Digital Economy Bill [HL]

House of Commons

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Digital Economy Bill [HL]

Digital Economy Bill [HL]
49

Video recordings
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Classification of video games etc
(1)
Section 2 of the Video Recordings Act 1984 (exempted video works) is
amended as follows.
(2)
In subsection (1)—
5
(a)
after “video work” insert “other than a video game”,
(b)
after paragraph (a) insert “or”, and
(c)
omit paragraph (c) (and the word “or” before it).
(3)
After that subsection insert—
“(1A)
Subject to subsection (2) or (3) below, a video game is for the purposes
10
of this Act an exempted work if—
(a)
it is, taken as a whole, designed to inform, educate or instruct;
(b)
it is, taken as a whole, concerned with sport, religion or music;
or
(c)
it satisfies one or more of the conditions in section 2A.”
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(4)
After subsection (3) insert—
“(4)
The Secretary of State may by regulations amend this section—
(a)
by adding or removing a case in which a video work is not an
exempted work, or
(b)
by amending a description of such a case.”
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(5)
After section 2 of that Act insert—
“2A
Conditions relating to video games
(1)
The conditions referred to in section 2(1A)(c) are as follows.
(2)
The first condition is that the video game does not include any of the
following—
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(a)
depictions of violence towards human or animal characters,
whether or not the violence looks realistic and whether or not
the violence results in obvious harm,
(b)
depictions of violence towards other characters where the
violence looks realistic,
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(c)
depictions of criminal activity that are likely, to any extent, to
stimulate or encourage the commission of offences,
(d)
depictions of activities involving illegal drugs or the misuse of
drugs,
(e)
words or images that are likely, to any extent, to stimulate or
35
encourage the use of alcohol or tobacco,
(f)
words or images that are intended to convey a sexual message,
(g)
swearing, or
(h)
words or images that are intended or likely, to any extent, to
cause offence, whether on the grounds of race, gender,
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disability, religion or belief or sexual orientation or otherwise.
(3)
In subsection (2) “human or animal character” means a character that is,
or whose appearance is similar to that of—

Digital Economy Bill [HL]
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(a)
a human being, or
(b)
an animal that exists or has existed in real life,

but does not include a simple stick character or any equally basic
representation of a human being or animal.
(4)
The second condition is that the designated authority, or a person
5
nominated by the designated authority for the purposes of this section,
has confirmed in writing that the video game is suitable for viewing by
persons under the age of 12.
(5)
The Secretary of State may by regulations amend this section—
(a)
by amending the first condition, or
10
(b)
by adding a further condition (or by amending or removing
such a condition).
(6)
Regulations under this section may make provision by reference to
documents produced by the designated authority.”
(6)
In section 3 of that Act (exempted supplies), after subsection (8) insert—
15
“(8A)
The supply of a video recording in the form of a machine of a type
designed primarily for use in an amusement arcade is an exempted
supply unless the video game (or, if more than one, any of the video
games) that it contains—
(a)
depicts, to any significant extent, anything falling within section
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2(2)(a), (b), (c) or (d) or (3), or
(b)
is likely to any significant extent to stimulate or encourage
anything falling within section 2(2)(a) or, in the case of anything
falling within section 2(2)(b), is likely to any extent to do so.
(8B)
The supply of any other video recording is an exempted supply if the
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recording is supplied for the purpose only of its use in connection with
a supply that is an exempted supply under subsection (8A).”
(7)
At the end of that section insert—
“(13)
The Secretary of State may by regulations amend this section and the
regulations may, in particular—
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(a)
add a case in which the supply of a video recording is an
exempted supply for the purposes of this Act, or
(b)
repeal a provision of this section.”
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Designated authority for video games etc
(1)
After section 4 of the Video Recordings Act 1984 insert—
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“4ZA
Designated authorities for video games and other video works
(1)
The power to designate a person by notice under section 4 includes
power to designate different persons—
(a)
as the authority responsible for making arrangements in respect
of video games (“the video games authority”), and
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(b)
as the authority responsible for making arrangements in respect
of other video works (“the video works authority”).
(2)
Where there are two designated authorities, references in this Act to the
designated authority, in relation to a video work, are references to the

