House of Commons Amendments

Session 2012 - 13
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Other Bills before Parliament

Notices of Amendments: 5 July 2012
125

Enterprise and Regulatory Reform Bill, continued

“Schedule A1

Regulation of licensing bodies

Codes of practice

1    (1)
The Secretary of State may by regulations make provision for a

licensing body to be required to adopt a code of practice that

complies with criteria specified in the regulations.

      (2)
In relation to a licensing body that fails to adopt a code of practice

that it is required to adopt under provision within sub-paragraph (1),

the regulations may provide for a code of practice approved by the

Secretary of State or by a person designated by the Secretary of

State under the regulations to have effect as a code of practice

adopted by the body.

2
Regulations under paragraph 1 may make provision as to conditions

that are to be satisfied, and procedures that are to be followed—

(a)
before a licensing body is required to adopt a code of

practice as described in paragraph 1(1);

(b)
before a code of practice has effect as one adopted by a

licensing body as described in paragraph 1(2).

Licensing code ombudsman

3    (1)
The Secretary of State may by regulations make provision—

(a)
for the appointment of a person (the “licensing code

ombudsman”) to investigate and determine disputes about

a licensing body’s compliance with its code of practice;

(b)
for the reference of disputes to the licensing code

ombudsman;

(c)
for the investigation and determination of a dispute so

referred.

      (2)
Provision made under this paragraph may in particular include

provision—

(a)
about eligibility for appointment as the licensing code

ombudsman;

(b)
about the disputes to be referred to the licensing code

ombudsman;

(c)
requiring any person to provide information, documents or

assistance to the licensing code ombudsman for the

purposes of an investigation or determination;

(d)
requiring a licensing body to comply with a determination

of the licensing code ombudsman;

(e)
about the payment of expenses and allowances to the

licensing code ombudsman.

Code reviewer

4    (1)
The Secretary of State may by regulations make provision—

(a)
for the appointment by the Secretary of State of a person

(the “code reviewer”) to review and report to the Secretary

of State on—

Notices of Amendments: 5 July 2012
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Enterprise and Regulatory Reform Bill, continued

(i)
the codes of practice adopted by licensing bodies,

and

(ii)
compliance with the codes of practice;

(b)
for the carrying out of a review and the making of a report

by that person.

      (2)
The regulations must provide for the Secretary of State, before

appointing a person as the code reviewer, to consult persons whom

the Secretary of State considers represent the interests of licensing

bodies, licensees, members of licensing bodies, and the Intellectual

Property Office.

      (3)
The regulations may, in particular, make provision—

(a)
requiring any person to provide information, documents or

assistance to the code reviewer for the purposes of a review

or report;

(b)
about the payment of expenses and allowances to the code

reviewer.

      (4)
In this paragraph “member”, in relation to a licensing body, means

a person on whose behalf the body is authorised to negotiate or

grant licences.

Sanctions

5    (1)
The Secretary of State may by regulations provide for the

consequences of a failure by a licensing body to comply with—

(a)
a requirement to adopt a code of practice under provision

within paragraph 1(1);

(b)
a code of practice that has been adopted by the body in

accordance with a requirement under provision within

paragraph 1(1), or that has effect as one adopted by the

body under provision within paragraph 1(2);

(c)
a requirement imposed on the body under any other

provision made under this Schedule;

(d)
an authorisation under regulations under section 116A or

116B;

(e)
a requirement imposed by regulations under section 116A

or 116B;

(f)
an authorisation under regulations under paragraph 1A or

1B of Schedule 2A;

(g)
a requirement imposed by regulations under paragraph 1A

or 1B of that Schedule.

      (2)
The regulations may in particular provide for—

(a)
the imposition of financial penalties or other sanctions;

(b)
the imposition of sanctions on a director, manager or

similar officer of a licensing body or, where the body’s

affairs are managed by its members, on a member.

      (3)
The regulations may include provision—

(a)
for determining whether there has been a failure to comply

with a requirement or code of practice for the purposes of

sub-paragraph (1);

Notices of Amendments: 5 July 2012
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Enterprise and Regulatory Reform Bill, continued

(b)
for determining any sanction that may be imposed in

respect of the failure to comply;

(c)
for an appeal against the imposition of any such sanction.

      (4)
A financial penalty imposed under sub-paragraph (2) must not be

greater than £50,000.

      (5)
The regulations may provide for a determination within sub-

paragraph (3)(a) or (3)(b) to be made by the Secretary of State or by

a person designated by the Secretary of State under the regulations.

      (6)
The regulations may make provision for requiring a person to give

the person by whom a determination within sub-paragraph (3)(a)

falls to be made (the “adjudicator”) any information that the

adjudicator reasonably requires for the purpose of making that

determination.

