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Copyright, Designs and Patents Act 1988 (Chapter 48, updated on November 26, 2020), United Kingdom

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Superseded Text  Go to latest Version in WIPO Lex
Details Details Year of Version 2020 Dates Status as of: November 26, 2020 Amended up to: October 11, 2018 Enacted: November 15, 1988 Type of Text Main IP Laws Subject Matter Patents (Inventions), Industrial Designs, Copyright and Related Rights (Neighboring Rights) Subject Matter (secondary) Enforcement of IP and Related Laws, IP Regulatory Body, Traditional Cultural Expressions Notes This consolidated version of the Copyright, Designs and Patents Act 1988 (Chapter 48, updated on November 26, 2020) incorporates amendments up to the Copyright and Related Rights (Marrakesh Treaty etc.)(Amendment) Regulations 2018), which entered into force on October 11, 2018. Part I, regulation 1(3) and Part II, regulation 9 introduced amendments to section 111(3B) under Chapter VI, Part I of this consolidated version. This consolidated version shows the changes introduced by a listing of legislation that entered into force on January 1, 2021 (Brexit day) and has not yet been incorporated thereinto (see the table "Changes of legislation" at the end of this consolidated version for details).

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Main text(s) Main text(s) English Copyright, Designs and Patents Act 1988 (Chapter 48, updated on November 26, 2020)         

Changes to legislation: Copyright, Designs and Patents Act 1988 is up to date with all changes known to be in force on or before 26 November 2020. There are changes that may be brought into force at a future date. Changes that have been made

appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Copyright, Designs and Patents Act 1988 1988 CHAPTER 48

An Act to restate the law of copyright, with amendments; to make fresh provision as to the rights of performers and others in performances; to confer a design right in original designs; to amend the Registered Designs Act 1949; to make provision with respect to patent agents and trade mark agents; to confer patents and designs jurisdiction on certain county courts; to amend the law of patents; to make provision with respect to devices designed to circumvent copy-protection of works in electronic form; to make fresh provision penalising the fraudulent reception of transmissions; to make the fraudulent application or use of a trade mark an offence; to make provision for the benefit of the Hospital for Sick Children, Great Ormond Street, London; to enable financial assistance to be given to certain international bodies; and for connected purposes. [15th November 1988]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Modifications etc. (not altering text) C1 Act amended by Broadcasting Act 1990 (c. 42, SIF 96), s. 176, Sch. 17 para. 7(1)

PART I

COPYRIGHT

Modifications etc. (not altering text) C2 Pt. I (ss. 1-179) modified by S.I. 1989/988, art. 2(3) C3 Pt. I (ss. 1-179) extended by S.I. 1989/1293, arts. 2(3), 3, 4(4)-(6) C4 Pt. I (ss. 1-179) applied (with modifications) by S.I. 1993/942, arts. 2(3), 5, Sch. 4 (with art. 6)

2 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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C5 Pt. I (ss. 1-179) applied by S.I. 1993/942, arts. 4, 5, Sch. 4 (with art. 6) Pt. I (ss. 1-179) applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(3), 3, 4(3)(5), 5, 7, Schs. 2, 4, 5 (as amended (22.4.2003) by S.I. 2003/774, arts. 2-5) (which S.I. and amending S.I. were revoked (1.5.2005) by S.I. 2005/852, art. 8(b)(d))

C6 Pt. 1 (ss. 1-179) extended in part (with modifications) by The Copyright (Bermuda) Order 2003 (S.I. 2003/1517), art. 2, Sch. (the amendment coming into force in accordance with art. 1 of the amending S.I.)

C7 Pt. 1 (ss. 1-179) modified (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 37(2) (with regs. 31-40)

C8 Pt. 1 (ss. 1-179) extended (with modifications) (1.5.2005) by The Copyright and Performances (Application to Other Countries) Order 2005 (S.I. 2005/852), arts. 2-5, Sch. (with art. 7) (which S.I. was revoked (6.4.2006) by SI 2006/316, art. 1(3))

C9 Pt. 1 (ss. 1-179) extended in part (with modifications) by The Copyright (Gibraltar) Order 2005 (S.I. 2005/853), art. 2, Sch. (the amendment coming into force in accordance with art. 1 of the amending S.I.)

C10 Pt. 1 (ss. 1-179) extended (with modifications) (6.4.2006) by The Copyright and Performances (Application to Other Countries) Order 2006 (S.I. 2006/316), {arts. 2- 5}, Sch. (with art. 7) (which S.I. was revoked (6.4.2007) by S.I. 2007/273, art. 1(3))

C11 Pt. 1 (ss. 1-179) extended (with modifications) (6.4.2007) by The Copyright and Performances (Application to Other Countries) Order 2007 (S.I. 2007/273), arts. 2-5, Sch. (with art. 7) (which S.I. was revoked (6.4.2008) by SI 2008/677, art. 1(3))

C12 Pt. 1 (ss. 1-179) extended (with modifications) (6.4.2008) by The Copyright and Performances (Application to Other Countries) Order 2008 (S.I. 2008/677), arts. 2-5, Sch. (with art. 7)

C13 Pt. 1 extended (with modifications) (6.4.2012) by The Copyright and Performances (Application to Other Countries) Order 2012 (S.I. 2012/799), arts. 1(1), arts. 2-5, Schs. (with art. 8)

C14 Pt. 1 applied in part (with modifications) (6.4.2013) by The Copyright and Performances (Application to Other Countries) Order 2013 (S.I. 2013/536), arts. 1(1), 2, 4, 5, Schs. (with art. 8)

C15 Pt. 1 extended in part (Cayman Islands) (with modifications) (coming into force in accordance with art. 1 of the amending Order) by The Copyright (Cayman Islands) Order 2015 (S.I. 2015/795), arts. 1, 2, Sch. (as amended by The Copyright (Cayman Islands) (Amendment) Order 2016 (S.I. 2016/370), arts. 1, 2-40)

C16 Pt. 1 applied (with modifications) (6.4.2017) by The Copyright and Performances (Application to Other Countries) Order 2016 (S.I. 2016/1219), arts. 1(1), 4 (with art. 13)

C17 Pt. 1 restricted (6.4.2017) by The Copyright and Performances (Application to Other Countries) Order 2016 (S.I. 2016/1219), arts. 1(1), 6 (with art. 13)

C18 Pt. 1 restricted (6.4.2017) by The Copyright and Performances (Application to Other Countries) Order 2016 (S.I. 2016/1219), arts. 1(1), 9 (with art. 13)

C19 Pt. 1 applied (with modifications) (6.4.2017) by The Copyright and Performances (Application to Other Countries) Order 2016 (S.I. 2016/1219), arts. 1(1), 7 (with art. 13)

C20 Pt. 1 restricted (6.4.2017) by The Copyright and Performances (Application to Other Countries) Order 2016 (S.I. 2016/1219), arts. 1(1), 2 (with art. 13)

C21 Pt. 1 restricted (6.4.2017) by The Copyright and Performances (Application to Other Countries) Order 2016 (S.I. 2016/1219), arts. 1(1), 3 (with art. 13)

C22 Pt. 1 applied (with modifications) (6.4.2017) by The Copyright and Performances (Application to Other Countries) Order 2016 (S.I. 2016/1219), arts. 1(1), 5, Sch. Pt. 1 (with art. 13)

C23 Pt. 1 applied (with modifications) (6.4.2017) by The Copyright and Performances (Application to Other Countries) Order 2016 (S.I. 2016/1219), arts. 1(1), 8 (with art. 13)

C24 Pt. 1: power to extend conferred (27.4.2017) by Digital Economy Act 2017 (c. 30), ss. 118(1), 119(7)(8)(a)

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CHAPTER I

SUBSISTENCE, OWNERSHIP AND DURATION OF COPYRIGHT

Modifications etc. (not altering text) C25 Pt. I Ch. 1 (ss. 1-15) applied in part (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

Introductory

1 Copyright and copyright works.

(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—

(a) original literary, dramatic, musical or artistic works, (b) sound recordings, films [F1or broadcasts], and (c) the typographical arrangement of published editions.

(2) In this Part “copyright work” means a work of any of those descriptions in which copyright subsists.

(3) Copyright does not subsist in a work unless the requirements of this Part with respect to qualification for copyright protection are met (see section 153 and the provisions referred to there).

Textual Amendments F1 Words in s. 1(1)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 5(2) (with regs. 31-40)

2 Rights subsisting in copyright works.

(1) The owner of the copyright in a work of any description has the exclusive right to do the acts specified in Chapter II as the acts restricted by the copyright in a work of that description.

(2) In relation to certain descriptions of copyright work the following rights conferred by Chapter IV (moral rights) subsist in favour of the author, director or commissioner of the work, whether or not he is the owner of the copyright—

(a) section 77 (right to be identified as author or director), (b) section 80 (right to object to derogatory treatment of work), and (c) section 85 (right to privacy of certain photographs and films).

Descriptions of work and related provisions

3 Literary, dramatic and musical works.

(1) In this Part—

4 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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“literary work” means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes—

(a) a table or compilation [F2other than a database], F3. . . (b) a computer program; F4. . .[F5(c) preparatory design material for a computer

program][F6and F6(d) a database]

“dramatic work” includes a work of dance or mime; and “musical work” means a work consisting of music, exclusive of any words

or action intended to be sung, spoken or performed with the music.

(2) Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

(3) It is immaterial for the purposes of subsection (2) 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 affects the question whether copyright subsists in the record as distinct from the work recorded.

Textual Amendments F2 Words in s. 3(1)(a) inserted (1.1.1998) by S.I. 1997/3032, reg. 5(a) (with Pt. IV) F3 Word in s. 3(1) omitted (1.1.1993) by virtue of S.I. 1992/3233, reg. 3 F4 Word in s. 3(1)(b) left out (1.1.1998) by virtue of S.I. 1997/3032, reg. 5(b) (with Pt. IV) F5 Word and s. 3(1)(c) inserted (1.1.1993) by S.I. 1992/3233, reg. 3 F6 S. 3(1)(d) and word preceding it inserted (1.1.1998) by S.I. 1997/3032, reg. 5(c) (with Pt. IV)

[F73A Databases

(1) In this Part “database” means a collection of independent works, data or other materials which—

(a) are arranged in a systematic or methodical way, and (b) are individually accessible by electronic or other means.

(2) For the purposes of this Part a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.]

Textual Amendments F7 S. 3A inserted (1.1.1998) by S.I. 1997/3032, reg. 6 (with Pt. IV)

4 Artistic works.

(1) In this Part “artistic work” means— (a) a graphic work, photograph, sculpture or collage, irrespective of artistic

quality, (b) a work of architecture being a building or a model for a building, or (c) a work of artistic craftsmanship.

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(2) In this Part— “building” includes any fixed structure, and a part of a building or fixed

structure; “graphic work” includes—

(a) any painting, drawing, diagram, map, chart or plan, and (b) any engraving, etching, lithograph, woodcut or similar work;

“photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film;

“sculpture” includes a cast or model made for purposes of sculpture.

[F85A Sound recordings.

(1) In this Part “sound recording” means— (a) a recording of sounds, from which the sounds may be reproduced, or (b) a recording of the whole or any part of a literary, dramatic or musical work,

from which sounds reproducing the work or part may be produced, regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced.

(2) Copyright does not subsist in a sound recording which is, or to the extent that it is, a copy taken from a previous sound recording.]

Textual Amendments F8 Ss. 5A, 5B substituted for s. 5 (1.1.1996) by S.I. 1995/3297, reg. 9(1) (with Pt. III)

[F95B Films.

(1) In this Part “film” means a recording on any medium from which a moving image may by any means be produced.

(2) The sound track accompanying a film shall be treated as part of the film for the purposes of this Part.

(3) Without prejudice to the generality of subsection (2), where that subsection applies— (a) references in this Part to showing a film include playing the film sound track

to accompany the film, [F10(b) references in this Part to playing a sound recording, or to communicating a

sound recording to the public, do not include playing or communicating the film sound track to accompany the film,

(c) references in this Part to copying a work, so far as they apply to a sound recording, do not include copying the film sound track to accompany the film, and

(d) references in this Part to the issuing, rental or lending of copies of a work, so far as they apply to a sound recording, do not include the issuing, rental or lending of copies of the sound track to accompany the film.]

(4) Copyright does not subsist in a film which is, or to the extent that it is, a copy taken from a previous film.

6 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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(5) Nothing in this section affects any copyright subsisting in a film sound track as a sound recording.]

Textual Amendments F9 Ss. 5A, 5B substituted for s. 5 (1.1.1996) by S.I. 1995/3297, reg. 9(1) (with Pt. III) F10 S. 5B(3)(b)-(d) substituted (1.2.2006) for s. 5B(3)(b) and preceding word by The Performances (Moral

Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 2 (with reg. 8)

6 Broadcasts.

[F11(1) In this Part a “ broadcast ” means an electronic transmission of visual images, sounds or other information which—

(a) is transmitted for simultaneous reception by members of the public and is capable of being lawfully received by them, or

(b) is transmitted at a time determined solely by the person making the transmission for presentation to members of the public,

and which is not excepted by subsection (1A); and references to broadcasting shall be construed accordingly.

(1A) Excepted from the definition of “broadcast” is any internet transmission unless it is— (a) a transmission taking place simultaneously on the internet and by other means, (b) a concurrent transmission of a live event, or (c) a transmission of recorded moving images or sounds forming part of

a programme service offered by the person responsible for making the transmission, being a service in which programmes are transmitted at scheduled times determined by that person.]

(2) An encrypted transmission shall be regarded as capable of being lawfully received by members of the public only if decoding equipment has been made available to members of the public by or with the authority of the person making the transmission or the person providing the contents of the transmission.

(3) References in this Part to the person making a broadcast, [F12or a transmission which is a broadcast] are—

(a) to the person transmitting the programme, if he has responsibility to any extent for its contents, and

(b) to any person providing the programme who makes with the person transmitting it the arrangements necessary for its transmission;

and references in this Part to a programme, in the context of broadcasting, are to any item included in a broadcast.

F13[(4) For the purposes of this Part, the place from which a [F14wireless] broadcast is made is the place where, under the control and responsibility of the person making the broadcast, the programme-carrying signals are introduced into an uninterrupted chain of communication (including, in the case of a satellite transmission, the chain leading to the satellite and down towards the earth).]

F15[(4A) Subsections (3) and (4) have effect subject to section 6A (safeguards in case of certain satellite broadcasts).]

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(5) References in this Part to the reception of a broadcast include reception of a broadcast relayed by means of a telecommunications system.

[F16(5A) The relaying of a broadcast by reception and immediate re-transmission shall be regarded for the purposes of this Part as a separate act of broadcasting from the making of the broadcast which is so re-transmitted.]

(6) Copyright does not subsist in a broadcast which infringes, or to the extent that it infringes, the copyright in another broadcast F17. . . .

Textual Amendments F11 S. 6(1)(1A) substituted (31.10.2003) for s. 6(1) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 4(a) (with regs. 31-40) F12 Words in s. 6(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 4(b) (with regs. 31-40) F13 S. 6(4) substituted (1.12.1996 with effect as mentioned in reg. 28 of the amending S.I.) by S.I.

1996/2967, reg. 5 F14 Word in s. 6(4) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 4(c) (with regs. 31-40) F15 S. 6(4A) inserted (1.12.1996 with effect as mentioned in reg. 28 of the amending S.I.) by S.I.

1996/2967, reg. 6(1) F16 S. 6(5A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 4(d) (with regs. 31-40) F17 Words in s. 6(6) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

[F186A Safeguards in case of certain satellite broadcasts.

(1) This section applies where the place from which a broadcast by way of satellite transmission is made is located in a country other than an EEA State and the law of that country fails to provide at least the following level of protection—

(a) exclusive rights in relation to [F19wireless] broadcasting equivalent to those conferred by section 20 ([F20infringement by communication to the public]) on the authors of literary, dramatic, musical and artistic works, films and broadcasts;

(b) a right in relation to live [F21wireless] broadcasting equivalent to that conferred on a performer by section 182(1)(b) (consent required for live broadcast of performance); and

(c) a right for authors of sound recordings and performers to share in a single equitable remuneration in respect of the [F21wireless] broadcasting of sound recordings.

(2) Where the place from which the programme-carrying signals are transmitted to the satellite (“the uplink station”) is located in an EEA State—

(a) that place shall be treated as the place from which the broadcast is made, and (b) the person operating the uplink station shall be treated as the person making

the broadcast.

(3) Where the uplink station is not located in an EEA State but a person who is established in an EEA State has commissioned the making of the broadcast—

8 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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(a) that person shall be treated as the person making the broadcast, and (b) the place in which he has his principal establishment in the European

Economic Area shall be treated as the place from which the broadcast is made.]

Textual Amendments F18 S. 6A inserted (1.12.1996 with effect as mentioned in reg. 28 of the amending S.I.) by S.I. 1996/2967,

reg. 6(2) F19 Words in s. 6A(1)(a) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 5(3)(a)(i) (with regs. 31-40) F20 Words in s. 6A(1)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 5(3)(a)(ii) (with regs. 31-40) F21 Word in s. 6A(1)(b)(c) inserted (31.10.2003.) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 5(3)(b) (with regs. 31-40)

7 Cable programmes. F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F22 S. 7 repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498),

regs. 2(2), 5(1), Sch. 2 (with regs. 31-40)

8 Published editions.

(1) In this Part “published edition”, in the context of copyright in the typographical arrangement of a published edition, means a published edition of the whole or any part of one or more literary, dramatic or musical works.

(2) Copyright does 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.

Authorship and ownership of copyright

9 Authorship of work.

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

(2) That person shall be taken to be— F23[F23( aa ) in the case of a sound recording, the producer;

F23( ab ) in the case of a film, the producer and the principal director;] (b) in the case of a broadcast, the person making the broadcast (see section 6(3))

or, in the case of a broadcast which relays another broadcast by reception and immediate re-transmission, the person making that other broadcast;

(c) F24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) in the case of the typographical arrangement of a published edition, the

publisher.

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(3) In the case of a literary, dramatic, musical or artistic work which is computer- generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

(4) For the purposes of this Part a work is of “unknown authorship” if the identity of the author is unknown or, in the case of a work of joint authorship, if the identity of none of the authors is known.

(5) For the purposes of this Part the identity of an author shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry; but if his identity is once known it shall not subsequently be regarded as unknown.

Textual Amendments F23 S. 9(2)(aa)(ab) substituted for s. 9(2)(a) (1.12.1996 with effect in relation to films made on or after

1.7.1994) by S.I. 1996/2967, regs. 18(1), 36 F24 S. 9(2)(c) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), regs. 2(2), 5(4), Sch. 2 (with regs. 31-40)

10 Works of joint authorship.

(1) In this Part a “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.

F25[( 1A ) A film shall be treated as a work of joint authorship unless the producer and the principal director are the same person.]

(2) A broadcast shall be treated as a work of joint authorship in any case where more than one person is to be taken as making the broadcast (see section 6(3)).

(3) References in this Part to the author of a work shall, except as otherwise provided, be construed in relation to a work of joint authorship as references to all the authors of the work.

Textual Amendments F25 S. 10(1A) inserted (1.12.1996 with effet in relation to films made on or after 1.7.1994) by S.I.

1996/2967, regs. 18(2), 36

[F2610A Works of co-authorship

(1) In this Part a “work of co-authorship” means a work produced by the collaboration of the author of a musical work and the author of a literary work where the two works are created in order to be used together.

(2) References in this Part to a work or the author of a work shall, except as otherwise provided, be construed in relation to a work of co-authorship as references to each of the separate musical and literary works comprised in the work of co-authorship and to each of the authors of such works.]

10 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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Textual Amendments F26 S. 10A inserted (1.11.2013) by The Copyright and Duration of Rights in Performances Regulations

2013 (S.I. 2013/1782), regs. 1, 4 (with regs. 11-27)

11 First ownership of copyright.

(1) The author of a work is the first owner of any copyright in it, subject to the following provisions.

(2) Where a literary, dramatic, musical or artistic work [F27, or a film,] is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.

(3) This section does not apply to Crown copyright or Parliamentary copyright (see sections 163 and 165) or to copyright which subsists by virtue of section 168 (copyright of certain international organisations).

Textual Amendments F27 Words in s. 11(2) inserted (1.12.1996 with effect in relation to films made on or after 1.7.1994) by S.I.

1996/2967, regs. 18(3), 36

Duration of copyright

[F2812 Duration of copyright in literary, dramatic, musical or artistic works.

(1) The following provisions have effect with respect to the duration of copyright in a literary, dramatic, musical or artistic work.

(2) Copyright expires at the end of the period of 70 years from the end of the calendar year in which the author dies, subject as follows.

(3) If the work is of unknown authorship, copyright expires— (a) at the end of the period of 70 years from the end of the calendar year in which

the work was made, or (b) if during that period the work is made available to the public, at the end of

the period of 70 years from the end of the calendar year in which it is first so made available,

subject as follows.

(4) Subsection (2) applies if the identity of the author becomes known before the end of the period specified in paragraph (a) or (b) of subsection (3).

(5) For the purposes of subsection (3) making available to the public includes— (a) in the case of a literary, dramatic or musical work—

(i) performance in public, or [F29(ii) communication to the public;]

(b) in the case of an artistic work— (i) exhibition in public,

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(ii) a film including the work being shown in public, or [F30(iii) communication to the public;]

but in determining generally for the purposes of that subsection whether a work has been made available to the public no account shall be taken of any unauthorised act.

(6) Where the country of origin of the work is not an EEA state and the author of the work is not a national of an EEA state, the duration of copyright is that to which the work is entitled in the country of origin, provided that does not exceed the period which would apply under subsections (2) to (5).

(7) If the work is computer-generated the above provisions do not apply and copyright expires at the end of the period of 50 years from the end of the calendar year in which the work was made.

(8) The provisions of this section are adapted as follows in relation to a work of joint authorship [F31or a work of co-authorship]

(a) the reference in subsection (2) to the death of the author shall be construed— (i) if the identity of all the authors is known, as a reference to the death

of the last of them to die, and (ii) if 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 whose identity is known;

(b) the reference in subsection (4) to the identity of the author becoming known shall be construed as a reference to the identity of any of the authors becoming known;

(c) the reference in subsection (6) to the author not being a national of an EEA state shall be construed as a reference to none of the authors being a national of an EEA state.

(9) This section does not apply to Crown copyright or Parliamentary copyright (see sections 163 to [F32166D]) or to copyright which subsists by virtue of section 168 (copyright of certain international organisations).]

Textual Amendments F28 S. 12 substituted (1.1.1996) by S.I. 1995/3297, reg. 5(1) (with Pt. III) F29 S. 12(5)(a)(ii) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003, (S.I.

2003/2498), reg. 2(1), {Sch. 1 para. 4(1)} (with regs. 31-40) F30 S. 12(5)(b)(iii) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003, (S.I.

2003/2498), reg. 2(1), {Sch. 1 para. 4(2)} (with regs. 31-40) F31 Words in s. 12(8) inserted (1.11.2013) by The Copyright and Duration of Rights in Performances

Regulations 2013 (S.I. 2013/1782), regs. 1, 5 (with regs. 11-27) F32 Word in s. 12(9) substituted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para.

23 (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

12 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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[F3313A Duration of copyright in sound recordings.

(1) The following provisions have effect with respect to the duration of copyright in a sound recording.

[F34(2) Subject to subsections (4) and (5) [F35and section 191HA(4)], copyright expires— (a) at the end of the period of 50 years from the end of the calendar year in which

the recording is made, or (b) if during that period the recording is published, [F3670] years from the end of

the calendar year in which it is first published, or (c) if during that period the recording is not published but is made available to

the public by being played in public or communicated to the public, [F3770] years from the end of the calendar year in which it is first so made available,

but in determining whether a sound recording has been published, played in public or communicated to the public, no account shall be taken of any unauthorised act.]

(3) F38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Where the author of a sound recording is not a national of an EEA state, the duration of copyright is that to which the sound recording is entitled in the country of which the author is a national, provided that does not exceed the period which would apply under [F39 subsection (2) ] .

(5) If or to the extent that the application of subsection (4) would be at variance with an international obligation to which the United Kingdom became subject prior to 29th October 1993, the duration of copyright shall be as specified in [F39subsection (2)].]

Textual Amendments F33 Ss. 13A, 13B substituted for s. 13 (1.1.1996) by S.I. 1995/3297, reg. 6(1) (with Pt. IV) F34 S. 13A(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 29(a) (with regs. 31-40) F35 Words in s. 13A(2) inserted (1.11.2013) by The Copyright and Duration of Rights in Performances

Regulations 2013 (S.I. 2013/1782), regs. 1, 6(a) (with regs. 11-27) F36 Word in s. 13A(2)(b) substituted (1.11.2013) by The Copyright and Duration of Rights in

Performances Regulations 2013 (S.I. 2013/1782), regs. 1, 6(b) (with regs. 11-27) F37 Word in s. 13A(2)(c) substituted (1.11.2013) by The Copyright and Duration of Rights in

Performances Regulations 2013 (S.I. 2013/1782), regs. 1, 6(b) (with regs. 11-27) F38 S. 13A(3) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), regs. 2(2), 29(b), Sch. 2 (with regs. 31-40) F39 Words in s. 13A(4)(5) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I.2003/2498), reg. 29(c) (with regs. 31-40)

[F4013B Duration of copyright in films.

(1) The following provisions have effect with respect to the duration of copyright in a film.

(2) Copyright expires at the end of the period of 70 years from the end of the calendar year in which the death occurs of the last to die of the following persons—

(a) the principal director, (b) the author of the screenplay, (c) the author of the dialogue, or

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(d) the composer of music specially created for and used in the film; subject as follows.

(3) If the identity of one or more of the persons referred to in subsection (2)(a) to (d) is known and the identity of one or more others is not, the reference in that subsection to the death of the last of them to die shall be construed as a reference to the death of the last whose identity is known.

(4) If the identity of the persons referred to in subsection (2)(a) to (d) is unknown, copyright expires at—

(a) the end of the period of 70 years from the end of the calendar year in which the film was made, or

(b) if during that period the film is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available.

(5) Subsections (2) and (3) apply if the identity of any of those persons becomes known before the end of the period specified in paragraph (a) or (b) of subsection (4).

(6) For the purposes of subsection (4) making available to the public includes— (a) showing in public, or

[F41(b) communicating to the public;] but in determining generally for the purposes of that subsection whether a film has been made available to the public no account shall be taken of any unauthorised act.

(7) Where the country of origin is not an EEA state and the author of the film is not a national of an EEA state, the duration of copyright is that to which the work is entitled in the country of origin, provided that does not exceed the period which would apply under subsections (2) to (6).

(8) In relation to a film of which there are joint authors, the reference in subsection (7) to the author not being a national of an EEA state shall be construed as a reference to none of the authors being a national of an EEA state.

(9) If in any case there is no person falling within paragraphs (a) to (d) of subsection (2), the above provisions do not apply and copyright expires at the end of the period of 50 years from the end of the calendar year in which the film was made.

(10) For the purposes of this section the identity of any of the persons referred to in subsection (2)(a) to (d) shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry; but if the identity of any such person is once known it shall not subsequently be regarded as unknown.]

Textual Amendments F40 Ss. 13A, 13B substituted for s. 13 (1.1.1996) by S.I. 1995/3297, reg. 6(1) (with Pt. IV) F41 S. 13B(6)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 4(3) (with regs. 31-40)

14 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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[F4314 Duration of copyright in broadcasts F42. . . .

(1) The following provisions have effect with respect to the duration of copyright in a broadcast F44. . . .

(2) Copyright in a broadcast F44. . . expires at the end of the period of 50 years from the end of the calendar year in which the broadcast was made F45. . . , subject as follows.

(3) Where the author of the broadcast F44. . . is not a national of an EEA state, the duration of copyright in the broadcast F44. . . is that to which it is entitled in the country of which the author is a national, provided that does not exceed the period which would apply under subsection (2).

(4) If or to the extent that the application of subsection (3) would be at variance with an international obligation to which the United Kingdom became subject prior to 29th October 1993, the duration of copyright shall be as specified in subsection (2).

(5) Copyright in a repeat broadcast F44. . . expires at the same time as the copyright in the original broadcast F44. . . ; and accordingly no copyright arises in respect of a repeat broadcast F44. . . which is broadcast F46. . . after the expiry of the copyright in the original broadcast F44. . . .

(6) A repeat broadcast F44. . . means one which is a repeat F47. . . of a broadcast previously made F47. . . .]

Textual Amendments F42 Words in s. 14 heading repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F43 S. 14 substituted (1.1.1996) by S.I. 1995/3297, reg. 7(1) (with Pt. IV) F44 Words in s. 14 repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F45 Words in s. 14(2) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F46 Words in s. 14(5) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F47 Words in s. 14(6) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

15 Duration of copyright in typographical arrangement of published editions.

Copyright in the typographical arrangement of a published edition expires at the end of the period of 25 years from the end of the calendar year in which the edition was first published.

[F4815A Meaning of country of origin.

(1) For the purposes of the provisions of this Part relating to the duration of copyright the country of origin of a work shall be determined as follows.

(2) If the work is first published in a Berne Convention country and is not simultaneously published elsewhere, the country of origin is that country.

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(3) If the work is first published simultaneously in two or more countries only one of which is a Berne Convention country, the country of origin is that country.

(4) If the work is first published simultaneously in two or more countries of which two or more are Berne Convention countries, then—

(a) if any of those countries is an EEA state, the country of origin is that country; and

(b) if none of those countries is an EEA state, the country of origin is the Berne Convention country which grants the shorter or shortest period of copyright protection.

(5) If the work is unpublished or is first published in a country which is not a Berne Convention country (and is not simultaneously published in a Berne Convention country), the country of origin is—

(a) if the work is a film and the maker of the film has his headquarters in, or is domiciled or resident in a Berne Convention country, that country;

(b) if the work is— (i) a work of architecture constructed in a Berne Convention country, or

(ii) an artistic work incorporated in a building or other structure situated in a Berne Convention country,

that country; (c) in any other case, the country of which the author of the work is a national.

(6) In this section— (a) a “Berne Convention country” means a country which is a party to any Act of

the International Convention for the Protection of Literary and Artistic Works signed at Berne on 9th September 1886; and

(b) references to simultaneous publication are to publication within 30 days of first publication.]

Textual Amendments F48 S. 15A inserted (1.1.1996) by S.I. 1995/3297, reg. 8(1) (with Pt. IV)

CHAPTER II

RIGHTS OF COPYRIGHT OWNER

Modifications etc. (not altering text) C26 Pt. I Ch. II (ss. 16-27) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17(1) (with Pt.

III)

16 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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The acts restricted by copyright

16 The acts restricted by copyright in a work.

(1) The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom—

(a) to copy the work (see section 17); (b) to issue copies of the work to the public (see section 18);

F49[(ba) to rent or lend the work to the public (see section 18A);] (c) to perform, show or play the work in public (see section 19);

[F50(d) to communicate the work to the public (see section 20);] (e) to make an adaptation of the work or do any of the above in relation to an

adaptation (see section 21); and those acts are referred to in this Part as the “acts restricted by the copyright”.

(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.

(3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it—

(a) in relation to the work as a whole or any substantial part of it, and (b) either directly or indirectly;

and it is immaterial whether any intervening acts themselves infringe copyright.

(4) This Chapter has effect subject to— (a) the provisions of Chapter III (acts permitted in relation to copyright works),

and (b) the provisions of Chapter VII (provisions with respect to copyright licensing).

Textual Amendments F49 S. 16(1)(ba) inserted (1.12.1996) by S.I. 1996/2967, reg. 10(1) (with Pt. III) F50 S. 16(1)(d) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 6(2) (with regs. 31-40)

17 Infringement of copyright by copying.

(1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.

(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form.

This includes storing the work in any medium by electronic means.

(3) In relation to an artistic work copying includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work.

(4) Copying in relation to a film [F51or broadcast] includes making a photograph of the whole or any substantial part of any image forming part of the film [F51or broadcast].

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(5) Copying in relation to the typographical arrangement of a published edition means making a facsimile copy of the arrangement.

(6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.

Textual Amendments F51 Words in s. 17(4) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), regs. 2(1), 5(5), Sch. 1 para. 3(1)(a) (with regs. 31-40)

18 Infringement by issue of copies to the public.

(1) The issue to the public of copies of the work is an act restricted by the copyright in every description of copyright work.

[F52[F53(2) References in this Part to the issue to the public of copies of a work are to the act of putting into circulation in the United Kingdom copies not previously put into circulation in the EEA by or with the consent of the copyright owner.]

(3) References in this Part to the issue to the public of copies of a work do not include— (a) any subsequent distribution, sale, hiring or loan of copies previously put into

circulation (but see section 18A: infringement by rental or lending) F54... F55(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F56...]

F57[(4) References in this Part to the issue of copies of a work include the issue of the original.]

Textual Amendments F52 S. 18(2)(3) substituted (1.12.1996) by S.I. 1996/2967, reg. 9(2) (with Pt. III) F53 S. 18(2) substituted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty etc.)

(Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 3(2) F54 Word in s. 18(3)(a) omitted (11.10.2018) by virtue of The Copyright and Related Rights (Marrakesh

Treaty etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 3(3)(a) F55 S. 18(3)(b) omitted (11.10.2018) by virtue of The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 3(3)(b) F56 Words in s. 18(3) omitted (11.10.2018) by virtue of The Copyright and Related Rights (Marrakesh

Treaty etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 3(3)(c) F57 S. 18(4) added (1.12.1996) by S.I. 1996/2967, reg. 9(3) (with Pt. III)

[F5818A Infringement by rental or lending of work to the public.

(1) The rental or lending of copies of the work to the public is an act restricted by the copyright in—

(a) a literary, dramatic or musical work, (b) an artistic work, other than—

(i) a work of architecture in the form of a building or a model for a building, or

(ii) a work of applied art, or

18 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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(c) a film or a sound recording.

(2) In this Part, subject to the following provisions of this section— (a) “rental” means making a copy of the work available for use, on terms that

it will or may be returned, for direct or indirect economic or commercial advantage, and

(b) “lending” means making a copy of the work available for use, on terms that it will or may be returned, otherwise than for direct or indirect economic or commercial advantage, through an establishment which is accessible to the public.

(3) The expressions “rental” and “lending” do not include— (a) making available for the purpose of public performance, playing or showing

in public [F59or communication to the public]; (b) making available for the purpose of exhibition in public; or (c) making available for on-the-spot reference use.

(4) The expression “lending” does not include making available between establishments which are accessible to the public.

(5) Where lending by an establishment accessible to the public gives rise to a payment the amount of which does not go beyond what is necessary to cover the operating costs of the establishment, there is no direct or indirect economic or commercial advantage for the purposes of this section.

(6) References in this Part to the rental or lending of copies of a work include the rental or lending of the original.]

Textual Amendments F58 S. 18A inserted (1.12.1996) by S.I. 1996/2967, reg. 10(2) (with Pt. III) F59 Words in s. 18A(3)(a) substituted by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 6(2)(a) (with regs. 31-40)

19 Infringement by performance, showing or playing of work in public.

(1) The performance of the work in public is an act restricted by the copyright in a literary, dramatic or musical work.

(2) In this Part “performance”, in relation to a work— (a) includes delivery in the case of lectures, addresses, speeches and sermons, and (b) in general, includes any mode of visual or acoustic presentation, including

presentation by means of a sound recording, film [F60or broadcast] of the work.

(3) The playing or showing of the work in public is an act restricted by the copyright in a sound recording, film [F60or broadcast].

(4) Where copyright in a work is infringed by its being performed, played or shown in public by means of apparatus for receiving visual images or sounds conveyed by electronic means, the person by whom the visual images or sounds are sent, and in the case of a performance the performers, shall not be regarded as responsible for the infringement.

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Textual Amendments F60 Words in s. 19(2)(b)(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(b)(c) (with regs. 31-40)

[F6120 Infringement by communication to the public

(1) The communication to the public of the work is an act restricted by the copyright in— (a) a literary, dramatic, musical or artistic work, (b) a sound recording or film, or (c) a broadcast.

(2) References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include—

(a) the broadcasting of the work; (b) the making available to the public of the work by electronic transmission in

such a way that members of the public may access it from a place and at a time individually chosen by them.]

Textual Amendments F61 S. 20 substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 6(1) (with regs. 31-40)

21 Infringement by making adaptation or act done in relation to adaptation.

(1) The making of an adaptation of the work is an act restricted by the copyright in a literary, dramatic or musical work.

For this purpose an adaptation is made when it is recorded, in writing or otherwise.

(2) The doing of any of the acts specified in sections 17 to 20, or subsection (1) above, in relation to an adaptation of the work is also an act restricted by the copyright in a literary, dramatic or musical work.

For this purpose it is immaterial whether the adaptation has been recorded, in writing or otherwise, at the time the act is done.

(3) In this Part “adaptation”— (a) in relation to a literary [F62work, [F63other than a computer program or a

database, or in relation to a]] dramatic work, means— (i) a translation of the work;

(ii) a version of a dramatic work in which it is converted into a non- dramatic work or, as the case may be, of a non-dramatic work in which it is converted into a dramatic work;

(iii) a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical;

F64[(ab) in relation to a computer program, means an arrangement or altered version of the program or a translation of it;]

20 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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F65[(ac) in relation to a database, means an arrangement or altered version of the database or a translation of it;]

(b) in relation to a musical work, means an arrangement or transcription of the work.

(4) In relation to a computer program a “translation” includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code F66. . .

(5) No inference shall be drawn from this section as to what does or does not amount to copying a work.

Textual Amendments F62 Words in s. 21(3)(a) inserted (1.1.1993) by S.I. 1992/3233, reg. 5(1) F63 Words in s. 21(3)(a) substituted (1.1.1998) by S.I. 1997/3032, reg. 7(a) (with Pt. IV) F64 S. 21(3)(ab) inserted (1.1.1993) by S.I. 1992/3233, reg. 5(2) F65 S. 21(3)(ac) inserted (1.1.1998) by S.I. 1997/3032, reg. 7(b) (with Pt. IV) F66 Words in s. 21(4) omitted (1.1.1993) by virtue of S.I. 1992/3233, reg. 5(3)

Secondary infringement of copyright

22 Secondary infringement: importing infringing copy.

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

23 Secondary infringement: possessing or dealing with infringing copy.

The 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) in the course of a business exhibits in public or distributes, 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.

24 Secondary infringement: providing means for making infringing copies.

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

(a) makes, (b) imports into the United Kingdom, (c) possesses in the course of a business, or (d) sells or lets for hire, or offers or exposes for sale or hire,

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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.

(2) 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 [F67communication to the public]), knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission in the United Kingdom or elsewhere.

Textual Amendments F67 Words in s. 24(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 5(a) (with regs. 31-40)

25 Secondary infringement: permitting use of premises for infringing performance.

(1) 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.

(2) In this section “place of public entertainment” includes premises which are occupied mainly for other purposes but are from time to time made available for hire for the purposes of public entertainment.

26 Secondary infringement: provision of apparatus for infringing performance, &c.

(1) 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—

(a) playing sound recordings, (b) showing films, or (c) receiving visual images or sounds conveyed by electronic means,

the following persons are also liable for the infringement.

(2) A person who supplied the apparatus, or any substantial part of it, is liable for the infringement if when he supplied the apparatus or part—

(a) he knew or had reason to believe that the apparatus was likely to be so used as to infringe copyright, or

(b) 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.

(3) An occupier of premises who gave permission for the apparatus to be brought onto the premises is liable for the infringement 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.

(4) A person who supplied a copy of a sound recording or film used to infringe copyright is liable for the infringement 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.

22 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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Infringing copies

27 Meaning of “infringing copy”.

(1) In this Part “infringing copy”, in relation to a copyright work, shall be construed in accordance with this section.

(2) An article is an infringing copy if its making constituted an infringement of the copyright in the work in question.

(3) F68. . . An article is also an infringing copy if— (a) it has been or is proposed to be imported into the United Kingdom, and (b) its making in the United Kingdom would have constituted an infringement

of the copyright in the work in question, or a breach of an exclusive licence agreement relating to that work.

F69(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Where in any proceedings the question arises whether an article is an infringing copy and it is shown—

(a) that the article is a copy of the work, and (b) that copyright subsists in the work or has subsisted at any time,

it shall be presumed until the contrary is proved that the article was made at a time when copyright subsisted in the work.

(5) Nothing in subsection (3) shall be construed as applying to an article which may lawfully be imported into the United Kingdom by virtue of any enforceable [F70EU] right within the meaning of section 2(1) of the M1European Communities Act 1972.

(6) In this Part “infringing copy” includes a copy falling to be treated as an infringing copy by virtue of any of the following provisions —

[F71section 29A(3) (copies for text and data analysis for non-commercial research),] [F72section 28B(7) and (9) (personal copies for private use),] [F73section 31A(5) and (6) (disabled persons: copies of works for personal use),] [F74section 31B(11) (making and supply of accessible copies by authorised bodies),] [F71section 35(5) (recording by educational establishments of broadcasts),] [F71section 36(8) (copying and use of extracts of works by educational establishments),] [F71section 42A(5)(b) (copying by librarians: single copies of published works),] [F71section 61(6)(b) (recordings of folksongs),] F75... F76... F76... F76... F76... section 56(2) (further copies, adaptations, &c. of work in electronic form retained on transfer of principal copy), section 63(2) (copies made for purpose of advertising artistic work for sale), section 68(4) (copies made for purpose of broadcast F77 . . . ),

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[F78section 70(2) (recording for the purposes of time-shifting), section 71(2) (photographs of broadcasts), or] any provision of an order under section 141 (statutory licence for certain reprographic copying by educational establishments).

Textual Amendments F68 Words in s. 27(3) omitted (1.12.1996) by virtue of S.I. 1996/2967, reg. 9(4) (with Pt. III) F69 S. 27(3A) omitted (1.12.1996) by virtue of S.I. 1996/2967, reg. 9(4) (with Pt. III) F70 Word substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I.

2011/1043), arts. 3, 6 F71 Words in s. 27(6) inserted (1.6.2014) by The Copyright and Rights in Performances (Research,

Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 2(b) F72 Words in s. 27(6) inserted (1.10.2014) by The Copyright and Rights in Performances (Personal

Copies for Private Use) Regulations 2014 (S.I. 2014/2361), regs. 1(1), 4(1) (with reg. 5) (but note that the amending S.I. was quashed with prospective effect by the High Court in the case of R (British Academy of Songwriters, Composers and Authors and others) v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin), 17 July 2015)

F73 Words in s. 27(6) substituted (1.6.2014) by The Copyright and Rights in Performances (Disability) Regulations 2014 (S.I. 2014/1384), reg. 1(1), Sch. para. 1(a)

F74 Words in s. 27(6) substituted (1.6.2014) by The Copyright and Rights in Performances (Disability) Regulations 2014 (S.I. 2014/1384), reg. 1(1), Sch. para. 1(b)

F75 Words in s. 27(6) omitted (1.6.2014) by virtue of The Copyright and Rights in Performances (Disability) Regulations 2014 (S.I. 2014/1384) , reg. 1(1) , Sch. para. 1(c)

F76 Words in s. 27(6) omitted (1.6.2014) by virtue of The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 2(a)

F77 Words in s. 27(6) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

F78 S. 27(6): entries substituted (31.10.2003) for word "or" appearing at end of entry for s. 68(4) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 20(3) (with regs. 31-40)

Marginal Citations M1 1972 c. 68.

CHAPTER III

ACTS PERMITTED IN RELATION TO COPYRIGHT WORKS

Modifications etc. (not altering text) C27 Pt. I Ch. III (ss. 28–76) amended by Broadcasting Act 1990 (c. 42, SIF 96), s. 176, Sch. 17 para. 7(1) C28 Pt. I Ch. III (ss. 28-76) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17(1)-(3)

(with Pt. III) C29 Pt. I Ch. III (ss. 28-76) continued (31.10.2003) by virtue of The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 33, (with regs. 31-40)

24 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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Introductory

28 Introductory provisions.

(1) The provisions of this Chapter specify acts which may be done in relation to copyright works notwithstanding the subsistence of copyright; they relate only to the question of infringement of copyright and do not affect any other right or obligation restricting the doing of any of the specified acts.

(2) Where it is provided by this Chapter that an act does not infringe copyright, or may be done without infringing copyright, and no particular description of copyright work is mentioned, the act in question does not infringe the copyright in a work of any description.

(3) No inference shall be drawn from the description of any act which may by virtue of this Chapter be done without infringing copyright as to the scope of the acts restricted by the copyright in any description of work.

(4) The provisions of this Chapter are to be construed independently of each other, so that the fact that an act does not fall within one provision does not mean that it is not covered by another provision.

General

[F7928A Making of temporary copies

Copyright in a literary work, other than a computer program or a database, or in a dramatic, musical or artistic work, the typographical arrangement of a published edition, a sound recording or a film, is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable—

(a) a transmission of the work in a network between third parties by an intermediary; or

(b) a lawful use of the work; and which has no independent economic significance.]

Textual Amendments F79 S. 28A inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498),

reg. 8(1) (with regs. 31-40)

[F8028B Personal copies for private use

(1) The making of a copy of a work, other than a computer program, by an individual does not infringe copyright in the work provided that the copy—

(a) is a copy of— (i) the individual’s own copy of the work, or

(ii) a personal copy of the work made by the individual, (b) is made for the individual’s private use, and (c) is made for ends which are neither directly nor indirectly commercial.

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(2) In this section “the individual’s own copy” is a copy which— (a) has been lawfully acquired by the individual on a permanent basis, (b) is not an infringing copy, and (c) has not been made under any provision of this Chapter which permits the

making of a copy without infringing copyright.

(3) In this section a “personal copy” means a copy made under this section.

(4) For the purposes of subsection (2)(a), a copy “lawfully acquired on a permanent basis”—

(a) includes a copy which has been purchased, obtained by way of a gift, or acquired by means of a download resulting from a purchase or a gift (other than a download of a kind mentioned in paragraph (b)); and

(b) does not include a copy which has been borrowed, rented, broadcast or streamed, or a copy which has been obtained by means of a download enabling no more than temporary access to the copy.

(5) In subsection (1)(b) “private use” includes private use facilitated by the making of a copy—

(a) as a back up copy, (b) for the purposes of format-shifting, or (c) for the purposes of storage, including in an electronic storage area accessed

by means of the internet or similar means which is accessible only by the individual (and the person responsible for the storage area).

(6) Copyright in a work is infringed if an individual transfers a personal copy of the work to another person (otherwise than on a private and temporary basis), except where the transfer is authorised by the copyright owner.

(7) If copyright is infringed as set out in subsection (6), a personal copy which has been transferred is for all purposes subsequently treated as an infringing copy.

(8) Copyright in a work is also infringed if an individual, having made a personal copy of the work, transfers the individual’s own copy of the work to another person (otherwise than on a private and temporary basis) and, after that transfer and without the licence of the copyright owner, retains any personal copy.

(9) If copyright is infringed as set out in subsection (8), any retained personal copy is for all purposes subsequently treated as an infringing copy.

(10) To the extent that a term of a contract purports to prevent or restrict the making of a copy which, by virtue of this section, would not infringe copyright, that term is unenforceable.]

Textual Amendments F80 S. 28B inserted (1.10.2014) by The Copyright and Rights in Performances (Personal Copies for Private

Use) Regulations 2014 (S.I. 2014/2361), regs. 1(1), 3(1) (with reg. 5) (but note that the amending S.I. was quashed with prospective effect by the High Court in the case of R (British Academy of Songwriters, Composers and Authors and others) v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin), 17 July 2015)

26 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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29 Research and private study.

[F81(1) Fair dealing with a F82... work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.]

[F83(1B) No acknowledgement is required in connection with fair dealing for the purposes mentioned in subsection (1) where this would be impossible for reasons of practicality or otherwise.

(1C) Fair dealing with a F84... work for the purposes of private study does not infringe any copyright in the work.]

F85(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Copying by a person other than the researcher or student himself is not fair dealing if— [F86(a) in the case of a librarian, or a person acting on behalf of a librarian, that

person does anything which is not permitted under section 42A (copying by librarians: single copies of published works), or]

(b) in any other case, the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose.

F87[( 4 ) It is not fair dealing— (a) to convert a computer program expressed in a low level language into a

version expressed in a higher level language, or (b) incidentally in the course of so converting the program, to copy it,

(these acts being permitted if done in accordance with section 50B (decompilation)).]

[F88(4A) It is not fair dealing to observe, study or test the functioning of a computer program in order to determine the ideas and principles which underlie any element of the program (these acts being permitted if done in accordance with section 50BA (observing, studying and testing)).]

[F89(4B) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.]

(5) F90. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F81 S. 29(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 9(a), (with regs 31-40) F82 Words in s. 29(1) omitted (1.6.2014) by virtue of The Copyright and Rights in Performances

(Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 3(1)(a) F83 S. 29(1B)(1C) substituted (31.10.2003) for s. 29(1A) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 9(b) (with regs. 31-40) F84 Words in s. 29(1C) omitted (1.6.2014) by virtue of The Copyright and Rights in Performances

(Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 3(1)(b) F85 S. 29(2) omitted (1.6.2014) by virtue of The Copyright and Rights in Performances (Research,

Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 3(1)(c) F86 S. 29(3)(a) substituted (1.6.2014) by The Copyright and Rights in Performances (Research, Education,

Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 3(1)(d)

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F87 S. 29(4) inserted (1.1.1993) by S.I. 1992/3233, reg. 7 F88 S. 29(4A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 9(d) (with regs. 31-40) F89 S. 29(4B) inserted (1.6.2014) by The Copyright and Rights in Performances (Research, Education,

Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 3(1)(e) F90 S. 29(5) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), regs. 2(2), 9(e), Sch. 2 (with regs. 31-40)

[F9129A Copies for text and data analysis for non-commercial research

(1) The making of a copy of a work by a person who has lawful access to the work does not infringe copyright in the work provided that—

(a) the copy is made in order that a person who has lawful access to the work may carry out a computational analysis of anything recorded in the work for the sole purpose of research for a non-commercial purpose, and

(b) the copy is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).

(2) Where a copy of a work has been made under this section, copyright in the work is infringed if—

(a) the copy is transferred to any other person, except where the transfer is authorised by the copyright owner, or

(b) the copy is used for any purpose other than that mentioned in subsection (1) (a), except where the use is authorised by the copyright owner.

(3) If a copy made under this section is subsequently dealt with— (a) it is to be treated as an infringing copy for the purposes of that dealing, and (b) if that dealing infringes copyright, it is to be treated as an infringing copy for

all subsequent purposes.

(4) In subsection (3) “dealt with” means sold or let for hire, or offered or exposed for sale or hire.

(5) To the extent that a term of a contract purports to prevent or restrict the making of a copy which, by virtue of this section, would not infringe copyright, that term is unenforceable.]

Textual Amendments F91 S. 29A inserted (1.6.2014) by The Copyright and Rights in Performances (Research, Education,

Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 3(2)

30 Criticism, review[F92, quotation] and news reporting.

(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement [F93 (unless this would be impossible for reasons of practicality or otherwise)][F94 and provided that the work has been made available to the public].

[F95(1ZA) Copyright in a work is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise) provided that—

28 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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(a) the work has been made available to the public, (b) the use of the quotation is fair dealing with the work, (c) the extent of the quotation is no more than is required by the specific purpose

for which it is used, and (d) the quotation is accompanied by a sufficient acknowledgement (unless this

would be impossible for reasons of practicality or otherwise).]

[F96(1A) For the purposes of [F97subsections (1) and (1ZA)] a work has been made available to the public if it has been made available by any means, including—

(a) the issue of copies to the public; (b) making the work available by means of an electronic retrieval system; (c) the rental or lending of copies of the work to the public; (d) the performance, exhibition, playing or showing of the work in public; (e) the communication to the public of the work,

but in determining generally for the purposes of [F98those subsections] whether a work has been made available to the public no account shall be taken of any unauthorised act.]

(2) Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement.

(3) No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film [F99 or broadcast where this would be impossible for reasons of practicality or otherwise].

[F100(4) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of subsection (1ZA), would not infringe copyright, that term is unenforceable.]

Textual Amendments F92 Word in s. 30 heading inserted (1.10.2014) by The Copyright and Rights in Performances (Quotation

and Parody) Regulations 2014 (S.I. 2014/2356), regs. 1, 3(2) F93 Words in s. 30(1) inserted (1.10.2014) by The Copyright and Rights in Performances (Quotation and

Parody) Regulations 2014 (S.I. 2014/2356), regs. 1, 3(3) F94 Words in s. 30(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 10(1)(a) (with regs. 31-40) F95 S. 30(1ZA) inserted (1.10.2014) by The Copyright and Rights in Performances (Quotation and Parody)

Regulations 2014 (S.I. 2014/2356), regs. 1, 3(4) F96 S. 30(1A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 10(1)(b) (with regs. 31-40) F97 Words in s. 30(1A) substituted (1.10.2014) by The Copyright and Rights in Performances (Quotation

and Parody) Regulations 2014 (S.I. 2014/2356), regs. 1, 3(5)(a) F98 Words in s. 30(1A) substituted (1.10.2014) by The Copyright and Rights in Performances (Quotation

and Parody) Regulations 2014 (S.I. 2014/2356), regs. 1, 3(5)(b) F99 Words in s. 30(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 10(1)(c) (with regs. 31-40) F100 S. 30(4) inserted (1.10.2014) by The Copyright and Rights in Performances (Quotation and Parody)

Regulations 2014 (S.I. 2014/2356), regs. 1, 3(6)

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[F10130A Caricature, parody or pastiche

(1) Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.

(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.]

Textual Amendments F101 S. 30A inserted (1.10.2014) by The Copyright and Rights in Performances (Quotation and Parody)

Regulations 2014 (S.I. 2014/2356), regs. 1, 5(1)

31 Incidental inclusion of copyright material.

(1) Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film [F102or broadcast].

(2) Nor is the copyright infringed by the issue to the public of copies, or the playing, showing [F103or communication to the public], of anything whose making was, by virtue of subsection (1), not an infringement of the copyright.

(3) A musical work, words spoken or sung with music, or so much of a sound recording [F102or broadcast] as includes a musical work or such words, shall not be regarded as incidentally included in another work if it is deliberately included.

Textual Amendments F102 Words in s. 31(1)(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(d)(e) (with regs. 31-40) F103 Words in s. 31(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(31.10.2003), reg. 2(1), {Sch. 1 para. 6(2)(b)} (with reg. 31-40)

[F104Disability]

Textual Amendments F104 S. 31A cross-heading substituted (1.6.2014) by The Copyright and Rights in Performances (Disability)

Regulations 2014 (S.I. 2014/1384), regs. 1(1), 2(2)

[F10531ADisabled persons: copies of works for personal use

(1) This section applies if— (a) a disabled person has lawful [F106access to] a copy of the whole or part of a

work, and (b) the person’s disability prevents the person from enjoying the work to

[F107substantially] the same degree as a person who does not have that disability.

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(2) The making of an accessible copy of the copy of the work referred to in subsection (1) (a) does not infringe copyright if—

(a) the copy is made by the disabled person [F108and] or by a person acting on behalf of the disabled person,

(b) the copy is made for the disabled person’s personal use F109... F110(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F111(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Copyright is infringed by the transfer of an accessible copy of a work made under this section to any person other than—

(a) a person by or for whom an accessible copy of the work may be made under this section, or

(b) a person who intends to transfer the copy to a person falling within paragraph (a),

except where the transfer is authorised by the copyright owner.

(5) An accessible copy of a work made under this section is to be treated for all purposes as an infringing copy if it is held by a person at a time when the person does not fall within subsection (4)(a) or (b).

(6) If an accessible copy made under this section is subsequently dealt with— (a) it is to be treated as an infringing copy for the purposes of that dealing, and (b) if that dealing infringes copyright, it is to be treated as an infringing copy for

all subsequent purposes.

(7) In this section “dealt with” means sold or let for hire or offered or exposed for sale or hire.]

Textual Amendments F105 S. 31A substituted (1.6.2014) by The Copyright and Rights in Performances (Disability) Regulations

2014 (S.I. 2014/1384), regs. 1(1), 2(3) F106 Words in s. 31A(1)(a) substituted (11.10.2018) by The Copyright and Related Rights (Marrakesh

Treaty etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 4(2)(a) F107 Word in s. 31A(1)(b) inserted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 4(2)(b) F108 Word in s. 31A(2)(a) inserted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 4(3)(a) F109 Word in s. 31A(2)(b) omitted (11.10.2018) by virtue of The Copyright and Related Rights (Marrakesh

Treaty etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 4(3)(b) F110 S. 31A(2)(c) omitted (11.10.2018) by virtue of The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 4(3)(c) F111 S. 31A(3) omitted (11.10.2018) by virtue of The Copyright and Related Rights (Marrakesh Treaty etc.)

(Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 4(4)

[F11231BMaking [F113, communicating, making available, distributing or lending] of accessible copies by authorised bodies

[F114(1) If—

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(a) an authorised body has lawful access to the whole or part of a work which has been published or otherwise made available, and

(b) the body complies with subsection (1A), the body may, without infringing copyright, make, communicate, make available, distribute or lend accessible copies of the work on a non-profit basis for the personal use of disabled persons in the United Kingdom or another member State of the European Union.

(1A) An authorised body complies with this subsection if it— (a) distributes, communicates, makes available or lends accessible copies only to

disabled persons or other authorised bodies, (b) takes appropriate steps to discourage the unauthorised reproduction,

distribution, communication to the public or making available to the public of accessible copies,

(c) demonstrates due care in, and maintains records of, its handling of works and accessible copies, and

(d) publishes and updates, on its website if appropriate, or through other online or offline channels, information on how it complies with the obligations in paragraphs (a), (b) and (c).]

F115(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F115(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F115(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) For the purposes of [F116subsection (1)], [F117to communicate, make available, distribute or lend] “for the personal use of disabled persons” [F118includes to communicate, make available, distribute or lend] to a person acting on behalf of a disabled person.

F119(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F119(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F119(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) An authorised body which has made an accessible copy of a work under this section may [F120communicate, make available, distribute or lend] it to another authorised body [F121established in the United Kingdom or another member State of the European Union] which is entitled to make accessible copies of the work under this section for the purposes of enabling that other body to make accessible copies of the work.

F122(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) If an accessible copy made under this section is subsequently dealt with— (a) it is to be treated as an infringing copy for the purposes of that dealing, and (b) if that dealing infringes copyright, it is to be treated as an infringing copy for

all subsequent purposes.

