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Session 2009 - 10
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Other Bills before Parliament

Digital Economy Bill [HL]


Digital Economy Bill [HL]

50

 

section 116) in respect of works in which 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in respect of an unpublished work, unless it is a broadcast or a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 broadast, or

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(b)   

in respect of rights excluded by notice given by the copyright

owner in accordance with the regulations.

(3)   

Subsections (2) to (5) of section 116A apply to regulations under this

section (but subsections (3)(b) and (c) and (4) apply only in relation to

an orphan work).

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116C    

Orphan works: supplementary

(1)   

A work is an orphan work, for the purposes of an authorisation given

or to be given to a person (an “authorised person”) under section 116A

or 116B, if any interest in copyright in the work is entered in a register

maintained for the purposes of this section by that person (an “orphan

15

works register”).

(2)   

An authorisation in respect of an orphan work does not affect the need

for any consent—

(a)   

from the owner of an interest not entered in the authorised

person’s orphan works register (except in the case of an

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authorisation under section 116B that extends to other

interests), or

(b)   

from the owner of an interest that is entered in that register, if

the authorisation does not apply to that interest.

(3)   

An authorised person must not enter an interest in an orphan works

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register unless the authorised person—

(a)   

has complied with the requirements of subsection (8) in respect

of that interest and has not found the owner of the interest, or

(b)   

has reasonable grounds for believing that another person has

complied with those requirements in respect of that interest and

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that the owner of that interest has not been found.

(4)   

An entry in an orphan works register relating to an interest in copyright

must include the record kept in accordance with subsection (8)(c).

(5)   

If an authorised person finds the owner of an interest entered in that

authorised person’s orphan works register, the authorised person must

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remove the entry.

(6)   

If in relation to an interest entered in an authorised person’s orphan

works register, the authorised person—

(a)   

is aware that the requirements of subsection (8) were not

complied with, or

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(b)   

is aware of information that makes it no longer reasonable to

rely on what was done in compliance with those requirements,

   

the authorised person must comply as soon as possible with the

requirements of subsection (8) or remove the entry.

(7)   

A failure by an authorised person to comply with any of subsections (3)

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to (6) in relation to an interest to which an authorisation applies—

 
 

Digital Economy Bill [HL]

51

 

(a)   

does not affect the authorisation in relation to that interest,

except so far as regulations may provide, but

(b)   

is actionable as a breach of statutory duty owed to the owner of

that interest.

(8)   

The requirements of this subsection in respect of any interest in

5

copyright are—

(a)   

to carry out a reasonable search to find or, if necessary, to

identify and find, the owner of the interest,

(b)   

after the search, to publish notice of the proposal to enter the

interest in an orphan works register, in a way designed to bring

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the proposal to the attention of the owner of that interest, and

(c)   

to keep a sufficient record of the steps taken under paragraphs

(a) and (b) and of the results of those steps.

(9)   

For the purposes of subsection (8)(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 (11), 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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(10)   

The sources referred to in subsection (9)(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.

(11)   

For the purposes of subsection (9)(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.

(12)   

Any guidance issued by the Secretary of State must be taken into

account in deciding whether the requirements of subsection (8) have

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been complied with.

(13)   

The Secretary of State may by regulations amend any of the preceding

provisions of this section.

116D    

Regulation and enforcement

Schedule A1 confers powers to provide for—

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(a)   

codes of practice relating to licensing bodies, and

(b)   

the regulation of licensing bodies and of other persons

authorised under section 116A or 116B.

116E    

General

(1)   

Nothing in section 116B or Schedule A1 applies in relation to Crown

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copyright or Parliamentary copyright.

 
 

Digital Economy Bill [HL]

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(2)   

The powers conferred by sections 116A to 116C 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)   

The power to make regulations under sections 116A to 116C and

Schedule A1 is exercisable by statutory instrument.

(5)   

A statutory instrument containing such regulations is subject to

10

annulment in pursuance of a resolution of either House of Parliament,

but that is subject to subsection (6).

(6)   

Subsection (7) applies to a statutory instrument containing any of the

following—

(a)   

the first regulations made under section 116A;

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(b)   

the first regulations made under section 116B;

(c)   

the first regulations made under paragraph 1 of Schedule A1;

(d)   

the first regulations made under paragraph 3 of Schedule A1;

(e)   

regulations under sections 116A to 116C or Schedule A1

amending section 116C or another provision of this Part.

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(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.”

(2)   

Schedule 2 (which inserts Schedule A1 to the 1988 Act and makes provision in

relation to performers’ property rights corresponding to provision made by

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this section in relation to copyright) has effect.

(3)   

In the 1988 Act insert in the appropriate place—

(a)   

in section 179 (index of defined expressions in Part 1)—

 

“orphan work

section 116C”;

 

(b)   

in section 212 (index of defined expressions in Part 2)—

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“orphan right

paragraph 1C of Schedule 2A”.

