Office of Public Sector Information
PART I continued CHAPTER VII continued
Where a reference or application is made to the Copyright Tribunal under this Chapter relating to the licensing of reprographic copying of published literary, dramatic, musical or artistic works, or the typographical arrangement of published editions, the Tribunal shall have regard to—
(a) the extent to which published editions of the works in question are otherwise available,
(b) the proportion of the work to be copied, and
(c) the nature of the use to which the copies are likely to be put.
(1) This section applies to references or applications under this Chapter relating to licences for the recording by or on behalf of educational establishments of broadcasts or cable programmes which include copyright works, or the making of copies of such recordings, for educational purposes.
(2) The Copyright Tribunal shall, in considering what charges (if any) should be paid for a licence, have regard to the extent to which the owners of copyright in the works included in the broadcast or cable programme have already received, or are entitled to receive, payment in respect of their inclusion.
(1) This section applies to references or applications under this Chapter in respect of licences relating to sound recordings, films, broadcasts or cable programmes which include, or are to include, any entertainment or other event.
(2) The Copyright Tribunal shall have regard to any conditions imposed by the promoters of the entertainment or other event; and, in particular, the Tribunal shall not hold a refusal or failure to grant a licence to be unreasonable if it could not have been granted consistently with those conditions.
(3) Nothing in this section shall require the Tribunal to have regard to any such conditions in so far as they—
(a) purport to regulate the charges to be imposed in respect of the grant of licences, or
(b) relate to payments to be made to the promoters of any event in consideration of the grant of facilities for making the recording, film, broadcast or cable programme.
(1) In considering what charges should be paid for a licence—
(a) on a reference or application under this Chapter relating to licences for the rental to the public of copies of sound recordings, films or computer programs, or
(b) on an application under section 142 (settlement of royalty or other sum payable for deemed licence),
the Copyright Tribunal shall take into account any reasonable payments which the owner of the copyright in the sound recording, film or computer program is liable to make in consequence of the granting of the licence, or of the acts authorised by the licence, to owners of copyright in works included in that work.
(2) On any reference or application under this Chapter relating to licensing in respect of the copyright in sound recordings, films, broadcasts or cable programmes, the Copyright Tribunal shall take into account, in considering what charges should be paid for a licence, any reasonable payments which the copyright owner is liable to make in consequence of the granting of the licence, or of the acts authorised by the licence, in respect of any performance included in the recording, film, broadcast or cable programme.
(1) This section applies to references or applications under this Chapter relating to licences to include in a broadcast or cable programme service—
(a) literary, dramatic, musical or artistic works, or,
(b) sound recordings or films,
where one broadcast or cable programme (“the first transmission”) is, by reception and immediate re-transmission, to be further broadcast or included in a cable programme service (“the further transmission”).
(2) So far as the further transmission is to the same area as the first transmission, the Copyright Tribunal shall, in considering what charges (if any) should be paid for licences for either transmission, have regard to the extent to which the copyright owner has already received, or is entitled to receive, payment for the other transmission which adequately remunerates him in respect of transmissions to that area.
(3) So far as the further transmission is to an area outside that to which the first transmission was made, the Tribunal shall (except where subsection (4) applies) leave the further transmission out of account in considering what charges (if any) should be paid for licences for the first transmission.
(4) If the Tribunal is satisfied that requirements imposed under section 13(1) of the [1984 c. 46.] Cable and Broadcasting Act 1984 (duty of Cable Authority to secure inclusion of certain broadcasts in cable programme services) will result in the further transmission being to areas part of which fall outside the area to which the first transmission is made, the Tribunal shall exercise its powers so as to secure that the charges payable for licences for the first transmission adequately reflect that fact.
The mention in sections 129 to 134 of specific matters to which the Copyright Tribunal is to have regard in certain classes of case does not affect the Tribunal’s general obligation in any case to have regard to all relevant considerations.
(1) This section applies to—
(a) schemes for licensing reprographic copying of published literary, dramatic, musical or artistic works, or the typographical arrangement of published editions, and
(b) licences granted by licensing bodies for such copying,
where the scheme or licence does not specify the works to which it applies with such particularity as to enable licensees to determine whether a work falls within the scheme or licence by inspection of the scheme or licence and the work.
(2) There is implied—
(a) in every scheme to which this section applies an undertaking by the operator of the scheme to indemnify a person granted a licence under the scheme, and
(b) in every licence to which this section applies an undertaking by the licensing body to indemnify the licensee,
against any liability incurred by him by reason of his having infringed copyright by making or authorising the making of reprographic copies of a work in circumstances within the apparent scope of his licence.
(3) The circumstances of a case are within the apparent scope of a licence if—
(a) it is not apparent from inspection of the licence and the work that it does not fall within the description of works to which the licence applies; and
(b) the licence does not expressly provide that it does not extend to copyright of the description infringed.
(4) In this section “liability” includes liability to pay costs; and this section applies in relation to costs reasonably incurred by a licensee in connection with actual or contemplated proceedings against him for infringement of copyright as it applies to sums which he is liable to pay in respect of such infringement.
(5) A scheme or licence to which this section applies may contain reasonable provision—
(a) with respect to the manner in which, and time within which, claims under the undertaking implied by this section are to be made;
(b) enabling the operator of the scheme or, as the case may be, the licensing body to take over the conduct of any proceedings affecting the amount of his liability to indemnify.