(12) In this section “dealt with” means sold or let for hire or offered or exposed for sale or hire.

32 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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Textual Amendments F112 Ss. 31B, 31BA, 31BB substituted (1.6.2014) for s. 31B by The Copyright and Rights in Performances

(Disability) Regulations 2014 (S.I. 2014/1384), regs. 1(1), 2(4) F113 Words in s. 31B heading substituted (11.10.2018) by The Copyright and Related Rights (Marrakesh

Treaty etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 5(2) F114 S. 31B(1)(1A) substituted for s. 31B(1) (11.10.2018) by The Copyright and Related Rights (Marrakesh

Treaty etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 5(3) F115 S. 31B(2)-(4) omitted (11.10.2018) by virtue of The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 5(4) F116 Words in s. 31B(5) substituted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 5(5)(a) F117 Words in s. 31B(5) substituted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 5(5)(b) F118 Words in s. 31B(5) substituted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 5(5)(c) F119 S. 31B(6)-(8) omitted (11.10.2018) by virtue of The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 5(6) F120 Words in s. 31B(9) substituted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 5(7)(a) F121 Words in s. 31B(9) inserted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty etc.)

(Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 5(7)(b) F122 S. 31B(10) omitted (11.10.2018) by virtue of The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 5(8)

31BA Making [F123, communicating, making available, distributing or lending] of intermediate copies by authorised bodies

(1) An authorised body which is entitled to make an accessible copy of a work under section 31B may, without infringing copyright, make a copy of the work (“an intermediate copy”) if this is necessary in order to make the accessible copy.

(2) An authorised body which has made an intermediate copy of a work under this section may [F124communicate, make available, distribute or lend it on a non-profit basis] to another authorised body which is entitled to make accessible copies of the work under section 31B for the purposes of enabling that other body to make accessible copies of the work.

(3) Copyright is infringed by the transfer of an intermediate copy made under this section to a person other than another authorised body as permitted by subsection (2), except where the transfer is authorised by the copyright owner.

(4) F125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F112 Ss. 31B, 31BA, 31BB substituted (1.6.2014) for s. 31B by The Copyright and Rights in Performances

(Disability) Regulations 2014 (S.I. 2014/1384), regs. 1(1), 2(4) F123 Words in s. 31BA heading substituted (11.10.2018) by The Copyright and Related Rights (Marrakesh

Treaty etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 6(2) F124 Words in s. 31BA(2) substituted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 6(3)

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F125 S. 31BA(4) omitted (11.10.2018) by virtue of The Copyright and Related Rights (Marrakesh Treaty etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 6(4)

31BB Accessible and intermediate copies: records and notification

(1) [F126A person listed in subsection (3) may request an authorised body— (a) making accessible copies under section 31B, or (b) making intermediate copies under section 31BA,

to provide the person with the information in subsection (4).

(2) On receipt of a request under subsection (1), an authorised body must provide the information to the person in an accessible way within a reasonable time.

(3) The persons who may make a request under subsection (1) are— (a) disabled person; (b) another authorised body; (c) rightholders.

(4) The information that must be provided by the authorised body is— (a) the list of works for which it has accessible copies and the available formats,

and (b) the name and contact details of any authorised body established in another

member State of the European Union from which, or to which, it has imported, exported or accessed an accessible copy.]]

Textual Amendments F112 Ss. 31B, 31BA, 31BB substituted (1.6.2014) for s. 31B by The Copyright and Rights in Performances

(Disability) Regulations 2014 (S.I. 2014/1384), regs. 1(1), 2(4) F126 S. 31BB(1)-(4) substituted for s. 31BB(1)-(3) (11.10.2018) by The Copyright and Related Rights

(Marrakesh Treaty etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 7

F12731C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F127 Ss. 31C-31E repealed (1.6.2014) by The Copyright and Rights in Performances (Disability)

Regulations 2014 (S.I. 2014/1384), reg. 1(1), Sch. para. 8 Table

F12731D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F127 Ss. 31C-31E repealed (1.6.2014) by The Copyright and Rights in Performances (Disability)

Regulations 2014 (S.I. 2014/1384), reg. 1(1), Sch. para. 8 Table

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F12731E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F127 Ss. 31C-31E repealed (1.6.2014) by The Copyright and Rights in Performances (Disability)

Regulations 2014 (S.I. 2014/1384), reg. 1(1), Sch. para. 8 Table

[F12831FSections 31A to 31BB: interpretation and general

(1) This section supplements sections 31A to 31BB and includes definitions.

(2) “Disabled person” means a person who has a physical or mental impairment which prevents the person from enjoying a copyright work to [F129substantially] the same degree as a person who does not have that impairment, and “disability” is to be construed accordingly.

(3) But a person is not to be regarded as disabled by reason only of an impairment of visual function which can be improved, [F130for example] by the use of corrective lenses, to a level that is normally acceptable for reading without a special level or kind of light.

(4) An “accessible copy” of a copyright work means a version of the work which enables [F131disabled persons to access the work, including accessing it as feasibly and comfortably as a person who is not a disabled person].

(5) An accessible copy— (a) may include facilities for navigating around the version of the work, but (b) must not include any changes to the work which are not necessary to overcome

the problems suffered by the disabled persons for whom the accessible copy is intended.

(6) “Authorised body” means— (a) an educational establishment, or (b) a body that is not conducted for profit.

F132(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of section [F13327,] 31A, 31B or 31BA, would not infringe copyright, that term is unenforceable.]

Textual Amendments F128 S. 31F substituted (1.6.2014) by The Copyright and Rights in Performances (Disability) Regulations

2014 (S.I. 2014/1384), regs. 1(1), 2(5) (with Sch. para. 9) F129 Word in s. 31F(2) inserted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty etc.)

(Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 8(2) F130 Words in s. 31F(3) inserted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty etc.)

(Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 8(3) F131 Words in s. 31F(4) substituted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 8(4) F132 S. 31F(7) omitted (11.10.2018) by virtue of The Copyright and Related Rights (Marrakesh Treaty etc.)

(Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 8(5)

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F133 Word in s. 31F(8) inserted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 8(6)

Education

[F13432 Illustration for instruction

(1) Fair dealing with a work for the sole purpose of illustration for instruction does not infringe copyright in the work provided that the dealing is—

(a) for a non-commercial purpose, (b) by a person giving or receiving instruction (or preparing for giving or

receiving instruction), and (c) accompanied by a sufficient acknowledgement (unless this would be

impossible for reasons of practicality or otherwise).

(2) For the purposes of subsection (1), “giving or receiving instruction” includes setting examination questions, communicating the questions to pupils and answering the questions.

(3) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.]

Textual Amendments F134 S. 32 substituted (1.6.2014) by The Copyright and Rights in Performances (Research, Education,

Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 4(1)

33 Anthologies for educational use.

(1) The inclusion of a short passage from a published literary or dramatic work in a collection which—

(a) is intended for use in educational establishments and is so described in its title, and in any advertisements issued by or on behalf of the publisher, and

(b) consists mainly of material in which no copyright subsists, does not infringe the copyright in the work if the work itself is not intended for use in such establishments and the inclusion is accompanied by a sufficient acknowledgement.

(2) Subsection (1) does not authorise the inclusion of more than two excerpts from copyright 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.

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(4) References in this section to the use of a work in an educational establishment are to any use for the educational purposes of such an establishment.

34 Performing, playing or showing work in course of activities of educational establishment.

(1) The performance of a literary, dramatic or musical work before an audience consisting of teachers and pupils at an educational establishment and other persons directly connected with the activities of the establishment—

(a) by a teacher or pupil in the course of the activities of the establishment, or (b) at the establishment by any person for the purposes of instruction,

is not a public performance for the purposes of infringement of copyright.

(2) The playing or showing of a sound recording, film [F135or broadcast] before such an audience at an educational establishment for the purposes of instruction is not a playing or showing of the work in public for the purposes of infringement of copyright.

(3) A person is not for this purpose directly connected with the activities of the educational establishment simply because he is the parent of a pupil at the establishment.

Textual Amendments F135 Words in s. 34(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(f) (with regs. 31-40)

[F13635 Recording by educational establishments of broadcasts

(1) A recording of a broadcast, 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 infringing copyright in the broadcast, or in any work included in it, provided that—

(a) the educational purposes are non-commercial, and (b) the recording or copy is accompanied by a sufficient acknowledgement

(unless this would be impossible for reasons of practicality or otherwise).

(2) Copyright is not infringed where a recording of a broadcast or a copy of such a recording, made under subsection (1), is communicated by or on behalf of the educational establishment to its pupils or staff for the non-commercial educational purposes of that establishment.

(3) Subsection (2) only applies to a communication received outside the premises of the establishment if that communication is made by means of a secure electronic network accessible only by the establishment’s pupils and staff.

(4) Acts which would otherwise be permitted by this section are not permitted if, or to the extent that, licences are available authorising the acts in question and the educational establishment responsible for those acts knew or ought to have been aware of that fact.

(5) If a copy made under this section is subsequently dealt with— (a) it is to be treated as an infringing copy for the purposes of that dealing, and (b) if that dealing infringes copyright, it is to be treated as an infringing copy for

all subsequent purposes.

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(6) In this section “dealt with” means— (a) sold or let for hire, (b) offered or exposed for sale or hire, or (c) communicated otherwise than as permitted by subsection (2).]

Textual Amendments F136 S. 35 substituted (1.6.2014) by The Copyright and Rights in Performances (Research, Education,

Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 4(2)

[F13736 Copying and use of extracts of works by educational establishments

(1) The copying of extracts of a relevant work by or on behalf of an educational establishment does not infringe copyright in the work, provided that—

(a) the copy is made for the purposes of instruction for a non-commercial purpose, and

(b) the copy is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).

(2) Copyright is not infringed where a copy of an extract made under subsection (1) is communicated by or on behalf of the educational establishment to its pupils or staff for the purposes of instruction for a non-commercial purpose.

(3) Subsection (2) only applies to a communication received outside the premises of the establishment if that communication is made by means of a secure electronic network accessible only by the establishment’s pupils and staff.

(4) In this section “relevant work” means a copyright work other than— (a) a broadcast, or (b) an artistic work which is not incorporated into another work.

(5) Not more than 5% of a work may be copied under this section by or on behalf of an educational establishment in any period of 12 months, and for these purposes a work which incorporates another work is to be treated as a single work.

(6) Acts which would otherwise be permitted by this section are not permitted if, or to the extent that, licences are available authorising the acts in question and the educational establishment responsible for those acts knew or ought to have been aware of that fact.

(7) The terms of a licence granted to an educational establishment authorising acts permitted by this section are of no effect so far as they purport to restrict the proportion of a work which may be copied (whether on payment or free of charge) to less than that which would be permitted by this section.

(8) If a copy made under this section is subsequently dealt with— (a) it is to be treated as an infringing copy for the purposes of that dealing, and (b) if that dealing infringes copyright, it is to be treated as an infringing copy for

all subsequent purposes.

(9) In this section “dealt with” means— (a) sold or let for hire, (b) offered or exposed for sale or hire, or

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(c) communicated otherwise than as permitted by subsection (2).]

Textual Amendments F137 S. 36 substituted (1.6.2014) by The Copyright and Rights in Performances (Research, Education,

Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 4(3)

[F13836A Lending of copies by educational establishments

Copyright in a work is not infringed by the lending of copies of the work by an educational establishment.]

Textual Amendments F138 S. 36A inserted (1.12.1996) by S.I. 1996/2967, reg. 11(1) (with Pt. III)

Libraries and archives

F13937 Libraries and archives: introductory.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F139 Ss. 37-40 repealed (1.6.2014) by The Copyright and Rights in Performances (Research, Education,

Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 14 Table

F13938 Copying by librarians: articles in periodicals.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F139 Ss. 37-40 repealed (1.6.2014) by The Copyright and Rights in Performances (Research, Education,

Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 14 Table

F13939 Copying by librarians: parts of published works.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F139 Ss. 37-40 repealed (1.6.2014) by The Copyright and Rights in Performances (Research, Education,

Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 14 Table

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appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

F13940 Restriction on production of multiple copies of the same material.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F139 Ss. 37-40 repealed (1.6.2014) by The Copyright and Rights in Performances (Research, Education,

Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 14 Table

[F14040A Lending of copies by libraries or archives.

[F141(1) Copyright in a work of any description is not infringed by the following acts by a public library in relation to a book within the public lending right scheme—

(a) lending the book; (b) in relation to an audio-book or e-book, copying or issuing a copy of the book

as an act incidental to lending it.

[F142(1ZA) Subsection (1) applies to an e-book or an e-audio-book only if— (a) the book has been lawfully acquired by the library, and (b) the lending is in compliance with any purchase or licensing terms to which

the book is subject.]

(1A) In [F143subsections (1) and (1ZA)] — (a) “ book ”, “ audio-book ” and “ e-book ” have the meanings given in section 5

of the Public Lending Right Act 1979, [F144(aa) “e-audio-book” means an audio-book (as defined in paragraph (a)) in a form

enabling lending of the book by electronic transmission,] (b) “ the public lending right scheme ” means the scheme in force under section 1

of that Act, (c) a book is within the public lending right scheme if it is a book within the

meaning of the provisions of the scheme relating to eligibility, whether or not it is in fact eligible, and

(d) “ lending ” is to be read in accordance with the definition of “lent out” in section 5 of that Act (and section 18A of this Act does not apply). ]

( 2 ) Copyright in a work is not infringed by the lending of copies of the work by a F145 ...library or archive (other than a public library) which is not conducted for profit. ]

Textual Amendments F140 S. 40A inserted (1.12.1996) by S.I. 1996/2967, reg. 11(2) (with Pt. III) F141 S. 40A(1)(1A) substituted (30.6.2014) for s. 40A(1) by Digital Economy Act 2010 (c. 24), ss. 43(7),

47(3)(d); S.I. 2014/1659, art. 2 F142 S. 40A(1ZA) inserted (30.6.2018 for E.W.S.) by Digital Economy Act 2017 (c. 30), ss. 31(3), 118(6);

S.I. 2018/690, reg. 2 F143 Words in s. 40A(1A) substituted (30.6.2018 for E.W.S.) by Digital Economy Act 2017 (c. 30), ss.

31(4)(a), 118(6); S.I. 2018/690, reg. 2 F144 S. 40A(1A)(aa) inserted (30.6.2018 for E.W.S.) by Digital Economy Act 2017 (c. 30), ss. 31(4)(b),

118(6); S.I. 2018/690, reg. 2 F145 Word in s. 40A(2) omitted (1.6.2014) by virtue of The Copyright and Rights in Performances

(Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 3

40 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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Modifications etc. (not altering text) C30 S. 40A(2) modified (1.12.1996) by S.I. 1996/2967, reg. 35 (with Pt. III)

[F14640B Libraries and educational establishments etc : making works available through dedicated terminals

(1) Copyright in a work is not infringed by an institution specified in subsection (2) communicating the work to the public or making it available to the public by means of a dedicated terminal on its premises, if the conditions in subsection (3) are met.

(2) The institutions are— (a) a library, (b) an archive, (c) a museum, and (d) an educational establishment.

(3) The conditions are that the work or a copy of the work— (a) has been lawfully acquired by the institution, (b) is communicated or made available to individual members of the public for

the purposes of research or private study, and (c) is communicated or made available in compliance with any purchase or

licensing terms to which the work is subject.]

Textual Amendments F146 S. 40B inserted (1.6.2014) by The Copyright and Rights in Performances (Research, Education,

Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 5(1)

[F14741 Copying by librarians: supply of single copies to other libraries

(1) A librarian may, if the conditions in subsection (2) are met, make a single copy of the whole or part of a published work and supply it to another library, without infringing copyright in the work.

(2) The conditions are— (a) the copy is supplied in response to a request from a library which is not

conducted for profit, and (b) at the time of making the copy the librarian does not know, or could not

reasonably find out, the name and address of a person entitled to authorise the making of a copy of the work.

(3) The condition in subsection (2)(b) does not apply where the request is for a copy of an article in a periodical.

(4) Where a library makes a charge for supplying a copy under this section, the sum charged must be calculated by reference to the costs attributable to the production of the copy.

(5) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.

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Textual Amendments F147 Ss. 41-43A substituted (1.6.2014) for ss. 41-43 by The Copyright and Rights in Performances

(Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 5(2)

42 Copying by librarians etc : replacement copies of works

(1) A librarian, archivist or curator of a library, archive or museum may, without infringing copyright, make a copy of an item in that institution’s permanent collection—

(a) in order to preserve or replace that item in that collection, or (b) where an item in the permanent collection of another library, archive or

museum has been lost, destroyed or damaged, in order to replace the item in the collection of that other library, archive or museum,

provided that the conditions in subsections (2) and (3) are met.

(2) The first condition is that the item is— (a) included in the part of the collection kept wholly or mainly for the purposes

of reference on the institution’s premises, (b) included in a part of the collection not accessible to the public, or (c) available on loan only to other libraries, archives or museums.

(3) The second condition is that it is not reasonably practicable to purchase a copy of the item to achieve either of the purposes mentioned in subsection (1).

(4) The reference in subsection (1)(b) to a library, archive or museum is to a library, archive or museum which is not conducted for profit.

(5) Where an institution makes a charge for supplying a copy to another library, archive or museum under subsection (1)(b), the sum charged must be calculated by reference to the costs attributable to the production of the copy.

(6) In this section “item” means a work or a copy of a work.

(7) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.

Textual Amendments F147 Ss. 41-43A substituted (1.6.2014) for ss. 41-43 by The Copyright and Rights in Performances

(Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 5(2)

42A Copying by librarians: single copies of published works

(1) A librarian of a library which is not conducted for profit may, if the conditions in subsection (2) are met, make and supply a single copy of—

(a) one article in any one issue of a periodical, or (b) a reasonable proportion of any other published work,

without infringing copyright in the work.

(2) The conditions are—

42 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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(a) the copy is supplied in response to a request from a person who has provided the librarian with a declaration in writing which includes the information set out in subsection (3), and

(b) the librarian is not aware that the declaration is false in a material particular.

(3) The information which must be included in the declaration is— (a) the name of the person who requires the copy and the material which that

person requires, (b) a statement that the person has not previously been supplied with a copy of

that material by any library, (c) a statement that the person requires the copy for the purposes of research for

a non-commercial purpose or private study, will use it only for those purposes and will not supply the copy to any other person, and

(d) a statement that to the best of the person’s knowledge, no other person with whom the person works or studies has made, or intends to make, at or about the same time as the person’s request, a request for substantially the same material for substantially the same purpose.

(4) Where a library makes a charge for supplying a copy under this section, the sum charged must be calculated by reference to the costs attributable to the production of the copy.

(5) Where a person (“P”) makes a declaration under this section that is false in a material particular and is supplied with a copy which would have been an infringing copy if made by P—

(a) P is liable for infringement of copyright as if P had made the copy, and (b) the copy supplied to P is to be treated as an infringing copy for all purposes.

(6) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.

Textual Amendments F147 Ss. 41-43A substituted (1.6.2014) for ss. 41-43 by The Copyright and Rights in Performances

(Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 5(2)

43 Copying by librarians or archivists: single copies of unpublished works

(1) A librarian or archivist may make and supply a single copy of the whole or part of a work without infringing copyright in the work, provided that—

(a) the copy is supplied in response to a request from a person who has provided the librarian or archivist with a declaration in writing which includes the information set out in subsection (2), and

(b) the librarian or archivist is not aware that the declaration is false in a material particular.

(2) The information which must be included in the declaration is— (a) the name of the person who requires the copy and the material which that

person requires,

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(b) a statement that the person has not previously been supplied with a copy of that material by any library or archive, and

(c) a statement that the person requires the copy for the purposes of research for a non-commercial purpose or private study, will use it only for those purposes and will not supply the copy to any other person.

(3) But copyright is infringed if— (a) the work had been published or communicated to the public before the date

it was deposited in the library or archive, or (b) the copyright owner has prohibited the copying of the work,

and at the time of making the copy the librarian or archivist is, or ought to be, aware of that fact.

(4) Where a library or archive makes a charge for supplying a copy under this section, the sum charged must be calculated by reference to the costs attributable to the production of the copy.

(5) Where a person (“P”) makes a declaration under this section that is false in a material particular and is supplied with a copy which would have been an infringing copy if made by P—

(a) P is liable for infringement of copyright as if P had made the copy, and (b) the copy supplied to P is to be treated as an infringing copy for all purposes.

Textual Amendments F147 Ss. 41-43A substituted (1.6.2014) for ss. 41-43 by The Copyright and Rights in Performances

(Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 5(2)

43A Sections 40A to 43: interpretation

(1) The following definitions have effect for the purposes of sections 40A to 43.

(2) “Library” means— (a) a library which is publicly accessible, or (b) a library of an educational establishment.

(3) “Museum” includes a gallery.

(4) “Conducted for profit”, in relation to a library, archive or museum, means a body of that kind which is established or conducted for profit or which forms part of, or is administered by, a body established or conducted for profit.

(5) References to a librarian, archivist or curator include a person acting on behalf of a librarian, archivist or curator.]

Textual Amendments F147 Ss. 41-43A substituted (1.6.2014) for ss. 41-43 by The Copyright and Rights in Performances

(Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 5(2)

44 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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44 Copy of work required to be made as condition of export.

If an article of cultural or historical importance or interest cannot lawfully be exported from the United Kingdom unless a copy of it is made and deposited in an appropriate library or archive, it is not an infringement of copyright to make that copy.

[F14844A Legal deposit libraries

(1) Copyright is not infringed by the copying of a work from the internet by a deposit library or person acting on its behalf if—

(a) the work is of a description prescribed by regulations under section 10(5) of the 2003 Act,

(b) its publication on the internet, or a person publishing it there, is connected with the United Kingdom in a manner so prescribed, and

(c) the copying is done in accordance with any conditions so prescribed.

(2) Copyright is not infringed by the doing of anything in relation to relevant material permitted to be done under regulations under section 7 of the 2003 Act.

(3) The Secretary of State may by regulations make provision excluding, in relation to prescribed activities done in relation to relevant material, the application of such of the provisions of this Chapter as are prescribed.

(4) Regulations under subsection (3) may in particular make provision prescribing activities—

(a) done for a prescribed purpose, (b) done by prescribed descriptions of reader, (c) done in relation to prescribed descriptions of relevant material, (d) done other than in accordance with prescribed conditions.

(5) Regulations under this section may make different provision for different purposes.

(6) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) In this section— (a) “ the 2003 Act ” means the Legal Deposit Libraries Act 2003; (b) “ deposit library ”, “ reader ” and “ relevant material ” have the same meaning

as in section 7 of the 2003 Act; (c) “ prescribed ” means prescribed by regulations made by the Secretary of State.

]

Textual Amendments F148 S. 44A inserted (1.2.2004) by Legal Deposit Libraries Act 2003 (c. 28), ss. 8(1), 16(1) (with s. 16(4));

S.I. 2004/130, art. 2

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[F149Orphan works

Textual Amendments F149 S. 44B and cross-heading inserted (29.10.2014) by The Copyright and Rights in Performances (Certain

Permitted Uses of Orphan Works) Regulations 2014 (S.I. 2014/2861), regs. 1, 3(1)

44B Permitted uses of orphan works

(1) Copyright in an orphan work is not infringed by a relevant body in the circumstances set out in paragraph 1(1) of Schedule ZA1 (subject to paragraph 6 of that Schedule).

(2) “Orphan work” and “relevant body” have the meanings given by that Schedule.]

Public administration

45 Parliamentary and judicial proceedings.

(1) Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings.

(2) Copyright is not infringed by anything done for the purposes of reporting such proceedings; but this shall not be construed as authorising the copying of a work which is itself a published report of the proceedings.

46 Royal Commissions and statutory inquiries.

(1) Copyright is not infringed by anything done for the purposes of the proceedings of a Royal Commission or statutory inquiry.

(2) Copyright is not infringed by anything done for the purpose of reporting any such proceedings held in public; but this shall not be construed as authorising the copying of a work which is itself a published report of the proceedings.

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

(4) In this section— “Royal Commission” includes a Commission appointed for Northern

Ireland by the Secretary of State in pursuance of the prerogative powers of Her Majesty delegated to him under section 7(2) of the M2Northern Ireland Constitution Act 1973; and

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

Marginal Citations M2 1973 c. 36.

46 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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47 Material open to public inspection or on official register.

(1) Where material is open to public inspection pursuant to a statutory requirement, or is on a statutory register, any copyright in the material as a literary work is not infringed by the copying of so much of the material as contains factual information of any description, by or with the authority of the appropriate person, for a purpose which does not involve the issuing of copies to the public.

[F150(2) Where material is open to public inspection pursuant to a statutory requirement, copyright in the material is not infringed by an act to which subsection (3A) applies provided that—

(a) the act is done by or with the authority of the appropriate person, (b) the purpose of the act is—

(i) to enable the material to be inspected at a more convenient time or place, or

(ii) to otherwise facilitate the exercise of any right for the purpose of which the statutory requirement is imposed, and

(c) in the case of the act specified in subsection (3A)(c), the material is not commercially available to the public by or with the authority of the copyright owner.

(3) Where material which contains information about matters of general scientific, technical, commercial or economic interest is on a statutory register or is open to public inspection pursuant to a statutory requirement, copyright in the material is not infringed by an act to which subsection (3A) applies provided that—

(a) the act is done by or with the authority of the appropriate person, (b) the purpose of the act is to disseminate that information, and (c) in the case of the act specified in subsection (3A)(c), the material is not

commercially available to the public by or with the authority of the copyright owner.

(3A) This subsection applies to any of the following acts— (a) copying the material, (b) issuing copies of the material to the public, and (c) making the material (or a copy of it) available to the public by electronic

transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.]

(4) The Secretary of State may by order provide that subsection (1), (2) or (3) shall, in such cases as may be specified in the order, apply only to copies marked in such manner as may be so specified.

(5) The Secretary of State may by order provide that subsections (1) to (3) apply, to such extent and with such modifications as may be specified in the order—

(a) to material made open to public inspection by— (i) an international organisation specified in the order, or

(ii) a person so specified who has functions in the United Kingdom under an international agreement to which the United Kingdom is party, or

(b) to a register maintained by an international organisation specified in the order, as they apply in relation to material open to public inspection pursuant to a statutory requirement or to a statutory register.

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(6) In this section— “appropriate person” means the person required to make the material open

to public inspection or, as the case may be, the person maintaining the register; “statutory register” means a register maintained in pursuance of a statutory

requirement; and “statutory requirement” means a requirement imposed by provision made

by or under an enactment.

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

Textual Amendments F150 S. 47(2)-(3A) substituted for s. 47(2)(3) (1.6.2014) by The Copyright (Public Administration)

Regulations 2014 (S.I. 2014/1385), regs. 1, 2(1)

Modifications etc. (not altering text) C31 S. 47(1) extended with modifications by S.I. 1989/1098, art. 2 C32 S. 47(6) modified (1.3.2010) by The Scottish Register of Tartans Act 2008 (Consequential

Modifications) Order 2010 (S.I. 2010/180), art. 2(2) (with art. 2(4)) C33 S. 47(6) modified (26.2.2015) by The Regulatory Reform (Scotland) Act 2014 (Consequential

Modifications) Order 2015 (S.I. 2015/374), arts. 1(1), 3(3) (with art. 3(4))

48 Material communicated to the Crown in the course of public business.

(1) This section applies where a literary, dramatic, musical or artistic work has in the course of public business been communicated to the Crown for any purpose, by or with the licence of the copyright owner and a document or other material thing recording or embodying the work is owned by or in the custody or control of the Crown.

[F151(2) The Crown may, without infringing copyright in the work, do an act specified in subsection (3) provided that—

(a) the act is done for the purpose for which the work was communicated to the Crown, or any related purpose which could reasonably have been anticipated by the copyright owner, and

(b) the work has not been previously published otherwise than by virtue of this section.]

[F151(3) The acts referred to in subsection (2) are— (a) copying the work, (b) issuing copies of the work to the public, and (c) making the work (or a copy of it) available to the public by electronic

transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.]

(4) In subsection (1) “public business” includes any activity carried on by the Crown.

(5) This section has effect subject to any agreement to the contrary between the Crown and the copyright owner.

[F152(6) In this section “the Crown” includes a health service body, as defined in section 60(7) of the National Health Service and Community Care Act 1990, [F153the National

48 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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Health Service Commissioning Board, a clinical commissioning group established under section 14D of the National Health Service Act 2006,]F154... , the Care Quality Commission [F155, Health Education England ][F156, the Health Research Authority] and a National Health Service trust established under [F157 section 25 of the National Health Service Act 2006, section 18 of the National Health Service (Wales) Act 2006 ] or the National Health Service (Scotland) Act 1978 [F158 and an NHS foundation trust ][F159 and also includes a health and social services body, as defined in Article 7(6) of the Health and Personal Social Services (Northern Ireland) Order 1991, and a Health and Social Services trust established under that Order ], and the reference in subsection (1) above to public business shall be construed accordingly. ]

Textual Amendments F151 S. 48(2)(3) substituted (1.6.2014) by The Copyright (Public Administration) Regulations 2014 (S.I.

2014/1385), regs. 1, 2(2) F152 S. 48(6) added by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 60(2),

Sch. 8 para. 3 F153 Words in s. 48(6) inserted (1.10.2012) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5

para. 44(a); S.I. 2012/1831, art. 2(2) F154 Words in s. 48(6) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4),

Sch. 5 para. 44(b); S.I. 2013/160, art. 2(2) (with arts. 7-9) F155 Words in s. 48(6) inserted (1.4.2015) by Care Act 2014 (c. 23), s. 127(1), Sch. 5 para. 33; S.I.

2014/3186, art. 2(f) F156 Words in s. 48(6) inserted (1.1.2015) by Care Act 2014 (c. 23), s. 127(1), Sch. 7 para. 25; S.I.

2014/2473, art. 5(m) F157 Words in s. 48(6) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act

2006 (c. 43), ss. 2, 8, Sch. 1 para. 112(b) (with s. 5, Sch. 3 Pt. 1) F158 Words in s. 48(6) inserted (1.4.2004) by Health and Social Care (Community Health and Standards)

Act 2003 (c. 43), ss. 34, 199(1), Sch. 4 para. 72; S.I. 2004/759, art. 2 F159 Words in s. 48(6) inserted (1.4.1992) by S.I. 1991/194, art. 7(2), Sch. 2 Pt. I para. 3; S.R. 1991/131,

art. 2(e), Sch. Pt. III

Modifications etc. (not altering text) C34 S. 48: functions made exercisable by Local Health Boards (E.W.) (1.10.2009) by The Local Health

Boards (Directed Functions) (Wales) Regulations 2009 (S.I. 2009/1511), reg. 4, Sch. (subject to reg. 5) C35 S. 48(6) modified (temp. from 1.10.2008) by The Health and Social Care Act 2008 (Consequential

Amendments and Transitory Provisions) Order 2008 (S.I. 2008/2250), art. 3(3)

49 Public records.

Material which is comprised in public records within the meaning of the M3Public Records Act 1958, the M4Public Records (Scotland) Act 1937 or the M5Public Records Act (Northern Ireland) 1923 [F160, or in Welsh public records (as defined in the [F161the Government of Wales Act 2006]),] which are open to public inspection in pursuance of that Act, may be copied, and a copy may be supplied to any person, by or with the authority of any officer appointed under that Act, without infringement of copyright.

Textual Amendments F160 Words in s. 49 inserted (1.4.1999) by 1998 c. 38, s. 125, Sch. 12 para. 27 (with ss. 139(2), 143(2));

S.I. 1999/782, art. 2

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F161 Words in s. 49 substituted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 24 (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

Marginal Citations M3 1958 c. 51. M4 1937 c. 43. M5 1923 c. 20 (N.I.).

50 Acts done under statutory authority.

(1) Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe copyright.

(2) Subsection (1) applies in relation to an enactment contained in Northern Ireland legislation as it applies in relation to an Act of Parliament.

(3) Nothing in this section shall be construed as excluding any defence of statutory authority otherwise available under or by virtue of any enactment.

Modifications etc. (not altering text) C36 S. 50 applied by Freedom of Information Act 2000 (c. 36), s. 80(3) (as added (1.1.2005) by The

Freedom of Information (Scotland) Act 2002 (Consequential Modifications) Order 2004 (S.I. 2004/3089), art. 3(2))

C37 S. 50(1) modified (1.3.2010) by The Scottish Register of Tartans Act 2008 (Consequential Modifications) Order 2010 (S.I. 2010/180), art. 2(3) (with art. 2(4))

C38 S. 50(1) modified (26.2.2015) by The Regulatory Reform (Scotland) Act 2014 (Consequential Modifications) Order 2015 (S.I. 2015/374), arts. 1(1), 3(3) (with art. 3(4))

[F162Computer programs: lawful users

Textual Amendments F162 Cross-heading and ss. 50A-50C inserted (1.1.1993) by S.I. 1992/3233, reg.8.

F163 50A Back up copies.

(1) It is not an infringement of copyright for a lawful user of a copy of a computer program to make any back up copy of it which it is necessary for him to have for the purposes of his lawful use.

(2) For the purposes of this section and sections 50B [F164, 50BA] and 50C a person is a lawful user of a computer program if (whether under a licence to do any acts restricted by the copyright in the program or otherwise), he has a right to use the program.

50 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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(3) Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void).

Textual Amendments F163 Ss. 50A-50C inserted (1.1.1993) by S.I. 1992/3233, reg.8. F164 S. 50A(2): ", 50BA" inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 15(2) (with regs. 31-40)

F165 50B Decompilation.

(1) It is not an infringement of copyright for a lawful user of a copy of a computer program expressed in a low level language—

(a) to convert it into a version expressed in a higher level language, or (b) incidentally in the course of so converting the program, to copy it,

(that is, to “decompile” it), provided that the conditions in subsection (2) are met.

(2) The conditions are that— (a) it is necessary to decompile the program to obtain the information necessary

to create an independent program which can be operated with the program decompiled or with another program (“the permitted objective”); and

(b) the information so obtained is not used for any purpose other than the permitted objective.

(3) In particular, the conditions in subsection (2) are not met if the lawful user— (a) has readily available to him the information necessary to achieve the permitted

objective; (b) does not confine the decompiling to such acts as are necessary to achieve the

permitted objective; (c) supplies the information obtained by the decompiling to any person to whom

it is not necessary to supply it in order to achieve the permitted objective; or (d) uses the information to create a program which is substantially similar in its

expression to the program decompiled or to do any act restricted by copyright.

(4) Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void).

Textual Amendments F165 Ss. 50A-50C inserted (1.1.1993) by S.I. 1992/3233, reg.8.

[ F16650BA

Observing, studying and testing of computer programs

(1) It is not an infringement of copyright for a lawful user of a copy of a computer program to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.

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(2) Where an act is permitted under this section, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296A, void).]

Textual Amendments F166 S. 50BA inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 15(1) (with regs. 31-40)

F167 50C Other acts permitted to lawful users.

(1) It is not an infringement of copyright for a lawful user of a copy of a computer program to copy or adapt it, provided that the copying or adapting—

(a) is necessary for his lawful use; and (b) is not prohibited under any term or condition of an agreement regulating the

circumstances in which his use is lawful.

(2) It may, in particular, be necessary for the lawful use of a computer program to copy it or adapt it for the purpose of correcting errors in it.

(3) This section does not apply to any copying or adapting permitted under [F168section 50A, 50B or 50BA].]

Textual Amendments F167 Ss. 50A-50C inserted (1.1.1993) by S.I. 1992/3233, reg.8. F168 Words in s. 50C(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 15(3) (with regs. 31-40)

[F169Databases: permitted acts]

Textual Amendments F169 S. 50D and crossheading inserted (1.1.1998) by S.I. 1997/3032, reg. 9 (with Pt. IV)

50D [F170 Acts permitted in relation to databases.]

(1) It is not an infringement of copyright in a database for a person who has a right to use the database or any part of the database, (whether under a licence to do any of the acts restricted by the copyright in the database or otherwise) to do, in the exercise of that right, anything which is necessary for the purposes of access to and use of the contents of the database or of that part of the database.

(2) Where an act which would otherwise infringe copyright in a database is permitted under this section, it is irrelevant whether or not there exists any term or condition in any agreement which purports to prohibit or restrict the act (such terms being, by virtue of section 296B, void).

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Textual Amendments F170 S. 50D inserted (1.1.1998) by S.I. 1997/3032, reg. 9 (with Pt. IV)

Designs

51 Design documents and models.

(1) It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.

(2) Nor is it an infringement of the copyright to issue to the public, or include in a film [F171or communicate to the public], 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 F172...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.

Textual Amendments F171 Words in s. 51(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 8(3) (with regs. 31-40) F172 Words in s. 51(3) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 1(2),

24(1); S.I. 2014/2330, art. 3, Sch.

F17352 Effect of exploitation of design derived from artistic work.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F173 S. 52 omitted (28.7.2016) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 74(2),

103(3); S.I. 2016/593, arts. 2(1), 3 (with arts. 4, 5)

53 Things done in reliance on registration of design.

(1) The copyright in an artistic work is not infringed by anything done— (a) in pursuance of an assignment or licence made or granted by a person

registered[F174 — (i)] under the M6Registered Designs Act 1949 as the proprietor of a corresponding

design, and[F175, or (ii) under the Community Design Regulation as the right holder of a

corresponding registered Community design]

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(b) in good faith in reliance on the registration and without notice of any proceedings for the cancellation [F176or invalidation] of the registration or[F177, in a case of registration under the 1949 Act,] for rectifying the relevant entry in the register of designs;

and this is so notwithstanding that the person registered as the proprietor was not the proprietor of the design for the purposes of the 1949 Act[F178 or, in a case of registration under the Community Design Regulation, that the person registered as the right holder was not the right holder of the design for the purposes of the Regulation].

(2) In subsection (1) a “corresponding design”, in relation to an artistic work, means a design within the meaning of the 1949 Act which if applied to an article would produce something which would be treated for the purposes of this Part as a copy of the artistic work.

[F179(3) In subsection (1), a “ corresponding registered Community design ”, in relation to an artistic work, means a design within the meaning of the Community Design Regulation which if applied to an article would produce something which would be treated for the purposes of this Part as a copy of the artistic work. ]

[F180(4) In this section, “ the Community Design Regulation ” means Council Regulation ( EC ) No 6/2002 of 12 December 2001 on Community designs. ]

Textual Amendments F174 Word in s. 53(1)(a) inserted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 5(2)(a), 24(1);

S.I. 2014/2330, art. 3, Sch. F175 Words in s. 53(1)(a) inserted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 5(2)(b), 24(1);

S.I. 2014/2330, art. 3, Sch. F176 Words in s. 53(1)(b) inserted (9.12.2001) by S.I. 2001/3949, reg. 9(1), Sch. 1 para. 16 (with

transitional provisions in regs. 10-14) F177 Words in s. 53(1)(b) inserted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 5(3), 24(1); S.I.

2014/2330, art. 3, Sch. F178 Words in s. 53(1) inserted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 5(4), 24(1); S.I.

2014/2330, art. 3, Sch. F179 S. 53(3) inserted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 5(5), 24(1); S.I. 2014/2330,

art. 3, Sch. F180 S. 53(4) inserted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 5(6), 24(1); S.I. 2014/2330,

art. 3, Sch.

Marginal Citations M6 1949 c. 88.

Typefaces

54 Use of typeface in ordinary course of printing.

(1) It is not an infringement of copyright in an artistic work consisting of the design of a typeface—

(a) to use the typeface in the ordinary course of typing, composing text, typesetting or printing,

(b) to possess an article for the purpose of such use, or

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(c) to do anything in relation to material produced by such use; and this is so notwithstanding that an article is used which is an infringing copy of the work.

(2) However, the following provisions of this Part apply in relation to persons making, importing or dealing with articles specifically designed or adapted for producing material in a particular typeface, or possessing such articles for the purpose of dealing with them, as if the production of material as mentioned in subsection (1) did infringe copyright in the artistic work consisting of the design of the typeface—

section 24 (secondary infringement: making, importing, possessing or dealing with article for making infringing copy), sections 99 and 100 (order for delivery up and right of seizure), section 107(2) (offence of making or possessing such an article), and section 108 (order for delivery up in criminal proceedings).

(3) The references in subsection (2) to “dealing with” an article are to selling, letting for hire, or offering or exposing for sale or hire, exhibiting in public, or distributing.

55 Articles for producing material in particular typeface.

(1) This section applies to the copyright in an artistic work consisting of the design of a typeface where articles specifically designed or adapted for producing material in that typeface have been marketed by or with the licence of the copyright owner.

(2) After the period of 25 years from the end of the calendar year in which the first such articles are marketed, the work may be copied by making further such articles, or doing anything for the purpose of making such articles, and anything may be done in relation to articles so made, without infringing copyright in the work.

(3) In subsection (1) “marketed” means sold, let for hire or offered or exposed for sale or hire, in the United Kingdom or elsewhere.

Works in electronic form

56 Transfers of copies of works in electronic form.

(1) This section applies where a copy of 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 make copies of an adaptation, in connection with his use of it.

(2) If there are no express terms— (a) prohibiting the transfer of the copy by the purchaser, imposing obligations

which continue after a transfer, 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 without infringement of copyright by a transferee; but any copy, adaptation or copy of an adaptation made by the purchaser which is not also transferred shall be treated as an infringing copy for all purposes after the transfer.

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(3) The same applies where the original purchased copy is no longer usable and what is transferred is a further copy used in its place.

(4) The above provisions also apply on a subsequent transfer, with the substitution for references in subsection (2) to the purchaser of references to the subsequent transferor.

Miscellaneous: literary, dramatic, musical and artistic works

57 Anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author.

(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when—

(a) it is not possible by reasonable inquiry to ascertain the identity of the author, and

(b) it is reasonable to assume— (i) that copyright has expired, or

(ii) that the author died [F18170 years] or more before the beginning of the calendar year in which the act is done or the arrangements are made.

(2) Subsection (1)(b)(ii) does not apply in relation to— (a) a work in which Crown copyright subsists, or (b) a work in which copyright originally vested in an international organisation

by virtue of section 168 and in respect of which an Order under that section specifies a copyright period longer than [F18170 years].

(3) In relation to a work of joint authorship— (a) the reference in subsection (1) to its being possible to ascertain the identity of

the author shall be construed as a reference to its being possible to ascertain the identity of any of the authors, and

(b) the reference in subsection (1)(b)(ii) to the author having died shall be construed as a reference to all the authors having died.

Textual Amendments F181 Words in s. 57(1)(b)(ii)(2)(b) substituted (with saving) (1.1.1996) by S.I. 1995/3297, regs. 5(2), 15(2)

(with Pt. III)

58 Use of notes or recordings of spoken words in certain cases.

(1) Where a record of spoken words is made, in writing or otherwise, for the purpose— (a) of reporting current events, or (b) of [F182communicating to the public] the whole or part of the work,

it is not an infringement of any copyright in the words as a literary work to use the record or material taken from it (or to copy the record, or any such material, and use the copy) for that purpose, provided the following conditions are met.

(2) The conditions are that— (a) the record is a direct record of the spoken words and is not taken from a

previous record or from a broadcast F183. . . ;

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(b) the making of the record was not prohibited by the speaker and, where copyright already subsisted in the work, did not infringe copyright;

(c) the use made of the record or material taken from it is not of a kind prohibited by or on behalf of the speaker or copyright owner before the record was made; and

(d) the use is by or with the authority of a person who is lawfully in possession of the record.

Textual Amendments F182 Words in s. 58(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 12(a) (with regs. 31-40) F183 Words in s. 58(2)(b) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

59 Public reading or recitation.

(1) The reading or recitation in public by one person of a reasonable extract from a published literary or dramatic work does not infringe any copyright in the work if it is accompanied by a sufficient acknowledgement.

(2) Copyright in a work is not infringed by the making of a sound recording, or the [F184communication to the public], of a reading or recitation which by virtue of subsection (1) does not infringe copyright in the work, provided that the recording [F185or communication to the public] consists mainly of material in relation to which it is not necessary to rely on that subsection.

Textual Amendments F184 Words in s. 59(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 5(b) (with regs. 31-40) F185 Words in s. 59(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 9(1)(a) (with regs. 31-40)

60 Abstracts of scientific or technical articles.

(1) Where an article on a scientific or technical subject is published in a periodical accompanied by an abstract indicating the contents of the article, it is not an infringement of copyright in the abstract, or in the article, to copy the abstract or issue copies of it to the public.

(2) This section does not apply if or to the extent that there is a licensing scheme certified for the purposes of this section under section 143 providing for the grant of licences.

61 Recordings of folksongs.

(1) A sound recording of a performance of a song may be made for the purpose of including it in an archive maintained by a [F186body not established or conducted for profit] without infringing any copyright in the words as a literary work or in the accompanying musical work, provided the conditions in subsection (2) below are met.

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(2) The conditions are that— (a) the words are unpublished and of unknown authorship at the time the

recording is made, (b) the making of the recording does not infringe any other copyright, and (c) its making is not prohibited by any performer.

[F187(3) A single copy of a sound recording made in reliance on subsection (1) and included in an archive referred to in that subsection may be made and supplied by the archivist without infringing copyright in the recording or the works included in it, provided that—

(a) the copy is supplied in response to a request from a person who has provided the archivist with a declaration in writing which includes the information set out in subsection (4), and

(b) the archivist is not aware that the declaration is false in a material particular.

(4) The information which must be included in the declaration is— (a) the name of the person who requires the copy and the sound recording which

is the subject of the request, (b) a statement that the person has not previously been supplied with a copy of

that sound recording by any archivist, and (c) a statement that the person requires the copy for the purposes of research for

a non-commercial purpose or private study, will use it only for those purposes and will not supply the copy to any other person.

(5) Where an archive makes a charge for supplying a copy under this section, the sum charged must be calculated by reference to the costs attributable to the production of the copy.

(6) Where a person (“P”) makes a declaration under this section that is false in a material particular and is supplied with a copy which would have been an infringing copy if made by P—

(a) P is liable for infringement of copyright as if P had made the copy, and (b) the copy supplied to P is to be treated as an infringing copy for all purposes.

(7) In this section references to an archivist include a person acting on behalf of an archivist.]

Textual Amendments F186 Words in s. 61(1) substituted (1.6.2014) by The Copyright and Rights in Performances (Research,

Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 7(1) F187 S. 61(3)-(7) substituted (1.6.2014) for s. 61(3)-(6) by The Copyright and Rights in Performances

(Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 7(2)

62 Representation of certain artistic works on public display.

(1) This section applies to— (a) buildings, and (b) sculptures, models for buildings and works of artistic craftsmanship, if

permanently situated in a public place or in premises open to the public.

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(2) The copyright in such a work is not infringed by— (a) making a graphic work representing it, (b) making a photograph or film of it, or (c) [F188making a broadcast of] a visual image of it.

(3) Nor is the copyright infringed by the issue to the public of copies, or the [F189communication to the public], of anything whose making was, by virtue of this section, not an infringement of the copyright.

Textual Amendments F188 Words in s. 62(2)(c) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 14 (with regs. 31-40) F189 Words in s. 62(3)(c) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 5(c) (with regs. 31-40)

63 Advertisement of sale of artistic work.

(1) It is not an infringement of copyright in an artistic work to copy it, or to issue copies to the public, for the purpose of advertising the sale of the work.

(2) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with for any other purpose, it shall be treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright for all subsequent purposes.

For this purpose “dealt with” means sold or let for hire, offered or exposed for sale or hire, exhibited in public [F190, distributed or communicated to the public].

Textual Amendments F190 Words in s. 63(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 17 (with regs. 31-40)

64 Making of subsequent works by same artist.

Where the author of an artistic work is not the copyright owner, he does not infringe the copyright by copying the work in making another artistic work, provided he does not repeat or imitate the main design of the earlier work.

65 Reconstruction of buildings.

Anything done for the purposes of reconstructing a building does not infringe any copyright—

(a) in the building, or (b) in any drawings or plans in accordance with which the building was, by or

with the licence of the copyright owner, constructed.

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F191[ Miscellaneous: lending of works and playing of sound recordings ]

Textual Amendments F191 S. 66 and crossheading substituted (1.12.1996) by S.I. 1996/2967, reg. 11(3) (with Pt. III)

66 [F192 Lending to public of copies of certain works.]

(1) The Secretary of State may by order provide that in such cases as may be specified in the order the lending to the public of copies of literary, dramatic, musical or artistic works, sound recordings or films shall be treated as licensed by the copyright owner subject only to the payment of such reasonable royalty or other payment as may be agreed or determined in default of agreement by the Copyright Tribunal.

(2) No such order shall apply if, or to the extent that, there is a licensing scheme certified for the purposes of this section under section 143 providing for the grant of licences.

(3) An order may make different provision for different cases and may specify cases by reference to any factor relating to the work, the copies lent, the lender or the circumstances of the lending.

(4) An order shall be made by statutory instrument; and no order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

(5) Nothing in this section affects any liability under section 23 (secondary infringement: possessing or dealing with infringing copy) in respect of the lending of infringing copies.

Textual Amendments F192 S. 66 substituted (1.12.1996) by S.I. 1996/2967, reg. 11(3) (with Pt. III)

[F193MISCellaneous: films and sound recordings]

Textual Amendments F193 S. 66A and crossheading inserted (1.1.1996) by S.I. 1995/3297, reg. 6(2) (with Pt. III)

66A [F194 Films: acts permitted on assumptions as to expiry of copyright, &c.]

(1) Copyright in a film is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when—

(a) it is not possible by reasonable inquiry to ascertain the identity of any of the persons referred to in section 13B(2)(a) to (d) (persons by reference to whose life the copyright period is ascertained), and

(b) it is reasonable to assume— (i) that copyright has expired, or

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(ii) that the last to die of those persons died 70 years or more before the beginning of the calendar year in which the act is done or the arrangements are made.

(2) Subsection (1)(b)(ii) does not apply in relation to— (a) a film in which Crown copyright subsists, or (b) a film in which copyright originally vested in an international organisation

by virtue of section 168 and in respect of which an Order under that section specifies a copyright period longer than 70 years.

Textual Amendments F194 S. 66A inserted (1.1.1996) by S.I. 1995/3297, reg. 6(2) (with Pt. III)

67 Playing of sound recordings for purposes of club, society, &c. F195. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F195 S. 67 omitted (1.1.2011) by virtue of The Copyright, Designs and Patents Act 1988 (Amendment)

Regulations 2010 (S.I. 2010/2694), art. 3(1)

Miscellaneous: broadcasts F196. . .

Textual Amendments F196 Words in heading before s. 68 repealed (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 32, 33)

68 Incidental recording for purposes of broadcast F197. . . .

(1) This section applies where by virtue of a licence or assignment of copyright a person is authorised to broadcast F198. . . —

(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) He shall by virtue of this section be treated as licensed by the owner of the copyright in the work to do or authorise any of the following for the purposes of the broadcast F198. . . —

(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 of the work or adaptation;

(b) in the case of an 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) That licence is subject to the condition that the recording, film, photograph or copy in question—

(a) shall not be used for any other purpose, and

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(b) shall be destroyed within 28 days of being first used for broadcasting the work F198. . . .

(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 broken.

Textual Amendments F197 Words in s. 68 heading repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F198 Words in s. 68(1)(2)(3)(b) repealed (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

69 Recording for purposes of supervision and control of broadcasts and [F199other services].

(1) Copyright is not infringed by the making or use by the British Broadcasting Corporation, for the purpose of maintaining supervision and control over programmes broadcast by them [F200or included in any on-demand programme service provided by them], of recordings of those programmes.

F201[F202( 2 ) Copyright is not infringed by anything done in pursuance of— [F203(a) section 167(1) of the Broadcasting Act 1990, section 115(4) or (6) or

117 of the Broadcasting Act 1996 or paragraph 20 of Schedule 12 to the Communications Act 2003;]

(b) a condition which, [F204 by virtue of section 334(1) of the Communications Act 2003 ] , is included in a licence granted under Part I or III of that Act or Part I or II of the Broadcasting Act 1996; F205 . . .

(c) a direction given under section 109(2) of the Broadcasting Act 1990 (power of [F206OFCOM] to require production of recordings etc ).

[ F207(d)

section 334(3) [F208, 368O(1) or (3)] of the Communications Act 2003.]

[F202(3) Copyright is not infringed by the use by OFCOM in connection with the performance of any of their functions under the Broadcasting Act 1990, the Broadcasting Act 1996 or the Communications Act 2003 of—

(a) any recording, script or transcript which is provided to them under or by virtue of any provision of those Acts; or

(b) any existing material which is transferred to them by a scheme made under section 30 of the Communications Act 2003.]]

(4) In subsection (3), “existing material” means— (a) any recording, script or transcript which was provided to the Independent

Television Commission or the Radio Authority under or by virtue of any provision of the Broadcasting Act 1990 or the Broadcasting Act 1996; and

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(b) any recording or transcript which was provided to the Broadcasting Standards Commission under section 115(4) or (6) or 116(5) of the Broadcasting Act 1996.

[F209(5) Copyright is not infringed by the use by an appropriate regulatory authority designated under section 368B of the Communications Act 2003, in connection with the performance of any of their functions under that Act, of any recording, script or transcript which is provided to them under or by virtue of any provision of that Act.

(6) In this section “ on-demand programme service ” has the same meaning as in the Communications Act 2003 (see section 368A of that Act). ]

Textual Amendments F199 Words in s. 69 heading substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 2(1) (with regs. 31-40) F200 Words in s. 69(1) inserted (19.12.2009) by The Audiovisual Media Services Regulations 2009 (S.I.

2009/2979), reg. 12(2)(a) F201 S. 69(2)(3) substituted (1.10.1996 for specified purposes and otherwise 1.4.1997) by 1996 c. 55, s.

148(1), Sch. 10 Pt. III para. 31 (with s. 43(6)); S.I. 1996/2120, art. 4, Sch. 1; S.I. 1997/1005, art. 4 F202 S. 69(3)(4) substituted (29.12.2003) for s. 69(3) by Communications Act 2003 (c. 21), ss. 406, 411,

Sch. 17 para. 91(3) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F203 S. 69(2)(a) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch. 17 para.

91(2)(a) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F204 Words in s. 69(2)(b) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch.

17 para. 91(2)(b) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F205 Word in s. 69(2)(b) repealed (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch.

19(1) (with Sch. 18, Sch. 19(1) Note 1); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F206 Words in s. 69(2)(c) substituted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch.

17 para. 91(2)(c) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F207 S. 69(2)(d) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 406, 411, Sch. 17 para.

91(2)(d) (with Sch. 18); S.I. 2003/3142, art. 3, Sch. 1 (with art. 11) F208 Words in s. 69(2)(d) inserted (19.12.2009) by The Audiovisual Media Services Regulations 2009 (S.I.

2009/2979), reg. 12(2)(b) F209 S. 69(5)(6) inserted (19.12.2009) by The Audiovisual Media Services Regulations 2009 (S.I.

2009/2979), reg. 12(2)(c)

Modifications etc. (not altering text) C39 S. 69 modified (20.7.2004) The Contracting Out (Functions relating to Broadcast Advertising) and

Specification of Relevant Functions Order 2004 (S.I. 2004/1975), art. 9(1)(2) (with reg. 5)

70 Recording for purposes of time-shifting.

[F210(1)] The making [F211 in domestic premises] for private and domestic use of a recording of a broadcast F212. . . 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 F212. . . or in any work included in it.

[F213(2) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with—

(a) it shall be treated as an infringing copy for the purposes of that dealing; and

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(b) if that dealing infringes copyright, it shall be treated as an infringing copy for all subsequent purposes.

(3) In subsection (2), “ dealt with ” means sold or let for hire, offered or exposed for sale or hire or communicated to the public. ]

Textual Amendments F210 S. 70 renumbered (31.10.2003) as s. 70(1) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 19(1) (with regs. 31-40) F211 Words in s. 70(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 19(2) (with regs. 31-40) F212 Words in s. 70(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F213 S. 70(2)(3) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 19(2) (with regs. 31-40)

[F21471 Photographs of broadcasts

(1) The making in domestic premises for private and domestic use of a photograph of the whole or any part of an image forming part of a broadcast, or a copy of such a photograph, does not infringe any copyright in the broadcast or in any film included in it.

(2) Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with—

(a) it shall be treated as an infringing copy for the purposes of that dealing; and (b) if that dealing infringes copyright, it shall be treated as an infringing copy for

all subsequent purposes.

(3) In subsection (2), “ dealt with ” means sold or let for hire, offered or exposed for sale or hire or communicated to the public. ]

Textual Amendments F214 S. 71 substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 20(1) (with regs. 31-40)

72 Free public showing or playing of broadcast F215. . . .

(1) The showing or playing in public of a broadcast F216. . . to an audience who have not paid for admission to the place where the broadcast F216. . . is to be seen or heard does not infringe any copyright in—

[F217(a) the broadcast; [F218or] (b) any sound recording (except so far as it is an excepted sound recording)

included in it F219... F220(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F221(1A) For the purposes of this Part an “excepted sound recording” is a sound recording— (a) whose author is not the author of the broadcast in which it is included; and (b) which is a recording of music with or without words spoken or sung.

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(1B) Where by virtue of subsection (1) the copyright in a broadcast shown or played in public is not infringed, copyright in any [F222film or] excepted sound recording included in it is not infringed if the playing or showing of that broadcast in public—

(a) F223 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) is necessary for the purposes of—

(i) repairing equipment for the reception of broadcasts; (ii) demonstrating that a repair to such equipment has been carried out; or

(iii) demonstrating such equipment which is being sold or let for hire or offered or exposed for sale or hire.]

(2) The audience shall be treated as having paid for admission to a place— (a) if they have paid for admission to a place of which that place forms part; or (b) if goods or services are supplied at that place (or a place of which it forms

part)— (i) at prices which are substantially attributable to the facilities afforded

for seeing or hearing the broadcast F224. . . , or (ii) at prices exceeding those usually charged there and which are partly

attributable to those facilities.

(3) The following shall not be regarded as having paid for admission to a place— (a) persons admitted as residents or inmates of the place; (b) persons admitted as members of a club or society where the payment is only

for membership of the club or society and the provision of facilities for seeing or hearing broadcasts F225. . . is only incidental to the main purposes of the club or society.

