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Protected Works

Requirements for Protection

5.—(1) Unless otherwise specifically provided in this Act, copyright shall not subsist in any work unless it satisfies the requirements specified in this Part as respects—

(a)

the category of work; and

(b)

either—

(i)

the qualification of the author; or

(ii)

the country or place of first publication, or in the case of a broadcast or cable programme, the country or place where it is made or from which it is sent, as the case may be.

(2)

If the requirements of this Part or of section 146 are once satisfied in respect of a work, copyright does not cease to subsist by reason of any subsequent event.

Category of Eligible Works

6.—(1) Copyright is a property right which, subject to the provisions of this section, may subsist in the following categories of work—

(a)

original literary, dramatic, musical or artistic works;

(b)

sound recordings, films, broadcasts or cable, programmes;

(c)

typographical arrangements of published editions,

and copyright may subsist in a work irrespective of its quality or the purpose for which it was created.

(2)

A literary, dramatic or musical work shall not be eligible for copyright protection unless it is recorded in writing or otherwise; and any reference in this Act to the time at which a work is made is a reference to the time at which it is so recorded.

(3)

For the purposes of subsection (2), it is immaterial whether the work is recorded by or with the permission of the author; and where it is not recorded by the author, nothing in that subsection shall affect the question whether copyright subsists in the record of the work as distinct from the work recorded.

(4)

Copyright shall not subsist in a sound recording or film which is, or to the extent that it is, a copy taken from a previous sound recording or film.

(5)

Copyright shall not subsist in a broadcast which infringes, or to the extent that it infringes, the copyright in another broadcast or in a cable programme.

(6) Copyright shall not subsist in a cable programme—

(a)

if it is included in a cable programme service by reception and immediate re-transmission of a broadcast; or

(b)

if it infringes, or to the extent that it infringes, the copyright in another cable programme or in a broadcast.

(7)

Copyright shall not subsist in the typographical arrangement of a published edition if, or to the extent that it reproduces the typographical arrangement of a previous edition.

(8)

Copyright protection does not extend to an idea, concept, process, principle, procedure, system or discovery or things of a similar nature.

Qualification for Protection: Author

7.—(1) A work qualifies for copyright protection if the author was a qualified person at the material time.

(2)

A work of joint authorship qualifies for copyright protection if any of the authors satisfies the requirement of subsection (1), so however, that, where a work qualifies for copyright protection only under this section, only those authors who satisfy such requirement shall be taken into account for the purposes of sections 9 and 22.

(3) In this section “the material time” means in relation to—

(a)

an unpublished literary, dramatic, musical or artistic work, when the work was made or, if the work extended over a period, a substantial part of that period;

(b)

a published literary, dramatic, musical or artistic work when the work was first published or, if the author had died before that time, immediately before his death;

(c)

a sound recording or film, when it was made;

(d)

a broadcast, when the broadcast was made;

(e)

a cable programme, when the programme was included in a cable programme service;

(f)

the typographical arrangement of a published edition, when the edition was first published.

Qualification for Protection: Place of Publication, etc.

8.—(1) A literary, dramatic, musical or artistic work, a sound recording or film, or the typographical arrangement of a published edition qualifies for copyright protection if, having regard to section 3, it is first published in Jamaica or a specified country.

(2)

A broadcast qualifies for copyright protection if it is made from a place in Jamaica or a specified country by a broadcasting organization in possession of a valid licence granted to it under any law in Jamaica or a specified country regulating broadcasting.

(3)

A cable programme qualifies for copyright protection if it is sent from a place in Jamaica or in a specified country in accordance with the law in force regulating transmission by cable.

Nature of Copyright Protection: Economic and Moral Rights

9.—(1) By virtue of and subject to the provisions of this Act, the owner of the copyright in a work shall have the exclusive right to do or to authorize other persons to do any of the following acts in Jamaica—

(a)

to copy the work;

(b)

to issue copies of the work to the public;

(c)

to perform the work in public or, in the case of a sound recording, film, broadcast or cable programme, to play or show the work in public;

(d) to broadcast the work or include it in a cable programme service; or

(e)

to make an adaptation of the work and, in relation to such adaptation, to do any or all of the foregoing acts.

(2)

For the purposes of subsection (1) references to the doing of any act in relation to any work means the doing of the act—

(a) in relation to the whole or any substantial part of the work; and

(b)

either directly or indirectly, and it is immaterial whether any intervening acts themselves infringe copyright.

(3) By virtue of and subject to the provisions of this Act—

(a)

the author of a literary, dramatic, musical or artistic work that is a protected work; or

(b) the director of a film that is a protected work,

shall have in respect of such work, whether or not he is the owner of the copyright in the work, the moral rights specified in Part III.

Duration of Copyright Protection

Duration of Copyright in Literary, etc. Works

10.—(1) Subject to the provisions of this section, copyright in any literary, dramatic, musical or artistic work expires at the end of the period of fifty years from the end of the calendar year in which the author dies.

(2)

Where the authorship of a work referred to in subsection (1) is unknown, copyright in that work expires at the end of the period of fifty years from the end of the calendar year in which it was first made available to the public; and subsection (1) shall not apply if the identity of the author becomes known after the end of that period.

(3)

For the purpose of subsection (2), acts which constitute the making available of a work to the public include—

(a)

in relation to a literary, dramatic or musical work, the performance of the work in public or its broadcast or inclusion in a cable programme service;

(b)

in relation to an artistic work, the exhibition of the work in public or its inclusion in a film shown to the public or in a broadcast or cable programme service,

so, however, that in determining for the purpose of this subsection whether a work has been made available to the public any unauthorized act shall be disregarded.

(4)

The provisions of subsections (1) and (2) shall not apply to computer-generated work, the copyright in which expires at the end of the period of fifty years from the end of the calendar year in which the work was made.

(5)

In relation to a work of joint authorship—

(a)

the reference in subsection (1) to the death of the author shall be construed—

(i)

where the identity of all the authors is known, as a reference to the death of the last of them to die;

(ii)

where the identity of one or more of the authors is known and the identity of one or more others is not, as a reference to the death of the last of the authors whose identity is known; and

(b)

the reference in subsection (2) to the identity of the author becoming known, shall be construed as a reference to the identity of any of the authors becoming known.

(6) This section does not apply to copyright which subsists by virtue of section 146.

Duration of Copyright in Sound Recordings and Films

11.—(1) Copyright in a sound recording or film expires at the end of the period of fifty years from the end of the calendar year in which it was made or, where it is made available to the public before the end of that period, fifty years from the end of the calendar year in which it is so made available.

(2) For the purposes of subsection (1) a sound recording or film is made available to the public when—

(a)

it is first published, broadcast or included in a cable programme service;

(b)

in the case of a film or film sound-track, the film is first shown in public,

but in determining whether a sound recording or film has been made available to the public, any unauthorized act shall be disregarded.

Duration of Copyright in Broadcasts and Cable Programmes

12.—(1) Copyright in a broadcast or cable programme expires at the end of the period of fifty years from the end of the calendar year in which the broadcast was made or the programme included in a cable programme service.

(2)

Copyright in a repeat broadcast or a repeat cable programme expires at the same time as copyright in the original broadcast or cable programme; and accordingly; no copyright arises in respect of a repeat broadcast or a repeat cable programme which is broadcast or, as the case may be, included in a cable programme service after the expiry of the copyright in the original broadcast or cable programme.

(3)

Reference in subsection (2) to a repeat broadcast or a repeat cable programme means one which is a repeat of a broadcast previously made or, as the case may be, of a cable programme previously included in a cable programme service.

