Ms Secretary Hewitt
389
Page 315, line 3 [Schedule 25], at end insert—
| '(2A) | In section 13 (licence modification references to Commission), subsections (9) and (9A) shall cease to have effect. |
| (2B) | After section 13 there is inserted— |
"13A References under section 13: time limits
(1) Every reference under section 13 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Commission on a reference under section 13 above shall not have effect (and no action shall be taken in relation to it under section 15 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Director under subsection (3) below.
(3) The Director may, if he has received representations on the subject from the Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under subsection (3) above in relation to the same reference.
(5) The Director shall, in the case of an extension made by him under subsection (3) above—
| (a) | publish that extension in such manner as he considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and |
| (b) | in the case of a licence granted to a particular person, send to that person a copy of what has been published by him under paragraph (a) above. |
"13B
References under section 13: powers of investigation
(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 13 above as they apply for the purposes of references under that Part—
| (a) | section 106 (attendance of witnesses and production of documents etc.); |
| (b) | section 107 (enforcement of powers under section 106: general); |
| (c) | section 108 (penalties); |
| (d) | section 109 (penalties: main procedural requirements); |
| (e) | section 110 (payments and interest by instalments); |
| (f) | section 111 (appeals in relation to penalties); |
| (g) | section 112 (recovery of penalties); and |
| (h) | section 113 (statement of policy). |
(2) Section 107 shall, in its application by virtue of subsection (1) above, have effect as if—
| (a) | subsection (2) were omitted; and |
| (b) | in subsection (9) the words from "or section" to "section 64(3))" were omitted. |
(3) Section 108(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if for the words from "the latest" to the end there were substituted "the day on which the report of the Commission on the reference concerned is published."
| (2C) | In section 14 (reports on licence modification references)— |
(a) after subsection (1) there is inserted—
"(1A) For the purposes of section 15 below, a conclusion contained in a report of the Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.
(1B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 13 above as the conclusions of the Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.";
(b) for subsection (3) there is substituted—
"(3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Commission on a reference under section 13 above.
(3A) In making any report on a reference under section 13 above the Commission must have regard to the following considerations before disclosing any information.
(3B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.
(3C) The second consideration is the need to exclude from disclosure (so far as practicable)—
| (a) | commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or |
| (b) | information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual's interests. |
(3D) The third consideration is the extent to which the disclosure of the information mentioned in subsection (3C)(a) or (b) is necessary for the purposes of the report."'.
Ms Secretary Hewitt
390
Page 316, line 42 [Schedule 25], leave out from beginning to end of line 2 on page 317.
Ms Secretary Hewitt
391
Page 317, line 9 [Schedule 25], at end insert—
'Copyright, Designs and Patents Act 1988 (c. 48)
| 15A | (1) | The Copyright, Designs and Patents Act 1988 is amended as follows. |
| (2) | In section 144 (powers exercisable in consequence of report of Commission) for subsections (1) and (2) there is substituted— |
"(1) Subsection (1A) applies where whatever needs to be remedied, mitigated or prevented by the Secretary of State or (as the case may be) the Competition Commission under section 12(5) of the Competition Act 1980 or section 40(2), 54(2), 65(6), 72(2), 80(2), 132(2), 141(2) or 154(2) of, or paragraph 5(2) or 10(2) of Schedule 7 to, the Enterprise Act 2002 (powers to take remedial action following references to the Commission in connection with public bodies and certain other persons, mergers or market investigations) consists of or includes—
| (a) | conditions in licences granted by the owner of copyright in a work restricting the use of the work by the licensee or the right of the copyright owner to grant other licences; or |
| (b) | a refusal of a copyright owner to grant licences on reasonable terms. |
(1A) The powers conferred by Schedule 8 to the Enterprise Act 2002 include power to cancel or modify those conditions and, instead or in addition, to provide that licences in respect of the copyright shall be available as of right.
(2) The references to anything permitted by Schedule 8 to the Enterprise Act 2002 in section 12(5A) of the Competition Act 1980 and in sections 72(4)(a), 80(4)(a), 81(2)(a), 86(1), 154(4)(a), 155(3)(a) and 158(1) of, and paragraphs 5, 10 and 11 of Schedule 7 to, the Act of 2002 shall be construed accordingly."
(a) for "A Minister" there is substituted "The Secretary of State or (as the case may be) the Competition Commission";
(b) after "he" there is inserted "or it".'.
Ms Secretary Hewitt
392
Page 318, line 38 [Schedule 25], at end insert—
'(f) paragraph 8 (exemption from monopoly provisions) shall cease to have effect.'.
Ms Secretary Hewitt
393
Page 322, line 47 [Schedule 25], at end insert ';
| (ii) | sub-paragraphs (7) and (7A) shall cease to have effect; |
(da) after paragraph 4 there is inserted—
"Further provision about references under paragraph 4
| 4A | (1) | The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in sub-paragraphs (2) and (3), for the purposes of references under paragraph 4 as they apply for the purposes of references under that Part— |
(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).
| (2) | Section 107 shall, in its application by virtue of sub-paragraph (1), have effect as if— |
(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.
| (3) | Section 108(5)(b)(ii) shall, in its application by virtue of sub-paragraph (1), have effect as if for the words from "the latest" to the end there were substituted "the day on which the report of the Commission on the reference concerned is published."; |
| (i) | for "Director" (in each place) there is substituted "OFT"; |
| (ii) | sub-paragraph (5) shall cease to have effect; |
| (iii) | after sub-paragraph (5) there is inserted— |
| | "(5A) | For the purposes of paragraph 6, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998. |
| (5B) | If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under paragraph 4 as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing. |
| (5C) | For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under paragraph 4. |
| (5D) | In making any report on a reference under paragraph 4 the Competition Commission must have regard to the following considerations before disclosing any information. |
| (5E) | The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. |
| (5F) | The second consideration is the need to exclude from disclosure (so far as practicable)— |
(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.
| (5G) | The third consideration is the extent to which the disclosure of the information mentioned in sub-paragraph (5F)(a) or (b) is necessary for the purposes of the report.".' |
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