(4) Where the making of the broadcast F226. . . was an infringement of the copyright in a sound recording or film, the fact that it was heard or seen in public by the reception of the broadcast F226. . . shall be taken into account in assessing the damages for that infringement.

Textual Amendments F215 Words in s. 72 heading repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F216 Words in S. 72(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F217 S. 72(1)(a)-(c) substituted (31.10.2003) for s. 72(1)(a)(b) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 21(1)(a) (with regs. 31-40) F218 Word in s. 72(1)(a) inserted (15.6.2016) by The Copyright (Free Public Showing or Playing)

(Amendment) Regulations 2016 (S.I. 2016/565), regs. 1, 3(a) F219 Word in s. 72(1)(b) omitted (15.6.2016) by virtue of The Copyright (Free Public Showing or Playing)

(Amendment) Regulations 2016 (S.I. 2016/565), regs. 1, 3(b) F220 S. 72(1)(c) omitted (15.6.2016) by virtue of The Copyright (Free Public Showing or Playing)

(Amendment) Regulations 2016 (S.I. 2016/565), regs. 1, 3(c) F221 S. 72(1A)(1B) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 21(1)(b) (with regs. 31-40) F222 Words in s. 72(1B) inserted (15.6.2016) by The Copyright (Free Public Showing or Playing)

(Amendment) Regulations 2016 (S.I. 2016/565), regs. 1, 3(d) F223 S. 72(1B)(a) omitted (1.1.2011) by virtue of The Copyright, Designs and Patents Act 1988

(Amendment) Regulations 2010 (S.I. 2010/2694), art. 4(1)

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F224 Words in S. 72(2)(b)(i) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

F225 Words in S. 72(3)(b) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

F226 Words in S. 72(4) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

F22773 Reception and re-transmission of wireless broadcast by cable.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F227 S. 73 repealed (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 34(1)(a), 118(6); S.I. 2017/765,

reg. 2(n)

F22873A Royalty or other sum payable in pursuance of section 73(4).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F228 S. 73A repealed (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 34(1)(a), 118(6); S.I. 2017/765,

reg. 2(n)

F22974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F229 S. 74 repealed (1.6.2014) by The Copyright and Rights in Performances (Disability) Regulations 2014

(S.I. 2014/1384), reg. 1(1), Sch. para. 8 Table

[F23075 Recording of broadcast for archival purposes

(1) A recording of a broadcast or a copy of such a recording may be made for the purpose of being placed in an archive maintained by a body which is not established or conducted for profit without infringing any copyright in the broadcast or in any work included in it.

(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.]

Textual Amendments F230 S. 75 substituted (1.6.2014) by The Copyright and Rights in Performances (Research, Education,

Libraries and Archives) Regulations 2014 (S.I. 2014/1372), regs. 1, 8(1)

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Adaptations

76 Adaptations.

An act which by virtue of this Chapter 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.

[F231CHAPTER 3A

CERTAIN PERMITTED USES OF ORPHAN WORKS

Textual Amendments F231 Pt. 1 Ch. 3A inserted (29.10.2014) by The Copyright and Rights in Performances (Certain Permitted

Uses of Orphan Works) Regulations 2014 (S.I. 2014/2861), regs. 1, 3(2)

76A Certain permitted uses of orphan works

Schedule ZA1 makes provision about the use by relevant bodies of orphan works.]

CHAPTER IV

MORAL RIGHTS

Right to be identified as author or director

77 Right to be identified as author or director.

(1) The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right to be identified as the author or director of the work in the circumstances mentioned in this section; but the right is not infringed unless it has been asserted in accordance with section 78.

(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 whenever—

(a) the work is published commercially, performed in public [F232or communicated to the public]; or

(b) copies of a film or sound recording including the work are issued to the public; and that right includes the right to be identified whenever any of those events occur in relation to an adaptation of the work as the author of the work from which the adaptation was made.

(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 whenever—

(a) the work is published commercially; (b) copies of a sound recording of the work are issued to the public; or (c) a film of which the sound-track includes the work is shown in public or copies

of such a film are issued to the public;

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and that right includes the right to be identified whenever any of those events occur in relation to an adaptation of the work as the author of the work from which the adaptation was made.

(4) The author of an artistic work has the right to be identified whenever— (a) the work is published commercially or exhibited in public, or a visual image

of it is [F233communicated to the public]; (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) The author of a work of architecture in the form of a building also 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 whenever the film is shown in public [F232or communicated to the public] or copies of the film are issued to the public.

(7) The right of the 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, showing [F234or communication to the public] in question;

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

(8) If the author or director in asserting his right to be identified specifies a pseudonym, initials or some other particular form of identification, that form shall be used; otherwise any reasonable form of identification may be used.

(9) This section has effect subject to section 79 (exceptions to right).

Textual Amendments F232 Words in s. 77(2)(a)(6) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 8(1)(a)(b) (with regs. 31-40) F233 Words in s. 77(4)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 8(2)(a) (with regs. 31-40) F234 Words in s. 77(7)(c) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 9(1)(b) (with regs. 31-40)

78 Requirement that right be asserted.

(1) A person does not infringe the right conferred by section 77 (right to be identified as author or director) by doing any of the acts mentioned in that section unless the right

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has been asserted in accordance with the following provisions so as to bind him in relation to that act.

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

(a) on an assignment of copyright in the work, by including in the instrument effecting the assignment a statement that the author or director asserts in relation to that work his right to be identified, or

(b) by instrument in writing signed by the author or director.

(3) The right may also be asserted in relation to the public exhibition of an artistic work— (a) by securing that when the author or other first owner of copyright parts with

possession of the original, or of a copy made by him or under his direction or control, the author is identified on the original or copy, or on a frame, mount or other thing to which it is attached, or

(b) by including in a licence by which the author or other first owner of copyright authorises the making of copies of the work a statement signed by or on behalf of the person granting the licence that the author asserts his right to be identified in the event of the public exhibition of a copy made in pursuance of the licence.

(4) The persons bound by an assertion of the right under subsection (2) or (3) are— (a) in the case of an assertion under subsection (2)(a), the assignee and anyone

claiming through him, whether or not he has notice of the assertion; (b) in the case of an assertion under subsection (2)(b), anyone to whose notice

the assertion is brought; (c) in the case of an assertion under subsection (3)(a), anyone into whose hands

that original or copy comes, whether or not the identification is still present or visible;

(d) in the case of an assertion under subsection (3)(b), the licensee and anyone into whose hands a copy made in pursuance of the licence comes, whether or not he has notice of the assertion.

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

79 Exceptions to right.

(1) The right conferred by section 77 (right to be identified as author or director) is subject to the following exceptions.

(2) The right does not apply in relation to the following descriptions of work— (a) a computer program; (b) the design of a typeface; (c) any computer-generated work.

(3) The right does not apply to anything done by or with the authority of the copyright owner where copyright in the work originally [F235 vested in the author’s or director’s employer by virtue of section 11(2) (works produced in the course of employment).]

(4) The right is not infringed by an act which by virtue of any of the following provisions would not infringe copyright in the work—

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(a) section 30 (fair dealing for certain purposes), so far as it relates to the reporting of current events by means of a sound recording, film [F236or broadcast];

(b) section 31 (incidental inclusion of work in an artistic work, sound recording, film [F236or broadcast]);

F237(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) section 45 (parliamentary and judicial proceedings); (e) section 46(1) or (2) (Royal Commissions and statutory inquiries); (f) section 51 (use of design documents and models);

F238(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (h) [F239section 57 or 66A (acts permitted on assumptions as to expiry of

copyright, &c.)];

[F240(4A) The right is also not infringed by any act done for the purposes of an examination which by virtue of any provision of Chapter 3 of Part 1 would not infringe copyright.]

(5) The right does not apply in relation to any work made for the purpose of reporting current events.

(6) The right does not apply in relation to the publication in— (a) a newspaper, magazine or similar periodical, or (b) 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.

(7) The right does not apply in relation to— (a) a work in which Crown copyright or Parliamentary copyright subsists, or (b) a work in which copyright originally vested in an international organisation

by virtue of section 168, unless the author or director has previously been identified as such in or on published copies of the work.

Textual Amendments F235 Words in s. 79(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 18(1) (with regs. 31-40) F236 Words in s. 79(4)(a)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(g)(h) (with regs. 31-40) F237 S. 79(4)(c) omitted (1.6.2014) by virtue of The Copyright and Rights in Performances (Research,

Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 4(a) F238 S. 79(4)(g) omitted (28.7.2016) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), ss.

74(3)(a), 103(3); S.I. 2016/593, arts. 2(1), 3 (with arts. 4, 5) F239 Words in s. 79(4) substituted (1.1.1996) by S.I. 1995/3297, reg. 5(3) (with Pt. III) F240 S. 79(4A) inserted (1.6.2014) by The Copyright and Rights in Performances (Research, Education,

Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 4(b)

70 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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Right to object to derogatory treatment of work

80 Right to object to derogatory treatment of work.

(1) The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right in the circumstances mentioned in this section not to have his work subjected to derogatory treatment.

(2) For the purposes of this section— (a) “treatment” of a work means any addition to, deletion from or alteration to or

adaptation of the work, other than— (i) a translation of a literary or dramatic work, or

(ii) an arrangement or transcription of a musical work involving no more than a change of key or register; and

(b) the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director;

and in the following provisions of this section references to a derogatory treatment of a work shall be construed accordingly.

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

(a) publishes commercially, performs in public [F241or communicates to the public] 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.

(4) 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, [F242or communicates to the public] 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— (i) a work of architecture in the form of a model for a building,

(ii) a sculpture, or (iii) a 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.

(5) Subsection (4) 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.

(6) In the case of a film, the right is infringed by a person who— (a) shows in public [F241or communicates to the public] a derogatory treatment

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

F243. . .

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(7) The right conferred by this section extends to the treatment of parts of a work resulting from a previous treatment by a person other than the author or director, if those parts are attributed to, or are likely to be regarded as the work of, the author or director.

(8) This section has effect subject to sections 81 and 82 (exceptions to and qualifications of right).

Textual Amendments F241 Words in s. 80(3)(a)(6)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 10(1) (with regs. 31-40) F242 Words in s. 80(4)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 13(2) (with regs. 31-40) F243 Words in s. 80(6) omitted (1.1.1996) by virtue of S.I. 1995/3297, reg. 9(2) (with Pt. III)

81 Exceptions to right.

(1) The right conferred by section 80 (right to object to derogatory treatment of work) is subject to the following exceptions.

(2) The right does not apply to a computer program or to any computer-generated work.

(3) The right does not apply in relation to any work made for the purpose of reporting current events.

(4) The right does not apply in relation to the publication in— (a) a newspaper, magazine or similar periodical, or (b) 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.

Nor does the right apply in relation to any subsequent exploitation elsewhere of such a work without any modification of the published version.

(5) The right is not infringed by an act which by virtue of [F244section 57 or 66A (acts permitted on assumptions as to expiry of copyright, &c.)] would not infringe copyright.

(6) The right is not infringed by anything done for the purpose of— (a) avoiding the commission of an offence, (b) complying with a duty imposed by or under an enactment, or (c) in the case of the British Broadcasting Corporation, avoiding the inclusion

in a programme broadcast by them of anything which offends against good taste or decency or which is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling,

provided, 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, that there is a sufficient disclaimer.

72 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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Textual Amendments F244 Words in s. 81(5) substituted (1.1.1996) by S.I. 1995/3297, reg. 5(3) (with Pt. III)

82 Qualification of right in certain cases.

(1) This section applies to— (a) works in which copyright originally vested in the author’s [F245 or

director's] employer by virtue of section 11(2) (works produced in course of employment) F246. . .

(b) works in which Crown copyright or Parliamentary copyright subsists, and (c) works in which copyright originally vested in an international organisation by

virtue of section 168.

(2) The right conferred by section 80 (right to object to derogatory treatment of work) does not apply to anything done in relation to such a work by or with the authority of the copyright owner 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.

Textual Amendments F245 Words in s. 82(1)(a) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 18(2) (with regs. 31-40) F246 Words in s. 82(1)(a) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2, Sch. 1 para. 18(2), Sch. 2 (with regs. 31-40)

83 Infringement of right by possessing or dealing with infringing article.

(1) The right conferred by section 80 (right to object to derogatory treatment of work) 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, or (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 within the meaning of section 80,

and (b) has been or is likely to be the subject of any of the acts mentioned in that

section in circumstances infringing that right.

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False attribution of work

84 False attribution of work.

(1) A person has the right in the circumstances mentioned in this section— (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 an “attribution”, in relation to such a work, means a statement (express or implied) as to who is the author or director.

(2) The right 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, or (b) exhibits in public an artistic work, or a copy of an artistic work, in or on which

there is a false attribution.

(3) 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

[F247or communicates it to the public] as being the work of a person, or (b) in the case of a film, shows it in public [F247or communicates it to the public]

as being directed by a person, knowing or having reason to believe that the attribution is false.

(4) The right is also infringed by the issue to the public or public display of material containing a false attribution in connection with any of the acts mentioned in subsection (2) or (3).

(5) 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 of any of the descriptions mentioned

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 such an attribution and that it is false.

(6) 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 that is not the case.

(7) 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.

(8) This section applies where, contrary to the fact— (a) a literary, dramatic or musical work is falsely represented as being an

adaptation of the work of a person, or (b) a copy of an artistic work is falsely represented as being a copy made by the

author of the artistic work, as it applies where the work is falsely attributed to a person as author.

74 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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Textual Amendments F247 Words in s. 84(3)(a)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 10(2) (with regs. 31-40)

Right to privacy of certain photographs and films

85 Right to privacy of certain photographs and films.

(1) A person who for private and domestic purposes commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting 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 [F248communicated to the public];

and, except as mentioned in subsection (2), a person who does or authorises the doing of any of those acts infringes that right.

(2) The right is not infringed by an act which by virtue of any of the following provisions would not infringe copyright in the work—

(a) section 31 (incidental inclusion of work in an artistic work, film [F249or broadcast]);

(b) section 45 (parliamentary and judicial proceedings); (c) section 46 (Royal Commissions and statutory inquiries); (d) section 50 (acts done under statutory authority); (e) [F250section 57 or 66A (acts permitted on assumptions as to expiry of

copyright, &c.)].

Textual Amendments F248 Words in s. 85(1)(c) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 8(2)(b) (with regs. 31-40) F249 Words in s. 85(2)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(i) (with regs. 31-40) F250 Words in s. 85(2) substituted (1.1.1996) by S.I. 1995/3297, reg. 6(3) (with Pt. III)

Supplementary

86 Duration of rights.

(1) The rights conferred by section 77 (right to be identified as author or director), section 80 (right to object to derogatory treatment of work) and section 85 (right to privacy of certain photographs and films) continue to subsist so long as copyright subsists in the work.

(2) The right conferred by section 84 (false attribution) continues to subsist until 20 years after a person’s death.

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87 Consent and waiver of rights.

(1) It is not an infringement of any of the rights conferred by this Chapter to do any act to which the person entitled to the right has consented.

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

(3) A waiver— (a) may relate to a specific work, to works of a specified description or to works

generally, and may relate to existing or future works, and (b) may be conditional or unconditional and may be expressed to be subject to

revocation; and if made in favour of the owner or prospective owner of 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 Chapter shall be construed as excluding the operation of the general law of contract or estoppel in relation to an informal waiver or other transaction in relation to any of the rights mentioned in subsection (1).

88 Application of provisions to joint works.

(1) The right conferred by section 77 (right to be identified as author or director) is, in the case of a work of joint authorship, a right of each joint author to be identified as a joint author and must be asserted in accordance with section 78 by each joint author in relation to himself.

(2) The right conferred by section 80 (right to object to derogatory treatment of work) 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 under section 87 of those rights by one joint author does not affect the rights of the other joint authors.

(4) The right conferred by section 84 (false attribution) is infringed, in the circumstances mentioned in that section—

(a) by any false statement as to the authorship of a work of joint authorship, and (b) by the false attribution of joint authorship in relation to a work of sole

authorship; and such a false attribution infringes the right of every person to whom authorship of any description is, whether rightly or wrongly, attributed.

(5) The above provisions also apply (with any necessary adaptations) in relation to a film which was, or is alleged to have been, jointly directed, as they apply to a work which is, or is alleged to be, a work of joint authorship.

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.

(6) The right conferred by section 85 (right to privacy of certain photographs and films) 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

76 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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(b) a waiver under section 87 by one of them does not affect the rights of the others.

89 Application of provisions to parts of works.

(1) The rights conferred by section 77 (right to be identified as author or director) and section 85 (right to privacy of certain photographs and films) apply in relation to the whole or any substantial part of a work.

(2) The rights conferred by section 80 (right to object to derogatory treatment of work) and section 84 (false attribution) apply in relation to the whole or any part of a work.

CHAPTER V

DEALINGS WITH RIGHTS IN COPYRIGHT WORKS

Modifications etc. (not altering text) C40 Pt. I Ch. V (ss. 90-95) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17(1)-(3) (with

Pt. III)

Copyright

90 Assignment and licences.

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

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

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

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

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

(4) A licence granted by a copyright owner is binding on every successor in title to his interest in the 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 Part to doing anything with, or without, the licence of the copyright owner shall be construed accordingly.

Modifications etc. (not altering text) C41 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

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91 Prospective ownership of copyright.

(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 copyright coming into existence, 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) In this Part— “future copyright” means copyright which will or may come into existence

in respect of a future work or class of works or on the occurrence of a future event; and

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

(3) 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 Part to doing anything with, or without, the licence of the copyright owner shall be construed accordingly.

Modifications etc. (not altering text) C42 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

92 Exclusive licences.

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

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

Modifications etc. (not altering text) C43 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

93 Copyright to pass under will with unpublished work.

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

(a) an original document or other material thing recording or embodying 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,

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the bequest shall, unless a contrary intention is indicated in the testator’s will or a codicil to it, 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.

Modifications etc. (not altering text) C44 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

[F25193A Presumption of transfer of rental right in case of film production agreement.

(1) Where an agreement concerning film production is concluded between an author and a film producer, the author shall be presumed, unless the agreement provides to the contrary, to have transferred to the film producer any rental right in relation to the film arising by virtue of the inclusion of a copy of the author’s work in the film.

(2) In this section “author” means an author, or prospective author, of a literary, dramatic, musical or artistic work.

(3) Subsection (1) does not apply to any rental right in relation to the film arising by virtue of the inclusion in the film of the screenplay, the dialogue or music specifically created for and used in the film.

(4) Where this section applies, the absence of signature by or on behalf of the author does not exclude the operation of section 91(1) (effect of purported assignment of future copyright).

(5) The reference in subsection (1) to an agreement concluded between an author and a film producer includes any agreement having effect between those persons, whether made by them directly or through intermediaries.

(6) Section 93B (right to equitable remuneration on transfer of rental right) applies where there is a presumed transfer by virtue of this section as in the case of an actual transfer.]

Textual Amendments F251 S. 93A inserted (1.12.1996) by S.I. 1996/2967, reg. 12 (with Pt. III)

Modifications etc. (not altering text) C45 S. 93A applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 32(1) (with Pt. III)

F252[Right to equitable remuneration where rental right transferred

Textual Amendments F252 S. 93B and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 14(1) (with Pt. III)

F25393B Right to equitable remuneration where rental right transferred.

(1) Where an author to whom this section applies has transferred his rental right concerning a sound recording or a film to the producer of the sound recording or film, he retains the right to equitable remuneration for the rental.

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The authors to whom this section applies are— (a) the author of a literary, dramatic, musical or artistic work, and (b) the principal director of a film.

(2) The right to equitable remuneration under this section may not be assigned by the author except to a collecting society for the purpose of enabling it to enforce the right on his behalf.

The right is, however, transmissible by testamentary disposition or by operation of law as personal or moveable property; and it may be assigned or further transmitted by any person into whose hands it passes.

(3) Equitable remuneration under this section is payable by the person for the time being entitled to the rental right, that is, the person to whom the right was transferred or any successor in title of his.

(4) The amount payable by way of equitable remuneration is as agreed by or on behalf of the persons by and to whom it is payable, subject to section 93C (reference of amount to Copyright Tribunal).

(5) An agreement is of no effect in so far as it purports to exclude or restrict the right to equitable remuneration under this section.

(6) References in this section to the transfer of rental right by one person to another include any arrangement having that effect, whether made by them directly or through intermediaries.

(7) In this section a “collecting society” means a society or other organisation which has as its main object, or one of its main objects, the exercise of the right to equitable remuneration under this section on behalf of more than one author.

Textual Amendments F253 S. 93B inserted (1.12.1996) by S.I. 1996/2967, reg. 14(1) (with Pt. III)

Modifications etc. (not altering text) C46 S. 93B applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 32(2) (with Pt. III) C47 S. 93B restricted (1.12.1996) by S.I. 1996/2967, reg. 33 (with Pt. III)

F25493C Equitable remuneration: reference of amount to Copyright Tribunal.

(1) In default of agreement as to the amount payable by way of equitable remuneration under section 93B, the person by or to whom it is payable may apply to the Copyright Tribunal to determine the amount payable.

(2) A person to or by whom equitable remuneration is payable under that section may also apply to the Copyright Tribunal—

(a) to vary any agreement as to the amount payable, or (b) to vary any previous determination of the Tribunal as to that matter; but except

with the special leave of the Tribunal no such application may be made within twelve months from the date of a previous determination.

An order made on an application under this subsection has effect from the date on which it is made or such later date as may be specified by the Tribunal.

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(3) On an application under this section the Tribunal shall consider the matter and make such order as to the method of calculating and paying equitable remuneration as it may determine to be reasonable in the circumstances, taking into account the importance of the contribution of the author to the film or sound recording.

(4) Remuneration shall not be considered inequitable merely because it was paid by way of a single payment or at the time of the transfer of the rental right.

(5) An agreement is of no effect in so far as it purports to prevent a person questioning the amount of equitable remuneration or to restrict the powers of the Copyright Tribunal under this section.]

Textual Amendments F254 S. 93C inserted (1.12.1996) by S.I. 1996/2967, reg. 14(1) (with Pt. III)

Moral rights

94 Moral rights not assignable.

The rights conferred by Chapter IV (moral rights) are not assignable.

95 Transmission of moral rights on death.

(1) On the death of a person entitled to the right conferred by section 77 (right to identification of author or director), section 80 (right to object to derogatory treatment of work) or section 85 (right to privacy of certain photographs and films)—

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

(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

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

(2) Where copyright forming part of a person’s estate passes in part to one person and in part to another, as for example where a bequest is limited so as to apply—

(a) to one or more, but not all, of the things the copyright owner has the exclusive right to do or authorise, or

(b) to part, but not the whole, of the period for which the copyright is to subsist, any right which passes with the copyright by virtue of subsection (1) is correspondingly divided.

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

(a) it may, in the case of the right conferred by section 77 (right to identification of author or director), be asserted by any of them;

(b) it is, in the case of the right conferred by section 80 (right to object to derogatory treatment of work) or section 85 (right to privacy of certain photographs and films), 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

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(c) any waiver of the right in accordance with section 87 by one of them does not affect the rights of the others.

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

(5) Any infringement after a person’s death of the right conferred by section 84 (false attribution) 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.

CHAPTER VI

REMEDIES FOR INFRINGEMENT

Modifications etc. (not altering text) C48 Pt. I Ch. VI (ss. 96-115) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17 (with Pt.

III)

Rights and remedies of copyright owner

96 Infringement actionable by copyright owner.

(1) An infringement of copyright is actionable by the copyright owner.

(2) In an action for infringement of copyright all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.

(3) This section has effect subject to the following provisions of this Chapter.

Modifications etc. (not altering text) C49 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

97 Provisions as to damages in infringement action.

(1) 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, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(2) The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to—

(a) the flagrancy of the infringement, and (b) any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require.

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Modifications etc. (not altering text) C50 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

[F25597A Injunctions against service providers

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

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

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

(b) the extent to which any notice includes— (i) the full name and address of the sender of the notice;

(ii) details of the infringement in question.

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

Textual Amendments F255 S. 97A inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498),

reg. 27(1) (with regs. 31-40)

98 Undertaking to take licence of right in infringement proceedings.

(1) If in proceedings for infringement of copyright in respect of which a licence is available as of right under section 144 (powers exercisable in consequence of report of [F256Competition and Markets Authority]) the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the Copyright Tribunal under that section—

(a) no injunction shall be granted against him, (b) no order for delivery up shall be made under section 99, and (c) the amount recoverable against him by way of damages or on an account of

profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.

(2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.

(3) Nothing in this section affects the remedies available in respect of an infringement committed before licences of right were available.

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Textual Amendments F256 Words in s. 98(1) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013

(Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 56 (with art. 3)

Modifications etc. (not altering text) C51 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

99 Order for delivery up.

(1) Where a person— (a) has an infringing copy of a work in his possession, custody or control in the

course of a business, or (b) has in his possession, custody or control an article specifically designed or

adapted for making copies of a particular copyright work, knowing or having reason to believe that it has been or is to be used to make infringing copies,

the owner of the copyright in the work 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 shall not be made after the end of the period specified in section 113 (period after which remedy of delivery up not available); 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 114 (order as to disposal of infringing copy or other article).

(3) A person to whom an infringing copy or other article is delivered up in pursuance of an order under this section shall, if an order under section 114 is not made, retain it pending the making of an order, or the decision not to make an order, under that section.

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

Modifications etc. (not altering text) C52 S. 99 extended by S.I. 1991/724, art. 2(1)(n)

100 Right to seize infringing copies and other articles.

(1) An infringing copy of a work which is found exposed or otherwise immediately available for sale or hire, and in respect of which the copyright owner would be entitled to apply for an order under section 99, may be seized and detained by him or a person authorised by him.

The right to seize and detain is exercisable subject to the following conditions and is subject to any decision of the court under section 114.

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

(3) A person may for the purpose of exercising the right conferred by this section enter premises to which the public have access but may not seize anything in the possession,

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custody or control of a person at a permanent or regular place of business of his, and may not use any force.

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

(5) In this section—

“premises” includes land, buildings, moveable structures, vehicles, vessels, aircraft and hovercraft; and “prescribed” means prescribed by order of the Secretary of State.

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

Rights and remedies of exclusive licensee

101 Rights and remedies of exclusive licensee.

(1) 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.

(2) His rights and remedies are concurrent with those of the copyright owner; and references in the relevant provisions of this Part to the copyright owner shall be construed accordingly.

(3) In an action brought by an exclusive licensee by virtue of this section a defendant may avail himself of any defence which would have been available to him if the action had been brought by the copyright owner.

Modifications etc. (not altering text) C53 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

[F257101ACertain infringements actionable by a non-exclusive licensee

(1) A non-exclusive licensee may bring an action for infringement of copyright if— (a) the infringing act was directly connected to a prior licensed act of the licensee;

and (b) the licence—

(i) is in writing and is signed by or on behalf of the copyright owner; and (ii) expressly grants the non-exclusive licensee a right of action under

this section.

(2) In an action brought under this section, the non-exclusive licensee shall have the same rights and remedies available to him as the copyright owner would have had if he had brought the action.

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(3) The rights granted under this section are concurrent with those of the copyright owner and references in the relevant provisions of this Part to the copyright owner shall be construed accordingly.

(4) In an action brought by a non-exclusive licensee by virtue of this section a defendant may avail himself of any defence which would have been available to him if the action had been brought by the copyright owner.

(5) Subsections (1) to (4) of section 102 shall apply to a non-exclusive licensee who has a right of action by virtue of this section as it applies to an exclusive licensee.

(6) In this section a “ non-exclusive licensee ” means the holder of a licence authorising the licensee to exercise a right which remains exercisable by the copyright owner. ]

Textual Amendments F257 S. 101A inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 28 (with regs. 31-40)

102 Exercise of concurrent rights.

(1) Where an action for infringement of copyright brought by the copyright owner or an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the copyright owner or, as the case may be, the exclusive licensee may not, without the leave of the court, proceed with the action unless the other is either joined as a plaintiff or added as a defendant.

(2) A copyright owner or exclusive licensee who is added as a defendant in pursuance of subsection (1) is not liable for any costs in the action unless he takes part in the proceedings.

(3) The above provisions do not affect the granting of interlocutory relief on an application by a copyright owner or exclusive licensee alone.

(4) 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—

(a) the court shall in assessing damages take into account— (i) the terms of the licence, and

(ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement;

(b) no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement; and

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

and these provisions apply whether or not the copyright owner and the exclusive licensee are both parties to the action.

(5) The copyright owner shall notify any exclusive licensee having concurrent rights before applying for an order under section 99 (order for delivery up) or exercising the right conferred by section 100 (right of seizure); and the court may on the application

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of the licensee make such order under section 99 or, as the case may be, prohibiting or permitting the exercise by the copyright owner of the right conferred by section 100, as it thinks fit having regard to the terms of the licence.

Modifications etc. (not altering text) C54 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV) C55 S. 102(5) extended by S.I.1991/724, art. 2(1)(n)

Remedies for infringement of moral rights

103 Remedies for infringement of moral rights.

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

(2) In proceedings for infringement of the right conferred by section 80 (right to object to derogatory treatment of work) the court may, if it thinks it is an adequate remedy in the circumstances, grant an injunction on terms prohibiting the doing of any act unless a disclaimer is made, in such terms and in such manner as may be approved by the court, dissociating the author or director from the treatment of the work.

Presumptions

104 Presumptions relevant to literary, dramatic, musical and artistic works.

(1) The following presumptions apply in proceedings brought by virtue of this Chapter with respect to a literary, dramatic, musical or artistic work.

(2) Where a name purporting to be that of the author appeared on copies of the work as published or on the work when it was made, the person whose name appeared shall be presumed, until the contrary is proved—

(a) to be the author of the work; (b) to have made it in circumstances not falling within section 11(2), 163,

165 or 168 (works produced in course of employment, Crown copyright, Parliamentary copyright or copyright of certain international organisations).

(3) In the case of a work alleged to be a work of joint authorship, subsection (2) applies in relation to each person alleged to be one of the authors.

(4) Where no name purporting to be that of the author appeared as mentioned in subsection (2) but—

(a) the work qualifies for copyright protection by virtue of section 155 (qualification by reference to country of first publication), and

(b) a name purporting to be that of the publisher appeared on copies of the work as first published,

the person whose name appeared shall be presumed, until the contrary is proved, to have been the owner of the copyright at the time of publication.

(5) If the author of the work is dead or the identity of the author cannot be ascertained by reasonable inquiry, it shall be presumed, in the absence of evidence to the contrary—

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(a) that the work is an original work, and (b) that the plaintiff’s allegations as to what was the first publication of the work

and as to the country of first publication are correct.

105 Presumptions relevant to sound recordings and films.

(1) In proceedings brought by virtue of this Chapter 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 specified 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.

(2) In proceedings brought by virtue of this Chapter 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 [F258director or producer] of the film, F259[(aa) that a named person was the principal director, the author of the screenplay,

the author of the dialogue or the composer of music specifically created for and used in 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 specified country, the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(3) In proceedings brought by virtue of this Chapter 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 specified 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.

(4) The above presumptions apply equally in proceedings relating to an infringement alleged to have occurred before the date on which the copies were issued to the public.

(5) In proceedings brought by virtue of this Chapter with respect to a film, where the film as shown in public [F260or communicated to the public] bears a statement—

(a) that a named person was the [F258director or producer] of the film, or F261[(aa) that a named person was the principal director of the film, the author of the

screenplay, the author of the dialogue or the composer of music specifically created for and used in the film, or,]

(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.

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This presumption applies equally in proceedings 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.

F262[(6) For the purposes of this section, a statement that a person was the director of a film shall be taken, unless a contrary indication appears, as meaning that he was the principal director of the film.]

Textual Amendments F258 Words in s. 105(2)(a)(5)(a) substituted (1.12.1996 with effect in relation to films made on or after

1.7.1994) by S.I. 1996/2967, regs. 18(4)(a), 36 (with Pt. III) F259 S. 105(2)(aa) inserted (1.1.1996) by S.I. 1995/3297, Pt. II reg. 5(4) (with Pt. III) F260 Words in s. 105(5) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 8(1)(c) (with regs. 31-40) F261 S. 105(5)(aa) inserted (1.12.1996 with effect in relation to films made on or after 1.7.1994) by S.I.

1996/2967, reg. 18(4)(b) (with Pt. III) F262 S. 105(6) added (1.12.1996 with effect in relation to films made on or after 1.7.1994) by S.I.

1996/2967, reg. 18(4)(c) (with Pt. III)

106 Presumptions relevant to works subject to Crown copyright.

In proceedings brought by virtue of this Chapter with respect to a literary, dramatic or musical work in which Crown copyright subsists, where there appears on printed copies of the work a statement of the year in which the work was first published commercially, that statement shall be admissible as evidence of the fact stated and shall be presumed to be correct in the absence of evidence to the contrary.

Offences

107 Criminal liability for making or dealing with infringing articles, &c.

(1) A person commits an offence who, without the licence of the copyright owner— (a) makes for sale or hire, or (b) imports into the United Kingdom otherwise than for his private and domestic

use, or (c) possesses in the course of a business with a view to committing any act

infringing the copyright, or (d) in the course of a business —

(i) sells or lets for hire, or (ii) offers or exposes for sale or hire, or

(iii) exhibits in public, or (iv) distributes, or

(e) 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 a copyright work.

(2) A person commits an offence who—

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(a) makes an article specifically designed or adapted for making copies of a particular copyright work, or

(b) has such an article in his possession, knowing or having reason to believe that it is to be used to make infringing copies for sale or hire or for use in the course of a business.

[F263(2A) A person (“P”) who infringes copyright in a work by communicating the work to the public commits an offence if P—

(a) knows or has reason to believe that P is infringing copyright in the work, and (b) either—

(i) intends to make a gain for P or another person, or (ii) knows or has reason to believe that communicating the work to the

public will cause loss to the owner of the copyright, or will expose the owner of the copyright to a risk of loss.

(2B) For the purposes of subsection (2A)— (a) “gain” and “loss”—

(i) extend only to gain or loss in money, and (ii) include any such gain or loss whether temporary or permanent, and

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

(3) Where copyright is infringed (otherwise than by reception of a [F264communication to the public])—

(a) by the public performance of a literary, dramatic or musical work, or (b) by the playing or showing in public of a sound recording or film,

any person who caused the work to be so performed, played or shown is guilty of an offence if he knew or had reason to believe that copyright would be infringed.

(4) A person guilty of an offence under subsection (1)(a), (b), (d)(iv) or (e) is liable— (a) on summary conviction to imprisonment for a term not exceeding six months

or [F265a fine], or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding

[F266ten] years, or both.

[F267(4A) A person guilty of an offence under subsection (2A) is liable— (a) on summary conviction to imprisonment for a term not exceeding three

months or [F268a fine], or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding

[F269ten] years, or both.]

(5) A person guilty of any other offence under this section is liable on summary conviction to imprisonment for a term not exceeding [F270three] months or a fine not exceeding level 5 on the standard scale, or both.

(6) Sections 104 to 106 (presumptions as to various matters connected with copyright) do not apply to proceedings for an offence under this section; but without prejudice to their application in proceedings for an order under section 108 below.

Textual Amendments F263 S. 107(2A)(2B) substituted for s. 107(2A) (1.10.2017) by Digital Economy Act 2017 (c. 30), ss. 32(2),

118(6) (with s. 32(6)); S.I. 2017/765, reg. 3(a)

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F264 Words in s. 107(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 9(2) (with regs. 31-40)

F265 Words in s. 107(4)(a) substituted (12.3.2015) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 (S.I. 2015/664), reg. 1(1), Sch. 4 para. 17(2)(a) (with reg. 5(1))

F266 Word in s. 107(4)(b) substituted (20.11.2002) by 2002 c. 25, s. 1(2)(5); S.I. 2002/2749, art. 2 F267 S. 107(4A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 26(1)(b) (with regs. 31-40) F268 Words in s. 107(4A)(a) substituted (12.3.2015) by The Legal Aid, Sentencing and Punishment of

Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 (S.I. 2015/664), reg. 1(1), Sch. 4 para. 17(2)(b) (with reg. 5(1))

F269 Word in s. 107(4A)(b) substituted (1.10.2017) by Digital Economy Act 2017 (c. 30), ss. 32(3), 118(6) (with s. 32(6)); S.I. 2017/765, reg. 3(a)

F270 Word in s. 107(5) substituted (1.1.2011) by The Copyright, Designs and Patents Act 1988 (Amendment) Regulations 2010 (S.I. 2010/2694), art. 5

[F271107AEnforcement by local weights and measures authority.

(1) It is the duty of every local weights and measures authority to enforce within their area the provisions of section 107.

F272(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Subsection (1) above does not apply in relation to the enforcement of section 107 in Northern Ireland, but it is the duty of the Department of Economic Development to enforce that section in Northern Ireland. F273...

[ F274(3A)

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

(4) Any enactment which authorises the disclosure of information for the purpose of facilitating the enforcement of the Trade Descriptions Act 1968 shall apply as if section 107 were contained in that Act and as if the functions of any person in relation to the enforcement of that section were functions under that Act.

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

Textual Amendments F271 S. 107A inserted (6.4.2007) by 1994 c. 33, ss. 165(2), 172(2); S.I. 2007/621, art. 2 F272 S. 107A(2) omitted (1.10.2015) by virtue of Consumer Rights Act 2015 (c. 15), s. 100(5), Sch. 6 para.

49(2); S.I. 2015/1630, art. 3(i) (with art. 8) F273 Words in s. 107A(3) omitted (1.10.2015) by virtue of Consumer Rights Act 2015 (c. 15), s. 100(5),

Sch. 6 para. 49(3); S.I. 2015/1630, art. 3(i) (with art. 8) F274 S. 107A(3A) inserted (1.10.2015) by Consumer Rights Act 2015 (c. 15), s. 100(5), Sch. 6 para. 49(4);

S.I. 2015/1630, art. 3(i)

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108 Order for delivery up in criminal proceedings.

(1) The court before which proceedings are brought against a person for an offence under section 107 may, if 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 copyright work, or

(b) he had in his possession, custody or control an article specifically designed or adapted for making copies of a particular copyright 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) For this purpose a person shall be treated as charged with an offence— (a) in England, Wales and Northern Ireland, when he is orally charged or is served

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

indictment.

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

(a) after the end of the period specified in section 113 (period after which remedy of delivery up not available), or

(b) if it appears to the court unlikely that any order will be made under section 114 (order as to disposal of infringing copy or other article).

(4) An appeal lies from an order made under this section by a magistrates’ court— (a) in England and Wales, to the Crown Court, and (b) in Northern Ireland, to the county court;

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

(5) A person to whom an 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, undersection 114.

(6) Nothing in this section affects the powers of the court under [F275section 143 of the Powers of Criminal Courts (Sentencing)Act 2000], [F276Part II of the Proceeds of Crime (Scotland) Act 1995] or [F277Article 11 of the Criminal Justice (Northern Ireland) Order 1994] (general provisions as to forfeiture in criminal proceedings).

Textual Amendments F275 Words in s. 108(6) substituted (25.8.2000) by 2000 c. 6, ss. 165(3), 168(1), Sch. 9 para. 115 F276 Words in s. 108(6) substituted (1.4.1996) by virtue of 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 70(2) F277 Words in s. 108(6) substituted (9.1.1995) by S.I. 1994/2795 (N.I. 15), art. 26(1), Sch. 2 para. 13; S.R.

1994/446, art. 2

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109 Search warrants.

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

(a) that an offence under [F278section 107(1), (2) or (2A)] has been or is about to be committed in any premises, and

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

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

(2) The power conferred by subsection (1) does not, in England and Wales, extend to authorising a search for material of the kinds mentioned in section 9(2) of the M7Police and Criminal Evidence Act 1984 (certain classes of personal or confidential material).

(3) A warrant under this section— (a) may authorise persons to accompany any constable executing the warrant, and (b) remains in force for [F279three months] from the date of its issue.

(4) In executing a warrant issued under this section a constable may seize an article if he reasonably believes that it is evidence that any offence under [F280section 107(1), (2) or (2A)] has been or is about to be committed.

(5) In this section “premises” includes land, buildings [F281fixed or], moveable structures, vehicles, vessels, aircraft and hovercraft.

Textual Amendments F278 Words in s. 109(1)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 26(2)(i) (with regs. 31-40) F279 Words in s. 109(3)(b) substituted (1.1.2006) by Serious Organised Crime and Police Act 2005 (c. 15),

ss. 174(1), 178, Sch. 16 para. 6(2); S.I. 2005/3495, art. 2(1)(s) (subject to art. 2(2)) F280 Words in s. 109(4) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 26(2)(ii) (with regs. 31-40) F281 Words in s. 109(5) inserted (20.11.2002) by 2002 c. 25, s. 2(2)(c); S.I. 2002/2749, art. 2

Modifications etc. (not altering text) C56 S. 109(4): power of seizure extended (1.4.2003) by 2001 c. 16, ss. 50, 52-54, 68, 138(2) Sch. 1 Pt. 1

para. 48; S.I. 2003/708, art. 2 S. 109(4) modified (E.W.N.I.) (1.4.2003) by 2001 c. 16, ss. 55, 68, 138(2), Sch. 1 Pt. 3 para. 106 (with s. 57(3)); S.I. 2003/708, art. 2

Marginal Citations M7 1984 c. 60.

110 Offence by body corporate: liability of officers.

(1) Where an offence under section 107 committed by a body corporate is proved to have been committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity,

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he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

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

Provision for preventing importation of infringing copies

111 Infringing copies may be treated as prohibited goods.

(1) The owner of the copyright in a published literary, dramatic or musical work may give notice in writing to the Commissioners of Customs and Excise—

(a) that he is the owner of the copyright in the work, and (b) that he requests the Commissioners, for a period specified in the notice, to treat

as prohibited goods printed copies of the work which are infringing copies.

(2) The period specified in a notice under subsection (1) shall not exceed five years and shall not extend beyond the period for which copyright is to subsist.

(3) The owner of the copyright in a sound recording or film may give notice in writing to the Commissioners of Customs and Excise—

(a) that he is the owner of the copyright in the work, (b) that infringing copies of the work are expected to arrive in the United

Kingdom at a time and a place specified in the notice, and (c) that he requests the Commissioners to treat the copies as prohibited goods.

[F282(3A) The Commissioners may treat as prohibited goods only infringing copies of works which arrive in the United Kingdom—

(a) from outside the European Economic Area, or (b) from within that Area but not having been entered for free circulation.

[F283(3B) This section does not apply to goods placed in, or expected to be placed in, one of the situations referred to in Article 1(1), in respect of which an application may be made under [F284Article 3 of Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning customs enforcement of intellectual property rights].]]

(4) When a notice is in force under this section the importation of goods to which the notice relates, otherwise than by a person for his private and domestic use, [F285subject to subsections (3A) and (3B), is prohibited]; but a person is not by reason of the prohibition liable to any penalty other than forfeiture of the goods.

Textual Amendments F282 S. 111(3A)(3B) inserted (1.7.1995) by S.I. 1995/1445, reg. 2(2) F283 S. 111(3B) substituted (1.7.2004) by The Goods Infringing Intellectual Property Rights (Customs)

Regulations 2004 (S.I. 2004/1473), reg. 12 (with reg. 2(2)(3)) F284 Words in s. 111(3B) substituted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 9 F285 Words in s. 111(4) substituted (1.7.1995) by S.I. 1995/1445, reg. 2(3)

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112 Power of Commissioners of Customs and Excise to make regulations.

(1) The Commissioners of Customs and Excise may make regulations prescribing the form in which notice is to be given under section 111 and requiring a person giving notice—

(a) to furnish the Commissioners with such evidence as may be specified in the regulations, either on giving notice or when the goods are imported, or at both those times, and

(b) to comply with such other conditions as may be specified in the regulations.

(2) The regulations may, in particular, require a person giving such a notice— (a) to pay such fees in respect of the notice as may be specified by the regulations; (b) to give such security as may be so specified in respect of any liability or

expense which the Commissioners may incur in consequence of the notice by reason of the detention of any article or anything done to an article detained;

(c) to indemnify the Commissioners against any such liability or expense, whether security has been given or not.

(3) The regulations may make different provision as respects different classes of case to which they apply and may include such incidental and supplementary provisions as the Commissioners consider expedient.

(4) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) F286. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F286 S. 112(5) repealed (18.4.2005) by Commissioners for Revenue and Customs Act 2005 (c. 11), ss.

50(6), 52(2), 53(1), Sch. 4 para. 38, Sch. 5; S.I. 2005/1126, art. 2(2)(h)(i)

Supplementary

113 Period after which remedy of delivery up not available.

(1) An application for an order under section 99 (order for delivery up in civil proceedings) may not be made after the end of the period of six years from the date on which the infringing copy or article in question was made, subject to the following provisions.

(2) If during the whole or any part of that period the copyright owner— (a) is under a disability, or (b) is prevented by fraud or concealment from discovering the facts entitling him

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

(3) In subsection (2) “disability”— (a) in England and Wales, has the same meaning as in the M8Limitation Act 1980; (b) in Scotland, means legal disability within the meaning of the M9Prescription

and Limitation (Scotland) Act 1973;

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(c) in Northern Ireland, has the same meaning as in the M10Statute of Limitations (Northern Ireland) 1958.

(4) An order under section 108 (order for delivery up in criminal proceedings) shall not, in any case, be made after the end of the period of six years from the date on which the infringing copy or article in question was made.

Marginal Citations M8 1980 c. 58. M9 1973 c. 52. M10 1958 c. 10 (N.I.).

114 Order as to disposal of infringing copy or other article.

(1) An application may be made to the court for an order that an infringing copy or other article delivered up in pursuance of an order under section 99 or 108, or seized and detained in pursuance of the right conferred by section 100, shall be—

(a) forfeited to the copyright owner, or (b) destroyed or otherwise dealt with as the court may think fit,

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

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

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

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

(b) to appeal against any order made, whether or not he appeared; and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.

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

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

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

[F287(a) under this section or under section 204 or 231 of this Act; (b) under section 24D of the Registered Designs Act 1949; (c) under section 19 of Trade Marks Act 1994 (including that section as

applied by regulation 4 of the Community Trade Mark Regulations 2006 (SI 2006/1027)); or

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

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Textual Amendments F287 Words in s. 114(6) substituted (29.4.2006) by The Intellectual Property (Enforcement, etc.)

Regulations 2006 (S.I. 2006/1028), reg. 2(1), Sch. 2 para. 7

Modifications etc. (not altering text) C57 S. 114 extended by S.I. 1991/724, art. 2(1)(n)

[F288114AForfeiture of infringing copies, etc.: England and Wales or Northern Ireland

(1) In England and Wales or Northern Ireland where there have come into the possession of any person in connection with the investigation or prosecution of a relevant offence—

(a) infringing copies of a copyright work, or (b) articles specifically designed or adapted for making copies of a particular

copyright work, that person may apply under this section for an order for the forfeiture of the infringing copies or articles.

(2) For the purposes of this section “relevant offence” means— (a) an offence under [F289section 107(1), (2) or (2A)] (criminal liability for making

or dealing with infringing articles, etc.), (b) an offence under the Trade Descriptions Act 1968 (c. 29),

[ F290(ba)

an offence under the Business Protection from Misleading Marketing Regulations 2008,

(bb) an offence under the Consumer Protection from Unfair Trading Regulations 2008, or]

(c) an offence involving dishonesty or deception.

(3) An application under this section may be made— (a) where proceedings have been brought in any court for a relevant offence

relating to some or all of the infringing copies or articles, to that court, or (b) where no application for the forfeiture of the infringing copies or articles has

been made under paragraph (a), by way of complaint to a magistrates’ court.

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

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

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

(a) in England and Wales, to the Crown Court, or (b) in Northern Ireland, to the county court.

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

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

(9) On making an order under this section the court may direct that the infringing copies or articles to which the order relates shall (instead of being destroyed) be forfeited to the owner of the copyright in question or dealt with in such other way as the court considers appropriate.]

Textual Amendments F288 Ss. 114A, 114B inserted (20.11.2002) by 2002 c. 25, s. 3; S.I. 2002/2749, art. 2 F289 Words in s. 114A(2)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 26(2)(iii) (with regs. 31-40) F290 S. 114A(2)(ba)(bb) and word substituted (26.5.2008) for word by The Consumer Protection from

Unfair Trading Regulations 2008 (S.I. 2008/1277), reg. 1, Sch. 2 para. 40 (with reg. 28(2)(3))

F291114BForfeiture of infringing copies, etc.: Scotland

(1) In Scotland the court may make an order under this section for the forfeiture of any— (a) infringing copies of a copyright work, or (b) articles specifically designed or adapted for making copies of a particular

copyright work.

(2) An order under this section may be made— (a) on an application by the procurator-fiscal made in the manner specified in

section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46), or (b) where a person is convicted of a relevant offence, in addition to any other

penalty which the court may impose.

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

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

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

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

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

(8) The court shall not make an order following an application under subsection (2)(a)— (a) if any person on whom notice is served under subsection (5) does not appear,

unless service of the notice on that person is proved, or (b) if no notice under subsection (5) has been served, unless the court is satisfied

that in the circumstances it was reasonable not to serve such notice.

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

(10) Section 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995 (c. 46) shall apply to an appeal under subsection (9) as it applies to a stated case under Part 2 of that Act.

(11) An order following an application under subsection (2)(a) shall not take effect— (a) until the end of the period of 21 days beginning with the day after the day on

which the order is made, or (b) if an appeal is made under subsection (9) above within that period, until the

appeal is determined or abandoned.

(12) An order under subsection (2)(b) shall not take effect— (a) until the end of the period within which an appeal against the order could be

brought under the Criminal Procedure (Scotland) Act 1995, or (b) if an appeal is made within that period, until the appeal is determined or

abandoned.

(13) Subject to subsection (14), infringing copies or articles forfeited under this section shall be destroyed in accordance with such directions as the court may give.

(14) On making an order under this section the court may direct that the infringing copies or articles to which the order relates shall (instead of being destroyed) be forfeited to the owner of the copyright in question or dealt with in such other way as the court considers appropriate.

(15) For the purposes of this section— [F292“relevant offence” means—

(a) an offence under section 107(1), (2) or (2A) (criminal liability for making or dealing with infringing articles, etc),

(b) an offence under the Trade Descriptions Act 1968, (c) an offence under the Business Protection from Misleading Marketing

Regulations 2008,

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(d) an offence under the Consumer Protection from Unfair Trading Regulations 2008, or

(e) any offence involving dishonesty or deception;] “the court” means—

(a) in relation to an order made on an application under subsection (2)(a), the sheriff, and

(b) in relation to an order made under subsection (2)(b), the court which imposed the penalty.

Textual Amendments F291 Ss. 114A, 114B inserted (20.11.2002) by 2002 c. 25, s. 3; S.I. 2002/2749, art. 2 F292 Words in s. 114B(15) substituted (26.5.2008) by The Consumer Protection from Unfair Trading

Regulations 2008 (S.I. 2008/1277), reg. 1, Sch. 2 para. 41 (with reg. 28(2)(3))

115 Jurisdiction of county court and sheriff court.

(1) In England [F293and Wales the county court and in] Northern Ireland a county court may entertain proceedings under—

section 99 (order for delivery up of infringing copy or other article), section 102(5) (order as to exercise of rights by copyright owner where exclusive licensee has concurrent rights), or section 114 (order as to disposal of infringing copy or other article),

[F294save that, in Northern Ireland, a county court may entertain such proceedings only] where the value of the infringing copies and other articles in question does not exceed the county court limit for actions in tort.

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

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

Textual Amendments F293 Words in s. 115(1) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch.

9 para. 72; S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F294 Words in s. 115(1) inserted by S.I. 1991/724, art. 2(8), Schedule Pt. I

CHAPTER VII

COPYRIGHT LICENSING

Modifications etc. (not altering text) C58 Pt. I Ch. VII (ss. 116-144) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17(1)-(3)

(with Pt. III)

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Licensing schemes and licensing bodies

116 Licensing schemes and licensing bodies.

(1) In this Part 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 copyright 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 this Chapter a “licensing body” means [F295(a) a society or other organisation 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 copyright licences, and whose objects include the granting of licences covering works of more than one author][F296, or,

(b) any other organisation which is a collective management organisation as defined by regulation 2 of the Collective Management of Copyright (EU Directive) Regulations 2016].

(3) In this section “copyright licences” means licences to do, or authorise the doing of, any of the acts restricted by copyright.

(4) References in this Chapter 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 of or commissioned by, a single individual, firm, company or group of companies.

For this purpose a group of companies means a holding company and its subsidiaries, within the meaning of [F297section 1159 of the Companies Act 2006].

[F298(5) Schedule A1 confers powers to provide for the regulation of licensing bodies.]

Textual Amendments F295 Words in s. 116(2) renumbered as s. 116(2)(a) (10.4.2016) by The Collective Management of

Copyright (EU Directive) Regulations 2016 (S.I. 2016/221), regs. 1, 44(a) F296 S. 116(2)(b) and word inserted (10.4.2016) by The Collective Management of Copyright (EU

Directive) Regulations 2016 (S.I. 2016/221), regs. 1, 44(b) F297 Words in s. 116(4) substituted (1.10.2009) by The Companies Act 2006 (Consequential Amendments,

Transitional Provisions and Savings) Order 2009 (S.I. 2009/1941), art. 2(1), Sch. 1 para. 98(a) (with art. 10)

F298 S. 116(5) inserted (25.4.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 77(2), 103(1)

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[F299Orphan works licensing and extended collective licensing

Textual Amendments F299 Ss. 116A-116D and cross-heading inserted (25.4.2013) by Enterprise and Regulatory Reform Act 2013

(c. 24), ss. 77(3), 103(1)

116A Power to provide for licensing of orphan works

(1) The Secretary of State may by regulations provide for the grant of licences in respect of works that qualify as orphan works under the regulations.

(2) The regulations may— (a) specify a person or a description of persons authorised to grant licences, or (b) provide for a person designated in the regulations to specify a person or a

description of persons authorised to grant licences

(3) The regulations must provide that, for a work to qualify as an orphan work, it is a requirement that the owner of copyright in it has not been found after a diligent search made in accordance with the regulations.

(4) The regulations may provide for the granting of licences to do, or authorise the doing of, any act restricted by copyright that would otherwise require the consent of the missing owner.

(5) The regulations must provide for any licence— (a) to have effect as if granted by the missing owner; (b) not to give exclusive rights; (c) not to be granted to a person authorised to grant licences.

(6) The regulations may apply to a work although it is not known whether copyright subsists in it, and references to a missing owner and a right or interest of a missing owner are to be read as including references to a supposed owner and a supposed right or interest.

116B Extended collective licensing

(1) The Secretary of State may by regulations provide for a licensing body that applies to the Secretary of State under the regulations to be authorised to grant copyright licences in respect of works in which copyright is not owned by the body or a person on whose behalf the body acts.

(2) An authorisation must specify— (a) the types of work to which it applies, and (b) the acts restricted by copyright that the licensing body is authorised to license.

(3) The regulations must provide for the copyright owner to have a right to limit or exclude the grant of licences by virtue of the regulations.

(4) The regulations must provide for any licence not to give exclusive rights.

(5) In this section “ copyright licences ” has the same meaning as in section 116.

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(6) Nothing in this section applies in relation to Crown copyright or Parliamentary copyright.

116C General provision about licensing under sections 116A and 116B

(1) This section and section 116D apply to regulations under sections 116A and 116B.

(2) The regulations may provide for a body to be or remain authorised to grant licences only if specified requirements are met, and for a question whether they are met to be determined by a person, and in a manner, specified in the regulations.

(3) The regulations may specify other matters to be taken into account in any decision to be made under the regulations as to whether to authorise a person to grant licences.

(4) The regulations must provide for the treatment of any royalties or other sums paid in respect of a licence, including—

(a) the deduction of administrative costs; (b) the period for which sums must be held; (c) the treatment of sums after that period (as bona vacantia or otherwise).

(5) The regulations must provide for circumstances in which an authorisation to grant licences may be withdrawn, and for determining the rights and obligations of any person if an authorisation is withdrawn.

(6) The regulations may include other provision for the purposes of authorisation and licensing, including in particular provision—

(a) for determining the rights and obligations of any person if a work ceases to qualify as an orphan work (or ceases to qualify by reference to any copyright owner), or if a rights owner exercises the right referred to in section 116B(3), while a licence is in force;

(b) about maintenance of registers and access to them; (c) permitting the use of a work for incidental purposes including an application

or search; (d) for a right conferred by section 77 to be treated as having been asserted in

accordance with section 78; (e) for the payment of fees to cover administrative expenses.

116D Regulations under sections 116A and 116B

(1) The power to make regulations includes power— (a) to make incidental, supplementary or consequential provision, including

provision extending or restricting the jurisdiction of the Copyright Tribunal or conferring powers on it;

(b) to make transitional, transitory or saving provision; (c) to make different provision for different purposes.

(2) Regulations under any provision may amend this Part, or any other enactment or subordinate legislation passed or made before that provision comes into force, for the purpose of making consequential provision or extending or restricting the jurisdiction of the Copyright Tribunal or conferring powers on it.

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(3) Regulations may make provision by reference to guidance issued from time to time by any person.

(4) The power to make regulations is exercisable by statutory instrument.

(5) A statutory instrument containing regulations may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.]

References and applications with respect to licensing schemes

[F300117 Licensing schemes to which following sections apply.

Sections 118 to 123 (references and applications with respect to licensing schemes) apply to licensing schemes which are operated by licensing bodies and cover works of more than one author, so far as they relate to licences for—

(a) copying the work, (b) rental or lending of copies of the work to the public, (c) performing, showing or playing the work in public, or

[F301(d) communicating the work to the public;] and references in those sections to a licensing scheme shall be construed accordingly.]

Textual Amendments F300 S. 117 substituted (1.12.1996) by S.I. 1996/2967, reg. 15(2) (with Pt. III) F301 S. 117(d) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 4(4) (with regs. 31-40)

118 Reference of proposed licensing scheme to tribunal.

(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 considerthe 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.

119 Reference of licensing scheme to tribunal.

(1) If while a licensing scheme is in operation a dispute arises between the operator of the scheme and—

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(a) a person claiming that he requires a licence in a case of a description to which the scheme applies, or

(b) an organisation claiming to be representative of such persons, that person or organisation may refer the scheme to the Copyright Tribunal in so far as it relates to cases of that description.

(2) A scheme which has been referred to the Tribunal under this section 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.

