also that where the rental after that date is in pursuance of an agreement made before 1st July 1994, the right arises only if the author or performer gives notice before 1st January 1997 of his intention to exercise that right (regulation 33);

• (g) provide that the new rights under the Regulations do not apply to existing copies of literary, dramatic, musical or artistic works, films or sound recordings or copies of recordings of a performance which have been acquired before commencement for the purpose of renting or lending to the public (regulation 34);

• (h) make the principal director of a film an author of it from 1st December 1996 in respect of a film made on or after 1st July 1994. However, it is not to be an infringement of any new right acquired by a principal director under the Regulations to do anything after 1st December 1996 in pursuance of arrangements for the exploitation of the film made prior to 19th November 1992 (regulation 36).

Footnotes

Editorial notes

Presumptions relevant to works subject to publication right

17A

In proceedings brought by virtue of Chapter 6 of Part 1 of the Copyright, Designs and Patents Act 1988, as applied to publication right by regulation 17, with respect to a work, where copies of the work as issued to the public bear a statement that a named person was the owner of publication right in the work at the date of issue of the copies, the statement shall be admissible as evidence of the fact stated and shall be presumed to be correct until the contrary is proved.

Application of presumptions in relation to an order for delivery up in criminal proceedings

17B

Regulation 17A does not apply to proceedings for an offence under section 107 of the Copyright, Designs and Patents Act 1988 as applied and modified by regulation 17 in relation to publication right; but without prejudice to its application in proceedings for an order under section 108 of the Copyright, Designs and Patents Act 1988 as that section applies to publication right by virtue of regulation 17.