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).
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;
“injunction” means interdict;
“interlocutory relief” means interim remedy; and
“plaintiff” means pursuer.
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 work of joint authorship, or
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 the Scottish Administration , 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;
“national of the United Kingdom” means—
a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas Citizen,
a person who under the British Nationality Act 1981 is a British subject,
a British protected person within the meaning of that Act, or
a body incorporated under the law of any part of the United Kingdom.
“parliamentary proceedings” includes proceedings of the Northern Ireland Assembly of the Scottish Parliament, of the New Northern Ireland Assembly or of the European Parliament and Assembly proceedings within the meaning of section 1(5) of the Government of Wales Act 2006;
“ private study ” does not include any study which is directly or indirectly for a commercial purpose;
“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;
“public library” means a library administered by or on behalf of—
in England and Wales, a library authority within the meaning of the Public Libraries and Museums Act 1964;
in Scotland, a statutory library authority within the meaning of the Public Libraries (Scotland) Act 1955;
in Northern Ireland, an Education and Library Board within the meaning of the Education and Libraries (Northern Ireland) Order 1986;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“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—
for making facsimile copies, or
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—
in the case of a published work, it is published anonymously;
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—
given at the time of the act, and
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—
by or with the licence of the copyright owner, or
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
in pursuance of section 48 (copying, &c of certain material by the Crown);
“ 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 , 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
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)—
accessible 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)
. . . | . . .
archivist (in sections 40A to 43) | section 43A(5)
article (in a periodical) | section 178
artistic work | section 4(1)
assignment (in Scotland) | section 177
author | sections 9 and 10(3)
authorised body (in sections 31B to 31BB) | section 31F(6)
broadcast (and related expressions) | section 6
building | section 4(2)
business | section 178
. . . | . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
collective work | section 178
commencement (in Schedule 1) | paragraph 1(2) of that Schedule
commercial publication | section 175
communication to the public | section 20
computer-generated | section 178
conducted 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
country of origin | section 15A.
the Crown | section 178
Crown copyright | sections 163(2) and 164(3)
curator (in sections 40A to 43) | section 43A(5)
database | section 3A(1)
defendant (in Scotland) | section 177
delivery up (in Scotland) | section 177
disabled 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
excepted sound recording | section 72(1A)
exclusive licence | section 92(1)
the EEA and EEA state | section 172A
existing works (in Schedule 1) | paragraph 1(3) of that Schedule
facsimile copy | section 178
film | section 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 | section 18
joint authorship (work of) | sections 10(1) and (2)
judicial proceedings | section 178
lawful user (in sections 50A to 50C) | section 50A(2).
lending | section 18A(2) to (6)
librarian (in sections 40A to 43 | section 43A(5)
library (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)
museum (in sections 40A to 43) | section 43A(3)
musical work | section 3(1)
national of the United Kingdom | section 178
needletime | section 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
on behalf of (in relation to an educational establishment) | section 174(5)
original (in relation to a database) | section 3A(2)
Parliamentary copyright | sections 165(2) and (7) 166(6) 166A(3) 166B(3) 166C(3) and 166D(3)
parliamentary proceedings | section 178
performance | section 19(2)
photograph | section 4(2)
plaintiff (in Scotland) | section 177
. . . | . . .
. . . | . . .
private study | section 178
producer (in relation to a sound recording or film | section 178.
programme (in the context of broadcasting) | section 6(3)
prospective owner (of copyright) | section 91(2)
public library | section 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 | section 18A(2) to (6)
rental right | section 178.
reprographic copies and repographic copying | section 178
reprographic process | section 178
sculpture | section 4(2)
signed | section 176
sound recording | sections 5A and 135A
sufficient acknowledgement | section 178
sufficient disclaimer | section 178
supply (in sections 31B to 31BB) | section 31F(7)
teacher | section 174(5)
telecommunications system | section 178
terms of payment | section 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)
. . . | . . .
wireless 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
180 Rights conferred on performers and persons having recording rights.
(1) Chapter 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).
(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 . . . 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.
(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 . . . the performance, and
(b) any other right or obligation arising otherwise than under this Part.
(1) A performance is a qualifying performance for the purposes of this Part if it meets any of Conditions A to D.
(2) Condition A is that the performance is given by a qualifying individual.
(3) Condition B is that the performance takes place in a qualifying country.
(4) Condition C is that the performance is included in a sound recording and—
(a) the producer of that sound recording is a qualifying individual or a body incorporated under the law of a qualifying country, or
(b) that sound recording is—
(i) first published in a qualifying country, or
(ii) published in a qualifying country within the period of 30 days beginning with the day on which it is first published.
(5) But Condition C is not met if, or to the extent that, the sound recording in question is a copy taken from a previous sound recording.