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designated authority responsible for making arrangements in respect
of the video work, taking account of any allocation in force under
section 4ZB.
4ZB
Designated authorities: allocation of responsibility for video games
(1)
Where there are two designated authorities, the video games authority
5
may, with the consent of the video works authority, allocate to that
authority responsibility—
(a)
for a class of video games, or
(b)
for video games, or a class of video games, when (and only
when) they are contained in a video recording that is described
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in the allocation (whether by reference to its contents, to the
manner in which it is, or is to be, supplied or otherwise).
(2)
If an allocation is in force—
(a)
the video works authority is responsible for making
arrangements under this Act in respect of the allocated video
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games, and
(b)
the video games authority ceases to be responsible for making
such arrangements.
(3)
An allocation—
(a)
must be made by a notice, and
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(b)
may be withdrawn at any time by a notice given by the video
games authority with the consent of the video works authority.
(4)
When making or withdrawing an allocation under this section, the
video games authority must have regard to any guidance issued by the
Secretary of State.
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(5)
A notice under this section must be—
(a)
sent to the Secretary of State, and
(b)
published in such manner as the video games authority
considers appropriate.
(6)
A question as to which designated authority is responsible for making
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arrangements in respect of a video game may be conclusively
determined by the video games authority.
4ZC
Designated authorities: video works included in video games
(1)
The video games authority may make such arrangements in respect of
video works included in video games as it considers are necessary for
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the purposes of fulfilling its responsibilities in respect of video games.
(2)
Where there are two designated authorities, the arrangements made by
the video games authority under section 4 must, to the extent that the
video games authority considers appropriate, include either or both of
the following—
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(a)
arrangements for having regard to any classification certificate
issued by the video works authority in respect of a video work
included in a video game;
(b)
arrangements for obtaining and having regard to a
determination by the video works authority as to the suitability
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of all or part of a video work included in a video game.

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(3)
For the purpose of determining the extent to which arrangements
described in subsection (2)(a) or (b) are appropriate, the video games
authority must—
(a)
consult the video works authority, and
(b)
have regard to any guidance issued by the Secretary of State.
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(4)
In this section, “suitability” means suitability for the issue of a
classification certificate or suitability for the issue of a classification
certificate of a particular description.”
(2)
Schedule 1 (which contains further amendments of the Video Recordings Act
1984) has effect.
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Copyright and performers’ property rights: licensing and penalties
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Extension and regulation of licensing of copyright and performers’ rights
(1)
In the Copyright, Designs and Patents Act 1988 (the “1988 Act”) after section
116 insert—
“Additional licensing and regulation
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116A
Licensing of orphan works
(1)
The Secretary of State may by regulations provide for authorising a
licensing body or other person to do, or to grant licences to do, acts in
relation to an orphan work which would otherwise require the consent
of the missing copyright owner.
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(2)
Where the missing copyright owner is not the sole owner of copyright
in the work, an authorisation does not affect the need for consent from
any other owner of copyright.
(3)
An authorisation or licence under the regulations in favour of any
person must not preclude any authorisation or licence in favour of
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another person.
(4)
The regulations must provide for the treatment of royalties or other
sums paid in respect of an authorisation or licence, including—
(a)
the deduction of administrative costs;
(b)
the period for which sums must be held for the copyright
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owner;
(c)
the treatment of sums after that period (as bona vacantia or
otherwise).
(5)
The regulations may provide for determining the rights and obligations
of any person if an interest in copyright ceases to be included in a
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register kept in accordance with section 116D(1).
(6)
The regulations may provide for the Secretary of State to determine
whether any requirement of the regulations for a person’s becoming or
remaining authorised has been met or ceased to be met.
116B
Extended licensing schemes
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(1)
The Secretary of State may by regulations provide for authorising a
licensing body to grant copyright licences in respect of works in which