 

43      

 Increase of penalties relating to infringing articles or illicit recordings

(1)   

The Copyright, Designs and Patents Act 1988 is amended as follows.

(2)   

In section 107 (criminal liability for making or dealing with infringing articles

etc.) in subsections (4)(a) and (4A)(a) for “the statutory maximum” substitute

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“£50,000”.

(3)   

In section 198 (criminal liability for making, dealing with or using illicit

recordings) in subsections (5)(a) and (5A)(a) for “the statutory maximum”

substitute “£50,000”.

 
 

Digital Economy Bill [HL]

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Public lending right

44      

Public lending right

(1)   

Section 5(2) of the Public Lending Right Act 1979 (interpretation) is amended

as follows.

(2)   

Before the definition of “local library authority” insert—

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““author”, in relation to a work recorded as a sound recording,

includes a producer or narrator;

“book” includes—

(a)   

a work recorded as a sound recording and consisting

mainly of spoken words (an “audio-book”), and

10

(b)   

a work, other than an audio-book, recorded in electronic

form and consisting mainly of (or of any combination of)

written or spoken words or still pictures (an “e-book”);

“lent out”—

(a)   

means made available to a member of the public for use

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away from library premises for a limited time, but

(b)   

does not include being communicated by means of

electronic transmission to a place other than library

premises,

and “loan” and “borrowed” are to be read accordingly;

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“library premises” has the meaning given in section 8(7) of the

Public Libraries and Museums Act 1964;”.

(3)   

After the definition of “prescribed” insert—

““producer” has the meaning given in section 178 of the

Copyright, Designs and Patents Act 1988;”.

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(4)   

At the end of the definition of “the register” omit “and”.

(5)   

After the definition of “the Registrar” insert—

““sound recording” has the meaning given in section 5A(1) of the

Copyright, Designs and Patents Act 1988.”

(6)   

The Copyright, Designs and Patents Act 1988 is amended as follows.

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(7)   

In section 40A (permitted acts in relation to copyright works: lending of copies

by libraries or archives), for subsection (1) substitute—

“(1)   

Copyright in a work of any description is not infringed by the following

acts by a public library in relation to a book within the public lending

right scheme—

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(a)   

lending the book;

(b)   

in relation to an audio-book or e-book, copying or issuing a

copy of the book as an act incidental to lending it.

(1A)   

In subsection (1)—

(a)   

“book”, “audio-book” and “e-book” have the meanings given in

40

section 5 of the Public Lending Right Act 1979,

(b)   

“the public lending right scheme” means the scheme in force

under section 1 of that Act,

 
 

Digital Economy Bill [HL]

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(c)   

a book is within the public lending right scheme if it is a book

within the meaning of the provisions of the scheme relating to

eligibility, whether or not it is in fact eligible, and

(d)   

“lending” is to be read in accordance with the definition of “lent

out” in section 5 of that Act (and section 18A of this Act does not

5

apply).”

(8)   

In Schedule 2, in paragraph 6B (permitted acts in relation to performances:

lending of copies by libraries or archives)—

(a)   

at the beginning insert—

   “(A1)  

The rights conferred by this Chapter are not infringed by the

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following acts by a public library in relation to a book within

the public lending right scheme—

(a)   

lending the book;

(b)   

in relation to an audio-book or e-book, copying or

issuing a copy of the book as an act incidental to

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lending it.

     (A2)  

Expressions used in sub-paragraph (A1) have the same

meaning as in section 40A(1).”;

(b)   

in sub-paragraph (2), for “this paragraph” substitute “sub-paragraph

(1)”.

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General

45      

Power to make consequential provision etc

(1)   

The Secretary of State may by regulations made by statutory instrument make

incidental, supplementary, consequential, transitional, transitory or saving

provision in connection with the amendments made by this Act.

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(2)   

The regulations may—

(a)   

make different provision for different purposes,

(b)   

modify an Act passed before or in the same Session as this Act or

subordinate legislation made before this Act is passed, and

(c)   

where they are made in connection with an amendment made by

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section 27 or by a provision listed in section 48(3), modify a provision

of an Act passed, or subordinate legislation made, before the day on

which that amendment comes into force.

(3)   

A statutory instrument containing regulations under this section that amend or

repeal a provision of an Act may not be made unless a draft of the instrument

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has been laid before, and approved by a resolution of, each House of

Parliament.

(4)   

Any other statutory instrument containing regulations under this section is

subject to annulment in pursuance of a resolution of either House of

Parliament.

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(5)   

In this section—

“modify” includes amend, repeal or revoke;

“subordinate legislation” has the same meaning as in the Interpretation

Act 1978.

 
 

 
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