Enterprise and Regulatory Reform Bill

Session 2012 - 13
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Enterprise and Regulatory Reform Bill

Enterprise and Regulatory Reform Bill
Schedule 21 — Licensing of copyright and performers’ rights
Part 1 — Regulation of licensing bodies
261

Schedule 21
Section 69

Licensing of copyright and performers’ rights
Part 1
Regulation of licensing bodies
1
In the Copyright, Designs and Patents Act 1988, before Schedule 1 insert—
5
“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
10
complies with criteria specified in the regulations.
      (2)
The regulations may provide that, if a licensing body fails to adopt
such a code of practice, any code of practice that is approved for
the purposes of that licensing body by the Secretary of State, or by
a person designated by the Secretary of State under the
15
regulations, has effect as a code of practice adopted by the body.
      (3)
The regulations must provide that a code is not to be approved for
the purposes of provision under sub-paragraph (2) unless it
complies with criteria specified in the regulations.
2
Regulations under paragraph 1 may make provision as to
20
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
25
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
30
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
35
referred.
      (2)
Provision made under this paragraph may in particular include
provision—
(a)
about eligibility for appointment as the licensing code
ombudsman;
40
(b)
about the disputes to be referred to the licensing code
ombudsman;

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Schedule 21 — Licensing of copyright and performers’ rights
Part 1 — Regulation of licensing bodies
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(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;
5
(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
10
(the “code reviewer”) to review and report to the Secretary
of State on—
(i)
the codes of practice adopted by licensing bodies,
and
(ii)
compliance with the codes of practice;
15
(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
20
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
25
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
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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
35
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);
40
(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
45
or 116B;

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Schedule 21 — Licensing of copyright and performers’ rights
Part 1 — Regulation of licensing bodies
263

(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—
5
(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 must include provision—
10
(a)
for determining whether there has been a failure to comply
with a requirement or code of practice for the purposes of
any provision made under sub-paragraph (1);
(b)
for determining any sanction that may be imposed in
respect of the failure to comply;
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(c)
for an appeal against a determination within paragraph (a)
or (b).
      (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-
20
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)
25
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
30
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.
35
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
40
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
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Part 2 — Performers’ rights
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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;
5
(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
passed or made before the paragraph in question comes into force,
10
for the purpose of making consequential provision or extending or
restricting the jurisdiction of the Copyright Tribunal or conferring
powers on it.
      (3)
The power to make regulations is exercisable by statutory
instrument.
15
      (4)
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.
8
References 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
20
Chapter 2 of Part 2, and references to licensees are to be construed
accordingly.”
Part 2
Performers’ rights
2
Schedule 2A to the Copyright, Designs and Patents Act 1988 (licensing of
25
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.”
30
5
After paragraph 1 insert—
“Power to provide for licensing of orphan rights
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
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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.
40
      (2)
The regulations may—
(a)
specify a person or a description of persons authorised to
grant licences, or

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Schedule 21 — Licensing of copyright and performers’ rights
Part 2 — Performers’ rights
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(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
5
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;
10
(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 owner and to an interest of a missing owner are to be
read as including references to a supposed right, owner or interest.
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Extended collective licensing
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
20
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.
25
      (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.
General provision about licensing
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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
35
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
40
other sums paid in respect of a licence, including—
(a)
the deduction of administrative costs;
(b)
the period for which sums must be held;

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Schedule 21 — Licensing of copyright and performers’ rights
Part 2 — Performers’ rights
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(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
5
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
10
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
15
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.
1D    (1)
The power to make regulations includes power—
20
(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;
25
(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
30
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.
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      (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.”
6
In section 205A of the Copyright, Designs and Patents Act 1988, and in the
italic heading before that section (licensing of performers’ property rights),
40
omit “property”.