Duration of Copyright in Typographical Arrangement of Editions

13. Copyright in the typographical arrangement of a published edition expires at the end of the period of twenty-five years from the end of the calendar year in which the edition was first published.

PART III MORAL RIGHTS AND RELATED RIGHTS

Identification with Work

Right to be Identified as Author, etc.

14.—(1) Subject to subsection (9) and to such exceptions as may be specified in or pursuant to any other provision of this Act, the author of a literary, dramatic, musical or artistic work that is a protected work and the director of a film that is a protected work have, respectively, the right to be identified as the author or, as the case may be, director of the work in the circumstances specified in this section.

(2)

The author of a literary work (other than words intended to be sung or spoken with music) or a dramatic work has the right to be identified as such whenever—

(a)

the work or an adaptation thereof is published commercially, performed in public, broadcast or included in a cable programme service; or

(b)

copies of a film or sound recording including the work or an adaptation thereof are issued to the public.

(3)

The author of a musical work or a literary work consisting of words intended to be sung or spoken with music, has the right to be identified as such whenever—

(a) the work or an adaptation thereof is published commercially;

(b)

copies of a sound recording of the work or an adaptation thereof are issued to the public; or

(c)

a film, the sound track of which includes the work, is shown in public or copies of such film are issued to the public.

(4) The author of an artistic work has the right to be identified as such whenever—

(a)

the work is published commercially or exhibited in public or a visual image of it is broadcast or included in a cable programme service;

(b)

a film including a visual image of the work is shown in public or copies of such a film are issued to the public; or

(c)

in the case of a work of architecture in the form of a building or a model for a building, a sculpture or a work of artistic craftsmanship, copies of a graphic work representing it or of a photograph of it, are issued to the public.

(5)

In addition to the right specified in paragraph (c) of subsection (4), the author of a work of architecture in the form of a building has the right to be identified on the building as constructed or, where more than one building is constructed to the design, on the first to be constructed.

(6)

The director of a film has the right to be identified as such whenever the film is shown in public, broadcast or included in a cable programme service or copies of the film are issued to the public.

(7) The right of an author or director under this section is—

(a)

in the case of commercial publication or the issue to the public of copies of a film or sound recording, to be identified in or on each copy or, if that is not appropriate, in some other manner likely to bring his identity to the notice of a person acquiring a copy;

(b)

in the case of identification on a building, to be identified by appropriate means visible to persons entering or approaching the building; and

(c)

in any other case, to be identified in a manner likely to bring his identity to the attention of a person seeing or hearing the performance, exhibition, film, broadcast or cable programme in question,

and the identification must, in each case, be clear and reasonably prominent.

(8) For the purposes of this section, any reasonable form of identification may be used.

(9)

Except as may otherwise be explicitly provided by contract, the right conferred by this section does not apply in relation to—

(a)

a computer program, the design of a typeface or a computer-generated work;

(b)

any work made for the purpose of reporting current events;

(c)

the publication in a newspaper, magazine or similar periodical or in an encyclopaedia, dictionary, yearbook or other collective work of reference, of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for purposes of such publication;

(d)

a work in which copyright originally vested in an international organization by virtue of section 146, unless the author or director has previously been identified as such in or on published copies of the work.

Objection to Treatment of Work

Right to Object to Derogatory Treatment of Work

15.—(1) Subject to subsections (2) and (3) and to such exceptions as may be specified in or pursuant to any other provision of this Act, the author of a literary, dramatic, musical or artistic work that is a protected work and the director of a film that is a protected work have, respectively, the right not to have the work or any part thereof subjected to derogatory treatment; and such right is infringed by any person who does any of the acts specified in section 37 in the circumstances so specified.

(2)

The right does not apply in relation to—

(a)

a computer program or to a computer-generated work;

(b)

fair dealing with any work made for the purpose of reporting current events;

(c)

the publication in any newspaper, magazine or similar periodical or in an encyclopaedia, dictionary, yearbook or other collective work of reference, of a literary, dramatic, musical or artistic work made for the purposes of such publication, or made available with the consent of the author for the purposes of such publication, subject, in any particular case, to any agreement excluding the operation of the foregoing provisions of this paragraph to that case;

(d)

any subsequent publication elsewhere of such work as is referred to in paragraph (c), subject to any such agreement as is referred to in that paragraph.

(3)

The right does not apply to anything done by or with the authority of the copyright owner in relation to works in which copyright originally vested in an international organization by virtue of section 146 unless the author or director—

(a)

is identified at the time of the relevant act; or

(b)

has previously been identified in or on published copies of the work,

and where in such a case the right does apply, it is not infringed if there is a sufficient disclaimer.

(4) In this section—

(a) “derogatory treatment” in relation to a work means any addition to, deletion from, alteration to or adaptation of the work (not being a translation of a literary or dramatic work or an arrangement or transcription of a musical work involving no more than a change of key or register) which amounts to a distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the author or director, as the case may be; and

(b)

“sufficient disclaimer” means a clear and reasonably prominent indication—

(i)

given at the time of the act; and

(ii)

if the author or director is then identified, appearing along with the identification,

that the work has been subjected to treatment to which the author or director has not consented.

Related Rights

False Attribution of Work

16.—(1) A person has the right—

(a)

not to have a literary, dramatic, musical or artistic work falsely attributed to him as author; and

(b)

not to have a film falsely attributed to him as director, and in this section “attribution”, in relation to such work, means a statement, whether express or implied, as to the identity of the author or director.

(2)

The right conferred by subsection (1) is infringed in the circumstances specified in section 40.

Right to Privacy of Photographs and Films

17. Subject to section 41, a person who for private and domestic purposes commissions the taking of a photograph or the making of a film has, where the resulting work is a protected work, the right not to have—

(a)

copies of the work issued to the public;

(b)

the work exhibited or shown in public; or

(c)

the work broadcast or included in a cable programme service.

Supplementary

Duration of Moral Rights and Related Rights

18.—(1) The rights conferred by sections 14, 15 and 17 subsists so long as copyright subsists in the work.

(2) The right conferred by section 16 subsists until the end of the period of twenty years from the end of the calendar year in which the person dies.

Consent and Waiver of Rights

19.—(1) A person having a right conferred under this Part may consent to the doing of any act affecting such right or may waive the right.

(2)

A right to which subsection (1) refers may be waived by instrument in writing signed by the person giving up the right, and the waiver—

(a)

may relate to works generally or to a specific work or class of works and may relate to existing or future works; and

(b)

may be conditional or unconditional and may be expressed to be subject to revocation.

(3)

Where a waiver is made in favour of the owner or prospective owner of the copyright in the work or works to which it relates, it shall be presumed to extend to his licensees and successors in title, unless a contrary intention is expressed.

(4)

Nothing in this Part shall be construed as excluding the operation of the general law of contract or estoppel in relation to an informal waiver or other transaction in relation to any of the rights to which this Part relates.

Application of Provisions to Joint Works

20.—(1) The right conferred under section 14 is, in the case of a work of joint authorship, a right of each joint author to be identified as a joint author.

(2)

The right conferred by section 15 is, in the case of a work of joint authorship, a right of each joint author and his right is satisfied if he consents to the treatment in question.

(3)

A waiver of rights under section 19 by one joint author does not affect the rights of the other joint authors.

(4)

Subsections (1), (2) and (3) also apply, with such modifications as are necessary, in relation to a film which was, or is alleged to have been, jointly directed as they apply to a work which is, or alleged to be, a work of joint authorship; and for the purpose of this subsection, a film is “jointly directed” if it is made by the collaboration of two or more directors and the contribution of each director is not distinct from that of the other director or directors.