120 Further reference of scheme to tribunal.

(1) Where the Copyright Tribunal has on a previous reference of a licensing scheme under [F302section 118, 119 or 128A], or under this section, made an order with respect to the scheme, then, while the order remains in force—

(a) the operator of the scheme, (b) a person claiming that he requires a licence in a case of the description to

which the order applies, or (c) an organisation claiming to be representative of such persons,

may refer the scheme again to the Tribunal so far as it relates to cases of that description.

(2) A licensing scheme shall not, except with the special leave of the Tribunal, be referred again to the Tribunal in respect of the same description of cases—

(a) within twelve months from the date of the order on the previous reference, or (b) if the order was made so as to be in force for 15 months or less, until the last

three months before the expiry of the order.

(3) A scheme which has been referred to the Tribunal under this section 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.

Textual Amendments F302 Words in s. 120(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 21(4) (with regs. 31-40)

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121 Application for grant of licence in connection with licensing scheme.

(1) A person who claims, in a case covered by a licensing scheme, that the operator of the scheme has refused to grant him or procure the grant to him of a licence in accordance with the scheme, or has failed to do so within a reasonable time after being asked, may apply to the Copyright Tribunal.

(2) A person who claims, in a case excluded from a licensing scheme, that the operator of the scheme either—

(a) has refused to grant him a licence or procure the grant to him of a licence, or has failed to do so within a reasonable time of being asked, and that in the circumstances it is unreasonable that a licence should not be granted, or

(b) proposes terms for a licence which are unreasonable, may apply to the Copyright Tribunal.

(3) A case shall be regarded as excluded from a licensing scheme for the purposes of subsection (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.

122 Application for review of order as to entitlement to licence.

(1) Where the Copyright Tribunal has made an order under section 121 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 section, 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 section 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.

123 Effect of order of tribunal as to licensing scheme.

(1) A licensing scheme which has been confirmed or varied by the Copyright Tribunal— (a) under section 118 (reference of terms of proposed scheme), or (b) under section 119 or 120 (reference of existing scheme to Tribunal),

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shall be in force or, as the case may be, remain in operation, so far as it relates to the description of case in respect of which the order was made, so long as the order remains in force.

(2) While the order is in force a person who in a case of a class to which the order applies— (a) pays to the operator of the scheme any charges payable under the scheme in

respect of a licence covering the case in question or, if the amount cannot be ascertained, gives an undertaking to the operator to pay them when ascertained, and

(b) complies with the other terms applicable to such a licence under the scheme, shall be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright 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 subsection (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 subsection (4) below applies.

(4) An order of the Tribunal under section 119 or 120 made with respect to a scheme which is certified for any purpose under section 143 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 section 121 (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 copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.

References and applications with respect to licensing by licensing bodies

[F303124 Licences to which following sections apply.

Sections 125 to 128 (references and applications with respect to licensing by licensing bodies) apply to licences which are granted by a licensing body otherwise than in pursuance of a licensing scheme and cover works of more than one author, so far as they authorise—

(a) copying the work,

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(b) rental or lending of copies of the work to the public, (c) performing, showing or playing the work in public, or

[F304(d) communicating the work to the public;] and references in those sections to a licence shall be construed accordingly.]

Textual Amendments F303 S. 124 substituted (1.12.1996) by S.I. 1996/2967, reg. 15(3) (with Pt. III) F304 S. 124(d) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 4(4) (with regs. 31-40)

125 Reference to tribunal of proposed licence.

(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.

126 Reference to tribunal of expiring licence.

(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 section may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

127 Application for review of order as to licence.

(1) Where the Copyright Tribunal has made an order under [F305section 125, 126 or 128B (where that order did not relate to a licensing scheme)], 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—

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(a) within twelve months from the date of the order or of the decision on a previous application under this section, 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 section 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.

Textual Amendments F305 Words in s. 127(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 21(5) (with regs. 31-40)

128 Effect of order of tribunal as to licence.

(1) Where the Copyright Tribunal has made an order under section 125 or 126 and the order remains in force, the person entitled to the benefit of the order shall if he—

(a) pays to the licensing body any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained, and

(b) complies with the other terms specified in the order, be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.

(2) The benefit of the order may be assigned— (a) in the case of an order under section 125, if assignment is not prohibited under

the terms of the Tribunal’s order; and (b) in the case of an order under section 126, if assignment was not prohibited

under the terms of the original licence.

(3) The Tribunal may direct that an order under section 125 or 126, or an order under section 127 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 subsection (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.

[F306128ANotification of licence or licensing scheme for excepted sound recordings F307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Textual Amendments F306 Ss. 128A, 128B inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 21(3) (with regs. 31-40) F307 S. 128A omitted (1.1.2011) by virtue of The Copyright, Designs and Patents Act 1988 (Amendment)

Regulations 2010 (S.I. 2010/2694), art. 6

128B References to the Tribunal by the Secretary of State under section 128A F308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ]

Textual Amendments F306 Ss. 128A, 128B inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 21(3) (with regs. 31-40) F308 S. 128B omitted (1.1.2011) by virtue of The Copyright, Designs and Patents Act 1988 (Amendment)

Regulations 2010 (S.I. 2010/2694), art. 6

Factors to be taken into account in certain classes of case

129 General considerations: unreasonable discrimination.

In determining what is reasonable on a reference or application under this Chapter relating to a licensing scheme or licence, the Copyright Tribunal shall have regard to—

(a) the availability of other schemes, or the granting of other licences, to other persons in similar circumstances, and

(b) the terms of those schemes or licences, and shall exercise its powers so as to secure that there is no unreasonable discrimination between licensees, or prospective licensees, under the scheme or licence to which the reference or application relates and licensees under other schemes operated by, or other licences granted by, the same person.

130 Licences for reprographic copying.

Where a reference or application is made to the Copyright Tribunal under this Chapter relating to the licensing of reprographic copying of published literary, dramatic, musical or artistic works, or the typographical arrangement of published editions, the Tribunal shall have regard to—

(a) the extent to which published editions of the works in question are otherwise available,

(b) the proportion of the work to be copied, and (c) the nature of the use to which the copies are likely to be put.

131 Licences for educational establishments in respect of works included in broadcasts F309. . . .

(1) This section applies to references or applications under this Chapter relating to licences for the recording by or on behalf of educational establishments of broadcasts F310. . .

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which include copyright works, or the making of copies of such recordings, for educational purposes.

(2) The Copyright Tribunal shall, in considering what charges (if any) should be paid for a licence, have regard to the extent to which the owners of copyright in the works included in the broadcast F310. . . have already received, or are entitled to receive, payment in respect of their inclusion.

Textual Amendments F309 Words in s. 131 heading repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F310 Words in s. 131(1)(2) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

132 Licences to reflect conditions imposed by promoters of events.

(1) This section applies to references or applications under this Chapter in respect of licences relating to sound recordings, films [F311or broadcasts] which include, or are to include, any entertainment or other event.

(2) The Copyright Tribunal shall have regard to any conditions imposed by the promoters of the entertainment or other event; and, in particular, the Tribunal shall not hold a refusal or failure to grant a licence to be unreasonable if it could not have been granted consistently with those conditions.

(3) Nothing in this section shall require the Tribunal to have regard to any such conditions in so far as they—

(a) purport to regulate the charges to be imposed in respect of the grant of licences, or

(b) relate to payments to be made to the promoters of any event in consideration of the grant of facilities for making the recording, film [F312or broadcast].

Textual Amendments F311 Words in s. 132(1) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 3 para. 3(2)(a) (with regs. 31-40) F312 Words in s. 132(3)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 3(1)(j) (with regs. 31-40)

133 Licences to reflect payments in respect of underlying rights. F313[( 1 ) In considering what charges should be paid for a licence—

(a) on a reference or application under this Chapter relating to licences for the rental or lending of copies of a work, or

(b) on an application under section 142 (royalty or other sum payable for lending of certain works), the Copyright Tribunal shall take into account any reasonable payments which the owner of the copyright in the work is liable to make in consequence of the granting of the licence, or of the acts authorised by the licence, to owners of copyright in works included in that work.]

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(2) On any reference or application under this Chapter relating to licensing in respect of the copyright in sound recordings, films [F314or broadcasts], the Copyright Tribunal shall take into account, in considering what charges should be paid for a licence, any reasonable payments which the copyright owner is liable to make in consequence of the granting of the licence, or of the acts authorised by the licence, in respect of any performance included in the recording, film [F315or broadcast].

Textual Amendments F313 S. 133(1) substituted (1.12.1996) by S.I. 1996/2967, reg. 13(1) (with Pt. III) F314 Words in s. 133(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 3 para. 3(2)(b) (with regs. 31-40) F315 Words in s. 133(2) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 3 para. 3(1)(k) (with regs. 31-40)

134 Licences in respect of works included in re-transmissions.

(1) F316... this section applies to references or applications under this Chapter relating to licences to include in a broadcast F317. . . —

(a) literary, dramatic, musical or artistic works, or, (b) sound recordings or films,

where one broadcast F317. . . (“the first transmission”) is, by reception and immediate re-transmission, to be further broadcast F317. . . (“the further transmission”).

(2) So far as the further transmission is to the same area as the first transmission, the Copyright Tribunal shall, in considering what charges (if any) should be paid for licences for either transmission, have regard to the extent to which the copyright owner has already received, or is entitled to receive, payment for the other transmission which adequately remunerates him in respect of transmissions to that area.

(3) So far as the further transmission is to an area outside that to which the first transmission was made, the Tribunal shall F317. . . leave the further transmission out of account in considering what charges (if any) should be paid for licences for the first transmission.

F318(3A ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F319(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F316 Words in s. 134(1) repealed (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 34(2)(a)(i), 118(6);

S.I. 2017/765, reg. 2(n) F317 Words in s. 134(1)(3) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F318 S. 134(3A) repealed (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 34(2)(a)(i), 118(6); S.I.

2017/765, reg. 2(n) F319 S. 134(4) repealed by Broadcasting Act 1990 (c. 42, SIF 96), s. 203(3), Sch. 21

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135 Mention of specific matters not to exclude other relevant considerations.

The mention in sections 129 to 134 of specific matters to which the Copyright Tribunal is to have regard in certain classes of case does not affect the Tribunal’s general obligation in any case to have regard to all relevant considerations.

[F320 Use as of right of sound recordings in broadcasts F321 . . .

Textual Amendments F320 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1) F321 Words in heading preceding s. 135A repealed (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

135A Circumstances in which right available.

(1) Section 135C applies to the inclusion in a broadcast F322 . . . of any sound recordings if—

(a) a licence to include those recordings in the broadcast F322 . . . could be granted by a licensing body or such a body could procure the grant of a licence to do so,

(b) the condition in subsection (2) or (3) applies, and (c) the person including those recordings in the broadcast F322 . . . has complied

with section 135B.

(2) Where the person including the recordings in the broadcast F322 . . . does not hold a licence to do so, the condition is that the licensing body refuses to grant, or procure the grant of, such a licence, being a licence—

(a) whose terms as to payment for including the recordings in the broadcast F322 . . . would be acceptable to him or comply with an order of the Copyright Tribunal under section 135D relating to such a licence or any scheme under which it would be granted, and

(b) allowing unlimited needletime or such needletime as he has demanded.

(3) Where he holds a licence to include the recordings in the broadcast F322 . . . , the condition is that the terms of the licence limit needletime and the licensing body refuses to substitute or procure the substitution of terms allowing unlimited needletime or such needletime as he has demanded, or refuses to do so on terms that fall within subsection (2)(a).

(4) The references in subsection (2) to refusing to grant, or procure the grant of, a licence, and in subsection (3) to refusing to substitute or procure the substitution of terms, include failing to do so within a reasonable time of being asked.

(5) In the group of sections from this section to section 135G— [F323 “ broadcast ” does not include any broadcast which is a transmission

of the kind specified in section 6(1A)(b) or (c); ] “ needletime ” means the time in any period (whether determined as a

number of hours in the period or a proportion of the period, or otherwise) in which any recordings may be included in a broadcast F322 . . . ;

“ sound recording ” does not include a film sound track when accompanying a film.

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(6) In sections 135B to 135G, “ terms of payment ” means terms as to payment for including sound recordings in a broadcast F322 . . . . ]

Textual Amendments F322 Words in s. 135A repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F323 S. 135A(5): definition of "broadcast" inserted (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(1) (with regs. 31-40)

[F324135BNotice of intention to exercise right.

(1) A person intending to avail himself of the right conferred by section 135C must— (a) give notice to the licensing body of his intention to exercise the right, asking

the body to propose terms of payment, and (b) after receiving the proposal or the expiry of a reasonable period, give

reasonable notice to the licensing body of the date on which he proposes to begin exercising that right, and the terms of payment in accordance with which he intends to do so.

(2) Where he has a licence to include the recordings in a broadcast F325 . . . , the date specified in a notice under subsection (1)(b) must not be sooner than the date of expiry of that licence except in a case falling within section 135A(3).

(3) Before the person intending to avail himself of the right begins to exercise it, he must— (a) give reasonable notice to the Copyright Tribunal of his intention to exercise

the right, and of the date on which he proposes to begin to do so, and (b) apply to the Tribunal under section 135D to settle the terms of payment.]

Textual Amendments F324 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1) F325 Words in s. 135B(2) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

[F326135CConditions for exercise of right.

(1) A person who, on or after the date specified in a notice under section 135B(1)(b), includes in a broadcast F327 . . . any sound recordings in circumstances in which this section applies, and who—

(a) complies with any reasonable condition, notice of which has been given to him by the licensing body, as to inclusion in the broadcast F327 . . . of those recordings,

(b) provides that body with such information about their inclusion in the broadcast F327 . . . as it may reasonably require, and

(c) makes the payments to the licensing body that are required by this section, shall be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question.

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(2) Payments are to be made at not less than quarterly intervals in arrears.

(3) The amount of any payment is that determined in accordance with any order of the Copyright Tribunal under section 135D or, if no such order has been made—

(a) in accordance with any proposal for terms of payment made by the licensing body pursuant to a request under section 135B, or

(b) where no proposal has been so made or the amount determined in accordance with the proposal so made is unreasonably high, in accordance with the terms of payment notified to the licensing body under section 135B(1)(b).

(4) Where this section applies to the inclusion in a broadcast F327 . . . of any sound recordings, it does so in place of any licence. ]

Textual Amendments F326 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1) F327 Words in s. 135C(1)(4) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

[F328135DApplications to settle payments.

(1) On an application to settle the terms of payment, the Copyright Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.

(2) An order under subsection (1) has effect from the date the applicant begins to exercise the right conferred by section 135C and any necessary repayments, or further payments, shall be made in respect of amounts that have fallen due.]

Textual Amendments F328 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1)

[F329135EReferences etc. about conditions, information and other terms.

(1) A person exercising the right conferred by section 135C, or who has given notice to the Copyright Tribunal of his intention to do so, may refer to the Tribunal—

(a) any question whether any condition as to the inclusion in a broadcast F330 . . . of sound recordings, notice of which has been given to him by the licensing body in question, is a reasonable condition, or

(b) any question whether any information is information which the licensing body can reasonably require him to provide.

(2) On a reference under this section, the Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.]

Textual Amendments F329 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1)

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F330 Words in s. 135E(1)(a) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

[F331135FApplication for review of order.

(1) A person exercising the right conferred by section 135C or the licensing body may apply to the Copyright Tribunal to review any order under section 135D or 135E.

(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 section, or (b) if the order was made so as to be in force for fifteen months or less, or as a

result of a decision on a previous application is due to expire within fifteen months of that decision, until the last three months before the expiry date.

(3) On the application 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 order under this section has effect from the date on which it is made or such later date as may be specified by the Tribunal.]

Textual Amendments F331 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1)

[F332135GFactors to be taken into account.

(1) In determining what is reasonable on an application or reference under section 135D or 135E, or on reviewing any order under section 135F, the Copyright Tribunal shall—

(a) have regard to the terms of any orders which it has made in the case of persons in similar circumstances exercising the right conferred by section 135C, and

(b) exercise its powers so as to secure that there is no unreasonable discrimination between persons exercising that right against the same licensing body.

(2) In settling the terms of payment under section 135D, the Tribunal shall not be guided by any order it has made under any enactment other than that section.

(3) Section 134 (factors to be taken into account: retransmissions) applies on an application or reference under sections 135D to 135F as it applies on an application or reference relating to a licence.]

Textual Amendments F332 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1)

[F333135HPower to amend sections 135A to 135G.

(1) The Secretary of State may by order, subject to such transitional provision as appears to him to be appropriate, amend sections 135A to 135G so as—

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(a) to include in any reference to sound recordings any works of a description specified in the order; or

(b) to exclude from any reference to a broadcast F334 . . . any broadcast F334 . . . of a description so specified.

(2) An order shall be made by statutory instrument; and no order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.]

Textual Amendments F333 S. 135H inserted (1.11.1996) by 1996 c. 55, s. 139(1) (with s. 43(6)); S.I. 1996/2120, art. 5, Sch. 2 F334 Words in s. 135H(1)(b) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

Implied indemnity in schemes or licences for reprographic copying

136 Implied indemnity in certain schemes and licences for reprographic copying.

(1) This section applies to— (a) schemes for licensing reprographic copying of published literary, dramatic,

musical or artistic works, or the typographical arrangement of published editions, and

(b) licences granted by licensing bodies for such copying, where the scheme or licence does not specify the works to which it applies with such particularity as to enable licensees to determine whether a work falls within the scheme or licence by inspection of the scheme or licence and the work.

(2) There is implied— (a) in every scheme to which this section applies an undertaking by the operator

of the scheme to indemnify a person granted a licence under the scheme, and (b) in every licence to which this section applies an undertaking by the licensing

body to indemnify the licensee, against any liability incurred by him by reason of his having infringed copyright by making or authorising the making of reprographic copies of a work in circumstances within the apparent scope of his licence.

(3) The circumstances of a case are within the apparent scope of a licence if— (a) it is not apparent from inspection of the licence and the work that it does not

fall within the description of works to which the licence applies; and (b) the licence does not expressly provide that it does not extend to copyright of

the description infringed.

(4) In this section “liability” includes liability to pay costs; and this section applies in relation to costs reasonably incurred by a licensee in connection with actual or contemplated proceedings against him for infringement of copyright as it applies to sums which he is liable to pay in respect of such infringement.

(5) A scheme or licence to which this section applies may contain reasonable provision— (a) with respect to the manner in which, and time within which, claims under the

undertaking implied by this section are to be made;

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(b) enabling the operator of the scheme or, as the case may be, the licensing body to take over the conduct of any proceedings affecting the amount of his liability to indemnify.

Reprographic copying by educational establishments

137 Power to extend coverage of scheme or licence.

(1) This section applies to— (a) a licensing scheme to which sections 118 to 123 apply (see section 117) and

which is operated by a licensing body, or (b) a licence to which sections 125 to 128 apply (see section 124),

so far as it provides for the grant of licences, or is a licence, authorising the making by or on behalf of educational establishments for the purposes of instruction of reprographic copies of published literary, dramatic, musical or artistic works, or of the typographical arrangement of published editions.

(2) If it appears to the Secretary of State with respect to a scheme or licence to which this section applies that—

(a) works of a description similar to those covered by the scheme or licence are unreasonably excluded from it, and

(b) making them subject to the scheme or licence would not conflict with the normal exploitation of the works or unreasonably prejudice the legitimate interests of the copyright owners,

he may by order provide that the scheme or licence shall extend to those works.

(3) Where he proposes to make such an order, the Secretary of State shall give notice of the proposal to—

(a) the copyright owners, (b) the licensing body in question, and (c) such persons or organisations representative of educational establishments,

and such other persons or organisations, as the Secretary of State thinks fit.

(4) The notice shall inform those persons of their right to make written or oral representations to the Secretary of State about the proposal within six months from the date of the notice; and if any of them wishes to make oral representations, the Secretary of State shall appoint a person to hear the representations and report to him.

(5) In considering whether to make an order the Secretary of State shall take into account any representations made to him in accordance with subsection (4), and such other matters as appear to him to be relevant.

Modifications etc. (not altering text) C59 Ss. 137–141 extended by S.I. 1989/1067, art. 2

138 Variation or discharge of order extending scheme or licence.

(1) The owner of the copyright in a work in respect of which an order is in force under section 137 may apply to the Secretary of State for the variation or discharge of the order, stating his reasons for making the application.

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(2) The Secretary of State shall not entertain an application made within two years of the making of the original order, or of the making of an order on a previous application under this section, unless it appears to him that the circumstances are exceptional.

(3) On considering the reasons for the application the Secretary of State may confirm the order forthwith; if he does not do so, he shall give notice of the application to—

(a) the licensing body in question, and (b) such persons or organisations representative of educational establishments,

and such other persons or organisations, as he thinks fit.

(4) The notice shall inform those persons of their right to make written or oral representations to the Secretary of State about the application within the period of two months from the date of the notice; and if any of them wishes to make oral representations, the Secretary of State shall appoint a person to hear the representations and report to him.

(5) In considering the application the Secretary of State shall take into account the reasons for the application, any representations made to him in accordance with subsection (4), and such other matters as appear to him to be relevant.

(6) The Secretary of State may make such order as he thinks fit confirming or discharging the order (or, as the case may be, the order as previously varied), or varying (or further varying) it so as to exclude works from it.

Modifications etc. (not altering text) C60 Ss. 137–141 extended by S.I. 1989/1067, art. 2

139 Appeals against orders.

(1) The owner of the copyright in a work which is the subject of an order under section 137 (order extending coverage of scheme or licence) may appeal to the Copyright Tribunal which may confirm or discharge the order, or vary it so as to exclude works from it, as it thinks fit having regard to the considerations mentioned in subsection (2) of that section.

(2) Where the Secretary of State has made an order under section 138 (order confirming, varying or discharging order extending coverage of scheme or licence)—

(a) the person who applied for the order, or (b) any person or organisation representative of educational establishments who

was given notice of the application for the order and made representations in accordance with subsection (4) of that section,

may appeal to the Tribunal which may confirm or discharge the order or make any other order which the Secretary of State might have made.

(3) An appeal under this section shall be brought within six weeks of the making of the order or such further period as the Tribunal may allow.

(4) An order under section 137 or 138 shall not come into effect until the end of the period of six weeks from the making of the order or, if an appeal is brought before the end of that period, until the appeal proceedings are disposed of or withdrawn.

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(5) If an appeal is brought after the end of that period, any decision of the Tribunal on the appeal does not affect the validity of anything done in reliance on the order appealed against before that decision takes effect.

Modifications etc. (not altering text) C61 Ss. 137–141 extended by S.I. 1989/1067, art. 2

140 Inquiry whether new scheme or general licence required.

(1) The Secretary of State may appoint a person to inquire into the question whether new provision is required (whether by way of a licensing scheme or general licence) to authorise the making by or on behalf of educational establishments for the purposes of instruction of reprographic copies of—

(a) published literary, dramatic, musical or artistic works, or (b) the typographical arrangement of published editions,

of a description which appears to the Secretary of State not to be covered by an existing licensing scheme or general licence and not to fall within the power conferred by section 137 (power to extend existing schemes and licences to similar works).

(2) The procedure to be followed in relation to an inquiry shall be such as may be prescribed by regulations made by the Secretary of State.

(3) The regulations shall, in particular, provide for notice to be given to— (a) persons or organisations appearing to the Secretary of State to represent the

owners of copyright in works of that description, and (b) persons or organisations appearing to the Secretary of State to represent

educational establishments, and for the making of written or oral representations by such persons; but without prejudice to the giving of notice to, and the making of representations by, other persons and organisations.

(4) The person appointed to hold the inquiry shall not recommend the making of new provision unless he is satisfied—

(a) that it would be of advantage to educational establishments to be authorised to make reprographic copies of the works in question, and

(b) that making those works subject to a licensing scheme or general licence would not conflict with the normal exploitation of the works or unreasonably prejudice the legitimate interests of the copyright owners.

(5) If he does recommend the making of new provision he shall specify any terms, other than terms as to charges payable, on which authorisation under the new provision should be available.

(6) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) In this section (and section 141) a “general licence” means a licence granted by a licensing body which covers all works of the description to which it applies.

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Modifications etc. (not altering text) C62 Ss. 137–141 extended by S.I. 1989/1067, art. 2

141 Statutory licence where recommendation not implemented.

(1) The Secretary of State may, within one year of the making of a recommendation under section 140 by order provide that if, or to the extent that, provision has not been made in accordance with the recommendation, the making by or on behalf of an educational establishment, for the purposes of instruction, of reprographic copies of the works to which the recommendation relates shall be treated as licensed by the owners of the copyright in the works.

(2) For that purpose provision shall be regarded as having been made in accordance with the recommendation if—

(a) a certified licensing scheme has been established under which a licence is available to the establishment in question, or

(b) a general licence has been— (i) granted to or for the benefit of that establishment, or

(ii) referred by or on behalf of that establishment to the Copyright Tribunal under section 125 (reference of terms of proposed licence), or

(iii) offered to or for the benefit of that establishment and refused without such a reference,

and the terms of the scheme or licence accord with the recommendation.

(3) The order shall also provide that any existing licence authorising the making of such copies (not being a licence granted under a certified licensing scheme or a general licence) shall cease to have effect to the extent that it is more restricted or more onerous than the licence provided for by the order.

(4) The order shall provide for the licence to be free of royalty but, as respects other matters, subject to any terms specified in the recommendation and to such other terms as the Secretary of State may think fit.

(5) The order may provide that where a copy which would otherwise be an infringing copy is made in accordance with the licence provided by the order but 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.

In this subsection “dealt with” means sold or let for hire, offered or exposed for sale or hire, or exhibited in public.

(6) The order shall not come into force until at least six months after it is made.

(7) An order may be varied from time to time, but not so as to include works other than those to which the recommendation relates or remove any terms specified in the recommendation, and may be revoked.

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

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(9) In this section a “certified licensing scheme” means a licensing scheme certified for the purposes of this section under section 143.

Modifications etc. (not altering text) C63 Ss. 137–141 extended by S.I. 1989/1067, art. 2

F335[ Royalty or other sum payable for lending of certain works ]

Textual Amendments F335 S. 142 and crossheading substituted (1.12.1996) by S.I. 1996/2967, reg. 13(2) (with Pt. III)

142 [F336 Royalty or other sum payable for lending of certain works.]

(1) An application to settle the royalty or other sum payable in pursuance of section 66 (lending of copies of certain copyright works) may be made to the Copyright Tribunal by the copyright owner or the person claiming to be treated as licensed by him.

(2) The Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.

(3) Either party may subsequently apply to the Tribunal to vary the order, and the Tribunal shall consider the matter and make such order confirming or varying the original order as it may determine to be reasonable in the circumstances.

(4) An application under subsection (3) shall not, except with the special leave of the Tribunal, be made within twelve months from the date of the original order or of the order on a previous application under that subsection.

(5) An order under subsection (3) has effect from the date on which it is made or such later date as may be specified by the Tribunal.

Textual Amendments F336 S. 142 substituted (1.12.1996) by S.I. 1996/2967, reg. 13(2) (with Pt. III)

Certification of licensing schemes

143 Certification of licensing schemes.

(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—

F337(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) section 60 (abstracts of scientific or technical articles),

[F338(c) section 66 (lending to public of copies of certain works),] F339(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) section 141 (reprographic copying of published works by educational establishments).

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(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 section F340... 60, 66F341... or 141, as the case may be—

(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 section 118 (reference of proposed scheme), any later date on which the order of the Copyright Tribunal under that section 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 section 118, 119 or 120, 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.

Textual Amendments F337 S. 143(1)(a) omitted (1.6.2014) by virtue of The Copyright and Rights in Performances (Research,

Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 5(a) F338 S. 143(1)(c) substituted (1.12.1996) by S.I. 1996/2967, reg. 11(4) (with Pt. III) F339 S. 143(1)(d) omitted (1.6.2014) by virtue of The Copyright and Rights in Performances (Disability)

Regulations 2014 (S.I. 2014/1384), reg. 1(1), Sch. para. 2(a) F340 Word in s. 143(3) omitted (1.6.2014) by virtue of The Copyright and Rights in Performances

(Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 5(b)

F341 Word in s. 143(3) omitted (1.6.2014) by virtue of The Copyright and Rights in Performances (Disability) Regulations 2014 (S.I. 2014/1384), reg. 1(1), Sch. para. 2(b)

Powers exercisable in consequence of competition report

144 Powers exercisable in consequence of report of [F342Competition and Markets Authority].

[F343( 1 ) Subsection (1A) applies where whatever needs to be remedied, mitigated or prevented by the Secretary of State [F344or (as the case may be) the Competition and Markets Authority] under section 12(5) of the Competition Act 1980 or section 41(2), 55(2), 66(6), 75(2), 83(2), 138(2), 147(2)[F345, 147A(2)] or 160(2) of, or paragraph 5(2) or 10(2) of Schedule 7 to, the Enterprise Act 2002 (powers to take remedial action following references to the [F346Competition and Markets Authority] in connection with public bodies and certain other persons, mergers or market investigations) consists of or includes—

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(a) conditions in licences granted by the owner of copyright in a work restricting the use of the work by the licensee or the right of the copyright owner to grant other licences; or

(b) a refusal of a copyright owner to grant licences on reasonable terms.

(1A) The powers conferred by Schedule 8 to the Enterprise Act 2002 include power to cancel or modify those conditions and, instead or in addition, to provide that licences in respect of the copyright shall be available as of right.

( 2 ) The references to anything permitted by Schedule 8 to the Enterprise Act 2002 in section 12(5A) of the Competition Act 1980 and in sections 75(4)(a), 83(4)(a), 84(2)(a), 89(1), 160(4)(a), 161(3)(a) and 164(1) of, and paragraphs 5, 10 and 11 of Schedule 7 to, the Act of 2002 shall be construed accordingly.]

(2) The references in sections 56(2) and 73(2) of that Act, and [F347section] 12(5) of the M11Competition Act 1980, to the powers specified in that Part of that Schedule shall be construed accordingly.

(3) [F348The Secretary of State [F349or (as the case may be) the Competition and Markets Authority]] shall only exercise the powers available by virtue of this section if he [F350or it] is satisfied that to do so does not contravene any Convention relating to copyright to which the United Kingdom is a party.

(4) The terms of a licence available by virtue of this section 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.

Textual Amendments F342 Words in s. 144 heading substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013

(Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 57(4) (with art. 3)

F343 S. 144(1)(1A)(2) substituted (20.6.2003 for certain purposes and 29.12.2004 otherwise) for s. 144(1) (2) by 2002 c. 40, ss. 278(1), 279, Sch. 25 para. 18(2); S.I. 2003/1397, arts. 2, 3(1), Sch. (with arts. 4-12); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

F344 Words in s. 144(1) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 57(2)(a) (with art. 3)

F345 Word in s. 144(1) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 57(2)(b) (with art. 3)

F346 Words in s. 144(1) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 57(2)(c) (with art. 3)

F347 Words in s. 144(2) substituted (1.3.2000) by S.I. 2000/311, art. 22(2) F348 Words in s. 144(3) substituted (20.6.2003 for certain purposes and 29.12.2004 otherwise) by 2002

c. 40, ss. 278(1), 279, Sch. 25 para. 18(3)(a); S.I. 2003/1397, arts. 2, 3(1), Sch. (with arts. 4-12); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

124 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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F349 Words in s. 144(3) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 57(3) (with art. 3)

F350 Words in s. 144(3) inserted (20.6.2003 for certain purposes and 29.12.2004 otherwise) by 2002 c. 40, ss. 278(1), 279, Sch. 25 para. 18(3)(b); S.I. 2003/1397, arts. 2, 3(1), Sch. (with arts. 4-12); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

Modifications etc. (not altering text) C64 S. 144(1) amended (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order

2003 (S.I. 2003/1592), art. 16, Sch. 4 para. 7(1)(a) (as amended (1.4.2014) by S.I. 2014/891, arts. 1, 19(3) (with arts. 20-23))

C65 S. 144(2) amended (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order 2003 (S.I. 2003/1592), art. 16, Sch. 4 para. 7(1)(b)

Marginal Citations M11 1980 c. 21.

[F351Compulsory collective administration of certain rights]

Textual Amendments F351 S. 144A and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 7 (with Pt. III)

[F352144ACollective exercise of certain rights in relation to cable re-transmission.

(1) This section applies to the right of the owner of copyright in a literary, dramatic, musical or artistic work, sound recording or film to grant or refuse authorisation for cable re-transmission of a [F353wireless] broadcast from another EEAF354. . . state in which the work is included. That right is referred to below as “cable re-transmission right”.

(2) Cable re-transmission right may be exercised against a cable operator only through a licensing body.

(3) Where a copyright owner has not transferred management of his cable re-transmission right to a licensing body, the licensing body which manages rights of the same category shall be deemed to be mandated to manage his right. Where more than one licensing body manages rights of that category, he may choose which of them is deemed to be mandated to manage his right.

(4) A copyright owner to whom subsection (3) applies has the same rights and obligations resulting from any relevant agreement between the cable operator and the licensing body as have copyright owners who have transferred management of their cable re- transmission right to that licensing body.

(5) Any rights to which a copyright owner may be entitled by virtue of subsection (4) must be claimed within the period of three years beginning with the date of the cable re-transmission concerned.

(6) This section does not affect any rights exercisable by the maker of the broadcast, whether in relation to the broadcast or a work included in it.

[F355(7) In this section—

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“ cable operator ” means a person responsible for cable re-transmission of a wireless broadcast; and

“ cable re-transmission ” means the reception and immediate re- transmission by cable, including the transmission of microwave energy between terrestrial fixed points, of a wireless broadcast. ]]

Textual Amendments F352 S. 144A inserted (1.12.1996) by S.I. 1996/2967, reg. 7 (with Pt. III) F353 Word in s. 144A(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 5(6) (with regs. 31-40) F354 Word in s. 144A(1) repealed (29.4.2006) by The Intellectual Property (Enforcement, etc.) Regulations

2006 (S.I. 2006/1028), reg. 2(4), Sch. 4 F355 S. 144A(7) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 15(2) (with regs. 31-40)

CHAPTER VIII

THE COPYRIGHT TRIBUNAL

Modifications etc. (not altering text) C66 Pt. I Ch. VIII (ss. 145-152) applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

Pt. I Ch. VIII (ss. 145-152) applied (1.1.1998) by S.I. 1997/3032, reg. 25(2) (with Pt. IV)

The Tribunal

145 The Copyright Tribunal.

(1) The Tribunal established under section 23 of the M12Copyright Act 1956 is renamed the Copyright Tribunal.

(2) The Tribunal shall consist of a chairman and two deputy chairmen appointed by the Lord Chancellor, after consultation with the Lord Advocate, and not less than two or more than eight ordinary members appointed by the Secretary of State.

(3) A person is not eligible for appointment as chairman or deputy chairman [F356unless— [F357(a) he satisfies the judicial-appointment eligibility condition on a 5-year basis;]

(b) he is an advocate or solicitor in Scotland of at least [F3585] years’ standing; (c) he is a member of the Bar of Northern Ireland or [F359solicitor of the Court of

Judicature of Northern Ireland] of at least [F3585] years’ standing; or (d) he has held judicial office.]

Textual Amendments F356 Words substituted by Courts and Legal Services Act 1990 (c. 41, SIF 37), s. 71(2), Sch. 10 para. 73 F357 S. 145(3)(a) substituted (21.7.2008) by Tribunals, Courts and Enforcement Act 2007 (c. 15), ss. 50(6),

148, Sch. 10 para. 20(2); S.I. 2008/1653, art. 2(b)(d) (with arts. 3, 4)

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F358 Words in s. 145(3)(b)(c) substituted (21.7.2008) by Tribunals, Courts and Enforcement Act 2007 (c.15), ss. 50(6), 148, Sch. 10 para. 20(3); S.I. 2008/1653, art. 2(b)(d) (with arts. 3, 4)

F359 S. 145(3)(c): words wherever they occur in any enactment substituted (1.10.2009) by virtue of Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 5; S.I. 2009/1604, art. 2

Modifications etc. (not altering text) C67 S. 145: functions of the Lord Advocate transferred to the Secretary of State, and all property, rights

and liabilities to which the Lord Advocate is entitled or subject in connection with any such function transferred to the Secretary of State for Scotland (19.5.1999) by S.I. 1999/678, arts. 2, 3, Sch. (with art. 7) S. 145 modified (30.6.1999) by S.I. 1999/1748, art. 3, Sch. 1 para. 10

C68 S. 145(2): transfer of certain functions (1.7.1999) by S.I. 1999/1750, arts. 1, 2, Sch. 1(with art. 7); S.I. 1998/3178, art. 3

Marginal Citations M12 1956 c. 74.

146 Membership of the Tribunal.

(1) The members of the Copyright Tribunal shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.

(2) A member of the Tribunal may resign his office by notice in writing to the Secretary of State or, in the case of the chairman or a deputy chairman, to the Lord Chancellor.

(3) The Secretary of State or, in the case of the chairman or a deputy chairman, the Lord Chancellor may by notice in writing to the member concerned remove him from office if—

(a) he has become bankrupt or made an arrangement with his creditors or, in Scotland, his estate has been sequestrated or he has executed a trust deed for his creditors or entered into a composition contract, or

(b) he is incapacitated by physical or mental illness, or if he is in the opinion of the Secretary of State or, as the case may be, the Lord Chancellor otherwise unable or unfit to perform his duties as member.

[F360(3A) A person who is the chairman or a deputy chairman of the Tribunal shall vacate his office on the day on which he attains the age of 70 years; but this subsection is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (power to authorise continuance in office up to the age of 75 years).]

(4) If a member of the Tribunal is by reason of illness, absence or other reasonable cause for the time being unable to perform the duties of his office, either generally or in relation to particular proceedings, a person may be appointed to discharge his duties for a period not exceeding six months at one time or, as the case may be, in relation to those proceedings.

(5) The appointment shall be made— (a) in the case of the chairman or deputy chairman, by the Lord Chancellor, who

shall appoint a person who would be eligible for appointment to that office, and

(b) in the case of an ordinary member, by the Secretary of State;

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and a person so appointed shall have during the period of his appointment, or in relation to the proceedings in question, the same powers as the person in whose place he is appointed.

(6) The Lord Chancellor shall consult the Lord Advocate before exercising his powers under this section.

[F361(7) The Lord Chancellor may exercise his powers to remove a person under subsection (3) or to appoint a person under subsection (4) only with the concurrence of the appropriate senior judge.

(8) The appropriate senior judge is the Lord Chief Justice of England and Wales, unless— (a) the person to be removed exercises functions [F362, or the person to be

appointed is to exercise functions,] wholly or mainly in Scotland, in which case it is the Lord President of the Court of Session, or

(b) the person to be removed exercises functions [F362, or the person to be appointed is to exercise functions,] wholly or mainly in Northern Ireland, in which case it is the Lord Chief Justice of Northern Ireland.

(9) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under subsection (7) in relation to the appointment of a person under subsection (4).

(10) The Lord President of the Court of Session may nominate a judge of the Court of Session who is a member of the First or Second Division of the Inner House of that Court to exercise his functions under subsection (7) in relation to the appointment of a person under subsection (4).

(11) The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under subsection (7) in relation to the appointment of a person under subsection (4)—

(a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;

(b) a Lord Justice of Appeal (as defined in section 88 of that Act).]

Textual Amendments F360 S. 146(3A) inserted (31.3.1995) by 1993 c. 8, s. 26, Sch. 6 para.49; S.I. 1995/631, art. 2 F361 S. 146(7)-(11) inserted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15(1), 148, Sch. 4

para. 199(2); S.I. 2006/1014, art. 2(a), Sch. 1 paras. 10, 11(r) F362 Words in s. 146(8) inserted (3.4.2006) by The Lord Chancellor (Transfer of Functions and

Supplementary Provisions) (No.2) Order 2006 (S.I. 2006/1016), art. 4, Sch. 3

147 Financial provisions.

(1) There shall be paid to the members of the Copyright Tribunal such remuneration (whether by way of salaries or fees), and such allowances, as the Secretary of State with the approval of the Treasury may determine.

(2) The Secretary of State may appoint such staff for the Tribunal as, with the approval of the Treasury as to numbers and remuneration, he may determine.

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(3) The remuneration and allowances of members of the Tribunal, the remuneration of any staff and such other expenses of the Tribunal as the Secretary of State with the approval of the Treasury may determine shall be paid out of money provided by Parliament.

148 Constitution for purposes of proceedings.

(1) For the purposes of any proceedings the Copyright Tribunal shall consist of— (a) a chairman, who shall be either the chairman or a deputy chairman of the

Tribunal, and (b) two or more ordinary members.

(2) If the members of the Tribunal dealing with any matter are not unanimous, the decision shall be taken by majority vote; and if, in such a case, the votes are equal the chairman shall have a further, casting vote.

(3) Where part of any proceedings before the Tribunal has been heard and one or more members of the Tribunal are unable to continue, the Tribunal shall remain duly constituted for the purpose of those proceedings so long as the number of members is not reduced to less than three.

(4) If the chairman is unable to continue, the chairman of the Tribunal shall— (a) appoint one of the remaining members to act as chairman, and (b) appoint a suitably qualified person to attend the proceedings and advise the

members on any questions of law arising.

(5) A person is “suitably qualified” for the purposes of subsection (4)(b) if he is, or is eligible for appointment as, a deputy chairman of the Tribunal.

Jurisdiction and procedure

149 Jurisdiction of the Tribunal.

[F363The Copyright Tribunal has jurisdiction under this Part] to hear and determine proceedings under—

F364(za) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F365[( zb ) section 93C (application to determine amount of equitable remuneration under

section 93B);] (a) section 118, 119, or 120 (reference of licensing scheme); (b) section 121 or 122 (application with respect to entitlement to licence under

licensing scheme); (c) section 125, 126 or 127 (reference or application with respect to licensing by

licensing body); [F366(ca) section 128B (reference by the Secretary of State under section 128A);] [F367(cc) section 135D or 135E (application or reference with respect to use as of right

of sound recordings in broadcasts F368 . . . ); ] (d) section 139 (appeal against order as to coverage of licensing scheme or

licence); (e) section 142 (application to settle royalty or other sum payable for [F369lending

of certain works];

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(f) section 144(4) (application to settle terms of copyright licence available as of right);

[F370(fa) paragraph 7 of Schedule ZA1 (application to determine compensation for use of orphan works).]

F371(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F371(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F363 Words in s. 149 substituted (1.12.1996) by S.I. 1996/2967, reg. 24(2)(a) (with Pt. III) F364 S. 149(za) repealed (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 34(2)(a)(ii), 118(6); S.I.

2017/765, reg. 2(n) F365 S. 149(zb) inserted (1.12.1996) by S.I. 1996/2967, reg. 14(2) (with Pt. III) F366 S. 149(ca) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 21(6) (with regs. 31-40) F367 S. 149(cc) inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(2) F368 Words in s. 149(cc) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F369 Words in s. 149(e) substituted (1.12.1996) by S.I. 1996/2967, reg. 13(3) (with Pt. III) F370 S. 149(fa) inserted (29.10.2014) by The Copyright and Rights in Performances (Certain Permitted

Uses of Orphan Works) Regulations 2014 (S.I. 2014/2861), regs. 1, 3(3) F371 S. 149(g)(h) omitted (1.12.1996) by virtue of S.I. 1996/2967, reg. 24(2)(b) (with Pt. III)

Modifications etc. (not altering text) C69 S. 149 amended by Broadcasting Act 1990 (c. 42, SIF 96), s. 176, Sch. 17 para. 7(1)

150 General power to make rules.

(1) The Lord Chancellor may, after consultation with the Lord Advocate, make rules for regulating proceedings before the Copyright Tribunal and, subject to the approval of the Treasury, as to the fees chargeable in respect of such proceedings.

F372[(2) The rules may apply in relation to the Tribunal, as respects proceedings in England and Wales or Northern Ireland, any of the provisions of Part I of the Arbitration Act 1996.]

(3) Provision shall be made by the rules— (a) prohibiting the Tribunal from entertaining a reference under section 118, 119

or 120 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;

(b) specifying the parties to any proceedings and enabling the Tribunal to make a party to the proceedings any person or organisation satisfying the Tribunal that they have a substantial interest in the matter; and

(c) requiring the Tribunal to give the parties to proceedings an opportunity to state their case, in writing or orally as the rules may provide.

(4) The rules may make provision for regulating or prescribing any matters incidental to or consequential upon any appeal from the Tribunal under section 152 (appeal to the court on point of law).

(5) Rules under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

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Textual Amendments F372 S. 150(2) substituted (31.1.1997) by 1996 c. 23, s. 107(1), Sch. 3 para. 50 (with s. 81(2)); S.I.

1996/3146, art. 3 (with Sch. 2)

Modifications etc. (not altering text) C70 S. 150: functions of the Lord Advocate transferred to the Secretary of State, and all property, rights

and liabilities to which the Lord Advocate is entitled or subject in connection with any such function transferred to the Secretary of State for Scotland (19.5.1999) by S.I. 1999/678, arts. 2, 3, Sch. (with art. 7) S. 150 modified (30.6.1999) by S.I. 1999/1748, art. 3, Sch. 1 para. 10

C71 S. 150(1): transfer of certain functions (1.7.1999) by S.I. 1999/1750, arts. 1, 2, Sch. 1 (with art. 7); S.I. 1998/3178, art. 3

151 Costs, proof of orders, &c.

(1) The Copyright Tribunal may order that the costs of a party to proceedings before it shall be paid by such other party as the Tribunal may direct; and the Tribunal may tax or settle the amount of the costs, or direct in what manner they are to be taxed.

(2) A document purporting to be a copy of an order of the Tribunal and to be certified by the chairman to be a true copy shall, in any proceedings, be sufficient evidence of the order unless the contrary is proved.

(3) As respect proceedings in Scotland, the Tribunal has the like powers for securing the attendance of witnesses and the production of documents, and with regard to the examination of witnesses on oath, as an arbiter under a submission.

[F373151AAward of interest.

(1) Any of the following, namely— (a) a direction under section 123(3) so far as relating to a licence for

[F374communicating a work to the public]; (b) a direction under section 128(3) so far as so relating; (c) an order under section 135D(1); and (d) an order under section 135F confirming or varying an order under

section 135D(1), may award simple interest at such rate and for such period, beginning not earlier than the relevant date and ending not later than the date of the order, as the Copyright Tribunal thinks reasonable in the circumstances.

(2) In this section “ the relevant date ” means— (a) in relation to a direction under section 123(3), the date on which the reference

was made; (b) in relation to a direction under section 128(3), the date on which the reference

or application was made; (c) in relation to an order section 135D(1), the date on which the first payment

under section 135C(2) became due; and (d) in relation to an order under section 135F, the date on which the application

was made.]

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Textual Amendments F373 S. 151A inserted (1.11.1996 with effect as mentioned in s. 139(3)) by 1996 c. 55, s. 139(2) (with s.

43(6)); S.I. 1996/2120, art. 5, Sch. 2 F374 Words in s. 151A(1)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I.2003/2498), reg. 2(1), Sch. 1 para. 7 (with regs. 31-40)

Appeals

152 Appeal to the court on point of law.

(1) An appeal lies on any point of law arising from a decision of the Copyright Tribunal to the High Court or, in the case of proceedings of the Tribunal in Scotland, to the Court of Session.

(2) Provision shall be made by rules under section 150 limiting the time within which an appeal may be brought.

(3) Provision may be made by rules under that section— (a) for suspending, or authorising or requiring the Tribunal to suspend, the

operation of orders of the Tribunal in cases where its decision is appealed against;

(b) for modifying in relation to an order of the Tribunal whose operation is suspended the operation of any provision of this Act as to the effect of the order;

(c) for the publication of notices or the taking of other steps for securing that persons affected by the suspension of an order of the Tribunal will be informed of its suspension.

CHAPTER IX

QUALIFICATION FOR AND EXTENT OF COPYRIGHT PROTECTION

Qualification for copyright protection

153 Qualification for copyright protection.

(1) Copyright does not subsist in a work unless the qualification requirements of this Chapter are satisfied as regards—

(a) the author (see section 154), or (b) the country in which the work was first published (see section 155), or (c) in the case of a broadcast F375. . . , the country from which the broadcast was

made F375. . . (see section 156).

(2) Subsection (1) does not apply in relation to Crown copyright or Parliamentary copyright (see sections 163 to [F376166D]) or to copyright subsisting by virtue of section 168 (copyright of certain international organisations).

132 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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(3) If the qualification requirements of this Chapter, or section 163, 165 or 168, are once satisfied in respect of a work, copyright does not cease to subsist by reason of any subsequent event.

Textual Amendments F375 Words in s. 153(1)(c) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F376 Word in s. 153(2) substituted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para.

25 (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

Modifications etc. (not altering text) C72 Ss. 153, 154 extended by S.I. 1989/988, art. 2(1) C73 S. 153 extended (1.7.1992) by S.I. 1992/1313, art. 2 C74 Ss. 153, 154 applied (with modifications) (4.5.1993) by S.I. 1993/942, arts. 2, 3, 4, 5, Sch. 4 (with art.

6) Ss. 153-155 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(1)(2), 5, Sch. 1, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5) Ss. 153, 154, 155 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(1)(2), 3, 5, Sch. 1, Sch. 2, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5) Ss. 153, 154, 156 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 4(1)(2)(5), 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5)

154 Qualification by reference to author.

(1) A work qualifies for copyright protection if the author was at the material time a qualifying person, that is—

(a) a British citizen, [F377a national of another EEA state,] a British Dependent Territories citizen, a British National (Overseas), a British Overseas citizen, a British subject or a British protected person within the meaning of the M13British Nationality Act 1981, or

[F378(b) an individual domiciled or resident in the United Kingdom or another EEA state or in the Channel Islands, the Isle of Man or Gibraltar or in a country to which the relevant provisions of this Part extend,] or

[F379(c) a body incorporated under the law of a part of the United Kingdom or another EEA state or of the Channel Islands, the Isle of Man or Gibraltar or of a country to which the relevant provisions of this Part extend.]

(2) Where, or so far as, provision is made by Order under section 159 (application of this Part to countries to which it does not extend), a work also qualifies for copyright protection if at the material time the author was a citizen or subject of, an individual domiciled or resident in, or a body incorporated under the law of, a country to which the Order relates.

(3) A work of joint authorship qualifies for copyright protection if at the material time any of the authors satisfies the requirements of subsection (1) or (2); but where a

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work qualifies for copyright protection only under this section, only those authors who satisfy those requirements shall be taken into account for the purposes of—

section 11(1) and (2) (first ownership of copyright; entitlement of author or author’s employer),

[F380section 12 (duration of copyright), and section 9(4) (meaning of “unknown authorship”) so far as it applies for the purposes of section 12, and]

section 57 (anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author).

(4) The material time in relation to a literary, dramatic, musical or artistic work is— (a) in the case of an unpublished work, when the work was made or, if the making

of the work extended over a period, a substantial part of that period; (b) in the case of a published work, when the work was first published or, if the

author had died before that time, immediately before his death.

(5) The material time in relation to other descriptions of work is as follows— (a) in the case of a sound recording or film, when it was made; (b) in the case of a broadcast, when the broadcast was made; (c) F381. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) in the case of the typographical arrangement of a published edition, when the

edition was first published.

Textual Amendments F377 Words in s. 154(1)(a) inserted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already in

force) by Intellectual Property Act 2014 (c. 18), ss. 22(1)(a), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

F378 S. 154(1)(b) substituted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already in force) by Intellectual Property Act 2014 (c. 18), ss. 22(1)(b), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

F379 S. 154(1)(c) substituted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already in force) by Intellectual Property Act 2014 (c. 18), ss. 22(1)(c), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

F380 Paragraph in s. 154(3) substituted (1.1.1996) by S.I. 1995/3297, reg. 5(3) (with Pt. III) F381 S. 154(5)(c) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

Modifications etc. (not altering text) C75 Ss. 153, 154 extended by S.I. 1989/988, art. 2(1) C76 S. 154 extended (1.7.1992) by S.I. 1992/1313, art. 2 C77 Ss. 153, 154 applied (with modifications) (4.5.1993) by S.I. 1993/942, arts. 2, 3, 4, 5, Sch. 4 (with art.

6) Ss. 153-155 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(1)(2), 5, Sch. 1, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5) Ss. 153, 154, 155 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(1)(2), 3, 5, Sch. 1, Sch. 2, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5) Ss. 153, 154, 156 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 4(1)(2)(5), 5, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5)

Marginal Citations M13 1981 c. 61.

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155 Qualification by reference to country of first publication.

(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 it is first published—

(a) in the United Kingdom[F382, another EEA state, the Channel Islands, the Isle of Man or Gibraltar], or

(b) in [F383a country] to which the relevant provisions of this Part extend.

(2) Where, or so far as, provision is made by Order under section 159 (application of this Part to countries to which it does not extend), such a work also qualifies for copyright protection if it is first published in a country to which the Order relates.

(3) For the purposes of this section, publication in one country shall not be regarded as other than the first publication by reason of simultaneous publication elsewhere; and for this purpose publication elsewhere within the previous 30 days shall be treated as simultaneous.

Textual Amendments F382 Words in s. 155(1)(a) inserted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already in

force) by Intellectual Property Act 2014 (c. 18), ss. 22(2)(a), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

F383 Words in s. 155(1)(b) substituted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already in force) by Intellectual Property Act 2014 (c. 18), ss. 22(2)(b), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

Modifications etc. (not altering text) C78 S. 155 extended with modifications by S.I. 1989/1293, arts. 2(1), 3, 5, 6, Schs. 1, 2, 3, 4 C79 S. 155 extended (1.7.1992) by S.I. 1992/1313, art.2 C80 S. 155 applied (with modifications) (4.5.1993) by S.I. 1993/942, arts.2, 3, 5, Sch. 4 (with art. 6)

Ss. 153-155 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(1)(2), 5, Sch. 1, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5) Ss. 153, 154, 155 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(1)(2), 3, 5, Sch. 1, Sch. 2, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5)

156 Qualification by reference to place of transmission.

(1) F384A broadcast qualifies for copyright protection if it is made from . . . a place in— (a) the United Kingdom[F385, another EEA state, the Channel Islands, the Isle of

Man or Gibraltar], or (b) [F386a country] to which the relevant provisions of this Part extend.

(2) Where, or so far as, provision is made by Order under section 159 (application of this Part to countries to which it does not extend), a broadcast F384. . . also qualifies for copyright protection if it is made from F384. . . a place in a country to which the Order relates.

Textual Amendments F384 Words in s. 156(1)(2) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

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F385 Words in s. 156(1)(a) inserted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already in force) by Intellectual Property Act 2014 (c. 18), ss. 22(3)(a), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

F386 Words in s. 156(1)(b) substituted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already in force) by Intellectual Property Act 2014 (c. 18), ss. 22(3)(b), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

Modifications etc. (not altering text) C81 S. 156 extended (1.7.1992) by S.I. 1992/1313, art.2 C82 S. 156 applied (with modifications) (4.5.1993) by S.I. 1993/942, art.4, 5, Sch. 4 (with art. 6)

Ss. 153, 154, 156 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 4(1)(2)(5), 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5)

Extent and application of this Part

157 Countries to which this Part extends.

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

(2) Her Majesty may by Order in Council direct that this Part shall extend, subject to such exceptions and modifications as may be specified in the Order, to—

(a) any of the Channel Islands, (b) the Isle of Man, or (c) any colony.

(3) That power includes power to extend, subject to such exceptions and modifications as may be specified in the Order, any Order in Council made under the following provisions of this Chapter.

(4) The legislature of a country to which this Part has been extended may modify or add to the provisions of this Part, in their operation as part of the law of that country, as the legislature may consider necessary to adapt the provisions to the circumstances of that country—

(a) as regards procedure and remedies, or (b) as regards works qualifying for copyright protection by virtue of a connection

with that country.

(5) Nothing in this section shall be construed as restricting the extent of paragraph 36 of Schedule 1 (transitional provisions: dependent territories where the M14Copyright Act 1956 or the M15Copyright Act 1911 remains in force) in relation to the law of a dependent territory to which this Part does not extend.

Modifications etc. (not altering text) C83 S. 157(2)(c) extended (8.4.2010) by Digital Economy Act 2010 (c. 24), ss. 46(4), 47(2)(c) C84 S. 157(2)(c): power to extend conferred (27.4.2017) by Digital Economy Act 2017 (c. 30), ss. 118(1),

119(9)

Marginal Citations M14 1956 c. 74. M15 1911 c. 46.

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158 Countries ceasing to be colonies.

(1) The following provisions apply where a country to which this Part has been extended ceases to be a colony of the United Kingdom.

(2) As from the date on which it ceases to be a colony it shall cease to be regarded as a country to which this Part extends for the purposes of—

(a) section 160(2)(a) (denial of copyright protection to citizens of countries not giving adequate protection to British works), and

(b) sections 163 and 165 (Crown and Parliamentary copyright).

(3) But it shall continue to be treated as a country to which this Part extends for the purposes of sections 154 to 156 (qualification for copyright protection) until—

(a) an Order in Council is made in respect of that country under section 159 (application of this Part to countries to which it does not extend), or

(b) an Order in Council is made declaring that it shall cease to be so treated by reason of the fact that the provisions of this Part as part of the law of that country have been repealed or amended.

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

[F387159 Application of this Part to countries to which it does not extend

(1) Where a country is a party to the Berne Convention or a member of the World Trade Organisation, this Part, so far as it relates to literary, dramatic, musical and artistic works, films and typographical arrangements of published editions—

(a) applies in relation to a citizen or subject of that country or a person domiciled or resident there as it applies in relation to a person who is a British citizen or is domiciled or resident in the United Kingdom,

(b) applies in relation to a body incorporated under the law of that country as it applies in relation to a body incorporated under the law of a part of the United Kingdom, and

(c) applies in relation to a work first published in that country as it applies in relation to a work first published in the United Kingdom.

(2) Where a country is a party to the Rome Convention, this Part, so far as it relates to sound recordings and broadcasts—

(a) applies in relation to that country as mentioned in paragraphs (a), (b) and (c) of subsection (1), and

(b) applies in relation to a broadcast made from that country as it applies to a broadcast made from the United Kingdom.

(3) Where a country is a party to the WPPT, this Part, so far as relating to sound recordings, applies in relation to that country as mentioned in paragraphs (a), (b) and (c) of subsection (1).

