Enterprise and Regulatory Reform Bill (HC Bill 61)

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

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

(2) 5Provision 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
10ombudsman;

(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
15of 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) 20for the appointment by the Secretary of State of a person
(the “code reviewer”) to review and report to the Secretary
of State on—

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

(ii) 25compliance 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
30whom 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
35or 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
40a 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) 45a 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) 5a 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
10or 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) 15The 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) 20The 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);

(b) for determining any sanction that may be imposed in
25respect 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-
30paragraph (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)
35falls 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
40to 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
5provision, 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
10treated 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
15activities of a particular description;

(d) otherwise to make different provision for different
purposes.

(2) Regulations under a paragraph of this Schedule may amend Part
1 or Part 2, or any other enactment or subordinate legislation
20passed 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
25issued 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
30been 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 35References in this Schedule to a licensing body are to a body that
is a licensing body for the purposes of Chapter 7 of Part 1 or
Chapter 2 of Part 2, and references to licensees are to be construed
accordingly.”

Part 2 40Performers’ rights

2 Schedule 2A to the Copyright, Designs and Patents Act 1988 (licensing of
performers’ property rights) is amended as follows.

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

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

“(5) Schedule A1 confers powers to provide for the regulation of
licensing bodies.”

5 After paragraph 1 insert—

5“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) 10the 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) 15specify 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) 20The 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) 25to 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
30a missing 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
35to 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
40sections 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
5question 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) 10The 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
15otherwise).

(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) 20The 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
25owner 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) 30for 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.

1D (1) The power to make regulations includes power—

(a) to make incidental, supplementary or consequential
35provision, 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) 40Regulations 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) 45Regulations 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
5been 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.”

6 10In 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”.