(5)

The right conferred by section 17 is, in the case of a work made in pursuance of a joint commission, a right of each person who commissioned the making of the work, so that—

(a)

the right of each is satisfied if he consents to the act in question; and

(b)

a waiver under section 19 by one of them does not affect the rights of the others.

Application of Provisions to Parts of Work

21. The rights conferred by—

(a) sections 14 and 17 apply in relation to the whole or any substantial part of a work; and

(b) sections 15 and 16 apply in relation to the whole or any part of a work.

PART IV OWNERSHIP AND ASSIGNMENT OF RIGHTS

Ownership of Copyright

Ownership of Copyright

22.—(1) Subject to the provisions of this section, the author of a protected work is the first owner of any copyright in that work unless there is an agreement to the contrary.

(2) Subsection (1) shall not apply to copyright subsisting in a work pursuant to section

146.

(3) Where a protected work is a work of joint authorship the authors thereof shall be co-owners of the copyright in that work.

Assignment of Copyright

Assignment and Licences

23.—(1) Subject to the provisions of this section, copyright in a work may be transferred as personal or moveable property by—

(a)

assignment;

(b)

testamentary disposition; or

(c)

operation of law,

and a transfer pursuant to this section by way of assignment shall not be effective unless it is in writing and signed by or on behalf of the assignor.

(2)

An assignment or other transfer of copyright may be partial, that is to say, limited so as to apply—

(a)

to one or more, but not all, of the things the owner of the copyright has the exclusive right to do;

(b) to part, but not the whole, of the period for which copyright subsists.

(3)

A licence granted by the owner of copyright in a work shall be binding on every successor in title to his interest in copyright 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 Act to doing anything with or without the licence of the owner of the copyright shall be construed accordingly.

Prospective Ownership of Copyright

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

(2) A licence granted by a prospective owner of copyright is binding on every successor in title to his interest (or prospective interest) in the right, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Act to doing anything with or without the licence of the copyright owner shall be construed accordingly.

Exclusive Licence

25. 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.

Copyright in Unpublished Manuscript Passes Under Will

26. Where under a bequest (whether specific or general) a person is entitled, beneficially or otherwise, to—

(a)

an original document or other material thing that records or embodies a literary, dramatic, musical or artistic work which was not published before the death of the testator; or

(b)

an original material thing containing a sound recording or film which was not published before the death of the testator,

then, unless a contrary intention is indicated in the testator’s will or a codicil to it, the bequest shall be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his death.

Moral Rights etc. not Assignable

27. The rights conferred under Part III are not assignable.

Transmission of Moral Rights etc. on Death

28.—(1) On the death of a person entitled to the right conferred by section 14, 15 or 17—

(a)

the right passes to such person as he may by testamentary disposition specifically direct; or

(b)

if there is no such direction but the copyright in the work in question forms part of his estate, the right passes to the person to whom the copyright passes,

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

(2)

Where copyright forming part of a person’s estate passes in part to one person and in part to another, any right which passes with the copyright by virtue of subsection (1) is correspondingly divided.

(3)

Where by virtue of paragraph (a) or (b) of subsection (1) a right becomes exercisable by more than one person, then—

(a)

where the right is conferred by section 15 or 17, it is a right exercisable by each of them and is satisfied in relation to any of them if he consents to the treatment or act in question; and

(b)

any waiver of the right in accordance with section 19 by one of them does not affect the rights of the others.

(4)

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

(5)

Any infringement after a person’s death of the right conferred by section 16 is actionable by his personal representatives.

(6)

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.

PART V INFRINGEMENT OF RIGHTS

General Provisions

Meaning of “Action”

29. In this Part “action” includes a counterclaim and references to the plaintiff and to the defendant in an action shall be construed accordingly.

Provisions of Part Subject to Other Provisions

30. This Part shall have effect subject to such provisions of this Act as—

(a)

authorize the doing of specified acts in relation to a protected work; or

(b)

provide for the licensing of a protected work.

Infringement of Copyright

Acts Infringing Copyright

31.—(1) The copyright in a work is infringed by any person who, without the licence of the copyright owner, does, in relation to that work, any of the acts which the copyright owner has the exclusive right to do pursuant to section 9.

(2)

Copyright in a work is infringed by a person who, without the licence of the copyright owner, imports into Jamaica for any purpose other than for his private and domestic use, an article which he knows or has reason to believe is, an infringing copy of the work.

(3)

Copyright in a work is infringed by a person who, without the licence of the copyright owner—

(a)

possesses in the course of a business;

(b)

sells or lets for hire or offers or exposes for sale or hire;

(c)

exhibits in public or distributes in the course of a business; or

(d)

distributes otherwise than in the course of a business, to such an extent as to affect prejudicially the owner of the copyright,

an article which is, and which he knows or has reason to believe is an infringing copy of the work.

(4)

Copyright in a work is infringed by a person who, without the licence of the copyright owner—

(a)

makes;

(b)

imports into Jamaica;

(c)

possesses in the course of a business; or

(d)

sells or lets for hire or offers for sale or hire,

an article specifically designed or adapted for making copies of that work, knowing or having reason to believe that it is to be used to make infringing copies.

(5)

Copyright in a work is infringed by a person who, without the licence of the copyright owner, transmits the work by means of a telecommunications system (otherwise than by broadcasting or inclusion in a cable programme service) knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission in Jamaica or elsewhere.

(6)

Where the copyright in a literary, dramatic or musical work is infringed by a performance at a place of public entertainment, any person who gave permission for that place to be used for the performance is also liable for the infringement unless when he gave permission he believed on reasonable grounds that the performance would not infringe copyright.

(7)

Where copyright in a work is infringed by a public performance of the work or by the playing or showing of the work in public by means of apparatus for playing sound recordings or showing films or receiving visual images or sounds conveyed by electronic means, the persons specified in subsection (8) are also liable for the infringement.

(8) The persons referred to in subsection (7) are—

(a)

a person who supplied the apparatus or any substantial part of it, if when he supplied the apparatus or part—

(i)

he knew or had reason to believe that the apparatus was likely to be so used as to infringe copyright; or

(ii)

in the case of apparatus whose normal use involves a public performance, playing or showing, he did not believe on reasonable grounds that it would not be so used as to infringe copyright;

(b)

an occupier of premises who gave permission for the apparatus to be brought onto the premises, if when he gave permission he knew or had reason to believe that the apparatus was likely to be so used as to infringe copyright; and

(c)

a person who supplied a copy of a sound recording or film used to infringe copyright, if when he supplied it he knew or had reason to believe that what he supplied or a copy made directly or indirectly from it, was likely to be so used as to infringe copyright.

Remedies of Copyright Owner

Action by Owner of Copyright

32.—(1) An infringement of copyright shall be actionable at the suit of the copyright owner, and, subject to the provisions of this section, in any action for such an infringement all such relief by way of damages, injunction, accounts or otherwise, shall be available to the plaintiff as is available in respect of the infringement of other proprietary rights.

(2)

Where in an action under this section an infringement of copyright is proved or admitted the court, having regard to any benefit accruing to the defendant by reason of the infringement, to the flagrancy of the infringement and to all other material considerations, shall have power to award such additional damages as the court may consider appropriate in the circumstances.

