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Digital Economy Bill [HL]


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

62

 

Fees

4     (1)  

The Secretary of State may by regulations require a licensing body

to which regulations under any other provision of this Schedule

apply to pay fees to the Secretary of State.

      (2)  

The aggregate amount of fees payable under the regulations must

5

not be more than the cost to the Secretary of State of administering

the operation of regulations under this Schedule.”

Part 2

Performers’ property rights

2          

In Schedule 2A to the Copyright, Designs and Patents Act 1988 (licensing of

10

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

15

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)  

An authorisation or licence under the regulations in favour of any

20

person must not preclude any authorisation or licence in favour of

another person.

      (3)  

The regulations may provide for the treatment of royalties or other

sums paid in respect of an authorisation or licence, including—

(a)   

the deduction of administrative costs;

25

(b)   

the period for which sums must be held for the owner of a

performer’s property rights;

(c)   

the treatment of sums after that period (as bona vacantia or

otherwise).

      (4)  

The regulations may provide for determining the rights and

30

obligations of any person if an interest in a performer’s property

rights ceases to be included in an orphan rights register (see

paragraph 1C).

      (5)  

The regulations may provide for the Secretary of State to

determine whether any requirement of the regulations for a

35

person’s becoming or remaining authorised has been met or

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

(within the meaning of paragraph 1) in relation to a performer’s

40

property rights where the rights owner is not the body or a person

on whose behalf the body acts.

      (2)  

The regulations may not authorise the grant of a licence—

 
 

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

63

 

(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.

      (3)  

Sub-paragraphs (2) to (5) of paragraph 1A apply to regulations

5

under this paragraph (but sub-paragraphs (3)(b) and (c) and (4)

apply only in relation to orphan rights).

1C    (1)  

A right is an orphan right, for the purposes of an authorisation

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

paragraph 1A or 1B, if any interest in the performer’s property

10

rights concerned is entered in a register maintained for the

purposes of this paragraph by that person (an “orphan rights

register”).

      (2)  

An authorisation in respect of an orphan right does not affect the

need for any consent—

15

(a)   

from the owner of an interest not entered in the authorised

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

authorisation under paragraph 1B that extends to other

interests), or

(b)   

from the owner of an interest that is entered in that

20

register, if the authorisation does not apply to that interest.

      (3)  

An authorised person must not enter an interest in an orphan

rights register unless the authorised person—

(a)   

has complied with the requirements of sub-paragraph (8)

in respect of that interest and has not found the owner of

25

the interest, or

(b)   

has reasonable grounds for believing that another person

has complied with those requirements in respect of that

interest and that the owner of that interest has not been

found.

30

      (4)  

An entry in an orphan rights register relating to an interest in a

performer’s property rights must include the record kept in

accordance with sub-paragraph (8)(c).

      (5)  

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

that authorised person’s orphan rights register, the authorised

35

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 the requirements of sub-paragraph (8) were

not complied with, or

40

(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 sub-paragraph (8) or remove the entry.

45

      (7)  

A failure by an authorised person to comply with any of sub-

paragraphs (3) to (6) in relation to an interest to which an

authorisation applies—

 
 

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

64

 

(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 sub-paragraph in respect of any interest

5

in a performer’s property rights 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 rights register, in a way designed

10

to bring 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 sub-paragraph (8)(a) the person carrying out

15

the search must in particular—

(a)   

make such use as is reasonable of sources of information,

including sources within sub-paragraph (10), relating to

the apparent country of origin of the recording concerned,

and

20

(b)   

have regard to any presumptions under section 105 that

would apply in relation to the recording in any

proceedings.

     (10)  

The sources referred to in sub-paragraph (9)(a) are—

(a)   

licensing bodies;

25

(b)   

public funding bodies;

(c)   

trade unions and trade associations;

(d)   

systems for identifying recordings of the type concerned;

(e)   

published library catalogues and indexes;

(f)   

public databases, including public records that may

30

indicate successors in title.

     (11)  

For the purposes of sub-paragraph (9)(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—

(a)   

the country of the recording’s first publication, or

35

(b)   

if the recording 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 sub-paragraph

(8) have been complied with.

40

     (13)  

The Secretary of State may by regulations amend any of the

preceding provisions of this paragraph.

1D         

Schedule A1 applies for the purposes of paragraphs 1A and 1B as

it applies for the purposes of sections 116A and 116B, as if

references to copyright were references to performers’ property

45

rights (and section 116E accordingly applies as if references to Part

1 included references to this Part).

 
 

Digital Economy Bill [HL]
Schedule 3 — Repeals

65

 

1E    (1)  

The powers conferred by paragraphs 1A to 1C include in

particular power—

(a)   

to make incidental, supplementary or consequential

provision;

(b)   

to make different provision for different purposes;

5

(c)   

to extend or restrict the jurisdiction of the Copyright

Tribunal.

      (2)  

The power referred to in sub-paragraph (1)(a) to make

consequential provision includes power to amend this Part.

      (3)  

The power to make regulations under paragraphs 1A to 1C is

10

exercisable by statutory instrument.

      (4)  

A statutory instrument containing such regulations is subject to

annulment in pursuance of a resolution of either House of

Parliament, but that is subject to sub-paragraph (5).

      (5)  

Sub-paragraph (6) applies to a statutory instrument containing

15

any of the following—

(a)   

the first regulations made under paragraph 1A;

(b)   

the first regulations made under paragraph 1B;

(c)   

regulations under paragraphs 1A to 1C amending

paragraph 1C or another provision of this Part.

20

      (6)  

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.”

Schedule 3

Section 46

 

Repeals

25

 

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”.

 
 

Video Recordings Act 1984

Section 2(1)(c) (and the word “or” before it).

 
 

(c. 39)

Section 4(6).

 

30

  

Section 8(2) and (3).

 
  

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

 
  

definition of “business”.

 
 

Broadcasting Act 1990 (c. 42)

Section 14(7).

 
  

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

 

35

  

paragraph (c).

 
  

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

 
  

Section 184.

 
 

Communications Act 2003

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

 
 

(c. 21)

Section 221.

 

40

  

Section 224(3).

 
  

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

 
  

“that case”.

 
 
 

Digital Economy Bill [HL]
Schedule 3 — Repeals

66

 
 

Short title and chapter

Extent of repeal

 
 

Communications Act 2003

In Schedule 15, paragraph 63 and the preceding

 
 

(c. 21)—cont.

heading.

 
 
 

 
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