Digital Economy Bill [HL]

House of Commons

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Digital Economy Bill [HL]

Digital Economy Bill [HL]
Schedule 2 — Licensing of copyright and performers’ property rights
Part 2 — Performers’ property rights
67

performers’ property rights) after paragraph 1 insert—
“Additional licensing and regulation
1A    (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,
an act to which section 182A, 182B, 182C or 182CA applies
5
where—
(a)
the performer’s consent would otherwise be required
under that section, but
(b)
the right to authorise or prohibit the act is an orphan right.
      (2)
Where the missing rights owner is not the sole owner of the rights
10
concerned, an authorisation does not affect the need for consent
from any other owner.
      (3)
An authorisation or licence under the regulations in favour of any
person must not preclude any authorisation or licence in favour of
another person.
15
      (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 owner of a
20
performer’s property rights;
(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 a performer’s property
25
rights ceases to be included in a register kept in accordance with
paragraph 1D(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
30
ceased to be met.
1B    (1)
The Secretary of State may by regulations provide for authorising
a licensing body to grant performers’ property right licences in
relation to a performer’s property rights where the rights owner is
not the body or a person on whose behalf the body acts.
35
      (2)
The regulations may not authorise the grant of a licence—
(a)
in respect of an unpublished recording, unless it is a
recording made from or included in a broadcast, or
(b)
in respect of rights excluded by notice given by the rights
owner in accordance with the regulations.
40
      (3)
The regulations must provide for the factors to be taken into
account in deciding whether to authorise a licensing body to grant
licences in relation to a performer’s property rights to include—
(a)
the likely effect of the authorisation on—
(i)
the performer,
45
(ii)
members of the body,

Digital Economy Bill [HL]
Schedule 2 — Licensing of copyright and performers’ property rights
Part 2 — Performers’ property rights
68

(iii)
owners of rights on whose behalf the licensing
body would be entitled to act pursuant to the
authorisation, and
(iv)
licensees and potential licensees of the aspects of
rights that would be the subject of the
5
authorisation, and
(b)
the extent to which the licensing body is entitled to
negotiate or grant performers’ property right licences in
relation to similar rights, other than under an authorisation
under this paragraph.
10
      (4)
Sub-paragraphs (3) to (6) of paragraph 1A apply to regulations
under this paragraph (but sub-paragraphs (4)(b) and (c) and (5)
apply only in relation to orphan rights).
      (5)
In this paragraph—
“member”, in relation to a licensing body, means—
15
(a)
an owner of a performer’s property rights on whose
behalf the body is authorised to negotiate or grant
licences, other than under an authorisation under this
paragraph, and
(b)
a person other than the owner of a performer’s
20
property rights who is or would be entitled to
royalties or other sums paid in respect of a licence in
relation to the rights granted by the body;
“performers’ property right licences” has the same meaning
as in paragraph 1.
25
1C    (1)
A right is an orphan right 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, a
performer’s property rights, and
(b)
has published the notice required by this paragraph,
30

but has not found the owner.
      (2)
References to the missing rights owner in relation to orphan rights
are references to that owner.
      (3)
For the purposes of sub-paragraph (1)(a) the person carrying out
the search must in particular—
35
(a)
make such use as is reasonable of sources of information,
including sources within sub-paragraph (4), relating to the
apparent country of origin of the recording concerned, and
(b)
have regard to any presumptions under section 105 that
would apply in relation to the recording in any
40
proceedings.
      (4)
The sources referred to in sub-paragraph (3)(a) are—
(a)
licensing bodies;
(b)
public funding bodies;
(c)
trade unions and trade associations;
45
(d)
systems for identifying recordings of the type concerned;
(e)
published library catalogues and indexes;

Digital Economy Bill [HL]
Schedule 2 — Licensing of copyright and performers’ property rights
Part 2 — Performers’ property rights
69