(3)

Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know and had no reason to believe that copyright subsisted in the work to which the action relates, then, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

Order for Delivery up in Civil Proceedings

33.—(1) Subject to the provisions of this section and section 35 (6), where a person—

(a)

in the course of his business has an infringing copy of a work in his possession, custody or control; or

(b)

has in his possession, custody or control an article specifically designed or adapted for making copies of a particular protected work, knowing or having reason to believe that it has been or is being used to make infringing copies,

the copyright owner may apply to the court for an order that the infringing copy or article be delivered up to him or to such other person as the court may direct.

(2)

An application under subsection (1) shall not be made after the end of the period specified in section 138 (1); and no order shall be made unless the court also makes, or it

appears to the court that there are grounds for making, an order under section 137 for the disposal of the infringing copy or article, as the case may be.

(3)

A person to whom an infringing copy or other article is delivered up pursuant to an order made under this section shall, if an order under section 137 is not made, retain it pending the making of an order or the decision not to make an order, under that section.

Remedies of Exclusive Licensee

Infringement of Rights of Exclusive Licensee

34. An exclusive licensee has, except against the copyright owner, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment.

Infringement where Rights Concurrent

35.—(1) The rights and remedies of an exclusive licensee are concurrent with those of the copyright owner and references in the relevant provisions of this Act to the copyright owner shall be construed accordingly.

(2)

In an action brought by an exclusive licence 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 copyright owner.

(3)

Where an action for infringement of copyright is brought by the copyright owner or by an exclusive licensee, and the action relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the copyright owner or the exclusive licensee, as the case may be, shall not be entitled, except with the leave of the Court, to proceed with action, unless the other party is either joined as a plaintiff in the action or added as a defendant; but this subsection shall not affect the granting of an interlocutory injunction on the application of either of them.

(4)

A copyright owner or exclusive licensee who is added as a defendant in pursuance of subsection (2) is not liable for any costs in the action unless he takes part in the proceedings.

(5)

Where an action for infringement of copyright is brought which relates (wholly or partly) to an infringement in respect of which the copyright owner and an exclusive licensee have or had concurrent rights of action, then, whether or not the copyright owner and the exclusive licensee are both parties to the action, the court—

(a)

shall, in assessing damages take into account the terms of the licence and any pecuniary remedy already awarded or available to either of them in respect of the infringement;

(b)

shall not direct an account of profits 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)

shall, if an account of profits is directed, apportion the profits between them as the court considers just, subject to any agreement between them.

(6)

The copyright owner shall notify any exclusive licensee having concurrent rights before applying under section 33 for an order for the delivery up of infringing copies of a work, and the court may, on the application of the licensee, having regard to the terms of the licence, make such order under section 33 as it thinks fit.

Infringement of Moral Rights and Related Rights

Infringements of Right to be Identified as Author or Director

36.—(1) Subject to subsection (2), the right concurred by section 14 is infringed by any person who fails to identify the author of a work or the director of a film whenever any action specified in that section occurs in relation to that work or film.

(2)

The following acts shall not constitute an infringement of the right conferred by section 14 in relation to a work to the extent that such acts are permitted under Part VI in relation to the work—

(a)

fair dealing with the work for the purposes of criticism, review or the reporting of current events by means of a sound recording, film, broadcast or cable programme;

(b)

the incidental inclusion of the work in an artistic work, sound recording, film, broadcast or cable programme;

(c) the use of the work for examination purposes;

(d)

acts done for the purposes of parliamentary or judicial proceedings or proceedings of a statutory inquiry;

(e)

the use of design documents and models;

(f)

the use of a design derived from artistic work;

(g)

acts permitted in relation to anonymous or pseudonymous works on the assumption that copyright in the work has expired or that the author is dead.

Infringement of Right to Object to Derogatory Treatment of Work

37.—(1) The right conferred on an author and a director by section 15 to object to derogatory treatment of his work is infringed where the acts described in subsections (2) to (5) are done in relation to that work; and for the purposes of this Part, “derogatory treatment” has the same meaning as that specified in section 15 (4).

(2)

In the case of a literary, dramatic or musical work, the right is infringed by a person who—

(a)

publishes commercially, performs in public, broadcasts or includes in a cable programme service, a derogatory treatment of the work; or

(b)

issues to the public copies of a film or sound recording of or including a derogatory treatment of the work.

(3) In the case of an artistic work, the right is infringed by a person who—

(a)

publishes commercially or exhibits in public a derogatory treatment of the work, or broadcasts or includes in a cable programme service a visual image of a derogatory treatment of the work;

(b)

shows in public a film including a visual image of a derogatory treatment of the work or issues to the public copies of such a film; or

(c)

in the case of a work of architecture in the form of a model for a building or in the case of a sculpture or work of artistic craftsmanship, issues to the public copies of a graphic work representing, or of a photograph of, a derogatory treatment of the work.

(4)

Subsection (3) does not apply to a work of architecture in the form of a building; but where the author of such a work is identified on the building and it is the subject of derogatory treatment, he has the right to require the identification to be removed.

(5) In the case of a film, the right is infringed by a person who—

(a)

shows in public, broadcasts or includes in a cable programme service a derogatory treatment of the film; or

(b) issues to the public copies of a derogatory treatment of the film,

or who, along with the film, plays in public, broadcasts or includes in a cable programme service, or issues to the public copies of, a derogatory treatment of the film sound-track.

Infringement by Possession of Infringing Article

38.—(1) The right conferred by section 15 is also infringed by a person who—

(a)

possesses in the course of a business; or

(b)

sells or lets for hire or offers or exposes for sale or hire; or

(c)

in the course of a business, exhibits in public or distributes;

(d) distributes otherwise than in the course of a business, so as to affect prejudicially the honour or reputation of the author or director,

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

(2)

An “infringing article” means a work or a copy of a work which—

(a)

has been subjected to derogatory treatment as defined in section 15; and

(b) has been or is likely to be the subject of any of the acts mentioned in sections 37 and 38 in circumstances infringing that right.

Acts not Infringing Section 15

39.—(1) The right conferred by section 15 is not infringed by any act done for the purpose of—

(a)

avoiding the commission of an offence; or

(b)

complying with a duty imposed by or under an enactment,

so, however, that, where the author or director is identified at the time of the relevant act or has previously been identified in or on published copies of the work, there shall be a sufficient disclaimer.

(2) In subsection (1) “sufficient disclaimer” means a clear and reasonably prominent indication—

(a)

given at the time of the act; and

(b)

if the author or director is then identified, appearing along with the identification,

that the work has been subjected to treatment to which the author or director has not consented.

False Attribution of Work: Infringement of Right

40.—(1) Subject to the provisions of this section, the right conferred on a person by section 16 not to have a literary, dramatic, musical or artistic work falsely attributed to him as author or a film falsely attributed to him as director, is infringed by a person who—

(a)

issues to the public copies of a work of any of those descriptions in or on which there is a false attribution;

(b)

exhibits in public an artistic work or a copy of an artistic work in or on which there is a false attribution.

(2) The right is also infringed by a person who—

(a)

in the case of a literary, dramatic or musical work, performs the work in public, broadcasts it or includes it in a cable programme service as being the work of a person; or

(b)

in the case of a film, shows it in public, broadcasts it or includes it in a cable programme service as being directed by a person,

knowing or having reason to believe that the attribution is false.

(3)

The right is also infringed by any person who issues to the public or displays in public any material containing a false attribution in connection with any act referred to in subsection (1) or (2).

(4) The right is also infringed by a person who, in the course of a business—

(a)

possesses or deals with a copy of a work referred to in subsection (1) in or on which there is a false attribution; or

(b)

in the case of an artistic work, possesses or deals with the work itself when there is a false attribution in or on it,

knowing or having reason to believe that there is an attribution and that it is false.