(6) Condition D is that—
(a) the performance has not been included in a sound recording,
(b) the performance is broadcast, and
(c) the broadcast is—
(i) made from a qualifying country, or
(ii) made by a broadcasting organisation the headquarters of which are situated in a qualifying country.
(7) In subsection (4)(a), the “producer” of a sound recording means the person who undertakes the arrangements necessary for the making of the sound recording.
182 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, . . . 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, . . . the live performance.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(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.
(1) A performer’s rights are infringed by a person who, without his consent, makes . . . a copy of a recording of the whole or any substantial part of a qualifying performance.
(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 this Chapter as “reproduction right”.
182B 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 UK-EEA area copies not previously put into circulation in the UK-EEA area by or with the consent of the performer, or
(b) the act of putting into circulation outside the UK-EEA area copies not previously put into circulation in the UK-EEA area 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 an EEA state,
except so far as paragraph (a) of subsection (2) applies to putting into circulation in the UK-EEA area copies previously put into circulation outside the UK-EEA area.
(3A) In this section “UK-EEA area” means the United Kingdom and the EEA, taken together.
(4) References in this Part to the issue of copies of a recording of a performance include the issue of the original recording of the live performance.
(5) The right of a performer under this section to authorise or prohibit the issue of copies to the public is referred to in this Chapter as “distribution right”.
182C 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 this 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 or 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 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 this 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.
182CA 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 this Chapter as “making available right.
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
(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 or, 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.
(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.
(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.
183 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) communicates 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.
184 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.
(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.
185 Exclusive recording contracts and persons having recording rights.
(1) In this 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 this 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 this 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.
186 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 . . . .
(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.
187 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) communicates 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).
188 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.
189 Acts permitted notwithstanding rights conferred by this Chapter.
The provisions of Schedule 2 specify acts which may be done notwithstanding the rights conferred by this Chapter, being acts which correspond broadly to certain of those specified in Chapter III of Part I (acts permitted notwithstanding copyright).
190 Power of tribunal to give consent on behalf of performer in certain cases.
(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 the person entitled to the reproduction right for the purposes of—
(a) the provisions of this 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.
(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 the person entitled to the reproduction right, make such order as it thinks fit as to the payment to be made to that person in consideration of consent being given.
(1) The following provisions have effect with respect to the duration of the rights conferred by this Chapter.
(2) The rights conferred by this 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, other than a sound recording, is released, 50 years from the end of the calendar year in which it is released, or
(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 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 the United Kingdom, the duration of the rights conferred by 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 this Chapter shall be as specified in subsections (2) and (3).
(1) The following rights conferred by this Chapter on a performer—
reproduction right (section 182A),
distribution right (section 182B),
rental right and lending right (section 182C),
making available right (section 182CA),
are property rights (“. . . performer’s property rights”).
(2) References in this 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 this 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 this Chapter to the rights owner are to all the owners, so that, in particular, any requirement of the licence of the rights owner requires the licence of all of them.
(1) A performer’s property rights are transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.
(2) An assignment or other transmission of a performer’s property rights may be partial, that is, limited so as to apply—
(a) to one or more, but not all, of the things requiring the consent of the rights owner;
(b) to part, but not the whole, of the period for which the rights are to subsist.
(3) An assignment of a performer’s property rights is not effective unless it is in writing signed by or on behalf of the assignor.
(4) A licence granted by the owner of a performer’s property rights is binding on every successor in title to his interest in the rights, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Chapter to doing anything with, or without, the licence of the rights owner shall be construed accordingly.
191C Prospective 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 this 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).
(1) In this 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.
191E Performer’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.
191F Presumption 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.
191G Right 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.
191H 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 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.
191HA Assignment of performer’s property rights in a sound recording
(1) This section applies where a performer has by 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;
(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
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
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.
(1) A performer who, under an agreement relating to the assignment of rights referred to in section 191HA(1) (an “assignment agreement”), is entitled to a non-recurring payment in consideration of the assignment, is entitled to an annual payment for each relevant period from—
(a) the producer, or
(b) where the producer has granted an exclusive licence of the copyright in the sound recording, the licensee under the exclusive licence (the “exclusive licensee”).
(2) In this section, “relevant period” means—
(a) the period of 12 months beginning at the end of the 50-year period, and
(b) each subsequent period of 12 months beginning with the end of the previous period, until the date on which copyright in the sound recording expires.
(3) The producer or, where relevant, the exclusive licensee gives effect to the entitlement under subsection (1) by remitting to a collecting society for distribution to the performer in accordance with its rules an amount for each relevant period equal to 20% of the gross revenue received during that period in respect of—
(a) the reproduction and issue to the public of copies of the sound recording, and
(b) the making available to the public of the sound recording by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.
