Digital Economy Bill [HL]

House of Lords

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;
45

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.
45

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]
56

(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;
20
(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).”;
45

Digital Economy Bill [HL]
57

(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;