Fees

6    (1)
The Secretary of State may by regulations require a licensing body

to which regulations under any other paragraph of this Schedule

apply to pay fees to the Secretary of State.

      (2)
The aggregate amount of fees payable under the regulations must

not be more than the cost to the Secretary of State of administering

the operation of regulations under this Schedule.

General

7    (1)
The power to make regulations under this Schedule includes in

particular 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 provision for bodies of a particular description, or

carrying out activities of a particular description, not to be

treated as licensing bodies for the purposes of requirements

imposed under regulations under this Schedule;

(c)
to make provision that applies only in respect of licensing

bodies of a particular description, or only in respect of

activities of a particular description;

(d)
otherwise to make different provision for different

purposes.

      (2)
Regulations under a paragraph of this Schedule may amend this

Part or Part 2, or any other enactment or subordinate legislation

passed or made before the paragraph in question 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.

      (3)
Regulations may impose requirements by reference to guidance

issued from time to time by any person.

      (4)
The power to make regulations is exercisable by statutory

instrument.

Notices of Amendments: 5 July 2012
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Enterprise and Regulatory Reform Bill, continued

      (5)
A statutory instrument containing regulations that amend an

enactment may not be made unless a draft of the instrument has

been laid before and approved by a resolution of each House of

Parliament.

      (6)
Any other statutory instrument containing regulations is subject to

annulment in pursuance of a resolution of either House of

Parliament.

8
References in this Schedule to a licensing body are to a body that is

a licensing body for the purposes of this Chapter or for the purposes

of Chapter 2 of Part 2, and references to licensees are to be

construed accordingly.”

Part 2

Performers’ rights

1
Schedule 2A to the Copyright, Designs and Patents Act 1988 (licensing of

performers’ property rights) is amended as follows.

2
In the heading of the Schedule omit “property”.

3
In paragraph 1, after sub-paragraph (4) insert—

  “(5)
Schedule A1 confers powers to provide for the regulation of

licensing bodies.”

4
After paragraph 1 insert—

“Orphan rights licensing and extended collective licensing

1A  (1)
The Secretary of State may by regulations provide for the grant of

licences to do, or authorise the doing of, acts to which section 182,

182A, 182B, 182C, 182CA, 183 or 184 applies in respect of a

performance, where—

(a)
the performer’s consent would otherwise be required under

that section, but

(b)
the right to authorise or prohibit the act qualifies as an

orphan right 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 right to qualify as an orphan

right, it is a requirement that the owner of the right has not been

found after a diligent search made in accordance with the

regulations.

      (4)
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.

      (5)
The regulations may apply in a case where it is not known whether

a performer’s right subsists, and references to a right, to a missing

Notices of Amendments: 5 July 2012
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Enterprise and Regulatory Reform Bill, continued

owner and to an interest of a missing owner are to be read as

including references to a supposed right, owner or interest.

1B  (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 licences to do, or authorise the doing of, acts

to which section 182, 182A, 182B, 182C, 182CA, 183 or 184

applies in respect of a performance, where the right to authorise or

prohibit the act is not owned by the body or a person on whose

behalf the body acts.

      (2)
An authorisation must specify the acts to which any of those

sections applies that the licensing body is authorised to license.

      (3)
The regulations must provide for the rights 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.

1C  (1)
This paragraph and paragraph 1D apply to regulations under

paragraphs 1A and 1B.

      (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 right ceases to qualify as an orphan right (or ceases to

qualify by reference to any rights owner), or if a rights

owner exercises the right referred to in paragraph 1B(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 205C to be treated as having

been asserted under section 205D;

(e)
for the payment of fees to cover administrative expenses.

Notices of Amendments: 5 July 2012
130

Enterprise and Regulatory Reform Bill, continued

1D  (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.

      (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 that amend an

enactment may not be made unless a draft of the instrument has

been laid before and approved by a resolution of each House of

Parliament.

      (6)
Any other statutory instrument containing regulations is subject to

annulment in pursuance of a resolution of either House of

Parliament.”

5
In section 205A of the Copyright, Designs and Patents Act 1988, and in the

italic heading before that section (licensing of performers’ property rights),

omit “property”.’.

Mr Iain Wright

Ian Murray

Chi Onwurah

91

Schedule  5,  page  84,  line  14,  after ‘subsections’, insert ‘(1A),’.

Mr Iain Wright

Ian Murray

Chi Onwurah

92

Schedule  5,  page  83,  line  28,  after ‘subsections’, insert ‘(1A),’.



© Parliamentary copyright	Revised 6 July 2012