(5)

In the case of an artistic work, the right is also infringed by a person who in the course of a business—

(a)

deals with a work which has been altered after the author parted with possession of it as being the unaltered work of the author; or

(b)

deals with a copy of such a work as being a copy of the unaltered work of the author,

knowing or having reason to believe that such is not the case.

(6)

References in this section to dealing are to selling or letting for hire, offering or exposing for sale or hire, exhibiting in public or distributing.

(7)

This section applies where a work is falsely represented as being an adaptation of the work of a person as it applies where the work is falsely attributed to a person as author.

Infringement of Privacy Right Respecting Photographs, etc.

41. The right conferred by section 17 in relation to a commissioned photograph or film is infringed by a person who does or authorizes the doing of any act mentioned in that section in relation to that work; but the right is not infringed by any act which, pursuant to Part VI, would not infringe copyright in the work.

Effect of Consent and Waiver of Rights

42. It is not an infringement of any right conferred by section 14, 15, 16 or 17 to do any act to which the person entitled to the right has consented pursuant to section 19 or in respect of which he has given a waiver pursuant to that section.

Remedies for Infringement of Moral Rights and Related Rights

Presumptions where Action Relates to Sound Recordings, Films, or Computer Programs

45.—(1) In an action brought by virtue of this Part with respect to a sound recording, film or computer program, the presumptions specified in this section shall apply.

(2)

In an action brought by virtue of this Part with respect to a sound recording, where copies of the recording as issued to the public bear a label or other mark stating—

(a)

that a named person was the owner of copyright in the recording at the date of issue of the copies; or

(b)

that the recording was first published in a specified year or in a named country, the label or mark shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(3)

In an action brought by virtue of this Part with respect to a film, where copies of the film as issued to the public bear a statement—

(a) that a named person was the author or director of the film;

(b)

that a named person was the owner of copyright in the film at the date of issue of the copies; or

(c) that the film was first published in a specified year or in a named country,

the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(4)

In an action brought by virtue of this Part with respect to a computer program, where copies of the program are issued to the public in electronic form bearing a statement—

(a)

that a named person was the owner of copyright in the program at the date of issue of the copies; or

(b)

that the program was first published in a named country or that copies of it were first issued to the public in electronic form in a specified year,

the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(5)

The presumptions specified in subsections (2), (3) and (4) apply equally in an action relating to an infringement alleged to have occurred before the date on which the copies were issued to the public.

(6)

In an action brought by virtue of this Part with respect to a film, where the film as shown in public, broadcast or included in a cable programme service bears a statement—

(a) that a named person was author or director of the film; or

(b)

that a named person was the owner of copyright in the film immediately after it was made,

the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved; and the presumption applies equa1ly in an action relating to an infringement alleged to have occurred before the date on which the film was shown in public, broadcast or included in a cable programme service.

Offences

Penalties in Respect of Dealings which Infringe Copyright

46.—(1) Any person who at a time when copyright in a work subsists by virtue of this Act—

(a) makes for sale or hire; or

(b)

in the course of a business sells or lets for hire, or offers or exposes for sale or hire, exhibits in public or distributes; or

(c) imports into Jamaica for purposes other than his private and domestic use; or

(d)

distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

any article which he knows or has reason to believe is an infringing copy of that work, commits an offence.

(2)

Any person who, at the time when copyright subsists in a work by virtue of this Act, makes or has in his possession an article specifically designed or adapted for making copies of that work, knowing that it is to be used for making infringing copies for sale or hire or for use in the course of business, commits an offence.

(3)

Any person who causes—

(a)

a literary, dramatic or musical work done to be performed in public; or

(b)

a sound recording or film to be played, or as the case may be, shown in public,

(otherwise than by reception of a broadcast or cable programme) knowing or having reason to believe that copyright subsists in the work and that the performance, playing or showing, as the case may be, constitutes an infringement of the copyright, commits an offence.

(4) Any person who is guilty of an offence under subsection (1) shall be liable—

(a)

on summary conviction before a Resident Magistrate to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment;

(b)

on conviction before a Circuit Court to a fine or to imprisonment for a term not exceeding five years or to both such fine and imprisonment.

(5)

Any person who is guilty of an offence under this section, other than an offence under subsection (1), shall be liable—

(a)

on summary conviction before a Resident Magistrate to a fine not exceeding fifty thousand dollars or to imprisonment for a term not exceeding one year or to both such fine and imprisonment;

(b)

on conviction before a Circuit Court to a fine or to imprisonment for a term not exceeding three years or to both such fine and imprisonment.

Presumptions not to Apply

47. The presumptions specified in sections 44 and 45 do not apply to proceedings for an offence under section 46, but without prejudice to their application to proceedings for an order under section 48.

Order to Deliver up in Criminal Proceedings

48.—(1) Subject to subsection (2), the court before which proceedings are brought against a person for an offence under section 46 may, if it is satisfied that at the time of his arrest or charge—

(a)

he had in his possession, custody or control in the course of a business an infringing copy of a protected work; or

(b)

he had in his possession, custody or control an article specifically designed or adapted for making copies of a particular protected work knowing or having reason to believe that it had been or was to be used to make infringing copies,

order that the infringing copy or article be delivered up to the copyright owner or to such other person as the court may direct.

(2)

An order may be made by the court of its own motion or on the application of the prosecution and may be made whether or not the person is convicted of the offence, so, however, that the court shall not make an order—

(a)

after the time specified in section 138; or

(b)

if it appears to the court unlikely that any order will be made under section 137.

(3)

An appeal lies to the Court of Appeal from an order made under this section by a Resident Magistrate’s Court.

(4)

A person to whom an infringing copy or other article is delivered up in pursuance of an order under this section shall retain it pending the making of an order or the decision not to make an order under section 137.

Supplementary

Application of Provisions as to Entry and Search

49. For the purposes of this Part, the provisions of sections 140 and 141 shall apply in respect of the entry and search of any premises.

Provision for Restricting Importation of Infringing Copies

50.—(1) The owner of the copyright in any published literary, dramatic or musical work may give notice in writing to the Commissioner of Customs—

(a) that he is the owner of the copyright in the work; and

(b)

that he requests the Commissioner to treat as prohibited goods under the Customs Act, during a period specified in the notice, printed copies of the work which are infringing copies.

(2)

The period specified in a notice given under subsection (1) shall not exceed five years and shall not extend beyond the end of the period for which the copyright may subsist.

(3)

The owner of the copyright in a sound recording or film may give notice in writing to the Commissioner of Customs—

(a) that he is the owner of the copyright in the work;

(b)

that infringing copies of the work are expected to arrive in Jamaica at a time and a place specified in the notice; and

(c)

that he requests the Commissioner to treat copies as prohibited goods under the Customs Act.

(4)

Subject to subsection (5), where a notice has been given in accordance with this section, the importation into Jamaica of goods to which the notice relates is prohibited;

but notwithstanding anything contained in the Customs Act, a person is not liable to any penalty under that Act other than forfeiture of the goods, by reason that any goods are treated as prohibited goods by virtue of this section.

(5)

The importation of any article by a person for his private and domestic use is not prohibited under subsection (4).

(6) A person giving a notice under this section shall—

(a)

comply with such conditions as the Commissioner of Customs may by regulations prescribe; and

(b)

satisfy such requirements as may be so prescribed in connection with the giving of the notice, including requirements relating to—

(i) the form of the notice;

(ii)

the furnishing of evidence, whether on giving notice, or on the importation of the goods, or at both such times;

(iii) the payment of fees in respect of the notice;

(iv)

the giving of security in respect of any liability or expense which the Commissioner may incur in consequence of the notice by reason of the detention of any article or anything done to an article detained;

(v)

the indemnification of the Commissioner of Customs against any such liability or expenses, whether security has been given or not; and

(vi)

any incidental or supplementary matters, and the regulations may make different provisions as respect different classes of case.