(4) Her Majesty may by Order in Council— (a) make provision for the application of this Part to a country by subsection (1),

(2) or (3) to be subject to specified restrictions; (b) make provision for applying this Part, or any of its provisions, to a specified

country;

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(c) make provision for applying this Part, or any of its provisions, to any country of a specified description;

(d) make provision for the application of legislation to a country under paragraph (b) or (c) to be subject to specified restrictions.

(5) Provision made under subsection (4) may apply generally or in relation to such classes of works, or other classes of case, as are specified.

(6) Her Majesty may not make an Order in Council containing provision under subsection (4)(b) or (c) unless satisfied that provision has been or will be made under the law of the country or countries in question, in respect of the classes to which the provision under subsection (4)(b) or (c) relates, giving adequate protection to the owners of copyright under this Part.

(7) Application under subsection (4)(b) or (c) is in addition to application by subsections (1) to (3).

(8) Provision made under subsection (4)(c) may cover countries that become (or again become) of the specified description after the provision comes into force.

(9) In this section— “the Berne Convention” means any Act of the International Convention for

the Protection of Literary and Artistic Works signed at Berne on 9 September 1886;

“the Rome Convention” means the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations done at Rome on 26 October 1961;

“the WPPT” means the World Intellectual Property Organisation Performances and Phonograms Treaty adopted in Geneva on 20 December 1996.

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

Textual Amendments F387 S. 159 substituted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already in force) by

Intellectual Property Act 2014 (c. 18), ss. 22(4), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

160 Denial of copyright protection to citizens of countries not giving adequate protection to British works.

(1) If it appears to Her Majesty that the law of a country fails to give adequate protection to British works to which this section applies, or to one or more classes of such works, Her Majesty may make provision by Order in Council in accordance with this section restricting the rights conferred by this Part in relation to works of authors connected with that country.

(2) An Order in Council under this section shall designate the country concerned and provide that, for the purposes specified in the Order, works first published after a date specified in the Order shall not be treated as qualifying for copyright protection by virtue of such publication if at that time the authors are—

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(a) citizens or subjects of that country (not domiciled or resident in the United Kingdom or another country to which the relevant provisions of this Part extend), or

(b) bodies incorporated under the law of that country; and the Order may make such provision for all the purposes of this Part or for such purposes as are specified in the Order, and either generally or in relation to such class of cases as are specified in the Order, having regard to the nature and extent of that failure referred to in subsection (1).

(3) This section applies to literary, dramatic, musical and artistic works, sound recordings and films; and “British works” means works of which the author was a qualifying person at the material time within the meaning of section 154.

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

Supplementary

161 Territorial waters and the continental shelf.

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

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

(3) The United Kingdom sector of the continental shelf means the areas designated by order under section 1(7) of the M16Continental Shelf Act 1964.

Modifications etc. (not altering text) C85 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

Marginal Citations M16 1964 c. 29.

162 British ships, aircraft and hovercraft.

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

(2) In this section— “British ship” means a ship which is a British ship for the purposes of the

[F388Merchant Shipping Act 1995] otherwise than by virtue of registration in a country outside the United Kingdom; and

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

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Textual Amendments F388 Words in s. 162(2) substituted (1.1.1996) by 1995 c. 21, ss. 314(2), 316(2), Sch. 13 para. 84(a) (with

s. 312(1))

Modifications etc. (not altering text) C86 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

CHAPTER X

MISCELLANEOUS AND GENERAL

Crown and Parliamentary copyright

163 Crown copyright.

(1) Where a work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties—

(a) the work qualifies for copyright protection notwithstanding section 153(1) (ordinary requirement as to qualification for copyright protection), and

(b) Her Majesty is the first owner of any copyright in the work.

(1A) F389. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Copyright in such a work is referred to in this Part as “Crown copyright”, notwithstanding that it may be, or have been, assigned to another person.

(3) Crown copyright in a literary, dramatic, musical or artistic work continues to subsist— (a) until the end of the period of 125 years from the end of the calendar year in

which the work was made, or (b) if the work is published commercially before the end of the period of 75 years

from the end of the calendar year in which it was made, until the end of the period of 50 years from the end of the calendar year in which it was first so published.

(4) In the case of a work of joint authorship where one or more but not all of the authors are persons falling within subsection (1), this section applies only in relation to those authors and the copyright subsisting by virtue of their contribution to the work.

(5) Except as mentioned above, and subject to any express exclusion elsewhere in this Part, the provisions of this Part apply in relation to Crown copyright as to other copyright.

(6) This section does not apply to a work if, or to the extent that, Parliamentary copyright subsists in the work (see sections 165 [F390to [F391166D]]).

Textual Amendments F389 S. 163(1A) repealed by Government of Wales Act 2006 (c. 32), ss. 160(1), 163, Sch. 10 para. 26(2),

Sch. 12 (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for

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certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

F390 Words in s. 163(6) substituted (6.5.1999) by 1998 c. 46, s. 125(1), Sch. 8 para. 25(4); S.I. 1998/3178, art. 2(2), Sch. 3

F391 Word in s. 163(6) substituted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 26(3) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

164 Copyright in Acts and Measures.

(1) Her Majesty is entitled to copyright in every Act of Parliament [F392Act of the Scottish Parliament][F393, [F394Measure of the National Assembly for Wales, Act of the National Assembly for Wales,] Act of the Northern Ireland Assembly] or Measure of the General Synod of the Church of England.

(2) The copyright subsists [F395(a) in the case of an Act or a Measure of the General Synod of the Church of

England, until the end of the period of 50 years from the end of the calendar year in which Royal Assent was given, and

(b) in the case of a Measure of the National Assembly for Wales, until the end of the period of 50 years from the end of the calendar year in which the Measure was approved by Her Majesty in Council.]

(3) References in this Part to Crown copyright (except in section 163) include copyright under this section; and, except as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Crown copyright.

(4) No other copyright, or right in the nature of copyright, subsists in an Act or Measure.

Textual Amendments F392 Words in s. 164(1) inserted (6.5.1999) by 1998 c. 46, s. 125(1), Sch. 8 para. 25(5); S.I. 1998/3178, art.

2(2), Sch. 3 F393 Words in s. 164(1) inserted (2.12.1999) by 1998 c. 47, s. 99, Sch. 13 para. 8(5) (with s. 95); S.I.

1999/3209, art. 2, Sch. F394 Words in s. 164(1) inserted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para.

27(2) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

F395 S. 164(2)(a)(b) substituted for words in s. 164(2) by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 27(3) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

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165 Parliamentary copyright.

(1) Where a work is made by or under the direction or control of the House of Commons or the House of Lords—

(a) the work qualifies for copyright protection notwithstanding section 153(1) (ordinary requirement as to qualification for copyright protection), and

(b) the House by whom, or under whose direction or control, the work is made is the first owner of any copyright in the work, and if the work is made by or under the direction or control of both Houses, the two Houses are joint first owners of copyright.

(2) Copyright in such a work is referred to in this Part as “Parliamentary copyright”, notwithstanding that it may be, or have been, assigned to another person.

(3) Parliamentary copyright in a literary, dramatic, musical or artistic work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the work was made.

(4) For the purposes of this section, works made by or under the direction or control of the House of Commons or the House of Lords include—

(a) any work made by an officer or employee of that House in the course of his duties, and

(b) any sound recording, film [F396or live broadcast] of the proceedings of that House;

but a work shall not be regarded as made by or under the direction or control of either House by reason only of its being commissioned by or on behalf of that House.

(5) In the case of a work of joint authorship where one or more but not all of the authors are acting on behalf of, or under the direction or control of, the House of Commons or the House of Lords, this section applies only in relation to those authors and the copyright subsisting by virtue of their contribution to the work.

(6) Except as mentioned above, and subject to any express exclusion elsewhere in this Part, the provisions of this Part apply in relation to Parliamentary copyright as to other copyright.

(7) The provisions of this section also apply, subject to any exceptions or modifications specified by Order in Council, to works made by or under the direction or control of any other legislative body of a country to which this Part extends; and references in this Part to “Parliamentary copyright” shall be construed accordingly.

(8) A statutory instrument containing an Order in Council under subsection (7) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments F396 Words in s. 165(4)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 11(b) (with regs. 31-40)

Modifications etc. (not altering text) C87 S. 165 modified (6.5.1999) by S.I. 1999/676, art. 2

S. 165 modified (2.12.1999) by S.I. 1999/3146, arts. 1(1), 2; S.I. 1999/3208, art. 2 C88 S. 165 modified (3.5.2007 in accordance with art. 1(2) of the amending S.I.) by The Parliamentary

Copyright (National Assembly for Wales) Order 2007 (S.I. 2007/1116), art. 2

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166 Copyright in Parliamentary Bills.

(1) Copyright in every Bill introduced into Parliament belongs, in accordance with the following provisions, to one or both of the Houses of Parliament.

(2) Copyright in a public Bill belongs in the first instance to the House into which the Bill is introduced, and after the Bill has been carried to the second House to both Houses jointly, and subsists from the time when the text of the Bill is handed in to the House in which it is introduced.

(3) Copyright in a private Bill belongs to both Houses jointly and subsists from the time when a copy of the Bill is first deposited in either House.

(4) Copyright in a personal Bill belongs in the first instance to the House of Lords, and after the Bill has been carried to the House of Commons to both Houses jointly, and subsists from the time when it is given a First Reading in the House of Lords.

(5) Copyright under this section ceases— (a) on Royal Assent, or (b) if the Bill does not receive Royal Assent, on the withdrawal or rejection of

the Bill or the end of the Session:

Provided that, copyright in a Bill continues to subsist notwithstanding its rejection in any Session by the House of Lords if, by virtue of the Parliament Acts 1911 and 1949, it remains possible for it to be presented for Royal Assent in that Session.

(6) References in this Part to Parliamentary copyright (except in section 165) include copyright under this section; and, except as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Parliamentary copyright.

(7) No other copyright, or right in the nature of copyright, subsists in a Bill after copyright has once subsisted under this section; but without prejudice to the subsequent operation of this section in relation to a Bill which, not having passed in one Session, is reintroduced in a subsequent Session.

[F397166ACopyright in Bills of the Scottish Parliament.

(1) Copyright in every Bill introduced into the Scottish Parliament belongs to the Scottish Parliamentary Corporate Body.

(2) Copyright under this section subsists from the time when the text of the Bill is handed in to the Parliament for introduction—

(a) until the Bill receives Royal Assent, or (b) if the Bill does not receive Royal Assent, until it is withdrawn or rejected or

no further parliamentary proceedings may be taken in respect of it.

(3) References in this Part to Parliamentary copyright (except in section 165) include copyright under this section; and, except as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Parliamentary copyright.

(4) No other copyright, or right in the nature of copyright, subsists in a Bill after copyright has once subsisted under this section; but without prejudice to the subsequent operation of this section in relation to a Bill which, not having received Royal Assent, is later reintroduced into the Parliament.]

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Textual Amendments F397 S. 166A inserted (6.5.1999) by 1998 c. 46, s. 125(1), Sch. 8 para. 25(6); S.I. 1998/3178, art. 2(2), Sch.

3

[F398166BCopyright in Bills of the Northern Ireland Assembly.

(1) Copyright in every Bill introduced into the Northern Ireland Assembly belongs to the Northern Ireland Assembly Commission.

(2) Copyright under this section subsists from the time when the text of the Bill is handed in to the Assembly for introduction—

(a) until the Bill receives Royal Assent, or (b) if the Bill does not receive Royal Assent, until it is withdrawn or rejected or

no further proceedings of the Assembly may be taken in respect of it.

(3) References in this Part to Parliamentary copyright (except in section 165) include copyright under this section; and, except as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Parliamentary copyright.

(4) No other copyright, or right in the nature of copyright, subsists in a Bill after copyright has once subsisted under this section; but without prejudice to the subsequent operation of this section in relation to a Bill which, not having received Royal Assent, is later reintroduced into the Assembly.]

Textual Amendments F398 S. 166B inserted (2.12.1999) by 1998 c. 47, s. 99, Sch. 13 para. 8(6) (with s. 95); S.I. 1999/3209, art.

2, Sch.

[F399166CCopyright in proposed Measures of the National Assembly for Wales

(1) Copyright in every proposed Assembly Measure introduced into the National Assembly for Wales belongs to the National Assembly for Wales Commission.

(2) Copyright under this section subsists from the time when the text of the proposed Assembly Measure is handed in to the Assembly for introduction—

(a) until the proposed Assembly Measure is approved by Her Majesty in Council, or

(b) if the proposed Assembly Measure is not approved by Her Majesty in Council, until it is withdrawn or rejected or no further proceedings of the Assembly may be taken in respect of it.

(3) References in this Part to Parliamentary copyright (except in section 165) include copyright under this section; and, except as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Parliamentary copyright.

(4) No other copyright, or right in the nature of copyright, subsists in a proposed Assembly Measure after copyright has once subsisted under this section; but without prejudice to the subsequent operation of this section in relation to a proposed Assembly Measure

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which, not having been approved by Her Majesty in Council, is later reintroduced into the Assembly.

Textual Amendments F399 Ss. 166C, 166D inserted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 28

(with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

166D Copyright in Bills of the National Assembly for Wales

(1) Copyright in every Bill introduced into the National Assembly for Wales belongs to the National Assembly for Wales Commission.

(2) Copyright under this section subsists from the time when the text of the Bill is handed in to the Assembly for introduction—

(a) until the Bill receives Royal Assent, or (b) if the Bill does not receive Royal Assent, until it is withdrawn or rejected or

no further proceedings of the Assembly may be taken in respect of it.

(3) References in this Part to Parliamentary copyright (except in section 165) include copyright under this section; and, except as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Parliamentary copyright.

(4) No other copyright, or right in the nature of copyright, subsists in a Bill after copyright has once subsisted under this section; but without prejudice to the subsequent operation of this section in relation to a Bill which, not having received Royal Assent, is later reintroduced into the Assembly.]

Textual Amendments F399 Ss. 166C, 166D inserted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 28

(with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

167 Houses of Parliament: supplementary provisions with respect to copyright.

(1) For the purposes of holding, dealing with and enforcing copyright, and in connection with all legal proceedings relating to copyright, each House of Parliament shall be treated as having the legal capacities of a body corporate, which shall not be affected by a prorogation or dissolution.

(2) The functions of the House of Commons as owner of copyright shall be exercised by the Speaker on behalf of the House; and if so authorised by the Speaker, or in case of a

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vacancy in the office of Speaker, those functions may be discharged by the Chairman of Ways and Means or a Deputy Chairman.

(3) For this purpose a person who on the dissolution of Parliament was Speaker of the House of Commons, Chairman of Ways and Means or a Deputy Chairman may continue to act until the corresponding appointment is made in the next Session of Parliament.

(4) The functions of the House of Lords as owner of copyright shall be exercised by the Clerk of the Parliaments on behalf of the House; and if so authorised by him, or in case of a vacancy in the office of Clerk of the Parliaments, those functions may be discharged by the Clerk Assistant or the Reading Clerk.

(5) Legal proceedings relating to copyright— (a) shall be brought by or against the House of Commons in the name of “The

Speaker of the House of Commons”; and (b) shall be brought by or against the House of Lords in the name of “The Clerk

of the Parliaments”.

Other miscellaneous provisions

168 Copyright vesting in certain international organisations.

(1) Where an original literary, dramatic, musical or artistic work— (a) is made by an officer or employee of, or is published by, an international

organisation to which this section applies, and (b) does not qualify for copyright protection under section 154 (qualification by

reference to author) or section 155 (qualification by reference to country of first publication),

copyright nevertheless subsists in the work by virtue of this section and the organisation is first owner of that copyright.

(2) The international organisations to which this section applies are those as to which Her Majesty has by Order in Council declared that it is expedient that this section should apply.

(3) Copyright of which an international organisation is first owner by virtue of this section continues to subsist until the end of the period of 50 years from the end of the calendar year in which the work was made or such longer period as may be specified by Her Majesty by Order in Council for the purpose of complying with the international obligations of the United Kingdom.

(4) An international organisation to which this section applies shall be deemed to have, and to have had at all material times, the legal capacities of a body corporate for the purpose of holding, dealing with and enforcing copyright and in connection with all legal proceedings relating to copyright.

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

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169 Folklore, &c.: anonymous unpublished works.

(1) Where in the case of an unpublished literary, dramatic, musical or artistic work of unknown authorship there is evidence that the author (or, in the case of a joint work, any of the authors) was a qualifying individual by connection with a country outside the United Kingdom, it shall be presumed until the contrary is proved that he was such a qualifying individual and that copyright accordingly subsists in the work, subject to the provisions of this Part.

(2) If under the law of that country a body is appointed to protect and enforce copyright in such works, Her Majesty may by Order in Council designate that body for the purposes of this section.

(3) A body so designated shall be recognised in the United Kingdom as having authority to do in place of the copyright owner anything, other than assign copyright, which it is empowered to do under the law of that country; and it may, in particular, bring proceedings in its own name.

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

(5) In subsection (1) a “qualifying individual” means an individual who at the material time (within the meaning of section 154) was a person whose works qualified under that section for copyright protection.

(6) This section does not apply if there has been an assignment of copyright in the work by the author of which notice has been given to the designated body; and nothing in this section affects the validity of an assignment of copyright made, or licence granted, by the author or a person lawfully claiming under him.

Transitional provisions and savings

170 Transitional provisions and savings.

[F400(1)] Schedule 1 contains transitional provisions and savings relating to works made, and acts or events occurring, before the commencement of this Part, and otherwise with respect to the operation of the provisions of this Part.

[F401(2) The Secretary of State may by regulations amend Schedule 1 to reduce the duration of copyright in existing works which are unpublished, other than photographs or films.

(3) The regulations may provide for the copyright to expire— (a) with the end of the term of protection of copyright laid down by Directive

2006/116/ EC or at any later time; (b) subject to that, on the commencement of the regulations or at any later time.

(4) “ Existing works ” has the same meaning as in Schedule 1.

(5) Regulations under subsection (2) may— (a) make different provision for different purposes; (b) make supplementary or transitional provision; (c) make consequential provision, including provision amending any enactment

or subordinate legislation passed or made before that subsection comes into force.

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(6) The power to make regulations under subsection (2) is exercisable by statutory instrument.

(7) A statutory instrument containing regulations under subsection (2) may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.]

Textual Amendments F400 S. 170 renumbered as s. 170(1) (25.4.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss.

76(2), 103(1) F401 S. 170(2)-(7) inserted (25.4.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 76(3),

103(1)

171 Rights and privileges under other enactments or the common law.

(1) Nothing in this Part affects— (a) any right or privilege of any person under any enactment (except where the

enactment is expressly repealed, amended or modified by this Act); (b) any right or privilege of the Crown subsisting otherwise than under an

enactment; (c) any right or privilege of either House of Parliament; (d) the right of the Crown or any person deriving title from the Crown to sell,

use or otherwise deal with articles forfeited under the laws relating to customs and excise;

(e) the operation of any rule of equity relating to breaches of trust or confidence.

(2) Subject to those savings, no copyright or right in the nature of copyright shall subsist otherwise than by virtue of this Part or some other enactment in that behalf.

(3) Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise.

(4) Nothing in this Part affects any right of action or other remedy, whether civil or criminal, available otherwise than under this Part in respect of acts infringing any of the rights conferred by Chapter IV (moral rights).

(5) The savings in subsection (1) have effect subject to section 164(4) and section 166(7) (copyright in Acts, Measures and Bills: exclusion of other rights in the nature of copyright).

Modifications etc. (not altering text) C89 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

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Interpretation

172 General provisions as to construction.

(1) This Part restates and amends the law of copyright, that is, the provisions of the M17Copyright Act 1956, as amended.

(2) A provision of this Part which corresponds to a provision of the previous law shall not be construed as departing from the previous law merely because of a change of expression.

(3) Decisions under the previous law may be referred to for the purpose of establishing whether a provision of this Part departs from the previous law, or otherwise for establishing the true construction of this Part.

Modifications etc. (not altering text) C90 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

Marginal Citations M17 1956 c. 74.

[F402[ F403172A

Meaning of EEA and related expressions.

[F404(1) In this Part— “ the EEA ” means the European Economic Area; and “ EEA state ” means a member State, Iceland, Liechtenstein or Norway. ]]

(2) References in this Part to a person being [F405a national of an EEA State] shall be construed in relation to a body corporate as references to its being incoporated under the law of an EEA state.

(3) F406. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments F402 S. 172A inserted (1.1.1996) by S.I. 1995/3297, reg. 11(1) (with Pt. III) F403 S. 172A(1) and sidenote substituted (1.12.1996) by S.I. 1996/2967, reg. 9(5) (with Pt. III) F404 S. 172A(1) substituted (29.4.2006) by The Intellectual Property (Enforcement, etc.) Regulations 2006

(S.I. 2006/1028), reg. 2(2), Sch. 2 para. 8(2) F405 Words in s. 172A(2) substituted (29.4.2006) by The Intellectual Property (Enforcement, etc.)

Regulations 2006 (S.I. 2006/1028), reg. 2(2), Sch. 2 para. 8(3) F406 S. 172A(3) repealed (29.4.2006) by The Intellectual Property (Enforcement, etc.) Regulations 2006

(S.I. 2006/1028), reg. 2(4), Sch. 4

Modifications etc. (not altering text) C91 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

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173 Construction of references to copyright owner.

(1) Where different persons are (whether in consequence of a partial assignment or otherwise) entitled to different aspects of copyright in a work, the copyright owner for any purpose of this Part is the person who is entitled to the aspect of copyright relevant for that purpose.

(2) Where copyright (or any aspect of copyright) is owned by more than one person jointly, references in this Part to the copyright owner are to all the owners, so that, in particular, any requirement of the licence of the copyright owner requires the licence of all of them.

Modifications etc. (not altering text) C92 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

174 Meaning of “educational establishment” and related expressions.

(1) The expression “educational establishment” in a provision of this Part means— (a) any school, and (b) any other description of educational establishment specified for the purposes

of this Part, or that provision, by order of the Secretary of State.

(2) The Secretary of State may by order provide that the provisions of this Part relating to educational establishments shall apply, with such modifications and adaptations as may be specified in the order, in relation to teachers who are employed by a [F407local authority (as defined in section 579(1) of the Education Act 1996) or (in Northern Ireland) a local education authority,] to give instruction elsewhere to pupils who are unable to attend an educational establishment.

(3) In subsection (1)(a) “school”— (a) in relation to England and Wales, has the same meaning as in [F408the

Education Act 1996]; (b) in relation to Scotland, has the same meaning as in the M18Education (Scotland)

Act 1962, except that it includes an approved school within the meaning of the M19Social Work (Scotland) Act 1968; and

(c) in relation to Northern Ireland, has the same meaning as in the M20Education and Libraries (Northern Ireland) Order 1986.

(4) An order under subsection (1)(b) may specify a description of educational establishment by reference to the instruments from time to time in force under any enactment specified in the order.

(5) In relation to an educational establishment the expressions “teacher” and “pupil” in this Part include, respectively, any person who gives and any person who receives instruction.

(6) References in this Part to anything being done “on behalf of” an educational establishment are to its being done for the purposes of that establishment by any person.

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

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Textual Amendments F407 Words in s. 174(2) substituted (5.5.2010) by The Local Education Authorities and Children's Services

Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), arts. 1, 5(1), Sch. 2 para. 36 F408 Words in s. 174(3) substituted (1.11.1996) by 1996 c. 56, ss. 582(1), 583(2), Sch. 37 Pt. I para. 83

(with Sch. 39)

Modifications etc. (not altering text) C93 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

Marginal Citations M18 1962 c. 47. M19 1968 c. 49. M20 S.I. 1986/594 (N.I.3).

175 Meaning of publication and commercial publication.

(1) In this Part “publication”, in relation to a work— (a) means the issue of copies to the public, and (b) includes, in the case of a literary, dramatic, musical or artistic work, making

it available to the public by means of an electronic retrieval system; and related expressions shall be construed accordingly.

(2) In this Part “commercial publication”, in relation to a literary, dramatic, musical or artistic work means—

(a) issuing copies of the work to the public at a time when copies made in advance of the receipt of orders are generally available to the public, or

(b) making the work available to the public by means of an electronic retrieval system;

and related expressions shall be construed accordingly.

(3) In the case of a work of architecture in the form of a building, or an artistic work incorporated in a building, construction of the building shall be treated as equivalent to publication of the work.

(4) The following do not constitute publication for the purposes of this Part and references to commercial publication shall be construed accordingly—

(a) in the case of a literary, dramatic or musical work— (i) the performance of the work, or

(ii) the [F409communication to the public of the work] (otherwise than for the purposes of an electronic retrieval system);

(b) in the case of an artistic work— (i) the exhibition of the work,

(ii) the issue to the public of copies of a graphic work representing, or of photographs 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,

(iii) the issue to the public of copies of a film including the work, or (iv) the [F409communication to the public of the work] (otherwise than for

the purposes of an electronic retrieval system); (c) in the case of a sound recording or film—

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(i) the work being played or shown in public, or (ii) the [F409communication to the public of the work].

(5) References in this Part to publication or commercial publication do not include publication which is merely colourable and not intended to satisfy the reasonable requirements of the public.

(6) No account shall be taken for the purposes of this section of any unauthorised act.

Textual Amendments F409 Words in s. 175(4)(a)(ii)(b)(iv)(c)(ii) substituted (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 6(1) (with regs. 31-40)

Modifications etc. (not altering text) C94 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

176 Requirement of signature: application in relation to body corporate.

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

section 78(3)(b) (assertion by licensor of right to identification of author in case of public exhibition of copy made in pursuance of the licence), section 90(3) (assignment of copyright), section 91(1) (assignment of future copyright), section 92(1) (grant of exclusive licence).

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

section 78(2)(b) (assertion by instrument in writing of right to have author identified), section 87(2) (waiver of moral rights).

Modifications etc. (not altering text) C95 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

177 Adaptation of expressions for Scotland.

In the application of this Part to Scotland— “account of profits” means accounting and payment of profits; “accounts” means count, reckoning and payment; “assignment” means assignation; “costs” means expenses; “defendant” means defender; “delivery up” means delivery; “estoppel” means personal bar;

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“injunction” means interdict; “interlocutory relief” means interim remedy; and “plaintiff” means pursuer.

Modifications etc. (not altering text) C96 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

178 Minor definitions.

In this Part— “article”, in the context of an article in a periodical, includes an item of any description; “business”includes a trade or profession; “collective work” means—

(a) a work of joint authorship, or (b) a work in which there are distinct contributions by different authors or in

which works or parts of works of different authors are incorporated; “computer-generated”, in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work; “country” includes any territory; “the Crown” includes the Crown in right of [F410the Scottish Administration [F411, of the Welsh Assembly Government] or of] Her Majesty’s Government in Northern Ireland or in any country outside the United Kingdom to which this Part extends; “electronic” means actuated by electric, magnetic, electro-mechanical energy, and “in electronic form” means in a form usable only by electronic means; “employed”, “employee”, “employer”, and “employment” refer to employment under a contract of service or of apprenticeship; “facsimile copy” includes a copy which is reduced or enlarged in scale; “international organisation” means an organisation the members of which include one or more states; “judicial proceedings”includes proceedings before any court, tribunal or person having authority to decide any matter affecting a person’s legal rights or liabilities; “parliamentary proceedings” includes proceedings of the Northern Ireland Assembly [F412of the Scottish Parliament][F413, of the New Northern Ireland Assembly] or of the European Parliament [F414and Assembly proceedings within the meaning of section 1(5) of the Government of Wales Act 2006]; [F415 “ private study ” does not include any study which is directly or indirectly for a commercial purpose; ] [F416“producer”, in relation to a sound recording or a film, means the person by whom the arrangements necessary for the making of the sound recording or film are undertaken;] [F417“public library” means a library administered by or on behalf of—

(a) in England and Wales, a library authority within the meaning of the Public Libraries and Museums Act 1964;

(b) in Scotland, a statutory library authority within the meaning of the Public Libraries (Scotland) Act 1955;

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appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

(c) in Northern Ireland, an Education and Library Board within the meaning of the Education and Libraries (Northern Ireland) Order 1986;]

F418. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [F419“rental right” means the right of a copyright owner to authorise or prohibit the rental of copies of the work (see section 18A);] “reprographic copy” and “reprographic copying” refer to copying by means of a reprographic process; “reprographic process” means a process—

(a) for making facsimile copies, or (b) involving the use of an appliance for making multiple copies,

and includes, in relation to a work held in electronic form, any copying by electronic means, but does not include the making of a film or sound recording; “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; (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; “sufficient disclaimer”, in relation to an act capable of infringing the right conferred by section 80 (right to object to derogatory treatment of work), 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, “telecommunications system” means a system for conveying visual images, sounds or other information by electronic means; “typeface” includes an ornamental motif used in printing; “unauthorised”, as regards anything done in relation to a work, means done otherwise than—

(a) by or with the licence of the copyright owner, or (b) if copyright does not subsist in the work, by or with the licence of the

author or, in a case where section 11(2) would have applied, the author’s employer or, in either case, persons lawfully claiming under him, or

(c) in pursuance of section 48 (copying, &c of certain material by the Crown); [F420 “ wireless broadcast ” means a broadcast by means of wireless telegraphy; ] “wireless telegraphy” means the sending of electro-magnetic energy over paths not provided by a material substance constructed or arranged for that purpose [F421, but does not include the transmission of microwave energy between terrestrial fixed points]; “writing” includes any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded, and “written” shall be construed accordingly

Textual Amendments F410 Words in s. 178 inserted (6.5.1999) by 1998 c. 46, s. 125(1), Sch. 8 para. 25(7)(a); S.I. 1998/3178, art.

2(2), Sch. 3

154 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

F411 S. 178: words in definition of "the Crown" inserted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 29(2) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

F412 Words in s. 178 inserted (6.5.1999) by 1998 c. 46, s. 125(1), Sch. 8 para. 25(7)(b); S.I. 1998/3178, art. 2(2), Sch. 3

F413 Words in s. 178 cease to have effect (2.12.1999) by virtue of 1998 c. 47, s. 99, Sch. 13 para. 8(7) (with s. 95); S.I. 1999/3209, art. 2, Sch.

F414 S. 178: words in definition of "parliamentary proceedings" inserted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 29(3) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

F415 S. 178: definition of "private study" inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(3) (with regs. 31-40)

F416 Definition in s. 178 inserted (1.12.1996 with effect in relation to films made on or after 31.7.1994) by S.I. 1996/2967, regs. 18(5), 36 (with Pt. III)

F417 Definition in s. 178 inserted (1.12.1996) by S.I. 1996/2967, reg. 11(5) (with Pt. III) F418 Definition in s. 178 omitted (1.12.1996) by virtue of S.I. 1996/2967, reg. 10(3) (with Pt. III) F419 Definition in s. 178 inserted (1.12.1996) by S.I. 1996/2967, reg. 10(3) (with Pt. III) F420 S. 178: definition of "wireless broadcast" inserted (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(3) (with regs. 31-40) F421 Words in s. 178 inserted (1.12.1996) by S.I. 1996/2967, reg. 8 (with Pt. III)

Modifications etc. (not altering text) C97 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

179 Index of defined expressions.

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

[F422accessible copy (in sections 31A to 31F)

section 31F(4)]

account of profits and accounts (in Scotland)

section 177

acts restricted by copyright section 16(1) adaptation section 21(3) F423

. . . F423

. . . [F424archivist (in sections 40A to 43) section 43A(5)] article (in a periodical) section 178 artistic work section 4(1) assignment (in Scotland) section 177

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author sections 9 and 10(3) [F425authorised body (in sections 31B to 31BB)

section 31F(6)]

broadcast (and related expressions) section 6 building section 4(2) business section 178 F426

. . . F427

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . collective work section 178 commencement (in Schedule 1) paragraph 1(2) of that Schedule commercial publication section 175 [F428communication to the public section 20] computer-generated section 178 [F429conducted for profit (in sections 40A to 43)

section 43A(4)]

copy and copying section 17 copyright (generally) section 1 copyright (in Schedule 1) paragraph 2(2) of that Schedule copyright owner sections 101(2) and 173 Copyright Tribunal section 145 copyright work section 1(2) costs (in Scotland) section 177 country section 178 [F430country of origin] [F430section 15A.] the Crown section 178 Crown copyright sections 163(2) and 164(3) [F429curator (in sections 40A to 43) section 43A(5)] [F431database] [F431section 3A(1)] defendant (in Scotland) section 177 delivery up (in Scotland) section 177 [F425disabled person (in sections 31A to 31F)

section 31F(2) and (3)]

dramatic work section 3(1) educational establishment sections 174(1) to (4) electronic and electronic form section 178 employed, employee, employer and employment

section 178

156 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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[F432excepted sound recording section 72(1A)] exclusive licence section 92(1) [F433 the EEA , EEA state and national of an EEA state ]

[F434section 172A]

existing works (in Schedule 1) paragraph 1(3) of that Schedule facsimile copy section 178 film [F435section 5B] future copyright section 91(2) general licence (in sections 140 and 141) section 140(7) graphic work section 4(2) infringing copy section 27 injunction (in Scotland) section 177 interlocutory relief (in Scotland) section 177 international organisation section 178 issue of copies to the public [F436section 18] joint authorship (work of) sections 10(1) and (2) judicial proceedings section 178 [F437lawful user (in sections 50A to 50C)] [F437section 50A(2).] [F438lending] [F438section 18A(2) to (6)] [F439librarian (in sections 40A to 43 section 43A(5)] [F429library (in sections 40A to 43) section 43A(2)] licence (in sections 125 to 128) section 124 licence of copyright owner sections 90(4), 91(3) and 173 licensing body (in Chapter VII) section 116(2) licensing scheme (generally) section 116(1) licensing scheme (in sections 118 to 121) section 117 literary work section 3(1) made (in relation to a literary, dramatic or musical work)

section 3(2)

[F429museum (in sections 40A to 43) section 43A(3)] musical work section 3(1) [F440needletime] [F440section 135A] the new copyright provisions (in Schedule 1)

paragraph 1(1) of that Schedule

the 1911 Act (in Schedule 1) paragraph 1(1) of that Schedule the 1956 Act (in Schedule 1) paragraph 1(1) of that Schedule

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on behalf of (in relation to an educational establishment)

section 174(5)

[F431original (in relation to a database)] [F431section 3A(2)] Parliamentary copyright sections 165(2) and (7) [F441166(6)

[F442166A(3) [F443166B(3) 166C(3) and 166D(3)]]]

parliamentary proceedings section 178 performance section 19(2) photograph section 4(2) plaintiff (in Scotland) section 177 F444

. . . F444

. . . F444

. . . F444

. . . [F445private study section 178] [F446producer (in relation to a sound recording or film]

[F446section 178.]

programme (in the context of broadcasting)

section 6(3)

prospective owner (of copyright) section 91(2) [F447public library] [F447section 178.] publication and related expressions section 175 published edition (in the context of copyright in the typographical arrangement)

section 8

pupil section 174(5) rental [F448section 18A(2) to (6)] [F438rental right] [F438section 178.] reprographic copies and repographic copying

section 178

reprographic process section 178 sculpture section 4(2) signed section 176 sound recording [F449sections 5A and 135A] sufficient acknowledgement section 178 sufficient disclaimer section 178 [F425supply (in sections 31B to 31BB) section 31F(7)] teacher section 174(5)

158 Copyright, Designs and Patents Act 1988 (c. 48) Part I – Copyright

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telecommunications system section 178 [F440terms of payment] [F440section 135A] typeface section 178 unauthorised (as regards things done in relation to a work)

section 178

unknown (in relation to the author of a work)

section 9(5)

unknown authorship (work of) section 9(4) F423

. . . F423

. . . [F450wireless broadcast section 178] wireless telegraphy section 178 work (in Schedule 1) paragraph 2(1) of that Schedule work of more than one author (in Chapter VII)

section 116(4)

writing and written section 178

Textual Amendments F422 Words in s. 179 substituted (1.6.2014) by The Copyright and Rights in Performances (Disability)

Regulations 2014 (S.I. 2014/1384), reg. 1(1), Sch. para. 3(a) F423 Words in s. 179 omitted (1.6.2014) by virtue of The Copyright and Rights in Performances (Disability)

Regulations 2014 (S.I. 2014/1384), reg. 1(1), Sch. para. 3(c) F424 Words in s. 179 substituted (1.6.2014) by The Copyright and Rights in Performances (Research,

Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 6(a) F425 Words in s. 179 inserted (1.6.2014) by The Copyright and Rights in Performances (Disability)

Regulations 2014 (S.I. 2014/1384), reg. 1(1), Sch. para. 3(b) F426 S. 179: entry for "cable programme, cable programme service (and related expressions)" repealed

(31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

F427 Words in s. 179 repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 32, 33)

F428 Words in s. 179 inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(4) (with regs. 31-40)

F429 Words in s. 179 inserted (1.6.2014) by The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 6(c)

F430 Words in s. 179 inserted (1.1.1996) by S.I. 1995/3297, reg. 8(2) (with Pt. III) F431 Words in s. 179 inserted (1.1.1998) by S.I. 1997/3032, reg. 11 (with Pt. IV) F432 Words in s. 179 inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 21(7) (with regs. 31-40) F433 Words in s. 179 substituted (29.4.2006) by The Intellectual Property (Enforcement, etc.) Regulations

2006 (S.I. 2006/1028), reg. 2(2), Sch. 2 para. 9 F434 Words in s. 179 inserted (1.1.1996) by S.I. 1995/3297, reg. 11(2) (with Pt. III) F435 Words in s. 179 substituted (1.1.1996) by S.I. 1995/3297, reg. 9(5)(a) (with Pt. III) F436 Words in s. 179 inserted (1.12.1996) by S.I. 1996/2967, reg. 9(6)(b) (with Pt. III) F437 Words in s. 179 inserted (1.1.1993) by S.I. 1992/3233, reg. 9 F438 Words in s. 179 inserted (1.12.1996) by S.I. 1996/2967, reg. 10(4) (with Pt. III)

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F439 Words in s. 179 substituted (1.6.2014) by The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 6(b)

F440 Words inserted by Broadcasting Act 1990 (c.42, SIF 96), s. 175(3) F441 Words in s. 179 substituted (6.5.1999) by 1998 c. 46, s. 125(1), Sch. 8 para. 25(8); S.I. 1998/3178, art.

2(2), Sch. 3 F442 Words in s. 179 substituted (2.12.1999) by 1998 c. 47, s. 99, Sch. 13 para. 8(8) (with s. 95); S.I.

1999/3209, art. 2, Sch. F443 Words in s. 179 substituted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para.

30 (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

F444 Words in s. 179 omitted (1.6.2014) by virtue of The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 6(d)

F445 Words in s. 179 inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(4) (with regs. 31-40)

F446 Words in s. 179 inserted (1.12.1996 with effect in relation to films made on or after 1.7.1994) by S.I. 1996/2967, regs. 18(6), 36 (with Pt. III)

F447 Words in s. 179 inserted (1.12.1996) by S.I. 1996/2967, reg. 11(6) (with Pt. III) F448 Words in s. 179 substituted (1.12.1996) by S.I. 1996/2967, reg. 10(4) (with Pt. III) F449 Words in s. 179 substituted (1.1.1996) by S.I. 1995/3297, reg. 9(5)(b) (with Pt. III) F450 Words in s. 179 inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 15(4) (with regs. 31-40)

Modifications etc. (not altering text) C98 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

PART II

RIGHTS IN PERFORMANCES

Modifications etc. (not altering text) C99 Pt. 2 (ss. 180-212) restricted (22.4.2003) by The Performances (Reciprocal Protection) (Convention

Countries and Isle of Man) Order 2003 (S.I. 2003/773), art. 3 (which S.I. was revoked (1.5.2005) by S.I. 2005/852, art. 8(c))

C100 Pt. 2 (ss. 180-212) extended (with modifications) (1.5.2005) by The Copyright and Performances (Application to Other Countries) Order 2005 (S.I. 2005/852), art. 6, Sch. (with art. 7) (which S.I. was revoked (6.4.2006) by S.I. 2006/316, art. 1(3))

C101 Pt. 2 (ss. 180-212) extended (with modifications) (6.4.2006) by The Copyright and Performances (Application to Other Countries) Order 2006 (S.I. 2006/316), art. 6, Sch. (with art. 7) (which S.I. was revoked (6.4.2007) by S.I. 2007/273, art. 1(3))

C102 Pt. 2 (ss. 180-212) extended (with modifications) (6.4.2007) by The Copyright and Performances (Application to Other Countries) Order 2007 (S.I. 2007/273), art. 6, Sch. (with art. 7) (which S.I. was revoked (6.4.2008) by S.I. 2008/677, art. 1(3))

C103 Pt. 2 (ss. 180-212) extended (with modifications) (6.4.2008) by The Copyright and Performances (Application to Other Countries) Order 2008 (S.I. 2008/677), art. 6, Sch. (with art. 7)

C104 Pt. 2 extended (with modifications) (6.4.2012) by The Copyright and Performances (Application to Other Countries) Order 2012 (S.I. 2012/799), arts. 1(1), 6, 7, Schs. (with art. 8)

160 Copyright, Designs and Patents Act 1988 (c. 48) Part II – Rights in performances

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C105 Pt. 2 applied in part (with modifications) (6.4.2013) by The Copyright and Performances (Application to Other Countries) Order 2013 (S.I. 2013/536), arts. 1(1), 6, 7, Schs. (with art. 8)

C106 Pt. 2 applied (with modifications) (6.4.2017) by The Copyright and Performances (Application to Other Countries) Order 2016 (S.I. 2016/1219), arts. 1(1), 12, Sch. Pt. 2 (with art. 13)

C107 Pt. 2 applied (with modifications) (6.4.2017) by The Copyright and Performances (Application to Other Countries) Order 2016 (S.I. 2016/1219), arts. 1(1), 11, Sch. Pt. 2 (with art. 13)

C108 Pt. 2 applied (with modifications) (6.4.2017) by The Copyright and Performances (Application to Other Countries) Order 2016 (S.I. 2016/1219), arts. 1(1), 10 (with art. 13)

[F451CHAPTER 1

INTRODUCTORY

Textual Amendments F451 Cross-headings before ss. 180, 181 omitted (1.2.2006) and ss. 180, 181 become Pt. 2 Ch. 1 by virtue of

The Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 4(1)-(3) (with reg. 8)

X1180 Rights conferred on performers and persons having recording rights.

(1) [F452Chapter 2 of this Part (economic rights)] confers rights— (a) on a performer, by requiring his consent to the exploitation of his

performances (see sections 181 to 184), and (b) on a person having recording rights in relation to a performance, in relation

to recordings made without his consent or that of the performer (see sections 185 to 188),

and creates offences in relation to dealing with or using illicit recordings and certain other related acts (see sections 198 and 201).

[ F453(1A)

Rights are also conferred on a performer by the following provisions of Chapter 3 of this Part (moral rights)—

(a) section 205C (right to be identified); (b) section 205F (right to object to derogatory treatment of performance).]

(2) In this Part — “performance” means — (a) a dramatic performance (which includes dance and mime), (b) a musical performance, (c) a reading or recitation of a literary work, or (d) a performance of a variety act or any similar presentation,

which is, or so far as it is, a live performance given by one or more individuals; and “recording”, in relation to a performance, means a film or sound recording—

(a) made directly from the live performance, (b) made from a broadcast of F454. . . the performance, or (c) made, directly or indirectly, from another recording of the performance.

(3) The rights conferred by this Part apply in relation to performances taking place before the commencement of this Part; but no act done before commencement, or in pursuance of arrangements made before commencement, shall be regarded as infringing those rights.

Copyright, Designs and Patents Act 1988 (c. 48) Part II – Rights in performances Chapter 2 – ECONOMIC RIGHTS Document Generated: 2020-11-26

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(4) The rights conferred by this Part are independent of— (a) any copyright in, or moral rights relating to, any work performed or any film

or sound recording of, or broadcast F455. . . the performance, and (b) any other right or obligation arising otherwise than under this Part.

Editorial Information X1 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F452 Words in s. 180(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 5(1) (with reg. 8) F453 S. 180(1A) inserted 1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 5(2) (with reg. 8) F454 Words in s. 180(1)(4)(a) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F455 Words in s. 180(1)(4)(a) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 32, 33)

X2181 Qualifying performances.

A performance is a qualifying performance for the purposes of the provisions of this Part relating to performers’ right if it is given by a qualifying individual (as defined in section 206) or takes place in a qualifying country (as so defined).]

Editorial Information X2 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

[F456CHAPTER 2

ECONOMIC RIGHTS

Textual Amendments F456 Ss. 182-205B become Pt. 2 Ch. 2 (1.2.2006) by virtue of The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 4(4) (with reg. 8)

162 Copyright, Designs and Patents Act 1988 (c. 48) Part II – Rights in performances

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X3[F457Performers' rights]

Editorial Information X3 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F457 Pt. 2 Ch. 2: cross-heading inserted (1.2.2006) at beginning of Chapter by The Performances (Moral

Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 4(5) (with reg. 8)

X4[ F458182

Consent required for recording, &c. of live performance.

(1) A performer’s rights are infringed by a person who, without his consent— (a) makes a recording of the whole or any substantial part of a qualifying

performance directly from the live performance, (b) broadcasts live, F459. . . the whole or any substantial part of a qualifying

performance, (c) makes a recording of the whole or any substantial part of a qualifying

performance directly from a broadcast of, F460. . . the live performance.

(2) F461. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In an action for infringement of a performer’s rights brought by virtue of this section damages shall not be awarded against a defendant who shows that at the time of the infringement he believed on reasonable grounds that consent had been given.]

Editorial Information X4 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F458 S. 182 substituted (1.12.1996) by S.I. 1996/2967, reg. 20(1) (with Pt. III) F459 Words in s. 182(1)(b) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F460 Words in s. 182(1)(c) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F461 S. 182(2) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

X5[ F462182A

Consent required for copying of recording.

(1) A performer’s rights are infringed by a person who, without his consent, makes F463. . . a copy of a recording of the whole or any substantial part of a qualifying performance.

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[ F464(1A)

In subsection (1), making a copy of a recording includes making a copy which is transient or is incidental to some other use of the original recording.]

(2) It is immaterial whether the copy is made directly or indirectly.

(3) The right of a performer under this section to authorise or prohibit the making of such copies is referred to in [F465this Chapter] as “reproduction right”.]

Editorial Information X5 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F462 S. 182A inserted (1.12.1996) by S.I. 1996/2967, reg. 20(2) (with Pt. III) F463 Words in s. 182A(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I.2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F464 S. 182A(1A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 8(3) (with regs. 31-40) F465 Words in S. 182A(3) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X6[ F466182B

Consent required for issue of copies to public.

(1) A performer’s rights are infringed by a person who, without his consent, issues to the public copies of a recording of the whole or any substantial part of a qualifying performance.

(2) References in this Part to the issue to the public of copies of a recording are to— (a) the act of putting into circulation in the EEA copies not previously put into

circulation in the EEA by or with the consent of the performer, or (b) the act of putting into circulation outside the EEA copies not previously put

into circulation in the EEA or elsewhere.

(3) References in this Part to the issue to the public of copies of a recording do not include—

(a) any subsequent distribution, sale, hiring or loan of copies previously put into circulation (but see section 182C: consent required for rental or lending), or

(b) any subsequent importation of such copies into the United Kingdom or another EEA state,

except so far as paragraph (a) of subsection (2) applies to putting into circulation in the EEA copies previously put into circulation outside the EEA.

(4) References in this Part to the issue of copies of a recording of a performance include the issue of the original recording of the live performance.

(5) The right of a performer under this section to authorise or prohibit the issue of copies to the public is referred to in [F467this Chapter] as “distribution right”.]

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Editorial Information X6 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F466 S. 182B inserted (1.12.1996) by S.I. 1996/2967, reg. 20(2) (with Pt. III) F467 Words in s. 182B(5) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X7[ F468182C

Consent required for rental or lending of copies to public.

(1) A performer’s rights are infringed by a person who, without his consent, rents or lends to the public copies of a recording of the whole or any substantial part of a qualifying performance.

(2) In [F469this Chapter], subject to the following provisions of this section— (a) “rental” means making a copy of a recording available for use, on terms that

it will or may be returned, for direct or indirect economic or commercial advantage, and

(b) “lending” means making a copy of a recording available for use, on terms that it will or may be returned, otherwise than for direct or indirect economic or commercial advantage, through an establishment which is accessible to the public.

(3) The expressions “rental” and “lending” do not include— (a) making available for the purpose of public performance, playing or showing

in public [F470or communication to the public]; (b) making available for the purpose of exhibition in public; or (c) making available for on-the-spot reference use.

(4) The expression “lending” does not include making available between establishments which are accessible to the public.

(5) Where lending by an establishment accessible to the public gives rise to a payment the amount of which does not go beyond what is necessary to cover the operating costs of the establishment, there is no direct or indirect economic or commercial advantage for the purposes of this section.

(6) References in [F469this Chapter] to the rental or lending of copies of a recording of a performance include the rental or lending of the original recording of the live performance.

(7) In [F469this Chapter]

“rental right” means the right of a performer under this section to authorise or prohibit the rental of copies to the public, and

“lending right” means the right of a performer under this section to authorise or prohibit the lending of copies to the public.]

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Editorial Information X7 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F468 S. 182C inserted (1.12.1996) by S.I. 1996/2967, reg. 20(2) (with Pt. III) F469 Words in s. 182C(2)(6)(7) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F470 Words in s. 182C(3)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg.2(1), Sch. 1 para. 6(2)(c) (with regs. 31-40)

X8[ F471182CA

Consent required for making available to the public

(1) A performer’s rights are infringed by a person who, without his consent, makes available to the public a recording of the whole or any substantial part of a qualifying performance by electronic transmission in such a way that members of the public may access the recording from a place and at a time individually chosen by them.

(2) The right of a performer under this section to authorise or prohibit the making available to the public of a recording is referred to in [F472this Chapter] as “making available right.]

Editorial Information X8 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F471 S. 182CA inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 7(1) (with regs. 31-40) F472 Words in s. 182CA(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X9[ F473

182D

Right to equitable remuneration for exploitation of sound recording.

(1) Where a commercially published sound recording of the whole or any substantial part of a qualifying performance—

(a) is played in public, or [F474(b) is communicated to the public otherwise than by its being made available to

the public in the way mentioned in section 182CA(1),] the performer is entitled to equitable remuneration from the owner of the copyright in the sound recording [F475or, where copyright in the sound recording has expired pursuant to section 191HA(4), from a person who plays the sound recording in public or communicates the sound recording to the public].

166 Copyright, Designs and Patents Act 1988 (c. 48) Part II – Rights in performances

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[ F476(1A)

In subsection (1), the reference to publication of a sound recording includes making it available to the public by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.]

(2) The right to equitable remuneration under this section may not be assigned by the performer except to a collecting society for the purpose of enabling it to enforce the right on his behalf.

The right is, however, transmissible by testamentary disposition or by operation of law as personal or moveable property; and it may be assigned or further transmitted by any person into whose hands it passes.

(3) The amount payable by way of equitable remuneration is as agreed by or on behalf of the persons by and to whom it is payable, subject to the following provisions.

(4) In default of agreement as to the amount payable by way of equitable remuneration, the person by or to whom it is payable may apply to the Copyright Tribunal to determine the amount payable.

(5) A person to or by whom equitable remuneration is payable may also apply to the Copyright Tribunal—

(a) to vary any agreement as to the amount payable, or (b) to vary any previous determination of the Tribunal as to that matter;

but except with the special leave of the Tribunal no such application may be made within twelve months from the date of a previous determination.

An order made on an application under this subsection has effect from the date on which it is made or such later date as may be specified by the Tribunal.

(6) On an application under this section the Tribunal shall consider the matter and make such order as to the method of calculating and paying equitable remuneration as it may determine to be reasonable in the circumstances, taking into account the importance of the contribution of the performer to the sound recording.

(7) An agreement is of no effect in so far as it purports— (a) to exclude or restrict the right to equitable remuneration under this section, or (b) to prevent a person questioning the amount of equitable remuneration or to

restrict the powers of the Copyright Tribunal under this section.

[ F477(8)

In this section “ collecting society ” means a society or other organisation which has as its main object, or one of its main objects, the exercise of the right to equitable remuneration on behalf of more than one performer. ]]

Editorial Information X9 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F473 S. 182D inserted (1.12.1996) by S.I. 1996/2967, reg. 20(2) (with Pt. III) F474 S. 182D(1)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 7(2) (with regs. 31-40)

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F475 Words in s. 182D(1) inserted (1.11.2013) by The Copyright and Duration of Rights in Performances Regulations 2013 (S.I. 2013/1782), regs. 1, 7 (with regs. 11-27)

F476 S. 182D(1A) inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 3(2) (with reg. 8)

F477 S. 182D(8) inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 3(3) (with reg. 8)

Modifications etc. (not altering text) C109 S. 182D modified (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 34 (with regs. 31-40)

X10183 Infringement of performer’s rights by use of recording made without consent.

A performer’s rights are infringed by a person who, without his consent— (a) shows or plays in public the whole or any substantial part of a qualifying

performance, or (b) [F478communicates to the public] the whole or any substantial part of a

qualifying performance, by means of a recording which was, and which that person knows or has reason to believe was, made without the performer’s consent.

Editorial Information X10 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F478 Words in s. 183(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 13(1)(a) (with regs. 31-40)

X11184 Infringement of performer’s rights by importing, possessing or dealing with illicit recording.

(1) A performer’s rights are infringed by a person who, without his consent— (a) imports into the United Kingdom otherwise than for his private and domestic

use, or (b) in the course of a business possesses, sells or lets for hire, offers or exposes

for sale or hire, or distributes, a recording of a qualifying performance which is, and which that person knows or has reason to believe is, an illicit recording.

(2) Where in an action for infringement of a performer’s rights brought by virtue of this section a defendant shows that the illicit recording was innocently acquired by him or a predecessor in title of his, the only remedy available against him in respect of the infringement is damages not exceeding a reasonable payment in respect of the act complained of.

168 Copyright, Designs and Patents Act 1988 (c. 48) Part II – Rights in performances

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(3) In subsection (2) “innocently acquired” means that the person acquiring the recording did not know and had no reason to believe that it was an illicit recording.

Editorial Information X11 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

X12 Rights of person having recording rights

Editorial Information X12 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

X13185 Exclusive recording contracts and persons having recording rights.

(1) In [F479this Chapter] an “exclusive recording contract” means a contract between a performer and another person under which that person is entitled to the exclusion of all other persons (including the performer) to make recordings of one or more of his performances with a view to their commercial exploitation.

(2) References in [F479this Chapter] to a “person having recording rights”, in relation to a performance, are (subject to subsection (3)) to a person—

(a) who is party to and has the benefit of an exclusive recording contract to which the performance is subject, or

(b) to whom the benefit of such a contract has been assigned, and who is a qualifying person.

(3) If a performance is subject to an exclusive recording contract but the person mentioned in subsection (2) is not a qualifying person, references in [F479this Chapter] to a “person having recording rights” in relation to the performance are to any person—

(a) who is licensed by such a person to make recordings of the performance with a view to their commercial exploitation, or

(b) to whom the benefit of such a licence has been assigned, and who is a qualifying person.

(4) In this section “with a view to commercial exploitation” means with a view to the recordings being sold or let for hire, or shown or played in public.

Editorial Information X13 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on

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1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F479 Words in s. 185(1)-(3) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X14186 Consent required for recording of performance subject to exclusive contract.

(1) A person infringes the rights of a person having recording rights in relation to a performance who, without his consent or that of the performer, makes a recording of the whole or any substantial part of the performance F480. . . .

(2) In an action for infringement of those rights brought by virtue of this section damages shall not be awarded against a defendant who shows that at the time of the infringement he believed on reasonable grounds that consent had been given.

Editorial Information X14 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F480 Words in s. 186(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

X15187 Infringement of recording rights by use of recording made without consent.

(1) A person infringes the rights of a person having recording rights in relation to a performance who, without his consent or, in the case of a qualifying performance, that of the performer—

(a) shows or plays in public the whole or any substantial part of the performance, or

(b) [F481communicates to the public] the whole or any substantial part of the performance,

by means of a recording which was, and which that person knows or has reason to believe was, made without the appropriate consent.

(2) The reference in subsection (1) to “the appropriate consent” is to the consent of— (a) the performer, or (b) the person who at the time the consent was given had recording rights in

relation to the performance (or, if there was more than one such person, of all of them).

Editorial Information X15 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on

170 Copyright, Designs and Patents Act 1988 (c. 48) Part II – Rights in performances

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1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F481 Words in s. 187(1)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 13(1)(b) (with regs. 31-40)

X16188 Infringement of recording rights by importing, possessing or dealing with illicit recording.

(1) A person infringes the rights of a person having recording rights in relation to a performance who, without his consent or, in the case of a qualifying performance, that of the performer—

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

(b) in the course of a business possesses, sells or lets for hire, offers or exposes for sale or hire, or distributes,

a recording of the performance which is, and which that person knows or has reason to believe is, an illicit recording.

(2) Where in an action for infringement of those rights brought by virtue of this section a defendant shows that the illicit recording was innocently acquired by him or a predecessor in title of his, the only remedy available against him in respect of the infringement is damages not exceeding a reasonable payment in respect of the act complained of.

(3) In subsection (2) “innocently acquired” means that the person acquiring the recording did not know and had no reason to believe that it was an illicit recording.

Editorial Information X16 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

X17 Exceptions to rights conferred

Editorial Information X17 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

X18189 Acts permitted notwithstanding rights conferred by [F482this Chapter].

The provisions of Schedule 2 specify acts which may be done notwithstanding the rights conferred by [F483this Chapter], being acts which correspond broadly to certain of those specified in Chapter III of Part I (acts permitted notwithstanding copyright).

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Editorial Information X18 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F482 Words in heading to s. 189 substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F483 Words in s. 189 substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X19190 Power of tribunal to give consent on behalf of performer in certain cases.

[ F484(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.]

(2) Consent given by the Tribunal has effect as consent of [F485the person entitled to the reproduction right] for the purposes of—

(a) the provisions of [F486this Chapter] relating to performers’ rights, and (b) section 198(3)(a) (criminal liability: sufficient consent in relation to

qualifying performances), and may be given subject to any conditions specified in the Tribunal’s order.

(3) The Tribunal shall not give consent under subsection (1)(a) except after the service or publication of such notices as may be required by rules made under section 150 (general procedural rules) or as the Tribunal may in any particular case direct.

