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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

65

 

      (2)  

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

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

5

another person.

      (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;

10

(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).

      (5)  

The regulations may provide for determining the rights and

15

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

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

20

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

25

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—

(a)   

in respect of an unpublished recording, unless it is a

recording made from or included in a broadcast, or

30

(b)   

in respect of rights excluded by notice given by the rights

owner in accordance with the regulations.

      (3)  

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).

35

1C    (1)  

A right is an orphan right if a person—

(a)   

has carried out in accordance with regulations 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

40

(b)   

has published the notice required by this paragraph,

           

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

45

the search must in particular—

 
 

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

66

 

(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

5

proceedings.

      (4)  

The sources referred to in sub-paragraph (3)(a) are—

(a)   

licensing bodies;

(b)   

associations of publishers or authors;

(c)   

systems for identifying works of the type concerned;

10

(d)   

published library catalogues and indexes;

(e)   

public databases, including public records that may

indicate successors in title.

      (5)  

For the purposes of sub-paragraph (3)(b) a recording’s apparent

country of origin is the country which the person carrying out the

15

search reasonably believes is most likely to be—

(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

20

proposal to enter the interest concerned in a register kept in

accordance with paragraph 1D(1), published in a way designed to

bring the proposal to the attention of the copyright owner.

      (7)  

The Secretary of State may by regulations amend any of the

preceding provisions of this paragraph.

25

1D    (1)  

Regulations made by the Secretary of State must provide for an

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”).

30

      (2)  

The regulations must—

(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.

35

      (3)  

An entry in an orphan rights register must include a sufficient

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—

40

(a)   

has taken the steps referred to in paragraph 1C(1)(a) and

(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.

45

 
 

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

67

 

      (5)  

If an interest is entered in an authorised person’s orphan rights

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—

5

(a)   

is aware that any of the steps referred to in paragraph

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

10

remove the entry.

      (7)  

Where an interest is entered in an orphan rights register,

regulations under paragraph 1A or 1B may provide for an

authorisation under that paragraph to have effect in respect of that

interest despite a failure to take steps referred to in paragraph

15

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

owed to the owner of the interest concerned (and see paragraph 4

of Schedule A1 as it applies by virtue of paragraph 1E).

20

      (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-

paragraph (6).

     (10)  

The Secretary of State may by regulations amend any of the

25

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—

(a)   

as if references to copyright were references to performers’

property rights, and

30

(b)   

as if the reference in paragraph 4(1)(c) to section 116D(4) to

(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

35

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

40

Tribunal.

      (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

45

Secretary of State must consult the persons the Secretary of State

thinks likely to be affected (or persons who represent such

persons) and such other persons as the Secretary of State thinks fit.

 
 

Digital Economy Bill [HL]
Schedule 3 — Repeals

68

 

      (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

annulment in pursuance of a resolution of either House of

Parliament, but that is subject to sub-paragraph (6).

5

      (6)  

Sub-paragraph (7) applies to a statutory instrument containing

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 1D amending any

10

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.”

Schedule 3

15

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”.

 
 

Video Recordings Act 1984

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

 

20

 

(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”.

 
 

Broadcasting Act 1990 (c. 42)

Section 14(7).

 

25

  

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

 
  

paragraph (c).

 
  

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

 
  

Section 184.

 
 

Communications Act 2003

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

 

30

 

(c. 21)

Section 221.

 
  

Section 224(3).

 
  

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

 
  

“that case”.

 
  

In Schedule 15, paragraph 63 and the preceding

 

35

  

heading.

 
 
 

 
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