(f)
public databases, including public records that may
indicate successors in title.
      (5)
For the purposes of sub-paragraph (3)(a) a recording’s apparent
country of origin is the country which the person carrying out the
search reasonably believes is most likely to be—
5
(a)
the country of the recording’s first publication, or
(b)
if the recording has not been published, the country with
which its making is most closely connected.
      (6)
The notice required by sub-paragraph (1)(b) is notice of the
proposal to enter the interest concerned in a register kept in
10
accordance with paragraph 1D(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 paragraph.
1D    (1)
Regulations made by the Secretary of State must provide for an
15
authorisation under paragraph 1A or 1B to have effect in respect
of an interest of a missing rights owner only if the interest is
entered in a register kept by the authorised person (an “orphan
rights register”).
      (2)
The regulations must—
20
(a)
specify the form of an orphan rights register and how it is
to be kept, and
(b)
provide for an orphan rights register to be made available
to the public.
      (3)
An entry in an orphan rights register must include a sufficient
25
record of the steps taken for the purposes of paragraph 1C(1)(a)
and (b).
      (4)
An authorised person must not enter an interest in an orphan
rights register unless the authorised person—
(a)
has taken the steps referred to in paragraph 1C(1)(a) and
30
(b) and has not found the owner of the interest, or
(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 rights
35
register and the authorised person finds the owner of the interest,
the authorised person must remove the entry.
      (6)
If in relation to an interest entered in an authorised person’s
orphan rights register, the authorised person—
(a)
is aware that any of the steps referred to in paragraph
40
1C(1)(a) and (b) was not taken, or
(b)
is aware of information that makes it no longer reasonable
to rely on the steps taken,

the authorised person must as soon as possible take those steps or
remove the entry.
45
      (7)
Where an interest is entered in an orphan rights register,
regulations under paragraph 1A or 1B may provide for an

Digital Economy Bill [HL]
Schedule 2 — Licensing of copyright and performers’ property rights
Part 2 — Performers’ property rights
70

authorisation under that paragraph to have effect in respect of that
interest despite a failure to take steps referred to in paragraph
1C(1)(a) or (b) or to comply with any of sub-paragraphs (4) to (6).
      (8)
But a failure by an authorised person to comply with any of sub-
paragraphs (4) to (6) is actionable as a breach of statutory duty
5
owed to the owner of the interest concerned (and see paragraph 4
of Schedule A1 as it applies by virtue of paragraph 1E).
      (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 paragraph 1C(1)(a) and (b) or has complied with sub-
10
paragraph (3).
     (10)
The Secretary of State may by regulations amend any of the
preceding provisions of this paragraph.
1E
Schedule A1 applies for the purposes of paragraphs 1A to 1D as it
applies for the purposes of sections 116A to 116D—
15
(a)
as if references to copyright were references to performers’
property rights,
(b)
as if the reference in paragraph 3(3) to section 116B were a
reference to paragraph 1B, and
(c)
as if the reference in paragraph 4(1)(c) to section 116D(4) to
20
(6) were a reference to paragraph 1D(4) to (6);

(and section 116F accordingly applies as if references to Part 1
included references to this Part).
1F    (1)
The powers conferred by paragraphs 1A to 1D include in
particular power—
25
(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.
30
      (2)
The power referred to in sub-paragraph (1)(a) to make
consequential provision includes power to amend this Part.
      (3)
Before making provision as to requirements for a person’s
becoming or remaining authorised under paragraph 1A or 1B, the
Secretary of State must consult the persons the Secretary of State
35
thinks likely to be affected (or persons who represent such
persons) and such other persons as the Secretary of State thinks fit.
      (4)
The power to make regulations under paragraphs 1A to 1D is
exercisable by statutory instrument.
      (5)
A statutory instrument containing such regulations is subject to
40
annulment in pursuance of a resolution of either House of
Parliament, but that is subject to sub-paragraph (6).
      (6)
Sub-paragraph (7) applies to a statutory instrument containing
any of the following—
(a)
the first regulations made under paragraph 1A;
45
(b)
the first regulations made under paragraph 1B;

Digital Economy Bill [HL]
Schedule 3 — Repeals
71

(c)
regulations under paragraphs 1A to 1D amending any
provision of this Part.
      (7)
The statutory instrument may not be made unless a draft of the
instrument has been laid before and approved by a resolution of
each House of Parliament.”
5
Schedule 3
Section 47

Repeals

Short title and chapter
Extent of repeal

Public Lending Right Act 1979
In section 5(2), the word “and” at the end of the

(c. 10)
definition of “the register”.

10

Video Recordings Act 1984
Section 2(1)(c) (and the word “or” before it).

(c. 39)
Section 4(6).

Section 8(2) and (3).

In section 22(1), the word “and” at the end of the

definition of “business”.

15

Broadcasting Act 1990 (c. 42)
Section 14(7).

In section 106(1A), the word “or” at the end of

paragraph (c).

Section 183A(7)(a) and (b).

Section 184.

20

Communications Act 2003
In section 218(7), the words after paragraph (b).

(c. 21)
Section 221.

Section 224(3).

In section 314(1)(a), the words from “but” to

“that case”.

25

In Schedule 15, paragraph 63 and the preceding

heading.