F487(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) In any case the Tribunal shall take into account the following factors— (a) whether the original recording was made with the performer’s consent and

is lawfully in the possession or control of the person proposing to make the further recording;

(b) whether the making of the further recording is consistent with the obligations of the parties to the arrangements under which, or is otherwise consistent with the purposes for which, the original recording was made.

(6) Where the Tribunal gives consent under this section it shall, in default of agreement between the applicant and [F488the person entitled to the reproduction right], make such order as it thinks fit as to the payment to be made to [F489that person] in consideration of consent being given.

Editorial Information X19 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

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Textual Amendments F484 S. 190(1) substituted (1.12.1996) by S.I. 1996/2967, reg. 23(2) (with Pt. III) F485 Words in s. 190(2) substituted (1.12.1996) by S.I. 1996/2967, reg. 23(3) (with Pt. III) F486 Words in s. 190(2)(a) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F487 S. 190(4) omitted (1.12.1996) by virtue of S.I. 1996/2967, reg. 23(4) (with Pt. III) F488 Words in s. 190(6) substituted (1.12.1996) by S.I. 1996/2967, reg. 23(5)(a) (with Pt. III) F489 Words in s. 190(6) substituted (1.12.1996) by S.I. 1996/2967, reg. 23(5)(b) (with Pt. III)

X20F490[Duration of rights]

Editorial Information X20 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F490 Crossheading substituted (1.12.1996) by S.I. 1996/2967, reg. 21(5)(a) (with Pt. III)

X21[F491 191

Duration of rights.]

(1) The following provisions have effect with respect to the duration of the rights conferred by [F492this Chapter].

(2) The rights conferred by [F492this Chapter] in relation to a performance expire— (a) at the end of the period of 50 years from the end of the calendar year in which

the performance takes place, or (b) if during that period a recording of the performance[F493, other than a sound

recording,] is released, 50 years from the end of the calendar year in which it is released, [F494or

(c) if during that period a sound recording of the performance is released, 70 years from the end of the calendar year in which it is released,]

subject as follows.

(3) For the purposes of subsection (2) a recording is “released” when it is first published, played or shown in public [F495 or communicated to the public]; but in determining whether a recording has been released no account shall be taken of any unauthorised act.

(4) Where a performer is not a national of an EEA state, the duration of the rights conferred by [F492 this Chapter ] in relation to his performance is that to which the performance is entitled in the country of which he is a national, provided that does not exceed the period which would apply under subsections (2) and (3).

(5) If or to the extent that the application of subsection (4) would be at variance with an international obligation to which the United Kingdom became subject prior to 29th October 1993, the duration of the rights conferred by [F492this Chapter] shall be as specified in subsections (2) and (3).]

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Editorial Information X21 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F491 S. 191 substituted (1.1.1996) by S.I. 1995/3297, reg. 10 (with Pt. III) F492 Words in s. 191(1)(2)(4)(5) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F493 Words in s. 191(2)(b) inserted (1.11.2013) by The Copyright and Duration of Rights in Performances

Regulations 2013 (S.I. 2013/1782), regs. 1, 8(a) (with regs. 11-27) F494 S. 191(2)(c) and word inserted (1.11.2013) by The Copyright and Duration of Rights in Performances

Regulations 2013 (S.I. 2013/1782), regs. 1, 8(b) (with regs. 11-27) F495 Words in s. 191(3) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(1), Sch. 1 para. 8(2)(d) (with regs. 31-40)

X22[F496Performers’ property rights]

Editorial Information X22 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F496 Crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

X23[F497191APerformers’ property rights.

(1) The following rights conferred by [F498this Chapter] on a performer— reproduction right (section 182A), distribution right (section 182B), rental right and lending right (section 182C), [F499making available right (section 182CA),]

are property rights (“F500. . . performer’s property rights”).

(2) References in [F498this Chapter] to the consent of the performer shall be construed in relation to a performer’s property rights as references to the consent of the rights owner.

(3) Where different persons are (whether in consequence of a partial assignment or otherwise) entitled to different aspects of a performer’s property rights in relation to a performance, the rights owner for any purpose of [F498this Chapter] is the person who is entitled to the aspect of those rights relevant for that purpose.

(4) Where a performer’s property rights (or any aspect of them) is owned by more than one person jointly, references in [F498this Chapter] to the rights owner are to all the owners,

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so that, in particular, any requirement of the licence of the rights owner requires the licence of all of them.]

Editorial Information X23 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F497 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III) F498 Words in s. 191A(1)-(4) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F499 Words in s. 191A(1) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 7(3) (with regs. 31-40) F500 Word in s. 191A(1) omitted by virtue of The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 4 (with reg. 8)

X24[F501191BAssignment and licences.

(1) A performer’s property rights are transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.

(2) An assignment or other transmission of a performer’s property rights may be partial, that is, limited so as to apply—

(a) to one or more, but not all, of the things requiring the consent of the rights owner;

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

(3) An assignment of a performer’s property rights is not effective unless it is in writing signed by or on behalf of the assignor.

(4) A licence granted by the owner of a performer’s property rights is binding on every successor in title to his interest in the rights, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in [F502this Chapter] to doing anything with, or without, the licence of the rights owner shall be construed accordingly.]

Editorial Information X24 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F501 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III) F502 Words in s. 191B(4) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

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X25[F503191CProspective ownership of a performer’s property rights.

(1) This section applies where by an agreement made in relation to a future recording of a performance, and signed by or on behalf of the performer, the performer purports to assign his performer’s property rights (wholly or partially) to another person.

(2) If on the rights coming into existence the assignee or another person claiming under him would be entitled as against all other persons to require the rights to be vested in him, they shall vest in the assignee or his successor in title by virtue of this subsection.

(3) A licence granted by a prospective owner of a performer’s property rights is binding on every successor in title to his interest (or prospective interest) in the rights, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser.

References in [F504this Chapter] to doing anything with, or without, the licence of the rights owner shall be construed accordingly.

(4) In subsection (3) “prospective owner” in relation to a performer’s property rights means a person who is prospectively entitled to those rights by virtue of such an agreement as is mentioned in subsection (1).]

Editorial Information X25 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F503 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III) F504 Words in s. 191C(3) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X26[F505191DExclusive licences.

(1) In [F506this Chapter] an “exclusive licence” means a licence in writing signed by or on behalf of the owner of a performer’s property rights authorising the licensee to the exclusion of all other persons, including the person granting the licence, to do anything requiring the consent of the rights owner.

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

Editorial Information X26 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F505 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

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F506 Words in s. 191D(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X27[F507191EPerformer’s property right to pass under will with unpublished original recording.

Where under a bequest (whether general or specific) a person is entitled beneficially or otherwise to any material thing containing an original recording of a performance which was not published before the death of the testator, the bequest shall, unless a contrary intention is indicated in the testator’s will or a codicil to it, be construed as including any performer’s rights in relation to the recording to which the testator was entitled immediately before his death.]

Editorial Information X27 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F507 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

X28[F508191FPresumption of transfer of rental right in case of film production agreement.

(1) Where an agreement concerning film production is concluded between a performer and a film producer, the performer shall be presumed, unless the agreement provides to the contrary, to have transferred to the film producer any rental right in relation to the film arising from the inclusion of a recording of his performance in the film.

(2) Where this section applies, the absence of signature by or on behalf of the performer does not exclude the operation of section 191C (effect of purported assignment of future rights).

(3) The reference in subsection (1) to an agreement concluded between a performer and a film producer includes any agreement having effect between those persons, whether made by them directly or through intermediaries.

(4) Section 191G (right to equitable remuneration on transfer of rental right) applies where there is a presumed transfer by virtue of this section as in the case of an actual transfer.]

Editorial Information X28 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F508 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

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Modifications etc. (not altering text) C110 S. 191F applied (1.12.1996) by S.I. 1996/2967, reg. 32(1) (with Pt. III)

X29[F509191GRight to equitable remuneration where rental right transferred.

(1) Where a performer has transferred his rental right concerning a sound recording or a film to the producer of the sound recording or film, he retains the right to equitable remuneration for the rental.

The reference above to the transfer of rental right by one person to another includes any arrangement having that effect, whether made by them directly or through intermediaries.

(2) The right to equitable remuneration under this section may not be assigned by the performer except to a collecting society for the purpose of enabling it to enforce the right on his behalf.

The right is, however, transmissible by testamentary disposition or by operation of law as personal or moveable property; and it may be assigned or further transmitted by any person into whose hands it passes.

(3) Equitable remuneration under this section is payable by the person for the time being entitled to the rental right, that is, the person to whom the right was transferred or any successor in title of his.

(4) The amount payable by way of equitable remuneration is as agreed by or on behalf of the persons by and to whom it is payable, subject to section 191H (reference of amount to Copyright Tribunal).

(5) An agreement is of no effect in so far as it purports to exclude or restrict the right to equitable remuneration under this section.

(6) In this section a “collecting society” means a society or other organisation which has as its main object, or one of its main objects, the exercise of the right to equitable remuneration on behalf of more than one performer.]

Editorial Information X29 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F509 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

Modifications etc. (not altering text) C111 S. 191G applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 32(2) (with Pt. III) C112 S. 191G restricted (1.12.1996) by S.I. 1996/2967, reg. 33 (with Pt. III)

178 Copyright, Designs and Patents Act 1988 (c. 48) Part II – Rights in performances

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X30[F510191HEquitable remuneration: reference of amount to Copyright Tribunal.

(1) In default of agreement as to the amount payable by way of equitable remuneration under section 191G, the person by or to whom it is payable may apply to the Copyright Tribunal to determine the amount payable.

(2) A person to or by whom equitable remuneration is payable may also apply to the Copyright Tribunal—

(a) to vary any agreement as to the amount payable, or (b) to vary any previous determination of the Tribunal as to that matter;

but except with the special leave of the Tribunal no such application may be made within twelve months from the date of a previous determination.

An order made on an application under this subsection has effect from the date on which it is made or such later date as may be specified by the Tribunal.

(3) On an application under this section the Tribunal shall consider the matter and make such order as to the method of calculating and paying equitable remuneration as it may determine to be reasonable in the circumstances, taking into account the importance of the contribution of the performer to the film or sound recording.

(4) Remuneration shall not be considered inequitable merely because it was paid by way of a single payment or at the time of the transfer of the rental right.

(5) An agreement is of no effect in so far as it purports to prevent a person questioning the amount of equitable remuneration or to restrict the powers of the Copyright Tribunal under this section.]

Editorial Information X30 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F510 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

[F511191HAAssignment of performer’s property rights in a sound recording

(1) This section applies where a performer has [F512by an agreement] assigned the following rights concerning a sound recording to the producer of the sound recording—

(a) reproduction, distribution and making available rights, or (b) performer’s property rights.

(2) If, at the end of the 50-year period, the producer has failed to meet one or both of the following conditions, the performer may give a notice in writing to the producer of the performer’s intention to terminate the agreement—

(a) condition 1 is to issue to the public copies of the sound recording in sufficient quantities;

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(b) condition 2 is to make the sound recording available to the public by electronic transmission in such a way that a member of the public may access the recording from a place and at a time chosen by him or her.

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

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

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

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

(7) In this section— “50-year period” means

(a) where the sound recording is published during the initial period, the period of 50 years from the end of the calendar year in which the sound recording is first published, or

(b) where during the initial period the sound recording is not published but is made available to the public by being played in public or communicated to the public, the period of 50 years from the end of the calendar year in which it was first made available to the public,

but in determining whether a sound recording has been published, played in public or communicated to the public, no account shall be taken of any unauthorised act,

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

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

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

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

Textual Amendments F511 Ss. 191HA-191HB inserted (1.11.2013) by The Copyright and Duration of Rights in Performances

Regulations 2013 (S.I. 2013/1782), regs. 1, 9 (with regs. 11-27) F512 Words in s. 191HA(1) inserted (6.4.2014) by The Copyright and Duration of Rights in Performances

(Amendment) Regulations 2014 (S.I. 2014/434), regs. 1, 2

191HB Payment in consideration of assignment

(1) A performer who, under an agreement relating to the assignment of rights referred to in section 191HA(1) (an “assignment agreement”), is entitled to a non-recurring

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payment in consideration of the assignment, is entitled to an annual payment for each relevant period from—

(a) the producer, or (b) where the producer has granted an exclusive licence of the copyright in the

sound recording, the licensee under the exclusive licence (the “exclusive licensee”).

(2) In this section, “relevant period” means— (a) the period of 12 months beginning at the end of the 50-year period, and (b) each subsequent period of 12 months beginning with the end of the previous

period, until the date on which copyright in the sound recording expires.

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

(a) the reproduction and issue to the public of copies of the sound recording, and (b) the making available to the public of the sound recording by electronic

transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.

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

(5) Subsection (6) applies where— (a) the performer makes a written request to the producer or, where relevant, the

exclusive licensee for information in that person’s possession or under that person’s control to enable the performer—

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

(ii) to secure its distribution by the collecting society, and (b) the producer or, where relevant, the exclusive licensee does not supply the

information within the period of 90 days beginning with the date of the request.

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

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

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

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

(10) In this section— “producer” and “50-year period” each has the same meaning as in

section 191HA,

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“exclusive licence” has the same meaning as in section 92, and “collecting society” has the same meaning as in section 191G.]

Textual Amendments F511 Ss. 191HA-191HB inserted (1.11.2013) by The Copyright and Duration of Rights in Performances

Regulations 2013 (S.I. 2013/1782), regs. 1, 9 (with regs. 11-27)

X31[F513191IInfringement actionable by rights owner.

(1) An infringement of a performer’s property rights is actionable by the rights owner.

(2) In an action for infringement of a performer’s property rights all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.

(3) This section has effect subject to the following provisions of [F514this Chapter].]

Editorial Information X31 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F513 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III) F514 Words in s. 191I(3) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X32[F515191JProvisions as to damages in infringement action.

(1) Where in an action for infringement of a performer’s property rights it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that the rights subsisted in the recording to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(2) The court may in an action for infringement of a performer’s property rights having regard to all the circumstances, and in particular to—

(a) the flagrancy of the infringement, and (b) any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require.]

Editorial Information X32 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

182 Copyright, Designs and Patents Act 1988 (c. 48) Part II – Rights in performances

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Textual Amendments F515 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

X33[F516191JAInjunctions against service providers

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

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

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

(b) the extent to which any notice includes— (i) the full name and address of the sender of the notice;

(ii) details of the infringement in question.

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

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

Editorial Information X33 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F516 S. 191JA inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 27(2) (with regs. 32, 33)

X34[F517191KUndertaking to take licence of right in infringement proceedings.

(1) If in proceedings for infringement of a performer’s property rights in respect of which a licence is available as of right under paragraph 17 of Schedule 2A (powers exercisable in consequence of competition report) the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the Copyright Tribunal under that paragraph—

(a) no injunction shall be granted against him, (b) no order for delivery up shall be made under section 195, and (c) the amount recoverable against him by way of damages or on an account of

profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.

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(2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.

(3) Nothing in this section affects the remedies available in respect of an infringement committed before licences of right were available.]

Editorial Information X34 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F517 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

X35[F518191LRights and remedies for exclusive licensee.

(1) An exclusive licensee has, except against the owner of a performer’s property rights, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment.

(2) His rights and remedies are concurrent with those of the rights owner; and references in the relevant provisions of [F519this Chapter] to the rights owner shall be construed accordingly.

(3) In an action brought by an exclusive licensee by virtue of this section a defendant may avail himself of any defence which would have been available to him if the action had been brought by the rights owner.]

Editorial Information X35 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F518 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III) F519 Words in s. 191L(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X36[F520191MExercise of concurrent rights.

(1) Where an action for infringement of a performer’s property rights brought by the rights owner or an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the rights owner or, as the case may be, the exclusive licensee may not, without the leave of the court, proceed with the action unless the other is either joined as plaintiff or added as a defendant.

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(2) A rights owner or exclusive licensee who is added as a defendant in pursuance of subsection (1) is not liable for any costs in the action unless he takes part in the proceedings.

(3) The above provisions do not affect the granting of interlocutory relief on an application by the rights owner or exclusive licensee alone.

(4) Where an action for infringement of a performer’s property rights is brought which relates (wholly or partly) to an infringement in respect of which the rights owner and an exclusive licensee have or had concurrent rights of action—

(a) the court shall in assessing damages take into account— (i) the terms of the licence, and

(ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement;

(b) no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement; and

(c) the court shall if an account of profits is directed apportion the profits between them as the court considers just, subject to any agreement between them; and these provisions apply whether or not the rights owner and the exclusive licensee are both parties to the action.

(5) The owner of a performer’s property rights shall notify any exclusive licensee having concurrent rights before applying for an order under section 195 (order for delivery up) or exercising the right conferred by section 196 (right of seizure); and the court may on the application of the licensee make such order under section 195 or, as the case may be, prohibiting or permitting the exercise by the rights owner of the right conferred by section 196, as it thinks fit having regard to the terms of the licence.]

Editorial Information X36 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F520 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)

X37[F521Non-property rights]

Editorial Information X37 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

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Textual Amendments F521 Ss. 192A, 192B and crossheading substituted for s. 192 (1.12.1996) by S.I. 1996/2967, reg. 21(2)

(with Pt. III)

X38[F522 192A

Performers’ non-property rights.

(1) the rights conferred on a performer by -

section 182 (consent required for recording, &c. of live performance),

section 183 (infringement of performer’s rights by use of recording made without consent), F523 ...

section 184 (infringement of performer’s rights importing, possessing or dealing with illicit recording),

[F524section 191HA (assignment of performer’s property rights in a sound recording), and

section 191HB (payment in consideration of assignment),] are not assignable or transmissible, except to the following extent. They are referred to in [F525 this Chapter ] as “ F526 . . . performer’s non-property rights”.

(2) On the death of a person entitled to any such right— (a) the right passes to such person as he may by testamentary disposition

specifically direct, and (b) if or to the extent that there is no such direction, the right is exercisable by

his personal representatives.

(3) References in [F525this Chapter] to the performer, in the context of the person having any such right, shall be construed as references to the person for the time being entitled to exercise those rights.

(4) Where by virtue of subsection (2)(a) a right becomes exercisable by more than one person, it is exercisable by each of them independently of the other or others.

(5) Any damages recovered by personal representatives by virtue of this section in respect of an infringement after a person’s death shall devolve as part of his estate as if the right of action had subsisted and been vested in him immediately before his death.]

Editorial Information X38 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F522 Ss. 192A, 192B and crossheading substituted for s. 192 (1.12.1996) by S.I. 1996/2967, reg. 21(2)

(with Pt. III) F523 Word in s. 192A(1) deleted (1.11.2013) by The Copyright and Duration of Rights in Performances

Regulations 2013 (S.I. 2013/1782), regs. 1, 10 (with regs. 11-27)

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F524 Words in s. 192A(1) inserted (1.11.2013) by The Copyright and Duration of Rights in Performances Regulations 2013 (S.I. 2013/1782), regs. 1, 10 (with regs. 11-27)

F525 Words in s. 192A(1)(3) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

F526 Word in s. 192A(1) omitted by virtue of The Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 5 (with reg. 8)

X39[F527192BTransmissibility of rights of person having recording rights.

(1) The rights conferred by [F528this Chapter] on a person having recording rights are not assignable or transmissible.

(2) This does not affect section 185(2)(b) or (3)(b), so far as those provisions confer rights under [F528this Chapter] on a person to whom the benefit of a contract or licence is assigned.]

Editorial Information X39 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F527 Ss. 192A, 192B and crossheading substituted for s. 192 (1.12.1996) by S.I. 1996/2967, reg. 21(2)

(with Pt. III) F528 Words in s. 192B(1)(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X40193 Consent.

(1) Consent for the purposes of [F529this Chapter][F530by a person having a performer’s non-property rights, or by a person having recording rights,] may be given in relation to a specific performance, a specified description of performances or performances generally, and may relate to past or future performances.

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

(3) Where [F531a performer’s non-property right] passes to another person, any consent binding on the person previously entitled binds the person to whom the right passes in the same way as if the consent had been given by him.

Editorial Information X40 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

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Textual Amendments F529 Words in s. 193(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F530 Words in s. 193(1) inserted (1.12.1996) by S.I. 1996/2967, reg. 21(3)(a) (with Pt. III) F531 Words in s. 193(3) substituted (1.12.1996) by S.I. 1996/2967, reg. 21(3)(b) (with Pt. III)

X41F532. . .

Editorial Information X41 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F532 Crossheading before s. 194 omitted (1.12.1996) by virtue of S.I. 1996/2967, reg. 21(5)(b) (with Pt. III)

X42194 Infringement actionable as breach of statutory duty.

An infringement of [F533— (a) a performer’s non-property rights, or (b) any right conferred by [F534this Chapter] on a person having recording rights,]

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

Editorial Information X42 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F533 Words in s. 194 substituted (1.12.1996) by S.I. 1996/2967, reg. 21(4) (with Pt. III) F534 Words in s. 194(b) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X43[F535Delivery up or seizure of illicit recordings]

Editorial Information X43 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

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Textual Amendments F535 Heading before s. 195 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(5)(c) (with Pt. III)

X44195 Order for delivery up.

(1) Where a person has in his possession, custody or control in the course of a business an illicit recording of a performance, a person having performer’s rights or recording rights in relation to the performance under [F536this Chapter] may apply to the court for an order that the recording be delivered up to him or to such other person as the court may direct.

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

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

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

Editorial Information X44 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F536 Words in s. 195(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

Modifications etc. (not altering text) C113 S. 195 extended by S.I. 1991/724, art. 2(1)(n)

X45196 Right to seize illicit recordings.

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

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

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

(3) A person may for the purpose of exercising the right conferred by this section enter premises to which the public have access but may not seize anything in the possession,

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custody or control of a person at a permanent or regular place of business of his and may not use any force.

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

(5) In this section— “premises” includes land, buildings, fixed or moveable structures, vehicles,

vessels, aircraft and hovercraft; and “prescribed” means prescribed by order of the Secretary of State.

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

Editorial Information X45 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

X46197 Meaning of “illicit recording”.

(1) In [F537this Chapter]“illicit recording”, in relation to a performance, shall be construed in accordance with this section.

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

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

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

(5) In [F537this Chapter]“illicit recording” includes a recording falling to be treated as an illicit recording by virtue of any of the following provisions of Schedule 2—

[F538paragraph 1D(3) (copies for text and data analysis for non-commercial research),] [F539paragraph 3A(5) or (6) or 3B(10) (accessible copies of recordings made for disabled persons)] [F540paragraph 1B(5) and (7) (personal copies of recordings for private use),] F541... [F542paragraph 6(5) (recording by educational establishments of broadcasts),] [F538paragraph 6F(5)(b) (copying by librarians: single copies of published recordings),]

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[F538paragraph 6G(5)(b) (copying by librarians or archivists: single copies of unpublished recordings),] [F538paragraph 6ZA(7) (copying and use of extracts of recordings by educational establishments),] paragraph 12(2) (recordings of performance in electronic form retained on transfer of principal recording), F543. . . [F538paragraph 14(6)(b) (recordings of folksongs),] paragraph 16(3) (recordings made for purposes of broadcast F544. . . ), [F545paragraph 17A(2) (recording for the purposes of time-shifting), or paragraph 17B(2) (photographs of broadcasts),]

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

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

Editorial Information X46 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F537 Words in s. 197(1)(5) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F538 Words in s. 197(5) inserted (1.6.2014) by The Copyright and Rights in Performances (Research,

Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 7(a) F539 Words in s. 197(5) inserted (1.6.2014) by The Copyright and Rights in Performances (Disability)

Regulations 2014 (S.I. 2014/1384), reg. 1(1), Sch. para. 4 F540 Words in s. 197(5) inserted (1.10.2014) by The Copyright and Rights in Performances (Personal

Copies for Private Use) Regulations 2014 (S.I. 2014/2361), regs. 1(1), 4(2) (with reg. 5) (but note that the amending S.I. was quashed with prospective effect by the High Court in the case of R (British Academy of Songwriters, Composers and Authors and others) v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin), 17 July 2015)

F541 Words in s. 197(5) omitted (1.6.2014) by virtue of The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 7(b)

F542 Words in s. 197(5) substituted (1.6.2014) by The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 (S.I. 2014/1372), reg. 1, Sch. para. 7(c)

F543 Words in s. 197(5) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

F544 Words in s. 197(5) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

F545 Words in s. 197(5) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 20(4) (with regs. 31-40)

[F546197APresumptions relevant to recordings of performances

(1) In proceedings brought by virtue of this Part with respect to the rights in a performance, where copies of a recording of the performance as issued to the public bear a statement

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that a named person was the performer, the statement shall be admissible as evidence of the fact stated and shall be presumed to be correct until the contrary is proved.

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

Textual Amendments F546 S. 197A inserted (29.4.2006) by The Intellectual Property (Enforcement, etc.) Regulations 2006 (S.I.

2006/1028), reg. 2(2), Sch. 2 para. 10

X47 Offences

Editorial Information X47 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

X48198 Criminal liability for making, dealing with or using illicit recordings.

(1) A person commits an offence who without sufficient consent— (a) makes for sale or hire, or (b) imports into the United Kingdom otherwise than for his private and domestic

use, or (c) possesses in the course of a business with a view to committing any act

infringing the rights conferred by [F547this Chapter], or (d) in the course of a business—

(i) sells or lets for hire, or (ii) offers or exposes for sale or hire, or

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

[F548(1A) A person (“P”) who infringes a performer's making available right in a recording commits an offence if P—

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

(i) intends to make a gain for P or another person, or (ii) knows or has reason to believe that infringing the right will cause loss

to the owner of the right, or expose the owner of the right to a risk of loss.

(1B) For the purposes of subsection (1A)— (a) “gain” and “loss”—

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

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(ii) include any such gain or loss whether temporary or permanent, and (b) “loss” includes a loss by not getting what one might get.]

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

(a) shown or played in public, or [F549(b) communicated to the public,]

thereby infringing any of the rights conferred by [F547this Chapter], if he knows or has reason to believe that those rights are thereby infringed.

(3) In subsections (1) and (2) “sufficient consent” means— (a) in the case of a qualifying performance, the consent of the performer, and (b) in the case of a non-qualifying performance subject to an exclusive recording

contract— (i) for the purposes of subsection (1)(a) (making of recording), the

consent of the performer or the person having recording rights, and (ii) for the purposes of subsection (1)(b), (c) and (d) and subsection (2)

(dealing with or using recording), the consent of the person having recording rights.

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

(4) No offence is committed under subsection (1) or (2) by the commission of an act which by virtue of any provision of Schedule 2 may be done without infringing the rights conferred by [F547this Chapter].

(5) A person guilty of an offence under subsection (1)(a), (b) or (d)(iii) is liable— (a) on summary conviction to imprisonment for a term not exceeding six months

or [F550a fine], or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding

[F551ten] years, or both.

[F552(5A) A person guilty of an offence under subsection (1A) is liable— (a) on summary conviction to imprisonment for a term not exceeding three

months or [F553a fine], or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding

[F554 ten ] years, or both.]

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

Editorial Information X48 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

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Textual Amendments F547 Words in s. 198(1)(c)(2)(4) substituted (1.2.2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F548 S. 198(1A)(1B) substituted for s. 198(1A) (1.10.2017) by Digital Economy Act 2017 (c. 30), ss. 32(4),

118(6) (with s. 32(6)); S.I. 2017/765, reg. 3(a) F549 S. 198(2)(b) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 4(5) (with regs. 31-40) F550 Words in s. 198(5)(a) substituted (12.3.2015) by The Legal Aid, Sentencing and Punishment of

Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 (S.I. 2015/664), reg. 1(1), Sch. 4 para. 17(3)(a) (with reg. 5(1))

F551 S. 198(5)(b) substituted (20.11.2002) by 2002 c. 25, s. 1(3)(5); S.I. 2002/2749, art. 2 F552 S. 198(5A) inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 26(3)(b) (with regs. 31-40) F553 Words in s. 198(5A)(a) substituted (12.3.2015) by The Legal Aid, Sentencing and Punishment of

Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 (S.I. 2015/664), reg. 1(1), Sch. 4 para. 17(3)(b) (with reg. 5(1))

F554 Word in s. 198(5A)(b) substituted (1.10.2017) by Digital Economy Act 2017 (c. 30), ss. 32(5), 118(6) (with s. 32(6)); S.I. 2017/765, reg. 3(a)

X49[F555198AEnforcement by local weights and measures authority.

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

F556(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Subsection (1) above does not apply in relation to the enforcement of section 198 in Northern Ireland, but it is the duty of the Department of Economic Development to enforce that section in Northern Ireland. F557...

[ F558(3A)

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

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

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

Editorial Information X49 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F555 S. 198A inserted (6.4.2007) by 1994 c. 33, ss. 165(3), 172(2); S.I. 2007/621, art. 2

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F556 S. 198A(2) omitted (1.10.2015) by virtue of Consumer Rights Act 2015 (c. 15), s. 100(5), Sch. 6 para. 50(2); S.I. 2015/1630, art. 3(i) (with art. 8)

F557 Words in s. 198A(3) omitted (1.10.2015) by virtue of Consumer Rights Act 2015 (c. 15), s. 100(5), Sch. 6 para. 50(3); S.I. 2015/1630, art. 3(i) (with art. 8)

F558 S. 198A(3A) inserted (1.10.2015) by Consumer Rights Act 2015 (c. 15), s. 100(5), Sch. 6 para. 50(4); S.I. 2015/1630, art. 3(i)

X50199 Order for delivery up in criminal proceedings.

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

(2) For this purpose a person shall be treated as charged with an offence— (a) in England, Wales and Northern Ireland, when he is orally charged or is served

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

indictment.

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

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

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

(4) An appeal lies from an order made under this section by a magistrates’ court— (a) in England and Wales, to the Crown Court, and (b) in Northern Ireland, to the county court;

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

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

(6) Nothing in in this section affects the powers of the court under [F559section 143 of the Powers of Criminal Courts (Sentencing) Act 2000], [F560Part II of the Proceeds of Crime (Scotland) Act 1995] or [F561Article 11 of the Criminal Justice (Northern Ireland) Order 1994] (general provisions as to forfeiture in criminal proceedings).

Editorial Information X50 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on

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1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F559 Words in s. 199(6) substituted (25.8.2000) by 2000 c. 6 ss. 165, 168, Sch. 9 para. 116 F560 Words in s. 199(6) substituted (1.4.1996) by 1995 c. 20, ss. 5, 7(2), Sch. 4 para. 70(3) F561 Words in s. 199(6) substituted (9.1.1995) by S.I. 1994/2795 (N.I. 15), art. 26(1), Sch. 2 para. 14; S.R.

1994/446, art. 2

X51200 Search warrants.

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

(a) that an offence under [F562section 198(1) or (1A)](offences of making, importing [F563, possessing, selling etc.] or distributing illicit recordings) has been or is about to be committed in any premises, and

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

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

(2) The power conferred by subsection (1) does not, in England and Wales, extend to authorising a search for material of the kinds mentioned in section 9(2) of the M21Police and Criminal Evidence Act 1984 (certain classes of personal or confidential material).

(3) A warrant under subsection (1)— (a) may authorise persons to accompany any constable executing the warrant, and (b) remains in force for [F564three months] from the date of its issue.

[F565(3A) In executing a warrant issued under subsection (1) a constable may seize an article if he reasonably believes that it is evidence that any offence under [F566section 198(1) or (1A)] has been or is about to be committed.]

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

Editorial Information X51 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F562 Words in s. 200(1)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 26(4)(a) (with regs. 31-40) F563 Words in s. 200(1)(a) inserted (20.11.2002) by 2002 c. 25, s. 2(3)(a)(ii); S.I. 2002/2749, art. 2 F564 Words in s. 200(3)(b) substituted (1.1.2006) by Serious Organised Crime and Police Act 2005 (c. 15),

ss. 174(1), 178, Sch. 16 para. 6(3); S.I. 2005/3495, art. 2(1)(s) (subject to art. 2(2)) F565 S. 200(3A) inserted (20.11.2002) by 2002 c. 25, s. 2(3)(b); S.I. 2002/2749, art. 2

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F566 Words in s. 200(3A) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 26(4)(b) (with reg. 31-40)

Marginal Citations M21 1984 c. 60.

X52201 False representation of authority to give consent.

(1) It is an offence for a person to represent falsely that he is authorised by any person to give consent for the purposes of [F567this Chapter] in relation to a performance, unless he believes on reasonable grounds that he is so authorised.

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

Editorial Information X52 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F567 Words in s. 201(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

X53202 Offence by body corporate: liability of officers.

(1) Where an offence under [F568this Chapter] committed by a body corporate is proved to have been committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

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

Editorial Information X53 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F568 Words in s. 202(1) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8)

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X54 Supplementary provisions with respect to delivery up and seizure

Editorial Information X54 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

X55203 Period after which remedy of delivery up not available.

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

(2) If during the whole or any part of that period a person entitled to apply for an order— (a) is under a disability, or (b) is prevented by fraud or concealment from discovering the facts entitling him

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

(3) In subsection (2) “disability”— (a) in England and Wales, has the same meaning as in the M22Limitation Act 1980; (b) in Scotland, means legal disability within the meaning of the M23Prescription

and Limitations (Scotland) Act 1973; (c) in Northern Ireland, has the same meaning as in the M24Statute of Limitation

(Northern Ireland) 1958.

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

Editorial Information X55 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Marginal Citations M22 1980 c. 58. M23 1973 c. 52. M24 1958 c. 10 (N.I.).

X56204 Order as to disposal of illicit recording.

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

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

(b) destroyed or otherwise dealt with as the court may think fit, or for a decision that no such order should be made.

(2) In considering what order (if any) should be made, the court shall consider whether other remedies available in an action for infringement of the rights conferred by [F569this Chapter] would be adequate to compensate the person or persons entitled to the rights and to protect their interests.

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

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

(b) to appeal against any order made, whether or not he appeared; and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.

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

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

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

[F570(a) under this section or under section 114 or 231 of this Act; (b) under section 24D of the Registered Designs Act 1949; (c) under section 19 of Trade Marks Act 1994 (including that section as

applied by regulation 4 of the Community Trade Mark Regulations 2006 (SI 2006/1027)); or

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

Editorial Information X56 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F569 Words in s. 204(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006

(S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F570 Words in s. 204(6) substituted (29.4.2006) by The Intellectual Property (Enforcement, etc.)

Regulations 2006 (S.I. 2006/1028), reg. 2(2), Sch. 2 para. 11

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Modifications etc. (not altering text) C114 S. 204 extended by S.I. 1991/724, art. 2(1)(n)

X57[F571204AForfeiture of illicit recordings: England and Wales or Northern Ireland

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

(2) For the purposes of this section “relevant offence” means— (a) an offence under [F572section 198(1) or (1A)](criminal liability for making or

dealing with illicit recordings), (b) an offence under the Trade Descriptions Act 1968 (c. 29),

[ F573(ba)

an offence under the Business Protection from Misleading Marketing Regulations 2008,

(bb) an offence under the Consumer Protection from Unfair Trading Regulations 2008, or]

(c) an offence involving dishonesty or deception.

(3) An application under this section may be made— (a) where proceedings have been brought in any court for a relevant offence

relating to some or all of the illicit recordings, to that court, or (b) where no application for the forfeiture of the illicit recordings has been made

under paragraph (a), by way of complaint to a magistrates’ court.

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

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

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

(a) in England and Wales, to the Crown Court, or (b) in Northern Ireland, to the county court.

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

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

(9) On making an order under this section the court may direct that the illicit recordings to which the order relates shall (instead of being destroyed) be forfeited to the person

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having the performers’ rights or recording rights in question or dealt with in such other way as the court considers appropriate.]

Editorial Information X57 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F571 S. 204A inserted (20.11.2002) by 2002 c. 25, s. 4; S.I. 2002/2749, art. 2 F572 Words in s. 204A(2)(a) substituted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 26(4)(c) (with regs. 31-40) F573 S. 204A(2)(ba)(bb) and word substituted (26.5.2008) for word by The Consumer Protection from

Unfair Trading Regulations 2008 (S.I. 2008/1277), reg. 1, Sch. 2 para. 42 (with reg. 28(2)(3))

X58F574204BForfeiture: Scotland

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

(2) An order under this section may be made— (a) on an application by the procurator-fiscal made in the manner specified in

section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46), or (b) where a person is convicted of a relevant offence, in addition to any other

penalty which the court may impose.

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

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

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

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

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

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

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

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

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

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

(11) An order following an application under subsection (2)(a) shall not take effect— (a) until the end of the period of 21 days beginning with the day after the day on

which the order is made, or (b) if an appeal is made under subsection (9) above within that period, until the

appeal is determined or abandoned.

(12) An order under subsection (2)(b) shall not take effect— (a) until the end of the period within which an appeal against the order could be

brought under the Criminal Procedure (Scotland) Act 1995 (c. 46), or (b) if an appeal is made within that period, until the appeal is determined or

abandoned.

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

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

(15) For the purposes of this section— [F575“relevant offence” means—

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

(b) an offence under the Trade Descriptions Act 1968, (c) an offence under the Business Protection from Misleading Marketing

Regulations 2008, (d) an offence under the Consumer Protection from Unfair Trading

Regulations 2008, or (e) any offence involving dishonesty or deception;]

“the court” means— (a) in relation to an order made on an application under subsection (2)(a),

the sheriff, and (b) in relation to an order made under subsection (2)(b), the court which

imposed the penalty.

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Editorial Information X58 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F574 S. 204B inserted (20.11.2002) by 2002 c. 25, s. 4; S.I. 2002/2749, art. 2 F575 Words in s. 204(15) substituted (26.5.2008) by The Consumer Protection from Unfair Trading

Regulations 2008 (S.I. 2008/1277), reg. 1, Sch. 2 para. 43 (with reg. 28(2)(3))

X59205 Jurisdiction of county court and sheriff court.

(1) In England [F576and Wales the county court and in] Northern Ireland a county court may entertain proceedings under—

section 195 (order for delivery up of illicit recording), or section 204 (order as to disposal of illicit recording),

[F577save that, in Northern Ireland, a county court may entertain such proceedings only]where the value of the illicit recordings in question does not exceed the county court limit for actions in tort.

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

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

Editorial Information X59 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F576 Words in s. 205(1) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch.

9 para. 72; S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F577 Words in s. 205(1) inserted by S.I. 1991/724, art. 2(8), Schedule Part I

X60F578[Licensing of performers’ F579... rights]

Editorial Information X60 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

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Textual Amendments F578 S. 205A and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 22(1) (with Pt. III) F579 Word in s. 205A cross-heading omitted (25.4.2013) by virtue of Enterprise and Regulatory Reform Act

2013 (c. 24), s. 103(1), Sch. 22 para. 6

X61[F581 205A

Licensing of performers’ F580... rights.

The provisions of Schedule 2A have effect with respect to the licensing of performers’ F580 ... rights. ]

Editorial Information X61 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F580 Word in s. 205A omitted (25.4.2013) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(1), Sch. 22 para. 6 F581 S. 205A inserted (1.12.1996) by S.I. 1996/2967, reg. 22(1) (with Pt. III)

X62F582[Jurisdiction of Copyright Tribunal]

Editorial Information X62 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F582 S. 205B and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 24 (with Pt. III)

X63[F583205BJurisdiction of Copyright Tribunal.

(1) The Copyright Tribunal has jurisdiction under [F584this Chapter] to hear and determine proceedings under—

(a) section 182D (amount of equitable remuneration for exploitation of commercial sound recording);

(b) section 190 (application to give consent on behalf of owner of reproduction right);

(c) section 191H (amount of equitable remuneration on transfer of rental right); F585(cc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) paragraph 3, 4 or 5 of Schedule 2A (reference of licensing scheme); (e) paragraph 6 or 7 of that Schedule (application with respect to licence under

licensing scheme);

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(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 [F584this Chapter].

(3) Provision shall be made by rules under section 150 prohibiting the Tribunal from entertaining a reference under paragraph 3, 4 or 5 of Schedule 2A (reference of licensing scheme) by a representative organisation unless the Tribunal is satisfied that the organisation is reasonably representative of the class of persons which it claims to represent.]

Editorial Information X63 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F583 S. 205B inserted (1.12.1996) by S.I. 1996/2967, reg. 24 (with Pt. III) F584 Words in s. 205B(1)(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations

2006 (S.I. 2006/18), reg. 2, Sch. para. 8 (with reg. 8) F585 S. 205B(1)(cc) repealed (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 34(2)(a)(iii), 118(6); S.I.

2017/765, reg. 2(n)

[F586CHAPTER 3

MORAL RIGHTS

Textual Amendments F586 Ss. 205C-205N and cross-headings inserted (1.2 2006) by The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), art. 6 (with reg. 8) (which inserted provisions accordingly become Pt. 2 Ch. 3 (1.2.2006) by virtue of S.I. 2006/18, art. 4(6) (with reg. 8))

Right to be identified as performer

205C Right to be identified as performer

(1) Whenever a person— (a) produces or puts on a qualifying performance that is given in public, (b) broadcasts live a qualifying performance, (c) communicates to the public a sound recording of a qualifying performance, or

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(d) issues to the public copies of such a recording, the performer has the right to be identified as such.

(2) The right of the performer under this section is— (a) in the case of a performance that is given in public, to be identified in any

programme accompanying the performance or in some other manner likely to bring his identity to the notice of a person seeing or hearing the performance,

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

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

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

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

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

(a) in a case falling within paragraph (a), (b) or (c) of subsection (2), or (b) in a case falling within paragraph (d) of that subsection in which it is not

reasonably practicable for each member of the group to be identified, if the group itself is identified as specified in subsection (2).

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

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

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

205D Requirement that right be asserted

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

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

(a) by instrument in writing signed by or on behalf of the performer, or (b) on an assignment of a performer's property rights, by including in the

instrument effecting the assignment a statement that the performer asserts in relation to the performance his right to be identified.

(3) The persons bound by an assertion of the right under subsection (2) are— (a) in the case of an assertion under subsection (2)(a), anyone to whose notice

the assertion is brought;

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

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

205E Exceptions to right

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

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

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

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

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

(a) paragraph 2(1A) (news reporting); (b) paragraph 3 (incidental inclusion of a performance or recording); (c) paragraph 4(2) (things done for the purposes of examination); (d) paragraph 8 (parliamentary and judicial proceedings); (e) paragraph 9 (Royal Commissions and statutory inquiries).

Right to object to derogatory treatment

205F Right to object to derogatory treatment of performance

(1) The performer of a qualifying performance has a right which is infringed if— (a) the performance is broadcast live, or (b) by means of a sound recording the performance is played in public or

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

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

205G Exceptions to right

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

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

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

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

(a) avoiding the commission of an offence, (b) complying with a duty imposed by or under an enactment, or (c) in the case of the British Broadcasting Corporation, avoiding the inclusion in

a programme broadcast by them of anything which offends against good taste or decency or which is likely to encourage or incite crime or lead to disorder or to be offensive to public feeling.

(5) Where— (a) the performer is identified in a manner likely to bring his identity to the

notice of a person seeing or hearing the performance as modified by the act in question; or

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

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

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

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

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

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

205H Infringement of right by possessing or dealing with infringing article

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

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

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

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

Supplementary

205I Duration of rights

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

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

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205J Consent and waiver of rights

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

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

(3) A waiver— (a) may relate to a specific performance, to performances of a specified

description or to performances generally, and may relate to existing or future performances, and

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

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

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

205K Application of provisions to parts of performances

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

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

205L Moral rights not assignable

The rights conferred by this Chapter are not assignable.

205M Transmission of moral rights on death

(1) On the death of a person entitled to a right conferred by this Chapter— (a) the right passes to such person as he may by testamentary disposition

specifically direct, (b) if there is no such direction but the performer's property rights in respect of the

performance in question form part of his estate, the right passes to the person to whom the property rights pass,

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

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

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

(b) to part, but not the whole, of the period for which the rights subsist, any right which by virtue of subsection (1) passes with the performer's property rights is correspondingly divided.

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

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

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

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

(5) Any damages recovered by personal representatives by virtue of this section in respect of an infringement after a person's death shall devolve as part of his estate as if the right of action had subsisted and been vested in him immediately before his death.

205N Remedies for infringement of moral rights

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

(2) Where— (a) there is an infringement of a right conferred by this Chapter, (b) a person falsely claiming to act on behalf of a performer consented to the

relevant conduct or purported to waive the right, and (c) there would have been no infringement if he had been so acting,

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

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

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

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

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

[F587CHAPTER 4

QUALIFICATION FOR PROTECTION, EXTENT AND INTERPRETATION

Textual Amendments F587 Ss. 206-212 become Pt. 2 Ch. 4 (1.2.2006) by virtue of The Performances (Moral Rights, etc.)

Regulations 2006 (S.I. 2006/18), reg. 4(7) (with reg. 8)

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X64 Qualification for protection and extent

Editorial Information X64 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

X65206 Qualifying countries, individuals and persons.

(1) In this Part— “qualifying country” means—

(a) the United Kingdom, [F588(b) another EEA state,]

[ F589(ba)

the Channel Islands, the Isle of Man or Gibraltar,] or

[ F590(bb)

a country which is a party to the Rome Convention,] or

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

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

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

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

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

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

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

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

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

[ F591(4)

Her Majesty may by Order in Council— (a) make provision for the application of this Part to a country by virtue of

paragraph (bb) or (c) of the definition of “qualifying country” in subsection (1) to be subject to specified restrictions;

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

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

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

[ F592(6)

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

Editorial Information X65 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F588 Words in s. 206(1) substituted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already in

force) by Intellectual Property Act 2014 (c. 18), ss. 22(5)(a), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

F589 Words in s. 206(1) inserted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already in force) by Intellectual Property Act 2014 (c. 18), ss. 22(5)(b), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

F590 Words in s. 206(1) inserted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already in force) by Intellectual Property Act 2014 (c. 18), ss. 22(5)(c), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

F591 S. 206(4)(5) inserted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already in force) by Intellectual Property Act 2014 (c. 18), ss. 22(6), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

F592 S. 206(6) inserted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already in force) by Intellectual Property Act 2014 (c. 18), ss. 22(7), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

X66207 Countries to which this Part extends.

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

Editorial Information X66 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

X67208 Countries enjoying reciprocal protection.

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

(a) a Convention country, or (b) a country as to which Her Majesty is satisfied that provision has been or will

be made under its law giving adequate protection for British performances.

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

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(3) A “British performance” means a performance— (a) given by an individual who is a British citizen or resident in the United

Kingdom, or (b) taking place in the United Kingdom.

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

(5) The power conferred by subsection (1)(b) is exercisable in relation to F593... any colony of the United Kingdom, as in relation to a foreign country.

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

Editorial Information X67 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F593 Words in s. 208(5) omitted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already in

force) by virtue of Intellectual Property Act 2014 (c. 18), ss. 22(8), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

X68209 Territorial waters and the continental shelf.

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

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

(3) The United Kingdom sector of the continental shelf means the areas designated by order under section 1(7) of the M25Continental Shelf Act 1964.

Editorial Information X68 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Marginal Citations M25 1964 c. 29.

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X69210 British ships, aircraft and hovercraft.

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

(2) In this section— “British ship” means a ship which is a British ship for the purposes of the

[F594Merchant Shipping Act 1995] otherwise than by virtue of registration in a country outside the United Kingdom; and

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

Editorial Information X69 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F594 Words in s. 210(2) substituted (1.1.1996) by 1995 c. 21, ss. 314(2), 316(2), Sch. 13 para. 84(b) (with

s. 312(1))

[ F595210A Requirement of signature: application in relation to body corporate

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

section 191B(3) (assignment of performer's property rights); section 191C(1) (assignment of future performer's property rights); section 191D(1) (grant of exclusive licence).

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

section 205D(2)(a) (assertion of performer's moral rights); section 205J(2) (waiver of performer's moral rights).]

Textual Amendments F595 S. 210A inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 7 (with reg. 8)

X70 Interpretation

Editorial Information X70 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on

214 Copyright, Designs and Patents Act 1988 (c. 48) Part II – Rights in performances

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1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

X71211 Expressions having same meaning as in copyright provisions.

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

[F596assignment (in Scotland),] broadcast, business, F597. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F598. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [F599communication to the public,] country, defendant (in Scotland), delivery up (in Scotland), [F600the EEA,] [F600EEA state,] film, [F601injunction (in Scotland)] literary work, published, F602. . . [F603signed,] [F604sound recording, and] [F605wireless broadcast.]

(2) [F606 The provisions of— (a) section 5B(2) and (3) (supplementary provisions relating to films), and (b) section 6(3) to (5A) and section 19(4) (supplementary provisions relating to

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

Editorial Information X71 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F596 S. 211(1): entry inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 6(2) (with reg. 8) F597 S. 211(1): entry repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F598 S. 211(1): entry repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

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F599 S. 211(1): entry inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(5)(a)(i) (with regs. 31-40)

F600 S. 211(1): entries relating to "the EEA," and "EEA state," substituted (29.4.2006) for entry relating to "EEA national," by The Intellectual Property (Enforcement, etc.) Regulations 2006 (S.I. 2006/1028), reg. 2(2), Sch. 2 para. 12

F601 S. 211(1): entry inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(5)(a)(i) (with regs. 31-40)

F602 Word in s. 211(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

F603 S. 211(1): entry inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 6(2) (with reg. 8)

F604 S. 211(1): entry substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), {Sch. 1para. 15(5)(a)(ii)} (with regs. 31-40)

F605 S. 211(1): entry inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 2(1), Sch. 1 para. 15(5)(a)(i) (with regs. 31-40)

F606 Words in s. 211(2) substituted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18), reg. 2, Sch. para. 6(3) (with reg. 8)

X72212 Index of defined expressions.

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

[F607accessible copy (in paragraphs 3A to 3E of Schedule 2)

paragraph 3E(4) of Schedule 2]

[F608assignment (in Scotland) section 211(1) (and section 177);] broadcast (and related expressions) section 211 (and section 6) business section 211(1) (and section 178) F609

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [F610communication to the public section 211(1) (and section 20)] [F611consent of performer (in relation to performer’s property rights)]

[F612section 191A(2)]

country section 211(1) (and section 178) defendant (in Scotland) section 211(1) (and section 177) delivery up (in Scotland) section 211(1) (and section 177) [F607disabled person (in paragraphs 3A to 3E of Schedule 2)

paragraph 3E(2) and (3) of Schedule 2]

[F613distribution right] [F614section 182B(5)] [F615the EEA and EEA state] [F616section 211(1) (and section 172A)] exclusive recording contract section 185(1) film section 211(1) (and [F617section 5B]) [F618group section 205C(4);]

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illicit recording section 197 [F619injunction (in Scotland) section 211(1) (and section 177)] [F620issue to the public section 182B;] literary work section 211(1) (and section 3(1)) [F621lending right] [F622section 182C(7)] [F623making available right section 182CA] performance section 180(2) [F624performer’s non-property rights] [F625section 192A(1)] [F626performer’s property rights] [F627section 191A(1)] published section 211(1) (and section 175) qualifying country section 206(1) qualifying individual section 206(1) and (2) qualifying performance section 181 qualifying person section 206(1) and (3) recording (of a performance) section 180(2) recording rights (person having) section 185(2) and (3) [F628rental right)] [F629section 182C(7)] [F630reproduction right] [F631section 182A(3)] [F632rights owner (in relation to performer’s property rights)]

[F633 section 191A(3) and (4).]

[F634signed section 211(1) (and section 176);] sound recording section 211(1) (and [F635section 5A]). [F636wireless broadcast section 211(1) (and section 178).]]

Editorial Information X72 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under those new headings.

Textual Amendments F607 Words in s. 212 inserted (1.6.2014) by The Copyright and Rights in Performances (Disability)

Regulations 2014 (S.I. 2014/1384), reg. 1(1), Sch. para. 5 F608 S. 212: entry inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 7 (with reg. 8) F609 S. 212: entry repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F610 S. 212: entry inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 15(6) (with regs. 31-40) F611 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III)

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F612 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F613 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F614 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F615 S. 212: words in entry substituted (29.4.2006) by The Intellectual Property (Enforcement, etc.)

Regulations 2006 (S.I. 2006/1028), reg. 2(2), Sch. 2 para. 13 F616 Words in s. 212 inserted (1.1.1996) by S.I. 1995/3297, reg. 11(4) (with Pt. III) F617 Words in s. 212 substituted (1.1.1996) by S.I. 1995/3297, reg. 9(6)(a) (with Pt. III) F618 S. 212: entry inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 7 (with reg. 8) F619 S. 212: entry inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 15(6) (with regs. 31-40) F620 S. 212: entry inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 7 (with reg. 8) F621 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F622 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F623 S. 212: entry inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(1), Sch. 1 para. 15(6) (with regs. 31-40) F624 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F625 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F626 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F627 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F628 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F629 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F630 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F631 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 20(4) (with Pt. III) F632 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F633 Words in s. 212 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(6) (with Pt. III) F634 S. 212: entry inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 7 (with reg. 8) F635 Words in s. 212 substituted (1.1.1996) by S.I. 1995/3297, reg. 9(6)(b) (with Pt. III) F636 S. 212: entry inserted (1.2.2006) by The Performances (Moral Rights, etc.) Regulations 2006 (S.I.

2006/18), reg. 2, Sch. para. 7 (with reg. 8)

[F637Supplementary

Textual Amendments F637 S. 212A and cross-heading inserted (1.12.2016 for specified purposes, 6.4.2017 in so far as not already

in force) by Intellectual Property Act 2014 (c. 18), ss. 22(9), 24(1); S.I. 2016/1139, arts. 2, 3 (with art. 4)

212A Power to amend in consequence of changes to international law

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

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

218 Copyright, Designs and Patents Act 1988 (c. 48) Part III – Design Right

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PART III

DESIGN RIGHT

Modifications etc. (not altering text) C115 Pt. III (ss. 213–264) modified by S.I. 1989/1100, art. 3

CHAPTER I

DESIGN RIGHT IN ORIGINAL DESIGNS

Introductory

213 Design right.

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

(2) In this Part “design” means the design of F638... the shape or configuration (whether internal or external) of the whole or part of an article.

(3) Design right does not subsist in— (a) a method or principle of construction, (b) features of shape or configuration of an article which—

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

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

(c) surface decoration.

(4) A design is not “original” for the purposes of this Part if it is commonplace [F639in a qualifying country] in the design field in question at the time of its creation[F640; and “qualifying country” has the meaning given in section 217(3) ].

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

(a) the designer or the person by whom [F641the designer was employed] (see sections 218 and 219), or

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

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

F642[( 5A ) Design right does not subsist in a design which consists of or contains a controlled representation within the meaning of the Olympic Symbol etc. (Protection) Act 1995. ]

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

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

Textual Amendments F638 Words in s. 213(2) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 1(1),

24(1); S.I. 2014/2330, art. 3, Sch. F639 Words in s. 213(4) inserted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 1(3)(a), 24(1)

(with s. 1(4)); S.I. 2014/2330, art. 3, Sch. F640 Words in s. 213(4) inserted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 1(3)(b), 24(1)

(with s. 1(4)); S.I. 2014/2330, art. 3, Sch. F641 Words in s. 213(5)(a) substituted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 2(2)(a),

24(1) (with s. 2(3)); S.I. 2014/2330, art. 3, Sch. F642 S. 213(5A) inserted (20.9.1995 with effect as mentioned in s. 14(2)(3) of the amending Act) by 1995

c. 32, s. 14(1); S.I. 1995/2472, art. 2

214 The designer.

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

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

215 Ownership of design right.

(1) The designer is the first owner of any design right in a design which is not created F643... in the course of employment.

F644(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where F645... a design is created by an employee in the course of his employment, his employer is the first owner of any design right in the design.

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

Textual Amendments F643 Words in s. 215(1) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 2(1)(a),

24(1) (with s. 2(3)); S.I. 2014/2330, art. 3, Sch. F644 S. 215(2) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 2(1)(b), 24(1)

(with s. 2(3)); S.I. 2014/2330, art. 3, Sch. F645 Words in s. 215(3) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 2(1)(c),

24(1) (with s. 2(3)); S.I. 2014/2330, art. 3, Sch.

216 Duration of design right.

(1) Design right expires—

220 Copyright, Designs and Patents Act 1988 (c. 48) Part III – Design Right

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

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

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

Qualification for design right protection

217 Qualifying individuals and qualifying persons.

(1) In this Part— F646... [F647 “ qualifying person ” means—

(a) an individual habitually resident in a qualifying country, or (b) a body corporate or other body having legal personality which—

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

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

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

(3) In this section “qualifying country” means— (a) the United Kingdom, (b) a country to which this Part extends by virtue of an Order under section 255, (c) another member State of the [F648European Union], or (d) to the extent that an Order under section 256 so provides, a country designated

under that section as enjoying reciprocal protection. F649(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

Textual Amendments F646 Words in s. 217(1) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 3(1)(a),

24(1) (with s. 3(6)); S.I. 2014/2330, art. 3, Sch. F647 Words in s. 217(1) substituted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 3(1)(b), 24(1)

(with s. 3(6)); S.I. 2014/2330, art. 3, Sch. F648 Words substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I.

2011/1043), arts. 3, 4

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F649 S. 217(4) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 3(2), 24(1) (with s. 3(6)); S.I. 2014/2330, art. 3, Sch.

218 Qualification by reference to designer.

(1) This section applies to a design which is not created F650...in the course of employment.

(2) A design to which this section applies qualifies for design right protection if the designer is F651... a qualifying person.

(3) A joint design to which this section applies qualifies for design right protection if any of the designers is F652... a qualifying person.

(4) Where a joint design qualifies for design right protection under this section, only those designers who are F653... qualifying persons are entitled to design right under section 215(1) (first ownership of design right: entitlement of designer).

Textual Amendments F650 Words in s. 218(1) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 2(2)(b),

24(1) (with s. 2(3)); S.I. 2014/2330, art. 3, Sch. F651 Words in s. 218(2) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 3(3)(a),

24(1) (with s. 3(6)); S.I. 2014/2330, art. 3, Sch. F652 Words in s. 218(3) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 3(3)(b),

24(1) (with s. 3(6)); S.I. 2014/2330, art. 3, Sch. F653 Words in s. 218(4) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 3(3)(c),

24(1) (with s. 3(6)); S.I. 2014/2330, art. 3, Sch.

219 [F654Qualification by reference to employer].