(4) The amount required to be remitted under subsection (3) is payable within 6 months of the end of each relevant period and is recoverable by the collecting society as a debt.
(5) Subsection (6) applies where—
(a) the performer makes a written request to the producer or, where relevant, the exclusive licensee for information in that person’s possession or under that person’s control to enable the performer—
(i) to ascertain the amount of the annual payment to which the performer is entitled under subsection (1), or
(ii) to secure its distribution by the collecting society, and
(b) the producer or, where relevant, the exclusive licensee does not supply the information within the period of 90 days beginning with the date of the request.
(6) The performer may apply to the county court, or in Scotland to the sheriff, for an order requiring the producer or, where relevant, the exclusive licensee to supply the information.
(7) An agreement is of no effect in so far as it purports to exclude or restrict the entitlement under subsection (1).
(8) In the event of any dispute as to the amount required to be remitted under subsection (3), the performer may apply to the Copyright Tribunal to determine the amount payable.
(9) Where a performer is entitled under an assignment agreement to recurring payments in consideration of the assignment, the payments must, from the end of the 50-year period, be made in full, regardless of any provision in the agreement which entitles the producer to withhold or deduct sums from the amounts payable.
(10) In this section—
“producer” and “50-year period” each has the same meaning as in section 191HA,
“exclusive licence” has the same meaning as in section 92, and
“collecting society” has the same meaning as in section 191G.
(1) An infringement of a performer’s property rights is actionable by the rights owner.
(2) In an action for infringement of a performer’s property rights all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.
(3) This section has effect subject to the following provisions of this Chapter.
191J Provisions 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.
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(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.
191K Undertaking 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.
(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.
(1) An exclusive licensee has, except against the owner of a performer’s property rights, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment.
(2) His rights and remedies are concurrent with those of the rights owner; and references in the relevant provisions of this Chapter to the rights owner shall be construed accordingly.
(3) In an action brought by an exclusive licensee by virtue of this section a defendant may avail himself of any defence which would have been available to him if the action had been brought by the rights owner.
(1) Where an action for infringement of a performer’s property rights brought by the rights owner or an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the rights owner or, as the case may be, the exclusive licensee may not, without the leave of the court, proceed with the action unless the other is either joined as plaintiff or added as a defendant.
(2) A rights owner or exclusive licensee who is added as a defendant in pursuance of subsection (1) is not liable for any costs in the action unless he takes part in the proceedings.
(3) The above provisions do not affect the granting of interlocutory relief on an application by the rights owner or exclusive licensee alone.
(4) Where an action for infringement of a performer’s property rights is brought which relates (wholly or partly) to an infringement in respect of which the rights owner and an exclusive licensee have or had concurrent rights of action—
(a) the court shall in assessing damages take into account—
(i) the terms of the licence, and
(ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement;
(b) no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement; and
(c) the court shall if an account of profits is directed apportion the profits between them as the court considers just, subject to any agreement between them; and these provisions apply whether or not the rights owner and the exclusive licensee are both parties to the action.
(5) The owner of a performer’s property rights shall notify any exclusive licensee having concurrent rights before applying for an order under section 195 (order for delivery up) or exercising the right conferred by section 196 (right of seizure); and the court may on the application of the licensee make such order under section 195 or, as the case may be, prohibiting or permitting the exercise by the rights owner of the right conferred by section 196, as it thinks fit having regard to the terms of the licence.
(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), ...
section 184 (infringement of performer’s rights importing, possessing or dealing with illicit recording),
section 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 this Chapter as “ . . . performer’s non-property rights”.
(2) On the death of a person entitled to any such right—
(a) the right passes to such person as he may by testamentary disposition specifically direct, and
(b) if or to the extent that there is no such direction, the right is exercisable by his personal representatives.
(3) References in this 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.
192B Transmissibility of rights of person having recording rights.
(1) The rights conferred by this Chapter on a person having recording rights are not assignable or transmissible.
(2) This does not affect section 185(2)(b) or (3)(b), so far as those provisions confer rights under this Chapter on a person to whom the benefit of a contract or licence is assigned.
(1) Consent for the purposes of this Chapterby a person having a performer’s non-property rights, or by a person having recording rights, may be given in relation to a specific performance, a specified description of performances or performances generally, and may relate to past or future performances.
(2) A person having recording rights in a performance is bound by any consent given by a person through whom he derives his rights under the exclusive recording contract or licence in question, in the same way as if the consent had been given by him.
(3) Where a performer’s non-property right passes to another person, any consent binding on the person previously entitled binds the person to whom the right passes in the same way as if the consent had been given by him.