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Session 2009 - 10
Internet Publications
Other Bills before Parliament

Digital Economy Bill [HL]


Digital Economy Bill [HL]

51

 

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

the purposes of fulfilling its responsibilities in respect of video games.

(2)   

Where there are two designated authorities, the arrangements made by

5

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—

(a)   

arrangements for having regard to any classification certificate

issued by the video works authority in respect of a video work

10

included in a video game;

(b)   

arrangements for obtaining and having regard to a

determination by the video works authority as to the suitability

of all or part of a video work included in a video game.

(3)   

For the purpose of determining the extent to which arrangements

15

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.

(4)   

In this section, “suitability” means suitability for the issue of a

20

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.

Copyright and performers’ property rights: licensing and penalties

25

43      

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

116A    

Licensing of orphan works

30

(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.

(2)   

Where the missing copyright owner is not the sole owner of copyright

35

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

another person.

40

(4)   

The regulations must provide for the treatment of royalties or other

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

 
 

Digital Economy Bill [HL]

52

 

(a)   

the deduction of administrative costs;

(b)   

the period for which sums must be held for the copyright

owner;

(c)   

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

otherwise).

5

(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

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

10

remaining authorised has been met or ceased to be met.

116B    

Extended licensing schemes

(1)   

The Secretary of State may by regulations provide for authorising a

licensing body to grant copyright licences (within the meaning of

section 116) in respect of works in which copyright is not owned by the

15

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

(b)   

in respect of rights excluded by notice given by the copyright

20

owner in accordance with the regulations.

(3)   

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).

116C    

 Meaning of “orphan work”

25

(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,

30

   

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—

35

(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.

40

(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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Digital Economy Bill [HL]

53

 

(e)   

public databases, including public records that may indicate

successors in title.

(5)   

For the purposes of subsection (3)(b) a work’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 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)(a) is notice of the proposal to

enter the interest concerned in a register kept in accordance with

10

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

15

(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—

20

(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

25

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

30

(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

35

authorised person must 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 any of the steps referred to in section 116C(1)(a)

and (b) was not taken, or

40

(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.

(7)   

Where an interest is entered in an orphan works register, regulations

45

under section 116A or 116B may provide for an authorisation under

 
 

Digital Economy Bill [HL]

54

 

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

5

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

10

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;

15

(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.

20

(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.

25

(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

30

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.

(6)   

A statutory instrument containing such regulations is subject to

35

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

but that is subject to subsection (7).

(7)   

Subsection (8) applies to a statutory instrument containing any of the

following—

(a)   

the first regulations made under section 116A;

40

(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 4 of Schedule A1;

(e)   

regulations under sections 116A to 116D or Schedule A1

amending any provision of this Part.

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Digital Economy Bill [HL]

55

 

(8)   

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

5

this section in relation to copyright) has effect.

(3)   

In the 1988 Act insert in the appropriate places—

(a)   

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

 

“missing copyright

section 116C”;

 
 

owner (in relation to an

  

10

 

orphan work)

  
 

“orphan work

section 116C”;

 

(b)   

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

 

“missing rights owner (in

paragraph 1C of Schedule 2A”;

 
 

relation to orphan rights)

  

15

 

“orphan right

paragraph 1C of Schedule 2A”.

 

44      

 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

20

“£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”.

Public lending right

25

45      

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—

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

30

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

(b)   

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

35

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

away from library premises for a limited time, but

40

 
 

Digital Economy Bill [HL]

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(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;

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

5

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;”.

(4)   

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

10

(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.

(7)   

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

15

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—

(a)   

lending the book;

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(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

section 5 of the Public Lending Right Act 1979,

25

(b)   

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

under section 1 of that Act,

(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

30

(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

apply).”

(8)   

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

lending of copies by libraries or archives)—

35

(a)   

at the beginning insert—

   “(A1)  

The rights conferred by this Chapter are not infringed by the

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

the public lending right scheme—

(a)   

lending the book;

40

(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.

     (A2)  

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

meaning as in section 40A(1).”;

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Digital Economy Bill [HL]

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(b)   

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

(1)”.

General

46      

Power to make consequential provision etc

(1)   

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

5

incidental, supplementary, consequential, transitional, transitory or saving

provision in connection with the amendments made by this Act.

(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

10

subordinate legislation made before this Act is passed, and

(c)   

where they are made in connection with an amendment made by

section 28 or by a provision listed in section 49(3), modify a provision

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

which that amendment comes into force.

15

(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

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

20

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

Parliament.

(5)   

In this section—

“modify” includes amend, repeal or revoke;

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

25

Act 1978.

47      

Repeals

Schedule 3 (repeals) has effect.

48      

Extent

(1)   

This Act extends to England and Wales, Scotland and Northern Ireland.

30

(2)   

An amendment of the following enactments that is made by this Act may be

extended to any of the Channel Islands or the Isle of Man under the relevant

extending power—

(a)   

Part 1 of the Copyright, Designs and Patents Act 1988;

(b)   

the Broadcasting Act 1990;

35

(c)   

the Broadcasting Act 1996;

(d)   

the Communications Act 2003;

(e)   

the Wireless Telegraphy Act 2006.

(3)   

“Relevant extending power” means—

(a)   

in relation to amendments of Part 1 of the Copyright, Designs and

40

Patents Act 1988, section 157(2) of that Act;

 
 

 
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