(1) A design qualifies for design right protection if it is created [F655in the course of employment with ] a qualifying person.

(2) In the case of F656... joint employment a design qualifies for design right protection if any of the F656... employers is a qualifying person.

(3) Where a design which is F657... created in the course of joint employment qualifies for design right protection under this section, only those F657... employers who are qualifying persons are entitled to design right under section [F658215(3)] (first ownership of design right: entitlement of F657... employer).

Textual Amendments F654 S. 219 heading substituted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 2(2)(c), 24(1)

(with s. 2(3)); S.I. 2014/2330, art. 3, Sch. F655 Words in s. 219(1) substituted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 2(2)(c), 24(1)

(with s. 2(3)); S.I. 2014/2330, art. 3, Sch. F656 Words in s. 219(2) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 2(2)(d),

24(1) (with s. 2(3)); S.I. 2014/2330, art. 3, Sch. F657 Words in s. 219(3) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 2(2)(e),

24(1) (with s. 2(3)); S.I. 2014/2330, art. 3, Sch.

222 Copyright, Designs and Patents Act 1988 (c. 48) Part III – Design Right

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F658 Word in s. 219(3) substituted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 2(2)(f), 24(1) (with s. 2(3)); S.I. 2014/2330, art. 3, Sch.

220 Qualification by reference to first marketing.

(1) A design which does not qualify for design right protection under section 218 or 219 (qualification by reference to designerF659... or employer) qualifies for design right protection if the first marketing of articles made to the design—

(a) is by a qualifying person F660..., and (b) takes place in the United Kingdom, another country to which this Part extends

by virtue of an Order under section 255, or another member State of the [F661European Union].

(2) If the first marketing of articles made to the design is done jointly by two or more persons, the design qualifies for design right protection if any of those persons meets the [F662 requirement] specified in subsection (1)(a).

(3) In such a case only the persons who meet [F663that requirement ] are entitled to design right under section 215(4) (first ownership of design right: entitlement of first marketer of articles made to the design).

F664(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F659 Word in s. 220(1) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 2(2)(g),

24(1) (with s. 2(3)); S.I. 2014/2330, art. 3, Sch. F660 Words in s. 220(1)(a) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 3(4)

(a), 24(1) (with s. 3(6)); S.I. 2014/2330, art. 3, Sch. F661 Words substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I.

2011/1043), arts. 3, 4 F662 Word in s. 220(2) substituted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 3(4)(b), 24(1)

(with s. 3(6)); S.I. 2014/2330, art. 3, Sch. F663 Words in s. 220(3) substituted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 3(4)(c), 24(1)

(with s. 3(6)); S.I. 2014/2330, art. 3, Sch. F664 S. 220(4) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 3(4)(d), 24(1)

(with s. 3(6)); S.I. 2014/2330, art. 3, Sch.

221 Power to make further provision as to qualification.

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

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

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

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Dealings with design right

222 Assignment and licences.

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

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

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

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

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

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

223 Prospective ownership of design right.

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

(2) In this section— “future design right” means design right which will or may come into

existence in respect of a future design or class of designs or on the occurrence of a future event; and

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

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

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

Where a design consisting of a design in which design right subsists is registered under the M26Registered Designs Act 1949 and the proprietor of the registered design is also the design right owner, an assignment of the right in the registered design shall be taken to be also an assignment of the design right, unless a contrary intention appears.

224 Copyright, Designs and Patents Act 1988 (c. 48) Part III – Design Right

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Marginal Citations M26 1949 c. 88.

225 Exclusive licences.

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

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

CHAPTER II

RIGHTS OF DESIGN RIGHT OWNER AND REMEDIES

Infringement of design right

226 Primary infringement of design right.

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

(a) by making articles to that design, or (b) by making a design document recording the design for the purpose of enabling

such articles to be made.

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

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

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

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

227 Secondary infringement: importing or dealing with infringing article.

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

(a) imports into the United Kingdom for commercial purposes, or (b) has in his possession for commercial purposes, or (c) sells, lets for hire, or offers or exposes for sale or hire, in the course of a

business,

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

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

228 Meaning of “infringing article”.

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

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

(3) An article is also an infringing article if— (a) it has been or is proposed to be imported into the United Kingdom, and (b) its making to that design in the United Kingdom would have been an

infringement of design right in the design or a breach of an exclusive licence agreement relating to the design.

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

(5) Nothing in subsection (3) shall be construed as applying to an article which may lawfully be imported into the United Kingdom by virtue of any enforceable [F665EU] right within the meaning of section 2(1) of the M27European Communities Act 1972.

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

Textual Amendments F665 Word substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I.

2011/1043), arts. 3, 6

Marginal Citations M27 1972 c. 68.

Remedies for infringement

229 Rights and remedies of design right owner.

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

(2) In an action for infringement of design right all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.

(3) The court may in an action for infringement of design right, having regard to all the circumstances and in particular to—

(a) the flagrancy of the infringement, and (b) any benefit accruing to the defendant by reason of the infringement,

226 Copyright, Designs and Patents Act 1988 (c. 48) Part III – Design Right

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award such additional damages as the justice of the case may require.

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

230 Order for delivery up.

(1) Where a person— (a) has in his possession, custody or control for commercial purposes an

infringing article, or (b) has in his possession, custody or control anything specifically designed or

adapted for making articles to a particular design, knowing or having reason to believe that it has been or is to be used to make an infringing article,

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

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

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

(4) If during the whole or any part of that period the design right owner— (a) is under a disability, or (b) is prevented by fraud or concealment from discovering the facts entitling him

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

(5) In subsection (4) “disability”— (a) in England and Wales, has the same meaning as in the M28Limitation Act 1980; (b) in Scotland, means legal disability within the meaning of the M29Prescription

and Limitation (Scotland) Act 1973; (c) in Northern Ireland, has the same meaning as in the M30Statute of Limitations

(Northern Ireland) 1958.

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

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

Modifications etc. (not altering text) C116 S. 230 extended by S.I.1991/724, art. 2(1)(n)

Marginal Citations M28 1980 c. 58.

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M29 1973 c. 52. M30 1958 c. 10 (N.I.).

231 Order as to disposal of infringing articles, &c.

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

(a) forfeited to the design right owner, or (b) destroyed or otherwise dealt with as the court may think fit,

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

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

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

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

(b) to appeal against any order made, whether or not he appeared; and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.

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

(5) If the court decides that no order should be made under this section, the person in whose possession, custody or control the article or other thing was before being delivered up F666. . . is entitled to its return.

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

[F667(a) under this section or under section 114 or 204 of this Act; (b) under section 24D of the Registered Designs Act 1949; (c) under section 19 of Trade Marks Act 1994 (including that section as

applied by regulation 4 of the Community Trade Mark Regulations 2006 (SI 2006/1027)); or

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

Textual Amendments F666 Words in s. 231(5) repealed (29.4.2006) by The Intellectual Property (Enforcement, etc.) Regulations

2006 (S.I. 2006/1028), reg. 2(4), Sch. 4 F667 Words in s. 231(6) substituted (29.4.2006) by The Intellectual Property (Enforcement, etc.)

Regulations 2006 (S.I. 2006/1028), reg. 2(2), Sch. 2 para. 14

Modifications etc. (not altering text) C117 S. 231 extended by S.I. 1991/724, art. 2(1)(n)

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232 Jurisdiction of county court and sheriff court.

(1) In England [F668and Wales the county court and in] Northern Ireland a county court may entertain proceedings under—

section 230 (order for delivery up of infringing article, &c.), section 231 (order as to disposal of infringing article, &c.), or section 235(5) (application by exclusive licensee having concurrent rights),

[F669save that, in Northern Ireland, a county court may entertain such proceedings only] where the value of the infringing articles and other things in question does not exceed the county court limit for actions in tort.

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

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

Textual Amendments F668 Words in s. 232(1) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch.

9 para. 72; S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F669 Words in s. 232(1) inserted by S.I. 1991/724, art. 2(8), Schedule Part I

233 Innocent infringement.

(1) Where in an action for infringement of design right brought by virtue of section 226 (primary infringement) it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that design right subsisted in the design to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(2) Where in an action for infringement of design right brought by virtue of section 227 (secondary infringement) a defendant shows that the infringing article was innocently acquired by him or a predecessor in title of his, the only remedy available against him in respect of the infringement is damages not exceeding a reasonable royalty in respect of the act complained of.

(3) In subsection (2) “innocently acquired” means that the person acquiring the article did not know and had no reason to believe that it was an infringing article.

234 Rights and remedies of exclusive licensee.

(1) An exclusive licensee has, except against the design right 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.

(2) His rights and remedies are concurrent with those of the design right owner; and references in the relevant provisions of this Part to the design right owner shall be construed accordingly.

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(3) In an action brought by an exclusive licensee by virtue of this section a defendant may avail himself of any defence which would have been available to him if the action had been brought by the design right owner.

235 Exercise of concurrent rights.

(1) Where an action for infringement of design right brought by the design right owner or an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the design right owner or, as the case may be, the exclusive licensee may not, without the leave of the court, proceed with the action unless the other is either joined as a plaintiff or added as a defendant.

(2) A design right owner or exclusive licensee who is added as a defendant in pursuance of subsection (1) is not liable for any costs in the action unless he takes part in the proceedings.

(3) The above provisions do not affect the granting of interlocutory relief on the application of the design right owner or an exclusive licensee.

(4) Where an action for infringement of design right is brought which relates (wholly or partly) to an infringement in respect of which the design right owner and an exclusive licensee have concurrent rights of action—

(a) the court shall, in assessing damages, take into account— (i) the terms of the licence, and

(ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement;

(b) no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement; and

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

and these provisions apply whether or not the design right owner and the exclusive licensee are both parties to the action.

(5) The design right owner shall notify any exclusive licensee having concurrent rights before applying for an order under section 230 (order for delivery up of infringing article, &c.); and the court may on the application of the licensee make such order under that section as it thinks fit having regard to the terms of the licence.

Modifications etc. (not altering text) C118 S. 235(5) extended by S.I. 1991/724, art. 2(1)(n)

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CHAPTER III

EXCEPTIONS TO RIGHTS OF DESIGN RIGHT OWNERS

Infringement of copyright

236 Infringement of copyright.

Where copyright subsists in a work which consists of or includes a design in which design right subsists, it is not an infringement of design right in the design to do anything which is an infringement of the copyright in that work.

Availability of licences of right

237 Licences available in last five years of design right.

(1) Any person is entitled as of right to a licence to do in the last five years of the design right term anything which would otherwise infringe the design right.

(2) The terms of the licence shall, in default of agreement, be settled by the comptroller.

(3) The Secretary of State may if it appears to him necessary in order to— (a) comply with an international obligation of the United Kingdom, or (b) secure or maintain reciprocal protection for British designs in other countries,

by order exclude from the operation of subsection (1) designs of a description specified in the order or designs applied to articles of a description so specified.

(4) An order shall be made by statutory instrument; and no order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

238 Powers exercisable for protection of the public interest.

[F670( 1 ) Subsection (1A) applies where whatever needs to be remedied, mitigated or prevented by the Secretary of State [F671 or (as the case may be) the Competition and Markets Authority ] under section 12(5) of the Competition Act 1980 or section 41(2), 55(2), 66(6), 75(2), 83(2), 138(2), 147(2) [F672 , 147A(2) ] or 160(2) of, or paragraph 5(2) or 10(2) of Schedule 7 to, the Enterprise Act 2002 (powers to take remedial action following references to the [F673 Competition and Markets Authority ] in connection with public bodies and certain other persons, mergers or market investigations etc. ) consists of or includes—

(a) conditions in licences granted by a design right owner restricting the use of the design by the licensee or the right of the design right owner to grant other licences, or

(b) a refusal of a design right owner to grant licences on reasonable terms.

(1A) The powers conferred by Schedule 8 to the Enterprise Act 2002 include power to cancel or modify those conditions and, instead or in addition, to provide that licences in respect of the design right shall be available as of right.

( 2 ) The references to anything permitted by Schedule 8 to the Enterprise Act 2002 in section 12(5A) of the Competition Act 1980 and in sections 75(4)(a), 83(4)(a),

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84(2)(a), 89(1), 160(4)(a), 161(3)(a) and 164(1) of, and paragraphs 5, 10 and 11 of Schedule 7 to, the Act of 2002 shall be construed accordingly.]

(3) The terms of a licence available by virtue of this section shall, in default of agreement, be settled by the comptroller.

Textual Amendments F670 S. 238(1)(1A)(2) substituted (20.6.2003 for certain purposes and 29.12.2004 otherwise) for s. 238(1)

(2) by 2002 c. 40, ss. 278(1), 279, Sch. 25 para. 18(4); S.I. 2003/1397, arts. 2, 3(1), Sch. (with arts. 4-12); S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

F671 Words in s. 238(1) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 58(a) (with art. 3)

F672 Word in s. 238(1) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 58(b) (with art. 3)

F673 Words in s. 238(1) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 58(c) (with art. 3)

Modifications etc. (not altering text) C119 S. 238(1) amended (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order

2003 (S.I. 2003/1592), Sch. 4 para. 7(2)(a) C120 S. 238(2) amended (20.6.2003) by The Enterprise Act 2002 (Protection of Legitimate Interests) Order

2003 (S.I. 2003/1592), Sch. 4 para. 7(2)(a)

239 Undertaking to take licence of right in infringement proceedings.

(1) If in proceedings for infringement of design right in a design in respect of which a licence is available as of right under section 237 or 238 the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the comptroller under that section—

(a) no injunction shall be granted against him, (b) no order for delivery up shall be made under section 230, and (c) the amount recoverable against him by way of damages or on an account of

profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.

(2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.

(3) Nothing in this section affects the remedies available in respect of an infringement committed before licences of right were available.

Crown use of designs

240 Crown use of designs.

(1) A government department, or a person authorised in writing by a government department, may without the licence of the design right owner—

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(a) do anything for the purpose of supplying articles for the services of the Crown, or

(b) dispose of articles no longer required for the services of the Crown; and nothing done by virtue of this section infringes the design right.

(2) References in this Part to “the services of the Crown” are to— (a) the defence of the realm, (b) foreign defence purposes, and (c) health service purposes.

(3) The reference to the supply of articles for “foreign defence purposes” is to their supply—

(a) for the defence of a country outside the realm in pursuance of an agreement or arrangement to which the government of that country and Her Majesty’s Government in the United Kingdom are parties; or

(b) for use by armed forces operating in pursuance of a resolution of the United Nations or one of its organs.

(4) The reference to the supply of articles for “health service purposes” are to their supply for the purpose of providing—

[F674(za) primary medical services or primary dental services under [F675the National Health Service Act 2006 or the National Health Service (Wales) Act 2006,][F676or primary medical services under Part 1 of the National Health Service (Scotland) Act 1978]]

F677[(a) pharmaceutical services, general medical services or general dental services under— [F678(i) Chapter 1 of Part 7 of the National Health Service Act 2006, or

Chapter 1 of Part 7 of the National Health Service (Wales) Act 2006 (in the case of pharmaceutical services),]

(ii) Part II of the National Health Service (Scotland) Act 1978 [F679(in the case of pharmaceutical services or general dental services)], or

(iii) the corresponding provisions of the law in force in Northern Ireland; or

(b) personal medical services or personal dental services in accordance with arrangements made under—

(i) F680. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii) section 17C of the 1978 Act [F681(in the case of personal dental

services)], or (iii) the corresponding provisions of the law in force in Northern

Ireland][F682or (c) local pharmaceutical services provided under[F683 the National Health Service

Act 2006 or the National Health Service (Wales) Act 2006].]

(5) In this Part— “Crown use”, in relation to a design, means the doing of anything by virtue

of this section which would otherwise be an infringement of design right in the design; and

“the government department concerned”, in relation to such use, means the government department by whom or on whose authority the act was done.

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(6) The authority of a government department in respect of Crown use of a design may be given to a person either before or after the use and whether or not he is authorised, directly or indirectly, by the design right owner to do anything in relation to the design.

(7) A person acquiring anything sold in the exercise of powers conferred by this section, and any person claiming under him, may deal with it in the same manner as if the design right were held on behalf of the Crown.

Textual Amendments F674 S. 240(4)(za) inserted (1.4.2004) by Health and Social Care (Community Health and Standards) Act

2003 (c. 43), ss. 184, 199(1), Sch. 11 para. 52(a); S.I. 2004/288, art. 5 (with art. 8) (as amended by S.I. 2004/866, art. 2) and by S.I. 2004/480, art. 4 (with art. 7) (as amended by S.I. 2004/1019, art. 2)

F675 Words in s. 240(4)(za) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8, Sch. 1 para. 113(a) (with s. 5, Sch. 3 Pt. 1)

F676 Words in s. 240(4)(za) inserted (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 5(a)

F677 S. 240(4)(a)(b) substituted (1.4.1998) by 1997 c. 46, s. 41(10), Sch. 2 Pt. I para. 63; S.I. 1998/631, art. 2(1)(b), Sch. 2 (subject to arts. 3-5)

F678 S. 240(4)(a)(i) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8, Sch. 1 para. 113(b) (with s. 5, Sch. 3 Pt. 1)

F679 Words in s. 240(4)(a)(ii) inserted (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 5(b)

F680 S. 240(4)(b)(i) repealed (1.4.2004) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 184, 196, 199(1), Sch. 11 para. 52(c), Sch. 14 Pt. 4; S.I. 2004/288, art. 5 (with art. 8) (as amended by S.I. 2004/866, art. 2) and by S.I. 2004/480, art. 4 (with art. 7) (as amended by S.I. 2004/1019, art. 2)

F681 Words in s. 240(4)(b)(ii) inserted (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 5(c)

F682 S. 240(4)(c) and the word "or" immediately preceding it inserted (1.7.2002 for W. and 1.1.2003 for E.) by 2001 c. 15, ss. 67(1), 70(2), Sch. 5 Pt. 1 para. 7 (with ss. 64(9), 65(4)); S.I. 2002/1475, art. 2(1), Sch. Pt. I; S.I. 2003/53, art. 2

F683 Words in s. 240(4)(c) substituted (1.3.2007) for s. 240(4)(c)(i)(ii) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8, Sch. 1 para. 113(c) (with s. 5, Sch. 3 Pt. 1)

241 Settlement of terms for Crown use.

(1) Where Crown use is made of a design, the government department concerned shall— (a) notify the design right owner as soon as practicable, and (b) give him such information as to the extent of the use as he may from time to

time require, unless it appears to the department that it would be contrary to the public interest to do so or the identity of the design right owner cannot be ascertained on reasonable inquiry.

(2) Crown use of a design shall be on such terms as, either before or after the use, are agreed between the government department concerned and the design right owner with the approval of the Treasury or, in default of agreement, are determined by the court.

In the application of this subsection to Northern Ireland the reference to the Treasury shall, where the government department referred to in that subsection is a Northern Ireland department, be construed as a reference to the Department of Finance and Personnel.

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[F684In the application of this subsection to Scotland, where the government department referred to in that subsection is any part of the Scottish Administration, the words “with the approval of the Treasury” are omitted.]

(3) Where the identity of the design right owner cannot be ascertained on reasonable inquiry, the government department concerned may apply to the court who may order that no royalty or other sum shall be payable in respect of Crown use of the design until the owner agrees terms with the department or refers the matter to the court for determination.

Textual Amendments F684 Paragraph in s. 241(2) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 93(2); S.I.

1998/3178, art. 3

242 Rights of third parties in case of Crown use.

(1) The provisions of any licence, assignment or agreement made between the design right owner (or anyone deriving title from him or from whom he derives title) and any person other than a government department are of no effect in relation to Crown use of a design, or any act incidental to Crown use, so far as they—

(a) restrict or regulate anything done in relation to the design, or the use of any model, document or other information relating to it, or

(b) provide for the making of payments in respect of, or calculated by reference to such use;

and the copying or issuing to the public of copies of any such model or document in connection with the thing done, or any such use, shall be deemed not to be an infringement of any copyright in the model or document.

(2) Subsection (1) shall not be construed as authorising the disclosure of any such model, document or information in contravention of the licence, assignment or agreement.

(3) Where an exclusive licence is in force in respect of the design— (a) if the licence was granted for royalties—

(i) any agreement between the design right owner and a government department under section 241 (settlement of terms for Crown use) requires the consent of the licensee, and

(ii) the licensee is entitled to recover from the design right owner such part of the payment for Crown use as may be agreed between them or, in default of agreement, determined by the court;

(b) if the licence was granted otherwise than for royalties— (i) section 241 applies in relation to anything done which but for

section 240 (Crown use) and subsection (1) above would be an infringement of the rights of the licensee with the substitution for references to the design right owner of references to the licensee, and

(ii) section 241 does not apply in relation to anything done by the licensee by virtue of an authority given under section 240.

(4) Where the design right has been assigned to the design right owner in consideration of royalties—

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(a) section 241 applies in relation to Crown use of the design as if the references to the design right owner included the assignor, and any payment for Crown use shall be divided between them in such proportion as may be agreed or, in default of agreement, determined by the court; and

(b) section 241 applies in relation to any act incidental to Crown use as it applies in relation to Crown use of the design.

(5) Where any model, document or other information relating to a design is used in connection with Crown use of the design, or any act incidental to Crown use, section 241 applies to the use of the model, document or other information with the substitution for the references to the design right owner of references to the person entitled to the benefit of any provision of an agreement rendered inoperative by subsection (1) above.

(6) In this section— “act incidental to Crown use” means anything done for the services of the

Crown to the order of a government department by the design right owner in respect of a design;

“payment for Crown use” means such amount as is payable by the government department concerned by virtue of section 241; and

“royalties” includes any benefit determined by reference to the use of the design.

243 Crown use: compensation for loss of profit.

(1) Where Crown use is made of a design, the government department concerned shall pay—

(a) to the design right owner, or (b) if there is an exclusive licence in force in respect of the design, to the exclusive

licensee, compensation for any loss resulting from his not being awarded a contract to supply the articles made to the design.

(2) Compensation is payable only to the extent that such a contract could have been fulfilled from his existing manufacturing capacity; but is payable notwithstanding the existence of circumstances rendering him ineligible for the award of such a contract.

(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing capacity was under- used.

(4) No compensation is payable in respect of any failure to secure contracts for the supply of articles made to the design otherwise than for the services of the Crown.

(5) The amount payable shall, if not agreed between the design right owner or licensee and the government department concerned with the approval of the Treasury, be determined by the court on a reference under section 252; and it is in addition to any amount payable under section 241 or 242.

(6) In the application of this section to Northern Ireland, the reference in subsection (5) to the Treasury shall, where the government department concerned is a Northern Ireland department, be construed as a reference to the Department of Finance and Personnel.

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[F685(7) In the application of this section to Scotland, where the government department referred to in subsection (5) is any part of the Scottish Administration, the words “with the approval of the Treasury” in that subsection are omitted.]

Textual Amendments F685 S. 243(7) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 93(3); S.I. 1998/3178,

art. 3

244 Special provision for Crown use during emergency.

(1) During a period of emergency the powers exercisable in relation to a design by virtue of section 240 (Crown use) include power to do any act which would otherwise be an infringement of design right for any purpose which appears to the government department concerned necessary or expedient—

(a) for the efficient prosecution of any war in which Her Majesty may be engaged; (b) for the maintenance of supplies and services essential to the life of the

community; (c) for securing a sufficiency of supplies and services essential to the well-being

of the community; (d) for promoting the productivity of industry, commerce and agriculture; (e) for fostering and directing exports and reducing imports, or imports of any

classes, from all or any countries and for redressing the balance of trade; (f) generally for ensuring that the whole resources of the community are available

for use, and are used, in a manner best calculated to serve the interests of the community; or

(g) for assisting the relief of suffering and the restoration and distribution of essential supplies and services in any country outside the United Kingdom which is in grave distress as the result of war.

(2) References in this Part to the services of the Crown include, as respects a period of emergency, those purposes; and references to “Crown use” include any act which would apart from this section be an infringement of design right.

(3) In this section “period of emergency” means a period beginning with such date as may be declared by Order in Council to be the beginning, and ending with such date as may be so declared to be the end, of a period of emergency for the purposes of this section.

(4) No Order in Council under this section shall be submitted to Her Majesty unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

[F686Miscellaneous

Textual Amendments F686 Ss. 244A, 244B and cross-heading inserted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 4,

24(1); S.I. 2014/2330, art. 3, Sch.

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244A Exception for private acts, experiments and teaching

Design right is not infringed by— (a) an act which is done privately and for purposes which are not commercial; (b) an act which is done for experimental purposes; or (c) an act of reproduction for teaching purposes or for the purpose of making

citations provided that— (i) the act of reproduction is compatible with fair trade practice and does

not unduly prejudice the normal exploitation of the design, and (ii) mention is made of the source.

244B Exception for overseas ships and aircraft

Design right is not infringed by— (a) the use of equipment on ships or aircraft which are registered in another

country but which are temporarily in the United Kingdom; (b) the importation into the United Kingdom of spare parts or accessories for the

purpose of repairing such ships or aircraft; or (c) the carrying out of repairs on such ships or aircraft.]

General

245 Power to provide for further exceptions.

(1) The Secretary of State may if it appears to him necessary in order to— (a) comply with an international obligation of the United Kingdom, or (b) secure or maintain reciprocal protection for British designs in other countries,

by order provide that acts of a description specified in the order do not infringe design right.

(2) An order may make different provision for different descriptions of design or article.

(3) An order shall be made by statutory instrument and no order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

CHAPTER IV

JURISDICTION OF THE COMPTROLLER AND THE COURT

Jurisdiction of the comptroller

246 Jurisdiction to decide matters relating to design right.

(1) A party to a dispute as to any of the following matters may refer the dispute to the comptroller for his decision—

(a) the subsistence of design right, (b) the term of design right, or (c) the identity of the person in whom design right first vested;

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and the comptroller’s decision on the reference is binding on the parties to the dispute.

(2) No other court or tribunal shall decide any such matter except— (a) on a reference or appeal from the comptroller, (b) in infringement or other proceedings in which the issue arises incidentally, or (c) in proceedings brought with the agreement of the parties or the leave of the

comptroller.

(3) The comptroller has jurisdiction to decide any incidental question of fact or law arising in the course of a reference under this section.

247 Application to settle terms of licence of right.

(1) A person requiring a licence which is available as of right by virtue of— (a) section 237 (licences available in last five years of design right), or (b) an order under section 238 (licences made available in the public interest),

may apply to the comptroller to settle the terms of the licence.

(2) No application for the settlement of the terms of a licence available by virtue of section 237 may be made earlier than one year before the earliest date on which the licence may take effect under that section.

(3) The terms of a licence settled by the comptroller shall authorise the licensee to do— (a) in the case of licence available by virtue of section 237, everything which

would be an infringement of the design right in the absence of a licence; (b) in the case of a licence available by virtue of section 238, everything in respect

of which a licence is so available.

(4) In settling the terms of a licence the comptroller shall have regard to such factors as may be prescribed by the Secretary of State by order made by statutory instrument.

(5) No such order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

(6) Where the terms of a licence are settled by the comptroller, the licence has effect— (a) in the case of an application in respect of a licence available by virtue of

section 237 made before the earliest date on which the licence may take effect under that section, from that date;

(b) in any other case, from the date on which the application to the comptroller was made.

248 Settlement of terms where design right owner unknown.

(1) This section applies where a person making an application under section 247 (settlement of terms of licence of right) is unable on reasonable inquiry to discover the identity of the design right owner.

(2) The comptroller may in settling the terms of the licence order that the licence shall be free of any obligation as to royalties or other payments.

(3) If such an order is made the design right owner may apply to the comptroller to vary the terms of the licence with effect from the date on which his application is made.

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(4) If the terms of a licence are settled by the comptroller and it is subsequently established that a licence was not available as of right, the licensee shall not be liable in damages for, or for an account of profits in respect of, anything done before he was aware of any claim by the design right owner that a licence was not available.

249 Appeals as to terms of licence of right.

(1) An appeal lies from any decision of the comptroller under section 247 or 248 (settlement of terms of licence of right) to [F687a person appointed under section 27A of the Registered Designs Act 1949].

F688(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F687 Words in s. 249(1) substituted (6.4.2015) by Intellectual Property Act 2014 (c. 18), ss. 10(7)(a), 24(1);

S.I. 2015/165, art. 3 F688 S. 249(2) omitted (6.4.2015) by virtue of Intellectual Property Act 2014 (c. 18), ss. 10(7)(b), 24(1);

S.I. 2015/165, art. 3

[F689249AOpinions service

The descriptions of designs which may be specified in regulations under subsection (1) (b) of section 28A of the Registered Designs Act 1949 (requests to the comptroller for opinions on designs) include, in particular—

(a) designs in which design right subsists in accordance with this Part, and (b) designs in relation to which there is a question whether design right so

subsists.]

Textual Amendments F689 S. 249A inserted (1.10.2014) by Intellectual Property Act 2014 (c. 18), ss. 11(2), 24(1); S.I.

2014/2330, art. 3, Sch.

250 Rules.

(1) The Secretary of State may make rules for regulating the procedure to be followed in connection with any proceeding before the comptroller under this Part.

(2) Rules may, in particular, make provision— (a) prescribing forms; (b) requiring fees to be paid; (c) authorising the rectification of irregularities of procedure; (d) regulating the mode of giving evidence and empowering the comptroller to

compel the attendance of witnesses and the discovery of and production of documents;

(e) providing for the appointment of advisers to assist the comptroller in proceedings before him;

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(f) prescribing time limits for doing anything required to be done (and providing for the alteration of any such limit); and

(g) empowering the comptroller to award costs and to direct how, to what party and from what parties, costs are to be paid.

(3) Rules prescribing fees require the consent of the Treasury.

(4) The remuneration of an adviser appointed to assist the comptroller shall be determined by the Secretary of State with the consent of the Treasury and shall be defrayed out of money provided by Parliament.

(5) Rules shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Jurisdiction of the court

251 References and appeals on design right matters.

(1) In any proceedings before him under section 246 (reference of matter relating to design right), the comptroller may at any time order the whole proceedings or any question or issue (whether of fact or law) to be referred, on such terms as he may direct, to the High Court or, in Scotland, the Court of Session.

(2) The comptroller shall make such an order if the parties to the proceedings agree that he should do so.

(3) On a reference under this section the court may exercise any power available to the comptroller by virtue of this Part as respects the matter referred to it and, following its determination, may refer any matter back to the comptroller.

(4) An appeal lies from any decision of the comptroller in proceedings before him under section 246 (decisions on matters relating to design right) to [F690

(a)] the High Court or, in Scotland, the Court of Session [F691, or (b) a person appointed under section 27A of the Registered Designs Act 1949].

Textual Amendments F690 Words in s. 251(4) renumbered as s. 251(4)(a) (6.4.2015) by Intellectual Property Act 2014 (c. 18), ss.

10(8)(a), 24(1); S.I. 2015/165, art. 3 F691 S. 251(4)(b) and word preceding it inserted (6.4.2015) by Intellectual Property Act 2014 (c. 18), ss.

10(8)(b), 24(1); S.I. 2015/165, art. 3

252 Reference of disputes relating to Crown use.

(1) A dispute as to any matter which falls to be determined by the court in default of agreement under—

(a) section 241 (settlement of terms for Crown use), (b) section 242 (rights of third parties in case of Crown use), or (c) section 243 (Crown use: compensation for loss of profit),

may be referred to the court by any party to the dispute.

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(2) In determining a dispute between a government department and any person as to the terms for Crown use of a design the court shall have regard to—

(a) any sums which that person or a person from whom he derives title has received or is entitled to receive, directly or indirectly, from any government department in respect of the design; and

(b) whether that person or a person from whom he derives title has in the court’s opinion without reasonable cause failed to comply with a request of the department for the use of the design on reasonable terms.

(3) One of two or more joint owners of design right may, without the concurrence of the others, refer a dispute to the court under this section, but shall not do so unless the others are made parties; and none of those others is liable for any costs unless he takes part in the proceedings.

(4) Where the consent of an exclusive licensee is required by section 242(3)(a)(i) to the settlement by agreement of the terms for Crown use of a design, a determination by the court of the amount of any payment to be made for such use is of no effect unless the licensee has been notified of the reference and given an opportunity to be heard.

(5) On the reference of a dispute as to the amount recoverable as mentioned in section 242(3)(a)(ii) (right of exclusive licensee to recover part of amount payable to design right owner) the court shall determine what is just having regard to any expenditure incurred by the licensee—

(a) in developing the design, or (b) in making payments to the design right owner in consideration of the licence

(other than royalties or other payments determined by reference to the use of the design).

(6) In this section “the court” means— (a) in England and Wales, the High [F692Court,] (b) in Scotland, the Court of Session, and (c) in Northern Ireland, the High Court.

Textual Amendments F692 Word in s. 252(6)(a) substituted (1.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9

para. 30(2); S.I. 2013/1725, art. 3(c)

CHAPTER V

MISCELLANEOUS AND GENERAL

[F693 Unjustified threats

Textual Amendments F693 S. 253 253 and crossheading substituted for (1.10.2017) by Intellectual Property (Unjustified Threats)

Act 2017 (c. 14), ss. 5(2), 8 (with art. 7(4)); S.I. 2017/771, reg. 2(1)(b) (with reg. 3)

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253 Threats of infringement proceedings

(1) A communication contains a “threat of infringement proceedings” if a reasonable person in the position of a recipient would understand from the communication that—

(a) design right subsists in a design, and (b) a person intends to bring proceedings (whether in a court in the United

Kingdom or elsewhere) against another person for infringement of the design right by—

(i) an act done in the United Kingdom, or (ii) an act which, if done, would be done in the United Kingdom.

(2) References in this section and in section 253C to a “recipient” include, in the case of a communication directed to the public or a section of the public, references to a person to whom the communication is directed.

253A Actionable threats

(1) Subject to subsections (2) to (5), a threat of infringement proceedings made by any person is actionable by any person aggrieved by the threat.

(2) A threat of infringement proceedings is not actionable if the infringement is alleged to consist of—

(a) making an article for disposal, or (b) importing an article for disposal.

(3) A threat of infringement proceedings is not actionable if the infringement is alleged to consist of an act which, if done, would constitute an infringement of a kind mentioned in subsection (2)(a) or (b).

(4) A threat of infringement proceedings is not actionable if the threat— (a) is made to a person who has done, or intends to do, an act mentioned in

subsection (2)(a) or (b) in relation to an article, and (b) is a threat of proceedings for an infringement alleged to consist of doing

anything else in relation to that article.

(5) A threat of infringement proceedings which is not an express threat is not actionable if it is contained in a permitted communication.

(6) In sections 253C and 253D an “actionable threat” means a threat of infringement proceedings that is actionable in accordance with this section.

253B Permitted communications

(1) For the purposes of section 253A(5), a communication containing a threat of infringement proceedings is a “permitted communication” if—

(a) the communication, so far as it contains information that relates to the threat, is made for a permitted purpose;

(b) all of the information that relates to the threat is information that— (i) is necessary for that purpose (see subsection (5)(a) to (c) for some

examples of necessary information), and (ii) the person making the communication reasonably believes is true.

(2) Each of the following is a “permitted purpose”—

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(a) giving notice that design right subsists in a design; (b) discovering whether, or by whom, design right in a design has been infringed

by an act mentioned in section 253A(2)(a) or (b); (c) giving notice that a person has a right in or under the design right in a design,

where another person's awareness of the right is relevant to any proceedings that may be brought in respect of the design right in the design.

(3) The court may, having regard to the nature of the purposes listed in subsection (2)(a) to (c), treat any other purpose as a “permitted purpose” if it considers that it is in the interests of justice to do so.

(4) But the following may not be treated as a “permitted purpose”— (a) requesting a person to cease doing, for commercial purposes, anything in

relation to an article made to a design, (b) requesting a person to deliver up or destroy an article made to a design, or (c) requesting a person to give an undertaking relating to an article made to a

design.

(5) If any of the following information is included in a communication made for a permitted purpose, it is information that is “necessary for that purpose” (see subsection (1)(b)(i))—

(a) a statement that design right subsists in a design; (b) details of the design, or of a right in or under the design right in the design,

which— (i) are accurate in all material respects, and

(ii) are not misleading in any material respect; and (c) information enabling the identification of articles that are alleged to be

infringing articles in relation to the design.

253C Remedies and defences

(1) Proceedings in respect of an actionable threat may be brought against the person who made the threat for—

(a) a declaration that the threat is unjustified; (b) an injunction against the continuance of the threat; (c) damages in respect of any loss sustained by the aggrieved person by reason

of the threat.

(2) It is a defence for the person who made the threat to show that the act in respect of which proceedings were threatened constitutes (or if done would constitute) an infringement of design right.

(3) It is a defence for the person who made the threat to show— (a) that, despite having taken reasonable steps, the person has not identified

anyone who has done an act mentioned in section 253A(2)(a) or (b) in relation to the article which is the subject of the threat, and

(b) that the person notified the recipient, before or at the time of making the threat, of the steps taken.

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253D Professional advisers

(1) Proceedings in respect of an actionable threat may not be brought against a professional adviser (or any person vicariously liable for the actions of that professional adviser) if the conditions in subsection (3) are met.

(2) In this section “professional adviser” means a person who, in relation to the making of the communication containing the threat—

(a) is acting in a professional capacity in providing legal services or the services of a trade mark attorney or a patent attorney, and

(b) is regulated in the provision of legal services, or the services of a trade mark attorney or a patent attorney, by one or more regulatory bodies (whether through membership of a regulatory body, the issue of a licence to practise or any other means).

(3) The conditions are that— (a) in making the communication the professional adviser is acting on the

instructions of another person, and (b) when the communication is made the professional adviser identifies the

person on whose instructions the adviser is acting.

(4) This section does not affect any liability of the person on whose instructions the professional adviser is acting.

(5) It is for a person asserting that subsection (1) applies to prove (if required) that at the material time—

(a) the person concerned was acting as a professional adviser, and (b) the conditions in subsection (3) were met.

253E Supplementary: proceedings for delivery up etc.

In section 253(1)(b) the reference to proceedings for infringement of design right includes a reference to—

(a) proceedings for an order under section 230 (order for delivery up), and (b) proceedings for an order under section 231 (order as to disposal of infringing

articles).]

[F694Licensee under licence of right not to claim connection with design right owner]

Textual Amendments F694 S. 254 cross-heading inserted (1.10.2017) by Intellectual Property (Unjustified Threats) Act 2017

(c. 14), ss. 5(3), 8; S.I. 2017/771, reg. 2(1)(b) (with reg. 3)

254 Licensee under licence of right not to claim connection with design right owner.

(1) A person who has a licence in respect of a design by virtue of section 237 or 238 (licences of right) shall not, without the consent of the design right owner—

(a) apply to goods which he is marketing, or proposes to market, in reliance on that licence a trade description indicating that he is the licensee of the design right owner, or

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(b) use any such trade description in an advertisement in relation to such goods.

(2) A contravention of subsection (1) is actionable by the design right owner.

(3) In this section “trade description”, the reference to applying a trade description to goods and “advertisement” have the same meaning as in the M31Trade Descriptions Act 1968.

Marginal Citations M31 1968 c. 29.

Extent of operation of this Part

255 Countries to which this Part extends.

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

(2) Her Majesty may by Order in Council direct that this Part shall extend, subject to such exceptions and modifications as may be specified in the Order, to—

(a) any of the Channel Islands, (b) the Isle of Man, or (c) any colony.

(3) That power includes power to extend, subject to such exceptions and modifications as may be specified in the Order, any Order in Council made under section 221 (further provision as to qualification for design right protection) or section 256 (countries enjoying reciprocal protection).

(4) The legislature of a country to which this Part has been extended may modify or add to the provisions of this Part, in their operation as part of the law of that country, as the legislature may consider necessary to adapt the provisions to the circumstances of that country; but not so as to deny design right protection in a case where it would otherwise exist.

(5) Where a country to which this Part extends ceases to be a colony of the United Kingdom, it shall continue to be treated as such a country for the purposes of this Part until—

(a) an Order in Council is made under section 256 designating it as a country enjoying reciprocal protection, or

(b) an Order in Council is made declaring that it shall cease to be so treated by reason of the fact that the provisions of this Part as part of the law of that country have been amended or repealed.

(6) A statutory instrument containing an Order in Council under subsection (5)(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

256 Countries enjoying reciprocal protection.

(1) Her Majesty may, if it appears to Her that the law of a country provides adequate protection for British designs, by Order in Council designate that country as one enjoying reciprocal protection under this Part.

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(2) If the law of a country provides adequate protection only for certain classes of British design, or only for designs applied to certain classes of article, any Order designating that country shall contain provision limiting, to a corresponding extent, the protection afforded by this Part in relation to designs connected with that country.

(3) An Order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

257 Territorial waters and the continental shelf.

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

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

(3) The United Kingdom sector of the continental shelf means the areas designated by order under section 1(7) of the M32Continental Shelf Act 1964.

Marginal Citations M32 1964 c. 29.

Interpretation

258 Construction of references to design right owner.

(1) Where different persons are (whether in consequence of a partial assignment or otherwise) entitled to different aspects of design right in a work, the design right owner for any purpose of this Part is the person who is entitled to the right in the respect relevant for that purpose.

(2) Where design right (or any aspect of design right) is owned by more than one person jointly, references in this Part to the design right owner are to all the owners, so that, in particular, any requirement of the licence of the design right owner requires the licence of all of them.

259 Joint designs.

(1) In this Part a “joint design” means a design produced by the collaboration of two or more designers in which the contribution of each is not distinct from that of the other or others.

(2) References in this Part to the designer of a design shall, except as otherwise provided, be construed in relation to a joint design as references to all the designers of the design.

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260 Application of provisions to articles in kit form.

(1) The provisions of this Part apply in relation to a kit, that is, a complete or substantially complete set of components intended to be assembled into an article, as they apply in relation to the assembled article.

(2) Subsection (1) does not affect the question whether design right subsists in any aspect of the design of the components of a kit as opposed to the design of the assembled article.

261 Requirement of signature: application in relation to body corporate.

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

section 222(3) (assignment of design right), section 223(1) (assignment of future design right), section 225(1) (grant of exclusive licence).

262 Adaptation of expressions in relation to Scotland.

In the application of this Part to Scotland— “account of profits” means accounting and payment of profits; “accounts” means count, reckoning and payment; “assignment” means assignation; “costs” means expenses; [F695“declaration” means “declarator”;] “defendant” means defender; “delivery up” means delivery; “injunction” means interdict; “interlocutory relief” means interim remedy; and “plaintiff” means pursuer.

Textual Amendments F695 Words in s. 262 inserted (1.10.2017) by Intellectual Property (Unjustified Threats) Act 2017 (c. 14), ss.

5(4), 8; S.I. 2017/771, reg. 2(1)(b) (with reg. 3)

263 Minor definitions.

(1) In this Part— “British design” means a design which qualifies for design right protection

by reason of a connection with the United Kingdom of the designer or the person by whom F696... the designer is employed;

“business” includes a trade or profession; F697... “the comptroller” means the Comptroller-General of Patents, Designs and

Trade Marks;

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“computer-generated”, in relation to a design, means that the design is generated by computer in circumstances such that there is no human designer,

“country” includes any territory; “the Crown” includes the Crown in right of Her Majesty’s Government

in Northern Ireland [F698and the Crown in right of the Scottish Administration][F699and the Crown in right of the Welsh Assembly Government];

“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;

“employee”, “employment” and “employer” refer to employment under a contract of service or of apprenticeship;

“government department” includes a Northern Ireland department [F700and any part of the Scottish Administration][F701and any part of the Welsh Assembly Government].

(2) References in this Part to “marketing”, in relation to an article, are to its being sold or let for hire, or offered or exposed for sale or hire, in the course of a business, and related expressions shall be construed accordingly; but no account shall be taken for the purposes of this Part of marketing which is merely colourable and not intended to satisfy the reasonable requirements of the public.

(3) References in this Part to an act being done in relation to an article for “commercial purposes” are to its being done with a view to the article in question being sold or hired in the course of a business.

Textual Amendments F696 Words in s. 263(1) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 2(2)(i),

24(1) (with s. 2(3)); S.I. 2014/2330, art. 3, Sch. F697 Words in s. 263(1) omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 2(2)(j),

24(1) (with s. 2(3)); S.I. 2014/2330, art. 3, Sch. F698 Words in definition of "the Crown" in s. 263(1) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4,

Sch. 2 Pt. I para. 93(4)(a); S.I. 1998/3178, art. 3 F699 S. 263(1): words in definition of "the Crown" inserted by Government of Wales Act 2006 (c. 32),

s. 160(1), Sch. 10 para. 31(2) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

F700 Words in definition of "government department" in s. 263(1) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 93(4)(b); S.I. 1998/3178, art. 3

F701 S. 263(1): words in definition of "government department" inserted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 31(3) (with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007 election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certain provisions to come into force for specified purposes immediately after the end of "the initial period" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss. 46, 161(1)(4)(5) of the amending Act.

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264 Index of defined expressions.

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

account of profits and accounts (in Scotland)

section 262

assignment (in Scotland) section 262 British designs section 263(1) business section 263(1) commercial purposes section 263(3) F702

. . . F702

. . . the comptroller section 263(1) computer-generated section 263(1) costs (in Scotland) section 262 country section 263(1) the Crown section 263(1) Crown use sections 240(5) and 244(2) defendant (in Scotland) section 262 delivery up (in Scotland) section 262 design section 213(2) design document section 263(1) designer sections 214 and 259(2) design right section 213(1) design right owner sections 234(2) and 258 employee, employment and employer section 263(1) exclusive licence section 225(1) government department section 263(1) government department concerned (in relation to Crown use)

section 240(5)

infringing article section 228 injunction (in Scotland) section 262 interlocutory relief (in Scotland) section 262 joint design section 259(1) licence (of the design right owner) sections 222(4), 223(3) and 258 making articles to a design section 226(2)

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marketing (and related expressions) section 263(2) original section 213(4) plaintiff (in Scotland) section 262 F703

. . . F703

. . . qualifying person sections 217(1) and (2) signed section 261

Textual Amendments F702 Words in s. 264 omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 2(2)(k),

24(1) (with s. 2(3)); S.I. 2014/2330, art. 3, Sch. F703 Words in s. 264 omitted (1.10.2014) by virtue of Intellectual Property Act 2014 (c. 18), ss. 3(5), 24(1)

(with s. 3(6)); S.I. 2014/2330, art. 3, Sch.

PART IV

REGISTERED DESIGNS

Modifications etc. (not altering text) C121 Pt. IV (ss. 265-273) extended (with modifications) (Isle of Man) (9.12.2001) by S.I. 2001/3678, art. 3,

Sch. 3 C122 Pt. 4 extended (Isle of Man) (with modifications) (11.11.2013) by The Registered Designs (Isle of

Man) Order 2013 (S.I. 2013/2533), arts. 1, 3(2), Sch. 2

Amendments of the Registered Designs Act 1949

F704265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F704 S. 265 repealed (9.12.2001) by S.I. 2001/3949, reg. 9(2), Sch. 2 (with transitional provisions in regs.

10-14)

266 Provisions with respect to certain designs registered in pursuance of application made before commencement.

(1) Where a design is registered under the Registered Designs Act 1949 in pursuance of an application made after 12th January 1988 and before the commencement of this part which could not have been registered under section 1 of that Act as substituted by section 265 above—

(a) the right in the registered design expires ten years after the commencement of this part, if it does not expire earlier in accordance with the 1949 Act, and

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(b) any person is, after the commencement of this Part, entitled as of right to a licence to do anything which would otherwise infringe the right in the registered design.

(2) The terms of a licence available by virtue of this section shall, in default of agreement, be settled by the registrar on an application by the person requiring the licence; and the terms so settled shall authorise the licensee to do everything which would be an infringement of the right in the registered design in the absence of a licence.

(3) In settling the terms of a licence the registrar shall have regard to such factors as may be prescribed by the Secretary of State by order made by statutory instrument.

No such order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

(4) Where the terms of a licence are settled by the registrar, the licence has effect from the date on which the application to the registrar was made.

(5) Section 11B of the 1949 Act (undertaking to take licence of right in infringement proceedings), as inserted by section 270 below, applies where a licence is available as of right under this section, as it applies where a licence is available as of right under section 11A of that Act.

(6) Where a licence is available as of right under this section, a person to whom a licence was granted before the commencement of this part may apply to the registrar for an order adjusting the terms of that licence.

(7) an appeal lies from any decision of the registrar under this section.

(8) This section shall be construed as one with the Registered Designs Act 1949.

267 Authorship and first ownership of designs.

(1) Section 2 of the Registered Designs Act 1949 (proprietorship of designs) is amended as follows.

(2) For subsection (1) substitute—

“(1) The author of a design shall be treated for the purposes of this Act as the original proprietor of the design, subject to the following provisions.

(1A) Where a design is created in pursuance of a commission for money or money’s worth, the person commissioning the design shall be treated as the original proprietor of the design.

(1B) Where, in a case not falling within subsection (1A), a design is created by an employee in the course of his employment, his employer shall be treated as the original proprietor of the design.”.

(3) After subsection (2) insert—

“(3) In this Act the “author” of a design means the person who creates it.

(4) In the case of a design generated by computer in circumstances such that there is no human author, the person by whom the arrangements necessary for the creation of thee design are made shall be taken to be the author.”.

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(4) The amendments made by this section do not apply in relation to an application for registration made before the commencement of this Part.

F705268 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F705 S. 268 repealed (9.12.2001) by S.I. 2001/3949, reg. 9(2), Sch. 2 (with transitional provisions in regs.

10-14)

269 Duration of right in registered design.

(1) For section 8 of the M33Registered Designs Act 1949 (period of right) substitute—

8 Duration of right in registered design.

(1) The right in a registered design subsists in the first instance for a period of five years from the date of the registration of the design.

(2) The period for which the right subsists may be extended for a second, third, fourth and fifth period of five years, by applying to the registrar for an extension and paying the prescribed renewal fee.

(3) If the first, second, third or fourth period expires without such application and payment being made, the right shall cease to have effect; and the registrar shall, in accordance with rules made by the Secretary of State, notify the proprietor of that fact.

(4) If during the period of six months immediately following the end of that period an application for extension is made and the prescribed renewal fee and any prescribed additional fee is paid, the right shall be treated as if it had never expired, with the result that—

(a) anything done under or in relation to the right during that further period shall be treated as valid,

(b) an act which would have constituted an infringement of the right if it had not expired shall be treated as an infringement, and

(c) an act which would have constituted use of the design for the services of the Crown if the right had not expired shall be treated as such use.

(5) Where it is shown that a registered design— (a) was at the time it was registered a corresponding design in relation to

an artistic work in which copyright subsists, and (b) by reason of a previous use of that work would not have been

registrable but for section 6(4) of this Act (registration despite certain prior applications of design),

the right in the registered design expires when the copyright in that work expires, if that is earlier than the time at which it would otherwise expire, and it may not thereafter be renewed.

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(6) The above provisions have effect subject to the proviso to section 4(1) (registration of same design in respect of other articles, &c.).

8A Restoration of lapsed right in design.

(1) Where the right in a registered design has expired by reason of a failure to extend, in accordance with section 8(2) or (4), the period for which the right subsists, an application for the restoration of the right in the design may be made to the registrar within the prescribed period.

(2) The application may be made by the person who was the registered proprietor of the design or by any other person who would have been entitled to the right in the design if it had not expired; and where the design was held by two or more persons jointly, the application may, with the leave of the registrar, be made by one or more of them without joining the others.

(3) Notice of the application shall be published by the registrar in the prescribed manner.

(4) If the registrar is satisfied that the proprietor took reasonable care to see that the period for which the right subsisted was extended in accordance with section 8(2) or (4), he shall, on payment of any unpaid renewal fee and any prescribed additional fee, order the restoration of the right in the design.

(5) The order may be made subject to such conditions as the registrar thinks fit, and if the proprietor of the design does not comply with any condition the registrar may revoke the order and give such consequential directions as he thinks fit.

(6) Rules altering the period prescribed for the purposes of subsection (1) may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient.

8B Effect of order for restoration of right.

(1)

The effect of an order under section 8A for the restoration of the right in a registered design is as follows.

(2) Anything done under or in relation to the right during the period between expiry and restoration shall be treated as valid.

(3) Anything done during that period which would have constituted an infringement if the right had not expired shall be treated as an infringement—

(a) if done at a time when it was possible for an application for extension to be made under section 8(4); or

(b) if it was a continuation or repetition of an earlier infringing act.

(4) If, after it was no longer possible for such an application for extension to be made and before publication of notice of the application for restoration, a person—

(a) began in good faith to do an act which would have constituted an infringement of the right in the design if it had not expired, or

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(b) made in good faith effective and serious preparations to do such an act,

he has the right to continue to do the act or, as the case may be, to do the act, notwithstanding the restoration of the right in the design; but this does not extend to granting a licence to another person to do the act.

(5) If the act was done, or the preparations were made, in the course of a business, the person entitled to the right conferred by subsection (4) may—

(a) authorise the doing of that act by any partners of his for the time being in that business, and

(b) assign that right, or transmit it on death (or in the case of a body corporate on its dissolution), to any person who acquires that part of the business in the course of which the act was done or the preparations were made.

(6) Where an article is disposed of to another in exercise of the rights conferred by subsection (4) or subsection (5), that other and any person claiming through him may deal with the article in the same way as if it had been disposed of by the registered proprietor of the design.

(7) The above provisions apply in relation to the use of a registered design for the services of the Crown as they apply in relation to infringement of the right in the design.”.

(2) The above amendment does not apply in relation to the right in a design registered in pursuance of an application made before the commencement of this Part.

Marginal Citations M33 1949 c. 88.

270 Powers exercisable for protection of the public interest.

In the M34Registered Designs Act 1949 after section 11 insert—

11A Powers exercisable for protection of the public interest.

(1) Where a report of the Monopolies and Mergers Commission has been laid before Parliament containing conclusions to the effect—

(a) on a monopoly reference, that a monopoly situation exists and facts found by the Commission operate or may be expected to operate against the public interest,

(b) on a merger reference, that a merger situation qualifying for investigation has been created and the creation of the situation, or particular elements in or consequences of it specified in the report, operate or may be expected to operate against the public interest,

(c) on a competition reference, that a person was engaged in an anti- competitive practice which operated or may be expected to operate against the public interest, or

(d) on a reference under section 11 of the Competition Act 1980 (reference of public bodies and certain other persons), that a person is pursuing a course of conduct which operates against the public interest,

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the appropriate Minister or Ministers may apply to the registrar to take action under this section.

(2) Before making an application the appropriate Minister or Ministers shall publish, in such a manner as he or they think appropriate, a notice describing the nature of the proposed application and shall consider any representations which may be made within 30 days of such publication by persons whose interests appear to him or them to be affected.

(3) If on an application under this section it appears to the registrar that the matters specified in the Commission’s report as being those which in the Commission’s opinion operate or operated or may be expected to operate against the public interest include—

(a) conditions in licences granted in respect of a registered design by its proprietor restricting the use of the design by the licensee or the right of the proprietor to grant other licences, or

(b) a refusal by the proprietor of a registered design to grant licences on reasonable terms,

he may by order cancel or modify any such condition or may, instead or in addition, make an entry in the register to the effect that licences in respect of the design are to be available as of right.

(4) The terms of a licence available by virtue of this section shall, in default of agreement, be settled by the registrar on an application by the person requiring the licence; and terms so settled shall authorise the licensee to do everything which would be an infringement of the right in the registered design in the absence of a licence.

(5) Where the terms of a licence are settled by the registrar the licence has effect from the date on which the application to him was made.

(6) An appeal lies from any order of the registrar under this section.

(7) In this section “the appropriate Minister or Ministers” means the Minister or Ministers to whom the report of the Monopolies and Mergers Commission was made.

11B Undertaking to take licence of right in infringement proceedings.

(1) If in proceedings for infringement of the right in a registered design in respect of which a licence is available as of right under section 11A of this Act the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the registrar under that section—

(a) no injunction shall be granted against him, and (b) the amount recoverable against him by way of damages or on an

account of profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.

(2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.

(3) Nothing in this section affects the remedies available in respect of an infringement committed before licences of right were available.”.

256 Copyright, Designs and Patents Act 1988 (c. 48) Part IV – Registered Designs

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Marginal Citations M34 1949 c. 88.

271 Crown use: compensation for loss of profit.

(1) In Schedule 1 to the M35Registered Designs Act 1949 (Crown use), after paragraph 2 insert—

“2A (1) Where Crown use is made of a registered design, the government department concerned shall pay—

(a) to the registered proprietor, or (b) if there is an exclusive licence in force in respect of the design,

to the exclusive licensee, compensation for any loss resulting from his not being awarded a contract to supply the articles to which the design is applied.

(2) Compensation is payable only to the extent that such a contract could have been fulfilled from his existing manufacturing capacity; but is payable notwithstanding the existence of circumstances rendering him ineligible for the award of such a contract.

(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing capacity was underused.

(4) No compensation is payable in respect of any failure to secure contracts for the supply of articles to which the design is applied otherwise than for the services of the Crown.

(5) The amount payable under this paragraph shall, if not agreed between the registered proprietor or licensee and the government department concerned with the approval of the Treasury, be determined by the court on a reference under paragraph 3; and it is in addition to any amount payable under paragraph 1 or 2 of this Schedule.

(6) In this paragraph— “Crown use”, in relation to a design, means the doing of

anything by virtue of paragraph 1 which would otherwise be an infringement of the right in the design; and

“the government department concerned”, in relation to such use, means the government department by whom or on whose authority the act was done.”.

(2) In paragraph 3 of that Schedule (reference of disputes as to Crown use), for sub- paragraph (1) substitute—

“(1) Any dispute as to— (a) the exercise by a Government department, or a person authorised

by a Government department, of the powers conferred by paragraph 1 of this Schedule,

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(b) terms for the use of a design for the services of the Crown under that paragraph,

(c) the right of any person to receive any part of a payment made under paragraph 1(3), or

(d) the right of any person to receive a payment under paragraph 2A, may be referred to the court by either party to the dispute.”.

(3) The above amendments apply in relation to any Crown use of a registered design after the commencement of this section, even if the terms for such use were settled before commencement.

Marginal Citations M35 1949 c. 88.

272 Minor and consequential amendments.

The M36Registered Designs Act 1949 is further amended in accordance with Schedule 3 which contains minor amendments and amendments consequential upon the provisions of this Act.