(7) Regulations made under subsection (6) shall be subject to negative resolution.

PART VI EXCEPTIONS TO INFRINGEMENT OF COPYRIGHT

Preliminary

Definition of “Sufficient Acknowledgement”

51. For the purposes of this Part “sufficient acknowledgement” means an acknowledgement identifying the work in question by its title or other description and identifying the author, unless—

(a)

in the case of a published work, it is published anonymously or the author has agreed or required that no acknowledgement of his name should be made;

(b)

in the case of an unpublished work, it is not possible for a person to ascertain the identity of the author by reasonable inquiry.

General Exceptions

Research and Private Study

52. Subject to section 54, fair dealing with a literary, dramatic, musical or artistic work for the purposes of research or private study does not infringe copyright in the work or, in the case of a published edition, in the typographical arrangement.

Criticism, Review and Reporting

53.—(1) Subject to section 54—

(a)

fair dealing with a protected work for the purposes of criticism or review of that or another work or of a performance of a work; and

(b)

fair dealing with a protected work (other than a photograph) for the purpose of reporting current events,

does not infringe copyright in the work so long as it is accompanied by a sufficient acknowledgement.

(2)

No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film, broadcast or cable programme.

Determining Fair Dealing

54. For the purpose of determining whether an act done in relation to a work constitutes fair dealing, the court determining the question shall take account of all factors which appear to it to be relevant, including—

(a) the nature of the work in question;

(b)

the extent and substantiality of that part of the work affected by the act in relation to the whole of the work;

(c) the purpose and character of the use; and

(d)

the effect of the act upon the potential market for, or the commercial value of, the work.

Incidental Inclusion of Protected Work

55. Copyright in a work is not infringed—

(a)

by its incidental inclusion in an artistic work, sound recording, film, broadcast or cable programme; or

(b)

by the issue to the public of copies or the playing, showing, broadcasting or inclusion in a cable programme service of anything whose making was not an infringement of copyright by virtue of paragraph (a),

and for the purposes of this section, a musical work, words spoken or sung with music, or so much of a sound recording, broadcast or cable programme as includes a musical work or such words, shall not be regarded as incidentally included if it is deliberately included.

Use of Work for Educational Purposes

Acts Done for Purposes of Instruction or Examination

56.—(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by its being copied in the course of instruction or of preparation for instruction, provided the copying is done by a person giving or receiving instructions and is not by means of a reprographic process.

(2)

Copyright in a sound recording, film, broadcast or cable programme is not infringed by its being copied by making a film or film sound-track in the course of instruction, or of preparation for instruction, in the making of films or film sound-tracks, provided the copying is done by a person giving or receiving instruction.

(3)

Copyright in a work is not infringed by anything done for the purposes of an examination by way of setting the questions, communicating the questions to candidates or answering the questions.

Anthologies for Educational Use

57.—(1) The inclusion in a collection intended for use in educational establishments of a short passage from a published literary or dramatic work does not infringe copyright in the work—

(a)

the collection is described in the title and in any advertisements thereof issued by or on behalf of the publisher, as being so intended;

(b)

the work was not itself published for the use of educational establishments;

(c)

the collection consists mainly of material in which no copyright subsists; and

(d)

the inclusion is accompanied by a sufficient acknowledgement.

(2)

Subsection (1) does not authorize the inclusion of more than two excerpts from protected works by the same author in collections published by the same publisher over any period of five years.

(3)

In relation to any given passage, the reference in subsection (2) to excerpts from works by the same author—

(a)

shall be taken to include excerpts from works by him in collaboration with another; and

(b)

if the passage in question is from such a work shall be taken to include excerpts from works by any of the authors, whether alone or in collaboration with another.

Recording of Broadcast, etc. by Educational Establishments

58.—(1) Subject to subsection (2), a recording of a broadcast or cable programme or a copy of such a recording may be made by or on behalf of an educational establishment for the educational purposes of that establishment without thereby infringing the copyright in the broadcast or cable programme or in any work included in it.

(2) Subsection (1) shall not apply if or to the extent that there is a licensing scheme certified pursuant to section 102 for the purposes of this section.

Restriction on Reprographic Copying by Educational Establishment

59.—(1) Subject to the provisions of this section, reprographic copies of passages from published literary, dramatic or musical works may be made by or on behalf of an educational establishment for the purposes of instruction without infringing any copyright in the work or in the typographical arrangement.

(2)

Not more than five per cent of any work may be copied by or on behalf of an educational establishment by virtue of this section in any quarter, that is to say, in any period 1st January to 31st March, 1st April to 30th June, 1st July to 30th September or 1st October to 31st December.

(3)

Copying is not authorized by this section if, or to the extent that, licences are available authorizing the copying in question and the person making the copies knew or ought to have been aware of that fact.

(4)

Where a licence is granted to an educational establishment authorizing the reprographic copying of passage from any published literary, dramatic or musical work, for use by the establishment, then, any term of that licence which purports to restrict the proportion of work which may be copied (whether on payment or free of charge) to less than that permitted under this section shall be of no effect.

Subsequent Dealings with Authorized Copies

60.—(1) Where a copy of a work would be an infringing copy if the making thereof were not authorized under section 56, 58 or 59 and such copy is subsequently dealt with, it shall be treated as an infringing copy for the purposes of that dealing and if that dealing infringes copyright for all subsequent purposes.

(2) In subsection (1) “dealt with” means sold, or let for hire or offered or exposed for sale or hire.

Exceptions Affecting Libraries and Archives

Interpretation of References; Regulations

61.—(1) In sections 62 to 65 references to the librarian or archivist include references to a person acting on his behalf.

(2)

Regulations may provide that a librarian or archivist who is, pursuant to sections 62 and 65, required to be satisfied as to a matter before making or supplying a copy of a work—

(a)

is entitled to rely on a declaration as to that matter, signed by the person requesting the copy, unless he is aware that the declaration is false in any material particular;

(b)

in such cases as may be prescribed, shall not make or supply a copy to any person in the absence of a declaration by that person.

(3)

Where a person requesting a copy makes a declaration that is false in a material particular and is supplied with a copy which would have been an infringing copy if made by him, that person shall be liable for infringement of copyright as if he had made the copy himself, and the copy supplied shall be treated as an infringing copy.

Supply by Librarian of Copies of Published Work

62.—(1) The librarian of a prescribed library or archive may, if the prescribed conditions are complied with—

(a) make and supply a copy of an article in a periodical; or

(b) make and supply from a published edition, a copy of part of a literary, dramatic or musical work, not being an article in a periodical,

without infringing any copyright subsisting in the text of the article or in the work, as the case may be, or in any illustrations accompanying such article or work, or in the typographical arrangement thereof.

(2) The conditions prescribed pursuant to subsection (1) shall include the following—

(a)

that copies shall be supplied only to persons satisfying the librarian that they require them for purposes of research or private study, and will not use them for any other purpose;

(b)

in relation to an article, that no person shall be furnished with more than one copy of the same article or with copies of more than one article contained in the same issue of a periodical;

(c)

in relation to a work referred to in paragraph (b) of subsection (1), that no person shall be furnished with more than one copy of the same material or of a copy of more than a reasonable proportion of any work; and

(d)

that persons to whom copies are supplied are required to pay for them a sum not less than the cost (including a contribution to the general expenses of the library) attributable to their production.