Digital Economy Bill [HL]
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copyright is not owned by the body or a person on whose behalf the
body acts.
(2)
The regulations may not authorise the grant of a licence—
(a)
in respect of an unpublished work, unless it is a broadcast or a
work included in a broadcast, or
5
(b)
in respect of rights excluded by notice given by the copyright
owner in accordance with the regulations.
(3)
The regulations must provide for the factors to be taken into account in
deciding whether to authorise a licensing body to grant copyright
licences in respect of works to include—
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(a)
the likely effect of the authorisation on—
(i)
authors of the works,
(ii)
members of the body,
(iii)
copyright owners on whose behalf the licensing body
would be entitled to act pursuant to the authorisation,
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and
(iv)
licensees and potential licensees of the aspects of
copyright that would be the subject of the authorisation,
and
(b)
the extent to which the licensing body is entitled to negotiate or
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grant copyright licences in respect of similar works, other than
under an authorisation under this section.
(4)
Subsections (3) to (6) of section 116A apply to regulations under this
section (but subsections (4)(b) and (c) and (5) apply only in relation to
an orphan work).
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(5)
In this section—
“copyright licences” has the same meaning as in section 116;
“member”, in relation to a licensing body, means —
(a)
a copyright owner on whose behalf the body is
authorised to negotiate or grant licences, other than
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under an authorisation under this section, and
(b)
a person other than the copyright owner who is or
would be entitled to royalties or other sums paid in
respect of a copyright licence granted by the body.
116C
Meaning of “orphan work”
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(1)
A work is an orphan work if a person—
(a)
has carried out a diligent search to find or, if necessary, to
identify and find, the owner of, or of an interest in, copyright in
the work, and
(b)
has published the notice required by this section,
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but has not found the owner.
(2)
References to the missing copyright owner in relation to an orphan
work are references to that owner.
(3)
For the purposes of subsection (1)(a) the person carrying out the search
must in particular—
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(a)
make such use as is reasonable of sources of information,
including sources within subsection (4), relating to the work’s
apparent country of origin, and
(b)
have regard to any presumptions under section 104 or 105 that
would apply in relation to the work in any proceedings.
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(4)
The sources referred to in subsection (3)(a) are—
(a)
licensing bodies;
(b)
associations of publishers or authors;
(c)
systems for identifying works of the type concerned;
(d)
published library catalogues and indexes;
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(e)
public databases, including public records that may indicate
successors in title.
(5)
For the purposes of subsection (3)(a) a work’s apparent country of
origin is the country which the person carrying out the search
reasonably believes is most likely to be—
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(a)
the country of the work’s first publication, or
(b)
if the work has not been published, the country with which its
making is most closely connected.
(6)
The notice required by subsection (1)(b) is notice of the proposal to
enter the interest concerned in a register kept in accordance with
20
section 116D(1), published in a way designed to bring the proposal to
the attention of the owner of the interest.
(7)
The Secretary of State may by regulations amend any of the preceding
provisions of this section.
116D
Orphan works: registration and compliance
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(1)
Regulations made by the Secretary of State must provide for an
authorisation under section 116A or 116B to have effect in respect of an
interest of a missing copyright owner only if the interest is entered in a
register kept by the authorised person (an “orphan works register”).
(2)
The regulations must—
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(a)
specify the form of an orphan works register and how it is to be
kept, and
(b)
provide for an orphan works register to be made available to the
public.
(3)
An entry in an orphan works register must include a sufficient record
35
of the steps taken for the purposes of section 116C(1)(a) and (b).
(4)
An authorised person must not enter an interest in an orphan works
register unless the authorised person—
(a)
has taken the steps referred to in section 116C(1)(a) and (b) and
has not found the owner of the interest, or
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(b)
has reasonable grounds for believing that another person has
taken those steps and that the owner of the interest has not been
found.
(5)
If an interest is entered in an authorised person’s orphan works register
and the authorised person finds the owner of the interest, the
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authorised person must remove the entry.

Digital Economy Bill [HL]
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(6)
If in relation to an interest entered in an authorised person’s orphan
works register, the authorised person—
(a)
is aware that any of the steps referred to in section 116C(1)(a)
and (b) was not taken, or
(b)
is aware of information that makes it no longer reasonable to
5
rely on the steps taken,

the authorised person must as soon as possible take those steps or
remove the entry.
(7)
Where an interest is entered in an orphan works register, regulations
under section 116A or 116B may provide for an authorisation under
10
that section to have effect in respect of that interest despite a failure to
take steps referred to in section 116C(1)(a) or (b) or to comply with any
of subsections (4) to (6).
(8)
But a failure by an authorised person to comply with any of subsections
(4) to (6) is actionable as a breach of statutory duty owed to the owner
15
of the interest concerned (and see paragraph 4 of Schedule A1).
(9)
Any guidance issued by the Secretary of State must be taken into
account in deciding whether a person has taken the steps referred to in
section 116C(1)(a) or (b) or has complied with subsection (3).
(10)
The Secretary of State may by regulations amend any of the preceding
20
provisions of this section.
116E
Regulation and enforcement
Schedule A1 confers powers to provide for—
(a)
the regulation of licensing bodies, and of persons other than
licensing bodies who are authorised under section 116A;
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(b)
enforcement for the purposes of such regulation, or otherwise
for the purposes of sections 116A to 116D.
116F
General
(1)
Nothing in section 116B or Schedule A1 applies in relation to Crown
copyright or Parliamentary copyright.
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(2)
The powers conferred by sections 116A to 116D and Schedule A1
include in particular power—
(a)
to make incidental, supplementary or consequential provision;
(b)
to make different provision for different purposes;
(c)
to extend or restrict the jurisdiction of the Copyright Tribunal.
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(3)
The power referred to in subsection (2)(a) to make consequential
provision includes power to amend this Part.
(4)
Before making provision as to requirements for a person’s becoming or
remaining authorised under section 116A or 116B, the Secretary of State
must consult the persons the Secretary of State thinks likely to be
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affected (or persons who represent such persons) and such other
persons as the Secretary of State thinks fit.
(5)
The power to make regulations under sections 116A to 116D and
Schedule A1 is exercisable by statutory instrument.