Marginal Citations M36 1949 c. 88.

Supplementary

273 Text of Registered Designs Act 1949 as amended.

Schedule 4 contains the text of the Registered Designs Act 1949 as amended.

PART V

PATENT AGENTS AND TRADE MARK AGENTS

Patent agents

274 Persons permitted to carry on business of a patent agent.

(1) Any individual, partnership or body corporate may, subject to the following provisions of this Part [F706and to the Legal Services Act 2007] , carry on the business of acting as agent for others for the purpose of—

(a) applying for or obtaining patents, in the United Kingdom or elsewhere, or (b) conducting proceedings before the comptroller relating to applications for, or

otherwise in connection with, patents.

(2) This does not affect any restriction under the European Patent Convention as to who may act on behalf of another for any purpose relating to European patents.

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Textual Amendments F706 Words in s. 274(1) inserted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 185(2), 211 (with ss. 29,

192, 193); S.I. 2009/3250, art. 2(f)(i) (with art. 9)

[F707275 The register of patent attorneys

(1) There is to continue to be a register of persons who act as agent for others for the purpose of applying for or obtaining patents.

(2) In this Part a registered patent attorney means an individual whose name is entered on the register kept under this section.

(3) The register is to be kept by the Chartered Institute of Patent Attorneys.

(4) The Secretary of State may, by order, amend subsection (3) so as to require the register to be kept by the person specified in the order.

(5) Before making an order under subsection (4), the Secretary of State must consult the Legal Services Board.

(6) An order under this section must be made by statutory instrument.

(7) An order under this section may not be made unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.]

Textual Amendments F707 Ss. 275, 275A substituted (1.1.2010) for s. 275 by Legal Services Act 2007 ( c. 29), {ss. 185(3)}, 211

(with ss. 29, 192, 193); S.I. 2009/3250, art. 2(f)(i) (with art. 9)

[F708275ARegulation of patent attorneys

(1) The person who keeps the register under section 275 may make regulations which regulate—

(a) the keeping of the register and the registration of persons; (b) the carrying on of patent attorney work by registered persons.

(2) Those regulations may, amongst other things, make— (a) provision as to the educational and training qualifications, and other

requirements, which must be satisfied before an individual may be registered or for an individual to remain registered;

(b) provision as to the requirements which must be met by a body (corporate or unincorporate) before it may be registered, or for it to remain registered, including provision as to the management and control of the body;

(c) provision as to the educational, training and other requirements to be met by regulated persons;

(d) provision regulating the practice, conduct and discipline of registered persons or regulated persons;

(e) provision authorising in such cases as may be specified in the regulations the erasure from the register of the name of any person registered in it, or the suspension of a person's registration;

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(f) provision requiring the payment of such fees as may be specified in or determined in accordance with the regulations;

(g) provision about the provision to be made by registered persons in respect of complaints made against them;

(h) provision about the keeping by registered persons or regulated persons of records and accounts;

(i) provision for reviews of or appeals against decisions made under the regulations;

(j) provision as to the indemnification of registered persons or regulated persons against losses arising from claims in respect of civil liability incurred by them.

(3) Regulations under this section may make different provision for different purposes.

(4) Regulations under this section which are not regulatory arrangements within the meaning of the Legal Services Act 2007 are to be treated as such arrangements for the purposes of that Act.

(5) Before the appointed day, regulations under this section may be made only with the approval of the Secretary of State.

(6) The powers conferred to make regulations under this section are not to be taken to prejudice—

(a) any other power which the person who keeps the register may have to make rules or regulations (however they may be described and whether they are made under an enactment or otherwise);

(b) any rules or regulations made by that person under any such power.

(7) In this section— “appointed day” means the day appointed for the coming into force of

paragraph 1 of Schedule 4 to the Legal Services Act 2007; “manager”, in relation to a body, has the same meaning as in the Legal

Services Act 2007 (see section 207); “patent attorney work” means work done in the course of carrying on the

business of acting as agent for others for the purpose of— (a) applying for or obtaining patents, in the United Kingdom or elsewhere,

or (b) conducting proceedings before the comptroller relating to applications

for, or otherwise in connection with, patents; “registered person” means—

(a) a registered patent attorney, or (b) a body (corporate or unincorporate) registered in the register kept under

section 275; “regulated person” means a person who is not a registered person but is a

manager or employee of a body which is a registered person.]

Textual Amendments F708 Ss. 275, 275A substituted (1.1.2010) for s. 275 by Legal Services Act 2007 ( c. 29), {ss. 185(3)}, 211

(with ss. 29, 192, 193); S.I. 2009/3250, art. 2(f)(i) (with art. 9)

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276 Persons entitled to describe themselves as patent agents.

(1) An individual who is not a [F709registered patent attorney] shall not— (a) carry on a business (otherwise than in partnership) under any name or other

description which contains the words “patent agent” or “patent attorney”; or (b) in the course of a business otherwise describe himself, or permit himself to be

described, as a “patent agent” or “patent attorney”.

(2) A partnership [F710or other unincorporated body] shall not— (a) carry on a business under any name or other description which contains the

words “patent agent” or “patent attorney”; or (b) in the course of a business otherwise describe itself, or permit itself to be

described as, a firm of “patent agents” or “patent attorneys”, unless [F711the partnership or other body is registered in the register kept under section 275].

(3) A body corporate shall not— (a) carry on a business (otherwise than in partnership) under any name or other

description which contains the words “patent agent” or “patent attorney”; or (b) in the course of a business otherwise describe itself, or permit itself to be

described as, a “patent agent” or “patent attorney”, unless [F712the body corporate is registered in the register kept under section 275.]

(4) Subsection (3) does not apply to a company which began to carry on business as a patent agent before 17th November 1917 if the name of a director or the manager of the company who is a registered patent [F713attorney] is mentioned as being so registered in all professional advertisements, circulars or letters issued by or with the company’s consent on which its name appears.

(5) Where this section would be contravened by the use of the words “patent agent” or “patent attorney” in reference to an individual, partnership or body corporate, it is equally contravened by the use of other expressions in reference to that person, or his business or place of business, which are likely to be understood as indicating that he is entitled to be described as a “patent agent” or “patent attorney”.

(6) A person who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale; and proceedings for such an offence may be begun at any time within a year from the date of the offence.

(7) This section has effect subject to— (a) section 277 (persons entitled to describe themselves as European patent

attorneys, &c.), and (b) section 278(1) (use of term “patent attorney” in reference to solicitors).

Textual Amendments F709 Words in s. 276(1) substituted (1.1.2010) by Legal Services Act 2007 ( c. 29), ss. 208(1), 211, {Sch. 21

para. 76(a)} (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F710 Words in s. 276(2) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 185(4)(a)(i), 211

(with ss. 29, 192, 193); S.I. 2009/3250, art. 2(f)(i) (with art. 9) F711 Words in s. 276(2) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 185(4)(a)(ii), 211

(with ss. 29, 192, 193); S.I. 2009/3250, art. 2(f)(i) (with art. 9)

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F712 Words in s. 276(3) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 185(4)(b), 211 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(f)(i) (with art. 9)

F713 Words in s. 276(4) substituted (1.1.2010) by Legal Services Act 2007 ( c. 29), ss. 208(1), 211, {Sch. 21 para. 76(b)} (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9)

Modifications etc. (not altering text) C123 S. 276(7)(b) amended (E.W.) (1.1.1992) by S.I. 1991/2684 arts. 2, 4, Sch.1 C124 S. 276(7)(b) applied (with modifications) (23.12.2011) by The Legal Services Act 2007 (Designation

as a Licensing Authority) (No. 2) Order 2011 (S.I. 2011/2866), arts. 1(2), 8(1)(2), Sch. 2

277 Persons entitled to describe themselves as European patent attorneys, &c.

(1) The term “European patent attorney” or “European patent agent” may be used in the following cases without any contravention of section 276.

(2) An individual who is on the European list may— (a) carry on business under a name or other description which contains the words

“European patent attorney” or “European patent agent”, or (b) otherwise describe himself, or permit himself to be described, as a “European

patent attorney” or “European patent agent”.

(3) A partnership of which not less than the prescribed number or proportion of partners is on the European list may—

(a) carry on a business under a name or other description which contains the words “European patent attorneys” or “European patent agents”, or

(b) otherwise describe itself, or permit itself to be described, as a firm which carries on the business of a “European patent attorney” or “European patent agent”.

(4) A body corporate of which not less than the prescribed number or proportion of directors is on the European list may—

(a) carry on a business under a name or other description which contains the words “European patent attorney” or “European patent agent”, or

(b) otherwise describe itself, or permit itself to be described as, a company which carries on the business of a “European patent attorney” or “European patent agent”.

(5) Where the term “European patent attorney” or “European patent agent” may, in accordance with this section, be used in reference to an individual, partnership or body corporate, it is equally permissible to use other expressions in reference to that person, or to his business or place of business, which are likely to be understood as indicating that he is entitled to be described as a “European patent attorney” or “European patent agent.”

278 Use of the term “patent attorney”: supplementary provisions.

(1) The term “patent attorney” may be used in reference to a solicitor, and a firm of solicitors may be described as a firm of “patent attorneys”, without any contravention of section 276.

(2) No offence is committed under the enactments restricting the use of certain expressions in reference to persons not qualified to act as solicitors—

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(a) by the use of the term “patent attorney” in reference to a registered patent agent, or

(b) by the use of the term “European patent attorney” in reference to a person on the European list.

(3) The enactments referred to in subsection (2) are section 21 of the M37Solicitors Act 1974, section 31 of the M38Solicitors (Scotland) Act 1980 and Article 22 of the M39Solicitors (Northern Ireland) Order 1976.

Modifications etc. (not altering text) C125 S. 278(1) applied (with modifications) (23.12.2011) by The Legal Services Act 2007 (Designation as a

Licensing Authority) (No. 2) Order 2011 (S.I. 2011/2866), arts. 1(2), 8(2)(3), Sch. 3

Marginal Citations M37 1974 c. 37. M38 1980 c. 46. M39 S.I. 1976/582 (N.I.12).

279 Power to prescribe conditions, &c. for mixed partnerships and bodies corporate. F714. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F714 S. 279 omitted (1.1.2010) and repealed (1.10.2011) by virtue of Legal Services Act 2007 (c. 29), ss.

185(5), 210, 211, Sch. 23 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(f)(i); S.I. 2011/2196, art. 2(1) (h)(iii)

280 Privilege for communications with patent agents.

(1) This section applies to [F715— (a)] communications as to any matter relating to the protection of any invention,

design, technical information, [F716or trade mark], or as to any matter involving passing off [F717, and

(b) documents, material or information relating to any matter mentioned in paragraph (a).]

[F718(2) Where a patent attorney acts for a client in relation to a matter mentioned in subsection (1), any communication, document, material or information to which this section applies is privileged from disclosure in like manner as if the patent attorney had at all material times been acting as the client's solicitor.]

(3) In subsection (2) “patent [F719attorney]” means— (a) a registered patent [F719attorney] or a person who is on the European list, (b) a partnership entitled to describe itself as a firm of patent [F720attorneys] or as

a firm carrying on the business of a European patent attorney, F721. . . [F722(ba) an unincorporated body (other than a partnership) entitled to describe itself

as a patent attorney, or]

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(c) a body corporate entitled to describe itself as a patent [F719attorney] or as a company carrying on the business of a European patent attorney.

(4) F723. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F715 Words in s. 280(1) renumbered as s. 280(1)(a) (1.1.2010) by virtue of Legal Services Act 2007 (c. 29),

ss. 208(1), 211, Sch. 21 para. 77(a) (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F716 Words in s. 280(1) substituted (31.10.1994) by 1994 c. 26, s. 106(1), Sch. 4 para. 8(3); S.I.

1994/2550, art. 2 F717 S. 280(1)(b) and preceding word inserted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1),

211, Sch. 21 para. 77(b) (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F718 S. 280(2) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1), 211, Sch. 21 para.

77(c) (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F719 Words in s. 280(3) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 280(1), 211, Sch. 21

para. 77(d)(i) (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F720 Word in s. 280(3) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1), 211, Sch. 21

para. 77(d)(ii) (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F721 Word in s. 280(3)(b) repealed (1.10.2011) by Legal Services Act 2007 (c. 29), ss. 210, 211, Sch. 23

(with ss. 29, 192, 193); S.I. 2011/2196, art. 2(1)(h)(iii) F722 S. 280(3)(ba) inserted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 185(6), 211 (with ss. 29, 192,

193); S.I. 2009/3250, art. 2(f)(i) (with art. 9) F723 S. 280(4) omitted (1.1.2010) and repealed (1.10.2011) by virtue of Legal Services Act 2007 (c. 29), ss.

208(1), 210, 211, Sch. 21 para 77(e), Sch. 23 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9); S.I. 2011/2196, art. 2(1)(h)(iii)

281 Power of comptroller to refuse to deal with certain agents.

(1) This section applies to business under the M40Patents Act 1949, the M41Registered Designs Act 1949 or the M42Patents Act 1977.

(2) The Secretary of State may make rules authorising the comptroller to refuse to recognise as agent in respect of any business to which this section applies—

(a) a person who has been convicted of an offence under section 88 of the Patents Act 1949, section 114 of the Patents Act 1977 or section 276 of this Act;

(b) [F724a person] whose name has been erased from and not restored to, or who is suspended from, the register of patent [F725attorneys] on the ground of misconduct;

(c) a person who is found by the Secretary of State to have been guilty of such conduct as would, in the case of [F726 a person] registered in the register of patent [F725attorneys], render [F727the person] liable to have [F728the person's] name erased from the register on the ground of misconduct;

(d) a partnership or body corporate of which one of the partners or directors is a person whom the comptroller could refuse to recognise under paragraph (a), (b) or (c) above.

(3) The rules may contain such incidental and supplementary provisions as appear to the Secretary of State to be appropriate and may, in particular, prescribe circumstances in which a person is or is not to be taken to have been guilty of misconduct.

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(4) Rules made under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) The comptroller shall refuse to recognise as agent in respect of any business to which this section applies a person who neither resides nor has a place of business in the United Kingdom, the Isle of Man or another member State of the [F729European Union].

Textual Amendments F724 Words in s. 281(2)(b) substituted (1.1.2010) by The Legal Services Act 2007 (Consequential

Amendments) Order 2009 (S.I. 2009/3348), arts. 2(1), 3(2); S.I. 2009/3250, art. 2(b)(i) F725 Words in s. 281(2) substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1), 211, Sch. 21

para. 78 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F726 Words in s. 281(2)(c) substituted (1.1.2010) by The Legal Services Act 2007 (Consequential

Amendments) Order 2009 (S.I. 2009/3348), arts. 2(1), 3(3)(a); S.I. 2009/3250, art. 2(b)(i) F727 Words in s. 281(2)(c) substituted (1.1.2010) by The Legal Services Act 2007 (Consequential

Amendments) Order 2009 (S.I. 2009/3348), arts. 2(1), 3(3)(b); S.I. 2009/3250, art. 2(b)(i) F728 Words in s. 281(2)(c) substituted (1.1.2010) by The Legal Services Act 2007 (Consequential

Amendments) Order 2009 (S.I. 2009/3348), arts. 2(1), 3(3)(c); S.I. 2009/3250, art. 2(b)(i) F729 Words substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I.

2011/1043), arts. 3, 4

Marginal Citations M40 1949 c. 88. M41 1949 c. 87. M42 1977 c. 37.

Trade mark agents

F730282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F730 S. 282 repealed (31.10.1994) by 1994 c. 26, s. 106(2), Sch. 5; S.I. 1994/2550, art. 2

F731283 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F731 S. 283 repealed (31.10.1994) by 1994 c. 26, s. 106(2), Sch. 5; S.I. 1994/2550, art. 2

F732284 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Textual Amendments F732 S. 284 repealed (31.10.1994) by 1994 c. 26, s. 106(2), Sch. 5; S.I. 1994/2550, art. 2

Supplementary

285 Offences committed by partnerships and bodies corporate.

(1) Proceedings for an offence under this Part alleged to have been committed by a partnership shall be brought in the name of the partnership and not in that of the partners; but without prejudice to any liability of theirs under subsection (4) below.

(2) The following provisions apply for the purposes of such proceedings as in relation to a body corporate—

(a) any rules of court relating to the service of documents; (b) in England, Wales or Northern Ireland, Schedule 3 to the M43Magistrates’

Courts Act 1980 or Schedule 4 to the M44Magistrates’ Courts (Northern Ireland) Order 1981 (procedure on charge of offence).

(3) A fine imposed on a partnership on its conviction in such proceedings shall be paid out of the partnership assets.

(4) Where a partnership is guilty of an offence under this Part, every partner, other than a partner who is proved to have been ignorant of or to have attempted to prevent the commission of the offence, is also guilty of the offence and liable to be proceeded against and punished accordingly.

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

Marginal Citations M43 1980 c. 43. M44 S.I. 1981/1675 (N.I. 26).

286 Interpretation.

In this Part— “the comptroller” means the Comptroller-General of Patents, Designs and

Trade Marks; “director”, in relation to a body corporate whose affairs are managed by its

members, means any member of the body corporate; “the European list” means the list of professional representatives maintained

by the European Patent Office in pursuance of the European Patent Convention; “registered patent [F733attorney”] has the meaning given by section 275

[F734(2)]; F735. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

266 Copyright, Designs and Patents Act 1988 (c. 48) Part VI – Patents

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Textual Amendments F733 Words in s. 286 substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1), 211, Sch. 21

para. 79(a) (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h) (with art. 9) F734 Word in s. 286 substituted (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1), 211, Sch. 21

para. 79(b) (with ss. 29, 192, 193); S.I. 2009/2350, art. 2(h) (with art. 9) F735 Definition in s. 286 repealed (31.10.1994) by 1994 c. 26, s. 106(2), Sch. 5; S.I. 1994/2550, art. 2

PART VI

PATENTS

Patents county courts

F736287 Patents county courts: special jurisdiction.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F736 Ss. 287-289 omitted (1.10.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para.

30(3); S.I. 2013/1725, art. 3(c)

F736288 Financial limits in relation to proceedings within special jurisdiction of patents county court.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F736 Ss. 287-289 omitted (1.10.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para.

30(3); S.I. 2013/1725, art. 3(c)

F736289 Transfer of proceedings between High Court and patents county court.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F736 Ss. 287-289 omitted (1.10.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para.

30(3); S.I. 2013/1725, art. 3(c)

[F737290 Limitation of costs where pecuniary claim could have been brought in patents county court.

(1) Where an action is commenced in the High Court which could have been commenced in a patents county court and in which a claim for a pecuniary remedy is made, then,

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subject to the provisions of this section, if the plaintiff recovers less than the prescribed amount, he is not entitled to recover any more costs than those to which he would have been entitled if the action had been brought in the county court.

(2) For this purpose a plaintiff shall be treated as recovering the full amount recoverable in respect of his claim without regard to any deduction made in respect of matters not falling to be taken into account in determining whether the action could have been commenced in a patents county court.

(3) This section does not affect any question as to costs if it appears to the High Court that there was reasonable ground for supposing the amount recoverable in respect of the plaintiff’s claim to be in excess of the prescribed amount.

(4) The High Court, if satisfied that there was sufficient reason for bringing the action in the High Court, may make an order allowing the costs or any part of the costs on the High Court scale or on such one of the county court scales as it may direct.

(5) This section does not apply to proceedings brought by the Crown.

(6) In this section “the prescribed amount” means such amount as may be prescribed by Her Majesty for the purposes of this section by Order in Council.

(7) No recommendation shall be made to Her Majesty to make an Order under this section unless a draft of the Order has been laid before and approved by a resolution of each House of Parliament.]

Textual Amendments F737 S. 290 repealed (prosp.) by Courts and Legal Services Act 1990 (c. 41, SIF 37), ss. 124(3), 125(7),

Sch. 20

F738291 Proceedings in patents county court.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F738 S. 291 omitted (1.10.2013) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para.

30(3); S.I. 2013/1725, art. 3(c)

292 Rights and duties of registered patent agents in relation to proceedings in patents county court.

F739. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F739 S. 292 repealed (1.1.2010) by Legal Services Act 2007 (c. 29), ss. 208(1), 210, 211, Sch. 21 para. 80,

Sch. 23 (with ss. 29, 192, 193); S.I. 2009/3250, art. 2(h)(i)(vi) (with art. 9)

268 Copyright, Designs and Patents Act 1988 (c. 48) Part VI – Patents

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Licences of right in respect of certain patents

293 Restriction of acts authorised by certain licences.

In paragraph 4(2)(c) of Schedule 1 to the M45Patents Act 1977 (licences to be available as of right where term of existing patent extended), at the end insert “, but subject to paragraph 4A below”, and after that paragraph insert—

“4A (1) If the proprietor of a patent for an invention which is a product files a declaration with the Patent Office in accordance with this paragraph, the licences to which persons are entitled by virtue of paragraph 4(2)(c) above shall not extend to a use of the product which is excepted by or under this paragraph.

(2) Pharmaceutical use is excepted, that is— (a) use as a medicinal product within the meaning of the Medicines

Act 1968, and (b) the doing of any other act mentioned in section 60(1)(a) above with

a view to such use.

(3) The Secretary of State may by order except such other uses as he thinks fit; and an order may—

(a) specify as an excepted use any act mentioned in section 60(1)(a) above, and

(b) make different provision with respect to acts done in different circumstances or for different purposes.

(4) For the purposes of this paragraph the question what uses are excepted, so far as that depends on—

(a) orders under section 130 of the Medicines Act 1968 (meaning of “medicinal product”), or

(b) orders under sub-paragraph (3) above, shall be determined in relation to a patent at the beginning of the sixteenth year of the patent.

(5) A declaration under this paragraph shall be in the prescribed form and shall be filed in the prescribed manner and within the prescribed time limits.

(6) A declaration may not be filed— (a) in respect of a patent which has at the commencement of

section 293 of the Copyright, Designs and Patents Act 1988 passed the end of its fifteenth year; or

(b) if at the date of filing there is— (i) an existing licence for any description of excepted use of

the product, or (ii) an outstanding application under section 46(3)(a) or (b)

above for the settlement by the comptroller of the terms of a licence for any description of excepted use of the product,

and, in either case, the licence took or is to take effect at or after the end of the sixteenth year of the patent.

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(7) Where a declaration has been filed under this paragraph in respect of a patent—

(a) section 46(3)(c) above (restriction of remedies for infringement where licences available as of right) does not apply to an infringement of the patent in so far as it consists of the excepted use of the product after the filing of the declaration; and

(b) section 46(3)(d) above (abatement of renewal fee if licences available as of right) does not apply to the patent.”.

Marginal Citations M45 1977 c. 37.

294 When application may be made for settlement of terms of licence.

In Schedule 1 to the M46Patents Act 1977, after the paragraph inserted by section 293 above, insert—

“4B (1) An application under section 46(3)(a) or (b) above for the settlement by the comptroller of the terms on which a person is entitled to a licence by virtue of paragraph 4(2)(c) above is ineffective if made before the beginning of the sixteenth year of the patent.

(2) This paragraph applies to applications made after the commencement of section 294 of the Copyright, Designs and Patents Act 1988 and to any application made before the commencement of that section in respect of a patent which has not at the commencement of that section passed the end of its fifteenth year.”.

Marginal Citations M46 1977 c. 37.

Patents: miscellaneous amendments

295 Patents: miscellaneous amendments.

The M47Patents Act 1949 and the M48Patents Act 1977 are amended in accordance with Schedule 5.

Marginal Citations M47 1949 c. 87. M48 1977 c. 37.

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PART VII

MISCELLANEOUS AND GENERAL

[F740Circumvention of protection measures]

Textual Amendments F740 Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The

Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 24(1) (with regs. 31-40)

[F741296 Devices designed to circumvent copy-protection.

(1) This section applies where— (a) a technical device has been applied to a computer program; and (b) a person (A) knowing or having reason to believe that it will be used to make

infringing copies— (i) manufactures for sale or hire, imports, distributes, sells or lets for

hire, offers or exposes for sale or hire, advertises for sale or hire or has in his possession for commercial purposes any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of the technical device; or

(ii) publishes information intended to enable or assist persons to remove or circumvent the technical device.

(2) The following persons have the same rights against A as a copyright owner has in respect of an infringement of copyright—

(a) a person— (i) issuing to the public copies of, or

(ii) communicating to the public, the computer program to which the technical device has been applied;

(b) the copyright owner or his exclusive licensee, if he is not the person specified in paragraph (a);

(c) the owner or exclusive licensee of any intellectual property right in the technical device applied to the computer program.

(3) The rights conferred by subsection (2) are concurrent, and sections 101(3) and 102(1) to (4) apply, in proceedings under this section, in relation to persons with concurrent rights as they apply, in proceedings mentioned in those provisions, in relation to a copyright owner and exclusive licensee with concurrent rights.

(4) Further, the persons in subsection (2) have the same rights under section 99 or 100 (delivery up or seizure of certain articles) in relation to any such means as is referred to in subsection (1) which a person has in his possession, custody or control with the intention that it should be used to facilitate the unauthorised removal or circumvention of any technical device which has been applied to a computer program, as a copyright owner has in relation to an infringing copy.

(5) The rights conferred by subsection (4) are concurrent, and section 102(5) shall apply, as respects anything done under section 99 or 100 by virtue of subsection (4), in relation to persons with concurrent rights as it applies, as respects anything done

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under section 99 or 100, in relation to a copyright owner and exclusive licensee with concurrent rights.

(6) In this section references to a technical device in relation to a computer program are to any device intended to prevent or restrict acts that are not authorised by the copyright owner of that computer program and are restricted by copyright.

(7) The following provisions apply in relation to proceedings under this section as in relation to proceedings under Part 1 (copyright)—

(a) sections 104 to 106 of this Act (presumptions as to certain matters relating to copyright); and

(b) section 72 of the [F742Senior Courts Act 1981], section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self- incrimination in certain proceedings relating to intellectual property);

and section 114 of this Act applies, with the necessary modifications, in relation to the disposal of anything delivered up or seized by virtue of subsection (4).

(8) Expressions used in this section which are defined for the purposes of Part 1 of this Act (copyright) have the same meaning as in that Part.]

Textual Amendments F741 Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The

Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 24(1) (with regs. 31-40) F742 S. 296(7)(b): words wherever they occur in any enactment substituted (1.10.2009) by virtue of

Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 1(2); S.I. 2009/1604, art. 2

[F743296ZACircumvention of technological measures

(1) This section applies where— (a) effective technological measures have been applied to a copyright work other

than a computer program; and (b) a person (B) does anything which circumvents those measures knowing, or

with reasonable grounds to know, that he is pursuing that objective.

(2) This section does not apply where a person, for the purposes of research into cryptography, does anything which circumvents effective technological measures unless in so doing, or in issuing information derived from that research, he affects prejudicially the rights of the copyright owner.

(3) The following persons have the same rights against B as a copyright owner has in respect of an infringement of copyright—

(a) a person— (i) issuing to the public copies of, or

(ii) communicating to the public, the work to which effective technological measures have been applied; and

(b) the copyright owner or his exclusive licensee, if he is not the person specified in paragraph (a).

(4) The rights conferred by subsection (3) are concurrent, and sections 101(3) and 102(1) to (4) apply, in proceedings under this section, in relation to persons with concurrent

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rights as they apply, in proceedings mentioned in those provisions, in relation to a copyright owner and exclusive licensee with concurrent rights.

(5) The following provisions apply in relation to proceedings under this section as in relation to proceedings under Part 1 (copyright)—

(a) sections 104 to 106 of this Act (presumptions as to certain matters relating to copyright); and

(b) section 72 of the [F744Senior Courts Act 1981], section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self- incrimination in certain proceedings relating to intellectual property).

(6) Subsections (1) to (4) and (5)(b) and any other provision of this Act as it has effect for the purposes of those subsections apply, with any necessary adaptations, to rights in performances, publication right and database right.

(7) The provisions of regulation 22 (presumptions relevant to database right) of the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) apply in proceedings brought by virtue of this section in relation to database right.

Textual Amendments F743 Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The

Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 24(1) (with regs. 31-40) F744 S. 296ZA(5)(b): words wherever they occur in any enactment substituted (1.10.2009) by virtue of

Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 1(2); S.I. 2009/1604, art. 2

296ZB Devices and services designed to circumvent technological measures

(1) A person commits an offence if he— (a) manufactures for sale or hire, or (b) imports otherwise than for his private and domestic use, or (c) in the course of a business—

(i) sells or lets for hire, or (ii) offers or exposes for sale or hire, or

(iii) advertises for sale or hire, or (iv) possesses, or (v) distributes, or

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

any device, product or component which is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures.

(2) A person commits an offence if he provides, promotes, advertises or markets— (a) in the course of a business, or (b) otherwise than in the course of a business to such an extent as to affect

prejudicially the copyright owner, a service the purpose of which is to enable or facilitate the circumvention of effective technological measures.

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(3) Subsections (1) and (2) do not make unlawful anything done by, or on behalf of, law enforcement agencies or any of the intelligence services—

(a) in the interests of national security; or (b) for the purpose of the prevention or detection of crime, the investigation of an

offence, or the conduct of a prosecution, and in this subsection “ intelligence services ” has the meaning given in section 81 of the Regulation of Investigatory Powers Act 2000.

(4) A person guilty of an offence under subsection (1) or (2) is liable— (a) on summary conviction, to imprisonment for a term not exceeding three

months, or to a fine not exceeding the statutory maximum, or both; (b) on conviction on indictment to a fine or imprisonment for a term not exceeding

two years, or both.

(5) It is a defence to any prosecution for an offence under this section for the defendant to prove that he did not know, and had no reasonable ground for believing, that—

(a) the device, product or component; or (b) the service,

enabled or facilitated the circumvention of effective technological measures.

Textual Amendments F743 Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The

Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 24(1) (with regs. 31-40)

296ZC Devices and services designed to circumvent technological measures: search warrants and forfeiture

(1) The provisions of sections 297B (search warrants), 297C (forfeiture of unauthorised decoders: England and Wales or Northern Ireland) and 297D (forfeiture of unauthorised decoders: Scotland) apply to offences under section 296ZB with the following modifications.

(2) In section 297B the reference to an offence under section 297A(1) shall be construed as a reference to an offence under section 296ZB(1) or (2).

(3) In sections 297C(2)(a) and 297D(15) the references to an offence under section 297A(1) shall be construed as a reference to an offence under section 296ZB(1).

(4) In sections 297C and 297D references to unauthorised decoders shall be construed as references to devices, products or components for the purpose of circumventing effective technological measures.

Textual Amendments F743 Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The

Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 24(1) (with regs. 31-40)

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296ZD Rights and remedies in respect of devices and services designed to circumvent technological measures

(1) This section applies where— (a) effective technological measures have been applied to a copyright work other

than a computer program; and (b) a person (C) manufactures, imports, distributes, sells or lets for hire, offers or

exposes for sale or hire, advertises for sale or hire, or has in his possession for commercial purposes any device, product or component, or provides services which—

(i) are promoted, advertised or marketed for the purpose of the circumvention of, or

(ii) have only a limited commercially significant purpose or use other than to circumvent, or

(iii) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of,

those measures.

(2) The following persons have the same rights against C as a copyright owner has in respect of an infringement of copyright—

(a) a person— (i) issuing to the public copies of, or

(ii) communicating to the public, the work to which effective technological measures have been applied;

(b) the copyright owner or his exclusive licensee, if he is not the person specified in paragraph (a); and

(c) the owner or exclusive licensee of any intellectual property right in the effective technological measures applied to the work.

(3) The rights conferred by subsection (2) are concurrent, and sections 101(3) and 102(1) to (4) apply, in proceedings under this section, in relation to persons with concurrent rights as they apply, in proceedings mentioned in those provisions, in relation to a copyright owner and exclusive licensee with concurrent rights.

(4) Further, the persons in subsection (2) have the same rights under section 99 or 100 (delivery up or seizure of certain articles) in relation to any such device, product or component which a person has in his possession, custody or control with the intention that it should be used to circumvent effective technological measures, as a copyright owner has in relation to any infringing copy.

(5) The rights conferred by subsection (4) are concurrent, and section 102(5) shall apply, as respects anything done under section 99 or 100 by virtue of subsection (4), in relation to persons with concurrent rights as it applies, as respects anything done under section 99 or 100, in relation to a copyright owner and exclusive licensee with concurrent rights.

(6) The following provisions apply in relation to proceedings under this section as in relation to proceedings under Part 1 (copyright)—

(a) sections 104 to 106 of this Act (presumptions as to certain matters relating to copyright); and

(b) section 72 of the [F745Senior Courts Act 1981], section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the

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Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self- incrimination in certain proceedings relating to intellectual property);

and section 114 of this Act applies, with the necessary modifications, in relation to the disposal of anything delivered up or seized by virtue of subsection (4).

(7) In section 97(1) (innocent infringement of copyright) as it applies to proceedings for infringement of the rights conferred by this section, the reference to the defendant not knowing or having reason to believe that copyright subsisted in the work shall be construed as a reference to his not knowing or having reason to believe that his acts enabled or facilitated an infringement of copyright.

(8) Subsections (1) to (5), (6)(b) and (7) and any other provision of this Act as it has effect for the purposes of those subsections apply, with any necessary adaptations, to rights in performances, publication right and database right.

(9) The provisions of regulation 22 (presumptions relevant to database right) of the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) apply in proceedings brought by virtue of this section in relation to database right.

Textual Amendments F743 Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The

Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 24(1) (with regs. 31-40) F745 S. 296ZD(6)(b): words wherever they occur in any enactment substituted (1.10.2009) by virtue of

Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 1(2); S.I. 2009/1604, art. 2

296ZE Remedy where effective technological measures prevent permitted acts

(1) In this section— [F746“ Marrakesh beneficiary” means a person who—

(a) is blind, (b) has a visual impairment which cannot be improved so as to give the person

visual function substantially equivalent to that of a person who has no such impairment, and who is, as a result, unable to read printed works to substantially the same degree as a person without such an impairment,

(c) has a perceptual or reading disability and is, as a result, unable to read printed works to substantially the same degree as a person without such disability, or

(d) is otherwise unable, due to a physical disability, to hold or manipulate a book or to focus or move their eyes to the extent that would normally be acceptable for reading;]

[F746“Marrakesh work” means a work in the form of a book, journal, newspaper, magazine or other kind of writing, notation, including sheet music, and related illustrations, in any media, including in audio form such as audiobooks and in digital format, which is protected by copyright, related rights or database rights and which is published or otherwise lawfully made publicly available;]

“ permitted act ” means an act which may be done in relation to copyright works, notwithstanding the subsistence of copyright, by virtue of a provision of this Act listed in Part 1 of Schedule 5A;

“ voluntary measure or agreement ” means—

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(a) any measure taken voluntarily by a copyright owner, his exclusive licensee or a person issuing copies of, or communicating to the public, a work other than a computer program, or

(b) any agreement between a copyright owner, his exclusive licensee or a person issuing copies of, or communicating to the public, a work other than a computer program and another party,

the effect of which is to enable a person to carry out a permitted act.

(2) Where the application of any effective technological measure to a copyright work other than a computer program prevents a person from carrying out a permitted act in relation to that work then that person or a person being a representative of a class of persons prevented from carrying out a permitted act may issue a notice of complaint to the Secretary of State.

(3) Following receipt of a notice of complaint, the Secretary of State may give to the owner of that copyright work or an exclusive licensee such directions as appear to the Secretary of State to be requisite or expedient for the purpose of—

(a) establishing whether any voluntary measure or agreement relevant to the copyright work the subject of the complaint subsists; or

(b) (where it is established there is no subsisting voluntary measure or agreement) ensuring that the owner or exclusive licensee of that copyright work makes available to the complainant the means of carrying out the permitted act the subject of the complaint to the extent necessary to so benefit from that permitted act.

(4) The Secretary of State may also give directions— (a) as to the form and manner in which a notice of complaint in subsection (2)

may be delivered to him; (b) as to the form and manner in which evidence of any voluntary measure or

agreement may be delivered to him; and (c) generally as to the procedure to be followed in relation to a complaint made

under this section; and shall publish directions given under this subsection in such manner as in his opinion will secure adequate publicity for them.

(5) It shall be the duty of any person to whom a direction is given under subsection (3) (a) or (b) to give effect to that direction.

(6) The obligation to comply with a direction given under subsection (3)(b) is a duty owed to the complainant or, where the complaint is made by a representative of a class of persons, to that representative and to each person in the class represented; and a breach of the duty is actionable accordingly (subject to the defences and other incidents applying to actions for breach of statutory duty).

(7) Any direction under this section may be varied or revoked by a subsequent direction under this section.

(8) Any direction given under this section shall be in writing.

(9) [F747Subject to subsection (9A),] This section does not apply to copyright works made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.

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[ F748(9A)

But this section does apply where the application of any effective technological measure to a Marrakesh work prevents the making of an accessible copy of that work under sections 31A, 31B or 31BA, or paragraphs 3A, 3B or 3C of Schedule 2, for the benefit of a Marrakesh beneficiary.]

(10) This section applies only where a complainant has lawful access to the protected copyright work, or where the complainant is a representative of a class of persons, where the class of persons have lawful access to the work.

(11) Subsections (1) to (10) apply with any necessary adaptations to— (a) rights in performances, and in this context the expression “ permitted act ”

refers to an act that may be done by virtue of a provision of this Act listed in Part 2 of Schedule 5A;

(b) database right, and in this context the expression “ permitted act ” refers to an act that may be done by virtue of a provision of this Act listed in Part 3 of Schedule 5A; and

(c) publication right.

Textual Amendments F743 Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The

Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 24(1) (with regs. 31-40) F746 Words in s. 296ZE(1) inserted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 10(2) F747 Words in s. 296ZE(9) inserted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty

etc.) (Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 10(3) F748 S. 296ZE(9A) inserted (11.10.2018) by The Copyright and Related Rights (Marrakesh Treaty etc.)

(Amendment) Regulations 2018 (S.I. 2018/995), regs. 1(2), 10(4)

[ F749296ZEA.

Remedy where restrictive measures prevent or restrict personal copying

(1) This section applies where an individual is prevented from making a personal copy of a copyright work, or is restricted in the number of personal copies of it which may be made, because of a restrictive measure applied by or on behalf of the copyright owner.

(2) That individual, or a person being a representative of a class of such individuals, may issue a notice of complaint to the Secretary of State.

(3) Following receipt of a notice of complaint, the Secretary of State may give to the owner of that copyright work or an exclusive licensee such directions as appear to the Secretary of State to be requisite or expedient for the purpose of—

(a) establishing whether any voluntary measure or agreement relevant to the copyright work subsists, or

(b) (where it is established there is no subsisting voluntary measure or agreement) ensuring that the owner or exclusive licensee of that copyright work makes available to the complainant or the class of individuals represented by the complainant the means of benefiting from section 28B to the extent necessary to benefit from that section.

(4) In deciding whether to give such directions, the Secretary of State must consider whether the restrictive measure unreasonably prevents or restricts the making of personal copies, in particular having regard to—

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(a) the right of the copyright owner to adopt adequate measures limiting the number of personal copies which may be made, and

(b) whether other copies of the work are commercially available on reasonable terms by or with the authority of the copyright owner in a form which does not prevent or unreasonably restrict the making of personal copies.

(5) The Secretary of State may also give directions— (a) as to the form and manner in which a notice of complaint in subsection (2)

may be delivered, (b) as to the form and manner in which evidence of any voluntary measure or

agreement may be delivered, and (c) generally as to the procedure to be followed in relation to a complaint made

under this section, and shall publish directions given under this subsection in such manner as the Secretary of State thinks will secure adequate publicity for them.

(6) Subsections (5) to (8) of section 296ZE— (a) apply to directions under subsection (3)(a) or (b) as they apply to directions

under section 296ZE(3)(a) or (b), and (b) apply to directions under subsection (5) as they apply to directions under

section 296ZE(4).

(7) This section does not apply to copyright works made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.

(8) In this section— “restrictive measure” means any technology, device or component

designed, in the normal course of its operation, to protect the rights of copyright owners, which has the effect of preventing a copyright work from being copied (in whole or in part) or restricting the number of copies which may be made;

“personal copy” means a copy of a copyright work which may be made under section 28B;

“voluntary measure or agreement” has the same meaning as in section 296ZE, except that the reference to carrying out a permitted act is to be read as a reference to making a personal copy.

(9) Subsections (1) to (8) apply with any necessary adaptations to— (a) rights in performances, and in this context “personal copy” refers to a copy

of a recording of a performance which may be made under paragraph 1B of Schedule 2 without infringing the rights conferred by Chapter 2 of Part II (rights in performances), and

(b) publication right.]

Textual Amendments F743 Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The

Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 24(1) (with regs. 31-40) F749 S. 296ZEA inserted (1.10.2014) by The Copyright and Rights in Performances (Personal Copies

for Private Use) Regulations 2014 (S.I. 2014/2361), regs. 1(1), 3(2) (with reg. 5) (but note that the amending S.I. was quashed with prospective effect by the High Court in the case of R (British

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Academy of Songwriters, Composers and Authors and others) v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin), 17 July 2015)

296ZF Interpretation of sections 296ZA to [F750296ZEA]

(1) In sections 296ZA to 296ZE, “technological measures” are any technology, device or component which is designed, in the normal course of its operation, to protect a copyright work other than a computer program.

(2) Such measures are “effective” if the use of the work is controlled by the copyright owner through—

(a) an access control or protection process such as encryption, scrambling or other transformation of the work, or

(b) a copy control mechanism, which achieves the intended protection.

(3) In this section, the reference to— (a) protection of a work is to the prevention or restriction of acts that are not

authorised by the copyright owner of that work and are restricted by copyright; and

(b) use of a work does not extend to any use of the work that is outside the scope of the acts restricted by copyright.

(4) Expressions used in sections 296ZA to [F751296ZEA] which are defined for the purposes of Part 1 of this Act (copyright) have the same meaning as in that Part.]

Textual Amendments F743 Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The

Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 24(1) (with regs. 31-40) F750 Word in s. 296ZF heading substituted (1.10.2014) by The Copyright and Rights in Performances

(Personal Copies for Private Use) Regulations 2014 (S.I. 2014/2361), regs. 1(1), 4(3) (with reg. 5) (but note that the amending S.I. was quashed with prospective effect by the High Court in the case of R (British Academy of Songwriters, Composers and Authors and others) v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin), 17 July 2015)

F751 Word in s. 296ZF(4) substituted (1.10.2014) by The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 (S.I. 2014/2361), regs. 1(1), 4(3) (with reg. 5) (but note that the amending S.I. was quashed with prospective effect by the High Court in the case of R (British Academy of Songwriters, Composers and Authors and others) v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin), 17 July 2015)

[F752Rights management information

Textual Amendments F752 S. 296ZG and cross-heading inserted (31.10.2003) by The Copyright and Related Rights Regulations

2003 (S.I. 2003/2498), reg. 25 (with regs. 31-40)

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296ZG Electronic rights management information

(1) This section applies where a person (D), knowingly and without authority, removes or alters electronic rights management information which—

(a) is associated with a copy of a copyright work, or (b) appears in connection with the communication to the public of a copyright

work, and where D knows, or has reason to believe, that by so doing he is inducing, enabling, facilitating or concealing an infringement of copyright.

(2) This section also applies where a person (E), knowingly and without authority, distributes, imports for distribution or communicates to the public copies of a copyright work from which electronic rights management information—

(a) associated with the copies, or (b) appearing in connection with the communication to the public of the work,

has been removed or altered without authority and where E knows, or has reason to believe, that by so doing he is inducing, enabling, facilitating or concealing an infringement of copyright.

(3) A person issuing to the public copies of, or communicating, the work to the public, has the same rights against D and E as a copyright owner has in respect of an infringement of copyright.

(4) The copyright owner or his exclusive licensee, if he is not the person issuing to the public copies of, or communicating, the work to the public, also has the same rights against D and E as he has in respect of an infringement of copyright.

(5) The rights conferred by subsections (3) and (4) are concurrent, and sections 101(3) and 102(1) to (4) apply, in proceedings under this section, in relation to persons with concurrent rights as they apply, in proceedings mentioned in those provisions, in relation to a copyright owner and exclusive licensee with concurrent rights.

(6) The following provisions apply in relation to proceedings under this section as in relation to proceedings under Part 1 (copyright)—

(a) sections 104 to 106 of this Act (presumptions as to certain matters relating to copyright); and

(b) section 72 of the [F753Senior Courts Act 1981], section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self- incrimination in certain proceedings relating to intellectual property).

(7) In this section— (a) expressions which are defined for the purposes of Part 1 of this Act (copyright)

have the same meaning as in that Part; and (b) “ rights management information ” means any information provided by the

copyright owner or the holder of any right under copyright which identifies the work, the author, the copyright owner or the holder of any intellectual property rights, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information.

(8) Subsections (1) to (5) and (6)(b), and any other provision of this Act as it has effect for the purposes of those subsections, apply, with any necessary adaptations, to rights in performances, publication right and database right.

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(9) The provisions of regulation 22 (presumptions relevant to database right) of the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) apply in proceedings brought by virtue of this section in relation to database right.]

Textual Amendments F753 S. 296ZG(6)(b): words wherever they occur in any enactment substituted (1.10.2009) by virtue of

Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 1(2); S.I. 2009/1604, art. 2

[F754Computer programs

Textual Amendments F754 Cross heading and s. 296A inserted (1.1.1993) by S.I. 1992/3233, reg.11

F755296AAvoidance of certain terms.

(1) Where a person has the use of a computer program under an agreement, any term or condition in the agreement shall be void in so far as it purports to prohibit or restrict—

(a) the making of any back up copy of the program which it is necessary for him to have for the purposes of the agreed use;

(b) where the conditions in section 50B(2) are met, the decompiling of the program; or

[F756(c) the observing, studying or testing of the functioning of the program in accordance with section 50BA.]

(2) In this section, decompile, in relation to a computer program, has the same meaning as in section 50B]

Textual Amendments F755 S. 296A inserted (1.1.1993) by S.I. 1992/3233, reg.11. F756 S. 296A(1)(c) substituted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 15(4) (with regs. 31-40)

F757[Databases]

Textual Amendments F757 S. 296B and crossheading inserted (1.1.1998) by S.I. 1997/3032, reg. 10 (with Pt. IV)

296B [F758 Avoidance of certain terms relating to databases]

Where under an agreement a person has a right to use a database or part of a database, any term or condition in the agreement shall be void in so far as it purports to prohibit or restrict the performance of any act which would but for section 50D infringe the copyright in the database.

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Textual Amendments F758 S. 296B inserted (1.1.1998) by S.I. 1997/3032, reg. 10 (with Pt. IV)

Fraudulent reception of transmissions

297 Offence of fraudulently receiving programmes.

(1) A person who dishonestly receives a programme included in a broadcasting F759. . . service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

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

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

Textual Amendments F759 Words in s. 297(1) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40)

[F760297AUnauthorised decoders.

(1) A person commits an offence if he— (a) makes, imports, distributes, sells or lets for hire or offers or exposes for sale

or hire any unauthorised decoder; (b) has in his possession for commercial purposes any unauthorised decoder; (c) instals, maintains or replaces for commercial purposes any unauthorised

decoder; or (d) advertises any unauthorised decoder for sale or hire or otherwise promotes

any unauthorised decoder by means of commercial communications.

(2) A person guilty of an offence under subsection (1) is liable— [

F761(a) on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both;]]

(b) on conviction on indictment, to imprisonment for a term not exceeding [F762ten] years, or to a fine, or to both.

(3) It is a defence to any prosecution for an offence under this section for the defendant to prove that he did not know, and had no reasonable ground for believing, that the decoder was an unauthorised decoder.

(4) In this section—

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“apparatus” includes any device, component or electronic data (including software); “conditional access technology” means any technical measure or arrangement whereby access to encrypted transmissions in an intelligbile form is made conditional on prior individual authorisation; “decoder” means any apparatus which is designed or adapted to enable (whether on its own or with any other apparatus) an encrypted transmission to be decoded; “encrypted” includes subjected to scrambling or the operation of cryptographic envelopes, electronic locks, passwords or any other analogous application; “transmission” means—

(a) any programme included in a broadcasting F763. . . service which is provided from a place in the United Kingdom or any other member State; or

(b) an information society service (within the meaning of Directive 98/34/ EC of the European Parliament and of the Council of 22nd June 1998 F764, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20th July 1998 F765) which is provided from a place in the United Kingdom or any other member State; and

“unauthorised”, in relation to a decoder, means that the decoder is designed or adapted to enable an encrypted transmission, or any service of which it forms part, to be accessed in an intelligible form without payment of the fee (however imposed) which the person making the transmission, or on whose behalf it is made, charges for accessing the transmission or service (whether by the circumvention of any conditional access technology related to the transmission or service or by any other means).

Textual Amendments F760 S. 297A substituted (28.5.2000) by S.I. 2000/1175, art. 2(2) F761 S. 297A(2)(a) substituted (20.11.2002) by 2002 c. 25, s. 1(4)(a)(5); S.I. 2002/2749, art. 2 F762 Word in s. 297A(2)(b) substituted (20.11.2002) by 2002 c. 25, s. 1(4)(b)(5); S.I. 2002/2749, art. 2 F763 Words in s. 297A(4) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F764 O.J. L204, 21.7.98, p.37 F765 O.J. L217, 5.8.98, p.18

[F766297BSearch warrants

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

(a) that an offence under section 297A(1) has been or is about to be committed in any premises, and

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

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

(2) The power conferred by subsection (1) does not, in England and Wales, extend to authorising a search for material of the kinds mentioned in section 9(2) of the Police

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and Criminal Evidence Act 1984 (c. 60) (certain classes of personal or confidential material).

(3) A warrant under subsection (1)— (a) may authorise persons to accompany any constable executing the warrant, and (b) remains in force for [F767three months] from the date of its issue.

(4) In executing a warrant issued under subsection (1) a constable may seize an article if he reasonably believes that it is evidence that any offence under section 297A(1) has been or is about to be committed.

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

Textual Amendments F766 S. 297B inserted (20.11.2002) by 2002 c. 25, s. 2(4); S.I. 2002/2749, art. 2 F767 Words in s. 297B(3)(b) substituted (1.1.2006) by Serious Organised Crime and Police Act 2005

(c. 15), ss. 174(1), 178, Sch. 16 para. 6(4); S.I. 2004/3495, art. 2(1)(s) (subject to art. 2(2))

[F768297CForfeiture of unauthorised decoders: England and Wales or Northern Ireland

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

(2) For the purposes of this section “relevant offence” means— (a) an offence under section 297A(1) (criminal liability for making, importing,

etc. unauthorised decoders), (b) an offence under the Trade Descriptions Act 1968,

[ F769(ba)

an offence under the Business Protection from Misleading Marketing Regulations 2008,

(bb) an offence under the Consumer Protection from Unfair Trading Regulations 2008, or]

(c) an offence involving dishonesty or deception.

(3) An application under this section may be made— (a) where proceedings have been brought in any court for a relevant offence

relating to some or all of the unauthorised decoders, to that court, or (b) where no application for the forfeiture of the unauthorised decoders has been

made under paragraph (a), by way of complaint to a magistrates’ court.

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

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

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

(a) in England and Wales, to the Crown Court, or (b) in Northern Ireland, to the county court.

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

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

(9) On making an order under this section the court may direct that the unauthorised decoders to which the order relates shall (instead of being destroyed) be forfeited to a person who has rights or remedies under section 298 in relation to the unauthorised decoders in question, or dealt with in such other way as the court considers appropriate.]

Textual Amendments F768 Ss. 297C, 297D inserted (20.11.2002) by 2002 c. 25, s. 5; S.I. 2002/2749, art. 2 F769 S. 297C(2)(ba)(bb) and word substituted (26.5.2008) for word by The Consumer Protection from

Unfair Trading Regulations 2008 (S.I. 2008/1277), reg. 1, Sch. 2 para. 44 (with reg. 28(2)(3))

F770297DForfeiture of unauthorised decoders: Scotland

(1) In Scotland the court may make an order under this section for the forfeiture of unauthorised decoders.

(2) An order under this section may be made— (a) on an application by the procurator-fiscal made in the manner specified in

section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46), or (b) where a person is convicted of a relevant offence, in addition to any other

penalty which the court may impose.

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

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

(5) The procurator-fiscal making the application under subsection (2)(a) shall serve on any person appearing to him to be the owner of, or otherwise to have an interest in, the unauthorised decoders to which the application relates a copy of the application,

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together with a notice giving him the opportunity to appear at the hearing of the application to show cause why the unauthorised decoders should not be forfeited.

(6) Service under subsection (5) shall be carried out, and such service may be proved, in the manner specified for citation of an accused in summary proceedings under the Criminal Procedure (Scotland) Act 1995 (c. 46).

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

(8) The court shall not make an order following an application under subsection (2)(a)— (a) if any person on whom notice is served under subsection (5) does not appear,

unless service of the notice on that person is proved, or (b) if no notice under subsection (5) has been served, unless the court is satisfied

that in the circumstances it was reasonable not to serve such notice.

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

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

(11) An order following an application under subsection (2)(a) shall not take effect— (a) until the end of the period of 21 days beginning with the day after the day on

which the order is made, or (b) if an appeal is made under subsection (9) above within that period, until the

appeal is determined or abandoned.

(12) An order under subsection (2)(b) shall not take effect— (a) until the end of the period within which an appeal against the order could be

brought under the Criminal Procedure (Scotland) Act 1995 (c. 46), or (b) if an appeal is made within that period, until the appeal is determined or

abandoned.

(13) Subject to subsection (14), where any unauthorised decoders are forfeited under this section they shall be destroyed in accordance with such directions as the court may give.

(14) On making an order under this section the court may direct that the unauthorised decoders to which the order relates shall (instead of being destroyed) be forfeited to a person who has rights or remedies under section 298 in relation to the unauthorised decoders in question, or dealt with in such other way as the court considers appropriate.

(15) For the purposes of this section— [F771“relevant offence” means—

(a) an offence under section 297A(1) (criminal liability for making, importing, etc unauthorised decoders),

(b) an offence under the Trade Descriptions Act 1968,

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

(d) an offence under the Consumer Protection from Unfair Trading Regulations 2008, or

(e) any offence involving dishonesty or deception;] “the court” means—

(a) in relation to an order made on an application under subsection (2)(a), the sheriff, and

(b) in relation to an order made under subsection (2)(b), the court which imposed the penalty.

Textual Amendments F770 Ss. 297C, 297D inserted (20.11.2002) by 2002 c. 25, s. 5; S.I. 2002/2749, art. 2 F771 Words in s. 297D(15) substituted (26.5.2008) by The Consumer Protection from Unfair Trading

Regulations 2008 (S.I. 2008/1277), reg. 1, Sch. 2 para. 45 (with reg. 28(2)(3))

[F772298 Rights and remedies in respect of apparatus, &c. for unauthorised reception of transmissions.

(1) A person who— (a) makes charges for the reception of programmes included in a broadcasting

F773. . . service provided from a place in the United Kingdom or any other member State,

(b) sends encrypted tranmissions of any other description from a place in the United Kingdom or any other member State, or

(c) provides conditional access services from a place in the United Kingdom or any other member State,

is entitled to the following rights and remedies.

(2) He has the same rights and remedies against a person— (a) who—

(i) makes, imports, distributes, sells or lets for hire, offers or exposes for sale or hire, or advertises for sale or hire,

(ii) has in his possession for commercial purposes, or (iii) instals, maintains or replaces for commercial purposes,

any apparatus designed or adapted to enable or assist persons to access the programmes or other transmissions or circumvent conditional access technology related to the programmes or other transmissions when they are not entitled to do so, or

(b) who publishes or otherwise promotes by means of commercial communications any information which is calculated to enable or assist persons to access the programmes or other transmissions or circumvent conditional access technology related to the programmes or other transmissions when they are not entitled to do so,

as a copyright owner has in respect of an infringement of copyright.

288 Copyright, Designs and Patents Act 1988 (c. 48) Part VII – Miscellaneous and General

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(3) Further, he has the same rights under section 99 or 100 (delivery up or seizure of certain articles) in relation to any such apparatus as a copyright owner has in relation to an infringing copy.

(4) Section 72 of the M49[F774Senior Courts Act 1981], section 15 of the M50Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the M51Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self-incrimination in certain proceedings relating to intellectual property) apply to proceedings under this section as to proceedings under Part I of this Act (copyright).

(5) In section 97(1) (innocent infringement of copyright) as it applies to proceedings for infringement of the rights conferred by this section, the reference to the defendant not knowing or having reason to believe that copyright subsisted in the work shall be construed as a reference to his not knowing or having reason to believe that his acts infringed the rights conferred by this section.

(6) Section 114 applies, with the necessary modifications, in relation to the disposal of anything delivered up or seized by virtue of subsection (3) above.

(7) In this section “apparatus”, “conditional access technology” and “encrypted” have the same meanings as in section 297A, “transmission” includes transmissions as defined in that section and “conditional access services” means services comprising the provision of conditional access technology.]

Textual Amendments F772 S. 298 substituted (25.5.2000) by S.I. 2000/1175, art. 2(3) F773 Words in s. 298(1)(a) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003

(S.I. 2003/2498), reg. 2(2), Sch. 2 (with regs. 31-40) F774 S. 298(4): words wherever they occur in any enactment substituted (1.10.2009) by virtue of

Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 1(2); S.I. 2009/1604, art. 2

Marginal Citations M49 1981 c. 54. M50 1985 c. 37. M51 1978 c. 23.

299 Supplementary provisions as to fraudulent reception.

(1) Her Majesty may by Order in Council— (a) provide that section 297 applies in relation to programmes included in services

provided from a country or territory outside the United Kingdom, and (b) provide that section 298 applies in relation to such programmes and to

encrypted transmissions sent from such a country or territory. F775(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) A statutory instrument containing an Order in Council under subsection (1) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4) Where sections 297 and 298 apply in relation to a broadcasting service F776. . . , they also apply to any service run for the person providing that service, or a person

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providing programmes for that service, which consists wholly or mainly in the sending by means of a telecommunications system of sounds or visual images, or both.

(5) In sections 297 [F777, 297A] and 298, and this section, “programme”[F778and “broadcasting”], and related expressions, have the same meaning as in Part I (copyright).

Textual Amendments F775 S. 299(2) repealed by Broadcasting Act 1990 (c. 42, SIF 96), ss. 179(2)(a), 203(3), Sch. 21 F776 Words in s. 299(4) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 2(2), Sch.