Supply of Copies to Other Libraries

63.—(1) The librarian of a prescribed library or archive may, if the prescribed conditions are complied with, make and supply to another prescribed library or archive a copy of—

(a)

an article in a periodical; or

(b)

the whole or part of a published edition of a literary, dramatic or musical work,

without infringing any copyright in the text of the article or the work, or in any illustrations accompanying such article or work or, in the case of a published edition, in the typographical arrangement.

(2) Paragraph (b) of subsection (1) shall not apply if, at the time the copy is made, the librarian making it knows or could, by reasonable inquiry, ascertain the name and address of a person entitled to authorize the making of the copy.

Replacing Copies of Works

64.—(1) The librarian of a prescribed library or archive may, if the prescribed conditions are complied with, make a copy from any item in the permanent collection of the library or archive for the purpose of—

(a)

preserving or replacing the item by placing the copy in such permanent collection in addition to or in place of the item;

(b)

replacing in the permanent collection of another prescribed library or archive an item which has been lost, destroyed or damaged,

without infringing the copyright in any literary, dramatic or musical work, in any illustrations accompanying such a work or, in the case of a published edition, in the typographical arrangement.

(2)

The prescribed conditions shall include provisions restricting the making of copies to cases where it is not reasonably practicable to purchase a copy of the item in question for the purpose.

Copying of Unpublished Work

65.—(1) Subject to subsection (2), the librarian of a prescribed library or archive may, if the prescribed conditions are complied with, make and supply a copy of the whole or part of a literary, dramatic or musical work from a document in the library or archive without infringing any copyright in the work or in any illustrations accompanying it.

(2) Subsection (1) shall not apply where—

(a) the work had been published before the document was deposited in the library or archive; or

(b) the copyright owner has prohibited copying of the work,

and at the time of the making of the copy the librarian ought to have been aware of that fact.

(3) The prescribed conditions shall include the following—

(a)

that copies are supplied only to persons satisfying the librarian that they require them for purposes of research or private study and will not use them for any other purpose;

(b) that no person is furnished with any more than one copy of the same material; and

(c)

that persons to whom copies are supplied are required to pay for them a sum not less than the cost (including a contribution to the general expenses of the library or archive) attributable to their production.

Exceptions Relating to Public Administration

Parliamentary and Judicial Proceedings and Statutory Inquiries

66.—(1) Copyright in a work is not infringed by anything done for the purposes of parliamentary or judicial proceedings, or, subject to subsection (3), for the purposes of reporting such proceedings.

(2)

Copyright in a work is not infringed by anything done for the purposes of the proceedings of a statutory inquiry or, subject to subsection (3), for the purposes of reporting any such proceedings held in public.

(3)

The provisions of subsections (1) and (2) relating to the reporting of proceedings shall not be construed as authorizing the copying of a work which is itself a published report of the proceedings.

(4)

Copyright in a work is not infringed by the issue to the public of copies of the report of a statutory inquiry containing the work or material from it.

(5)

In this section, “statutory inquiry” means an inquiry held or investigation conducted in pursuance of a duty imposed or power conferred by or under an enactment.

Public Records

67. Where any protected work or a reproduction of any such work is comprised in any public record (as defined in the Record Office Act) which is, by virtue of that Act under the charge of the Keeper of the Records and is open to public inspection, the copyright in the work is not infringed by the making or supplying to any person of any copy of the work by or under the direction of any officer appointed under the Record Office Act.

Designs

Design Documents and Models

68.—(1) It is not an infringement of any copyright in a design document or in a model that records or embodies a design for anything (except an artistic work or a typeface) to make an article to the design or to copy an article made to the design.

(2) It is not an infringement of any copyright to issue to the public or to include in a film, broadcast or cable programme service anything the making of which was, by virtue of subsection (1), not an infringement of that copyright.

(3) In this section—

“design” means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article, other than surface decoration; and

“design document” means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise.

Where Design Derived from Artistic Work is Exploited

69.—(1) Where an artistic work has been exploited by or with the licence of the copyright owner by—

(a)

making by an industrial process articles falling to be treated under this Act as copies of the work; and

(b)

marketing such articles in Jamaica or elsewhere, then, after the end of the period of twenty-five years from the end of the calendar year in which such articles are first marketed, a person may, without infringing copyright in the work, copy the work by making articles of any description or by doing anything for the purpose of making articles of any description, or by doing anything in relation to articles so made.

(2)

Where only part of an artistic work is exploited in the manner described in subsection (1), then, the provisions of that subsection apply only in relation to that part.

(3) The Minister may by order make provision—

(a)

as to the circumstances in which an article or any description of article is to be regarded for the purposes of this section as made by an industrial process;

(b)

excluding from the operation of this section such articles of a primarily literary or artistic character as he thinks fit.

(4)

In this section—

(a)

references to articles do not include films; and

(b)

references to the marketing of an article are references to its being sold or let for hire or offered or exposed for sale or hire.

Exception Relating to Works in Electronic Form

Transfer of Works in Electronic Form

70.—(1) Where a work in electronic form has been purchased on terms which, expressly or impliedly or by virtue of any rule of law, allow the purchaser to copy the work or to adapt it or to make copies of an adaptation in connection with his use of it, then, in the absence of any express terms—

(a)

prohibiting the transfer of the copy by the purchaser, imposing obligations which continue after a transfer or prohibiting the assignment of any licence or terminating any licence on a transfer, or

(b)

providing for the terms on which a transferee may do the things which the purchaser was permitted to do,

anything which the purchaser was allowed to do may also be done by a transferee without infringement of copyright.

(2)

Any copy, adaptation or copy of an adaptation made by the purchaser which is not also transferred shall, after the transfer, be treated as an infringing copy for all purposes.

(3)

Subsections (1) and (2) apply where the original purchased copy is no longer usable and what is transferred is a further copy used in its place.

(4)

This section applies also on a subsequent transfer, with the substitution for references in subsection (2) to the purchaser of references to the subsequent transferor.

Miscellaneous Exceptions Relating to Literary, Dramatic, Musical and Artistic Works

Making etc., of Recordings of Musical Work Previously Made or Imported

77. Where sound recordings of a musical work (and accompanying words, if any) have, with the licence or consent of the owner of the copyright in the work, been previously made in or imported into Jamaica for the purposes of retail sale, then, any person may, after the expiry of the period of four months immediately following upon the date of the first authorized manufacture in, or importation into, Jamaica of such recordings, and without first obtaining the consent or licence of the owner of the copyright in the work, make or authorize the making of sound recordings of it if such person—

(a)

intends to sell the recordings by retail, or to supply them for the purpose of being sold by retail by another person, or intends to use them for making other sound recordings which are to be so sold or supplied;

(b) pays royalties calculated at the prescribed rate; and

(c)

complies with such conditions relating to notice, method and time of payment, administration of royalties paid and other matters, as may be prescribed,

and any person who makes or authorizes the making of sound recordings pursuant to this subsection shall not make or authorize the making of any alterations in, or omissions from, the work unless sound recordings of that work containing similar alterations or omissions have been previously made by or with the licence or consent of the owner of the copyright or unless such alterations or omissions are reasonably necessary for the adaptation of the work to the sound recording in question.

Rental of Sound Recordings, etc.

78.—(1) The Minister may by order, subject to negative resolution, provide that in such cases as may be specified in the order, the rental to the public of copies of sound recordings, films or computer programs 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)

An order under subsection (1) shall not apply if, or to the extent that, there is a licensing scheme certified under section 102 for the purposes of this section 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 rented, the person renting or the circumstances of the rental.

(4)

Copyright in a computer program is not infringed by the rental of copies to the public after the end of the period of fifty years from the end of the calendar year in which copies of it were first issued to the public in electronic form.

(5)

Nothing in this section affects any liability under section 31 in respect of the rental of infringing copies.

Playing of Sound Recording for Purposes of Charitable Organizations

79. It is not an infringement of the copyright in a sound recording to play it as part of the activities of, or for the benefit of, a club, society or other organization if—

(a)

the organization is not established or conducted for profit and its main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare; and

(b)

the proceeds of any charge for admission to the place where the recording is to be heard are applied solely for the purposes of the organization.

Miscellaneous Exceptions Respecting Broadcasts and Cable Programmes

Incidental Recording for Purposes of Broadcast or Cable Programme

80.—(1) This section applies where by virtue of a licence or assignment of copyright a person is authorized to broadcast from a place in Jamaica or a specified country or to include in a cable programme service sent from Jamaica or a specified country—

(a)

a literary, dramatic or musical work, or an adaptation of such a work;

(b)

an artistic work; or

(c)

a sound recording or film.

(2)

The person referred to in subsection (1) shall, by virtue of this section, be treated as licensed by the owner of the copyright in the work to do or authorize any of the following for the purposes of the broadcast or cable programme—

(a)

in the case of a literary, dramatic or musical work or an adaptation of such a work, to make a sound recording or film or the work or adaptation;

(b)

in the case of the artistic work, to take a photograph or make a film of the work;

(c)

in the case of a sound recording or film, to make a copy of it.

(3)

A licence under subsection (2) is subject to the following conditions—

(a)

the recording, film, photograph or copy in question shall not be used for any other purpose; and

(b)

such recording, film, photograph or copy shall be destroyed within twenty-eight days of being first used for broadcasting the work or, as the case may be, including it in a cable programme service.

(4)

A recording, film, photograph or copy made in accordance with this section shall be treated as an infringing copy—

(a)

for the purposes of any use in breach of the condition mentioned in subsection (3)(a); and

(b)

for all purposes after that condition or the condition mentioned in subsection (3)(b) is breached.

Recordings of Broadcasts for Programme Control

81.—(1) Copyright is not infringed by the making or use by a prescribed broadcasting organization, for the purpose of maintaining supervision and control over programmes and advertisements broadcast by that organization, of recordings of those programmes and advertisements.

(2) Copyright is not infringed by the making or use by the Broadcasting Commission of recordings of programmes in connection with and for the purpose of carrying out its functions under the Broadcasting and Radio Rediffusion Act.

Recording for Archival Purposes

82.—(1) A recording of a broadcast or cable programme Recording of a designated class, or a copy of such a recording, may be made for the purpose of being placed in an archive maintained by a designated body without thereby infringing any copyright in the broadcast or cable programme or in any work included in it.

(2) In subsection (1) “designated” means designated by the Minister, who shall not designate a body unless he is satisfied that it is not established or conducted for profit.

Reception and Retransmission of Broadcast in Cable Programme Service

83. Where a literary, dramatic or musical work or film is broadcast with the licence of the copyright owner from a place in Jamaica or a specified country, any person may, without obtaining the licence of the copyright owner, incorporate the work (by means of the reception of the broadcast) in a cable programme service:

Provided that—

(a)

the transmission by the cable programme service takes place simultaneously with the reception of the broadcast; and

(b)

the programme in which the literary, dramatic or musical work or film is incorporated is transmitted without alteration of any kind; and

(c)

the copyright owner shall be entitled to receive service, equitable remuneration in respect of the service, equitable remuneration in respect of the transmission, to be fixed in default of agreement by the Tribunal,

and for the purposes of this subsection, an alteration to a programme includes the addition thereto of new material not contained in the programme as broadcast, or the omission from the transmission of any material contained in the programme as broadcast; and the term “material” includes a commercial advertisement.

Recording for Purposes of Time Shifting

84. The making for private and domestic use of a recording of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at a more convenient time does not infringe any copyright in the broadcast or cable programme or in any work included in it.

Adaptations

Adaptations

85. An act which by virtue of this Part may be done without infringing copyright in a literary, dramatic or musical work does not, where that work is an adaptation, infringe any copyright in the work from which the adaptation was made.

Prescribed Exceptions

Power of Minister to Prescribe Exception to Infringement

86.—(1) Subject to the provisions of this section, the Minister may, by order, subject to negative resolution, provide that the copyright in a work of the description or category specified in the order is not infringed where, in relation to such work, such acts as are specified in the order are done in the circumstances so specified.

(2)

The Minister shall not make an order under subsection (1) unless he is satisfied that the acts specified in the order in relation to the work—

(a)

are necessary in the public interest in connection with an event of national importance;

(b) would not conflict with the normal exploitation of the work; and

(c)

would not unreasonably prejudice the legitimate interest of the owner of the copyright in the work.

(3)

An order made under subsection (1) shall make provision for the payment of equitable remuneration to the copyright owner to be determined, in default of agreement, by the Copyright Tribunal; and such order may contain such consequential, supplemental or ancillary provisions as appear to the Minister to be necessary or expedient for the purpose of giving effect to the order.

PART VII COPYRIGHT LICENSING

Preliminary

Interpretation for Purposes of Part

87.—(1) In this Part—

“licence” means any licence that is issued or offered by a licensing body authorizing, in relation to works in which copyright subsists, the doing of any of the acts restricted by copyright;

“licensing body” means a society or other organization which has as its main object or one of its main objects, the negotiation or granting, either as owner or prospective owner of copyright or as agent for him, of licences, and whose objects include the granting of licences covering works of more than one author;

“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 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)

References in this Part to licences or licensing schemes covering works of more than one author do not include licences or schemes covering only—

(a) a single collective work or collective works of which the authors are the same; or

(b)

works made by, or by employees commissioned by, a single individual, firm, company or group of companies.

(3)

For the purpose of subsection (2) “group” in relation to a company means that company and—

(a)

any other company which is its holding company or subsidiary;

(b)

any other company which is a subsidiary of the holding company;

(c)

any company which directly or indirectly controls or is controlled by any company referred to in paragraph (a) or (b); and

(d)

any company which is controlled by a person who directly or indirectly controls a company referred to in paragraph (a), (b) or (c).

Licensing Schemes to which Sections 89 to 94 Apply

88. The provisions of sections 89 to 94 apply to licensing schemes of the following descriptions—

(a)

licensing schemes operated by licensing bodies in relation to the copyright in literary, dramatic, musical or artistic works or films (or film sound-tracks when accompanying a film) which cover works of more than one author, so far as they relate to licences for—

(i)

copying the work;

(ii)

performing, playing or showing the work in public; or

(iii) broadcasting the work or including it in a cable programme service;

(b)

all licensing schemes in relation to the copyright in sound recordings (other than film sound-tracks when accompanying a film), broadcasts or cable programmes or the typographical arrangement of published editions; and

(c)

all licensing schemes in relation to the copyright in sound recordings, films or computer programs so far as they relate to licences for the rental of copies to the public.

References and Applications Respecting Licensing Schemes

PART VIII THE COPYRIGHT TRIBUNAL

Establishment of Copyright Tribunal

103.—(1) There is hereby established for the purposes of this Act a tribunal to be called the Copyright Tribunal.

(2) The provisions of the Schedule shall have effect as to the constitution of the Tribunal and otherwise in relation thereto.

Schedule