(1) This section applies to—
(a) a licensing scheme to which sections 118 to 123 apply (see section 117) and which is operated by a licensing body, or
(b) a licence to which sections 125 to 128 apply (see section 124),
so far as it provides for the grant of licences, or is a licence, authorising the making by or on behalf of educational establishments for the purposes of instruction of reprographic copies of published literary, dramatic, musical or artistic works, or of the typographical arrangement of published editions.
(2) If it appears to the Secretary of State with respect to a scheme or licence to which this section applies that—
(a) works of a description similar to those covered by the scheme or licence are unreasonably excluded from it, and
(b) making them subject to the scheme or licence would not conflict with the normal exploitation of the works or unreasonably prejudice the legitimate interests of the copyright owners,
he may by order provide that the scheme or licence shall extend to those works.
(3) Where he proposes to make such an order, the Secretary of State shall give notice of the proposal to—
(a) the copyright owners,
(b) the licensing body in question, and
(c) such persons or organisations representative of educational establishments, and such other persons or organisations, as the Secretary of State thinks fit.
(4) The notice shall inform those persons of their right to make written or oral representations to the Secretary of State about the proposal within six months from the date of the notice; and if any of them wishes to make oral representations, the Secretary of State shall appoint a person to hear the representations and report to him.
(5) In considering whether to make an order the Secretary of State shall take into account any representations made to him in accordance with subsection (4), and such other matters as appear to him to be relevant.
(1) The owner of the copyright in a work in respect of which an order is in force under section 137 may apply to the Secretary of State for the variation or discharge of the order, stating his reasons for making the application.
(2) The Secretary of State shall not entertain an application made within two years of the making of the original order, or of the making of an order on a previous application under this section, unless it appears to him that the circumstances are exceptional.
(3) On considering the reasons for the application the Secretary of State may confirm the order forthwith; if he does not do so, he shall give notice of the application to—
(a) the licensing body in question, and
(b) such persons or organisations representative of educational establishments, and such other persons or organisations, as he thinks fit.
(4) The notice shall inform those persons of their right to make written or oral representations to the Secretary of State about the application within the period of two months from the date of the notice; and if any of them wishes to make oral representations, the Secretary of State shall appoint a person to hear the representations and report to him.
(5) In considering the application the Secretary of State shall take into account the reasons for the application, any representations made to him in accordance with subsection (4), and such other matters as appear to him to be relevant.
(6) The Secretary of State may make such order as he thinks fit confirming or discharging the order (or, as the case may be, the order as previously varied), or varying (or further varying) it so as to exclude works from it.
(1) The owner of the copyright in a work which is the subject of an order under section 137 (order extending coverage of scheme or licence) may appeal to the Copyright Tribunal which may confirm or discharge the order, or vary it so as to exclude works from it, as it thinks fit having regard to the considerations mentioned in subsection (2) of that section.
(2) Where the Secretary of State has made an order under section 138 (order confirming, varying or discharging order extending coverage of scheme or licence)—
(a) the person who applied for the order, or
(b) any person or organisation representative of educational establishments who was given notice of the application for the order and made representations in accordance with subsection (4) of that section,
may appeal to the Tribunal which may confirm or discharge the order or make any other order which the Secretary of State might have made.
(3) An appeal under this section shall be brought within six weeks of the making of the order or such further period as the Tribunal may allow.
(4) An order under section 137 or 138 shall not come into effect until the end of the period of six weeks from the making of the order or, if an appeal is brought before the end of that period, until the appeal proceedings are disposed of or withdrawn.
(5) If an appeal is brought after the end of that period, any decision of the Tribunal on the appeal does not affect the validity of anything done in reliance on the order appealed against before that decision takes effect.
(1) The Secretary of State may appoint a person to inquire into the question whether new provision is required (whether by way of a licensing scheme or general licence) to authorise the making by or on behalf of educational establishments for the purposes of instruction of reprographic copies of—
(a) published literary, dramatic, musical or artistic works, or
(b) the typographical arrangement of published editions,
of a description which appears to the Secretary of State not to be covered by an existing licensing scheme or general licence and not to fall within the power conferred by section 137 (power to extend existing schemes and licences to similar works).
(2) The procedure to be followed in relation to an inquiry shall be such as may be prescribed by regulations made by the Secretary of State.
(3) The regulations shall, in particular, provide for notice to be given to—
(a) persons or organisations appearing to the Secretary of State to represent the owners of copyright in works of that description, and
(b) persons or organisations appearing to the Secretary of State to represent educational establishments,
and for the making of written or oral representations by such persons; but without prejudice to the giving of notice to, and the making of representations by, other persons and organisations.
(4) The person appointed to hold the inquiry shall not recommend the making of new provision unless he is satisfied—
(a) that it would be of advantage to educational establishments to be authorised to make reprographic copies of the works in question, and
(b) that making those works subject to a licensing scheme or general licence would not conflict with the normal exploitation of the works or unreasonably prejudice the legitimate interests of the copyright owners.
(5) If he does recommend the making of new provision he shall specify any terms, other than terms as to charges payable, on which authorisation under the new provision should be available.
(6) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(7) In this section (and section 141) a “general licence” means a licence granted by a licensing body which covers all works of the description to which it applies.
(1) The Secretary of State may, within one year of the making of a recommendation under section 140 by order provide that if, or to the extent that, provision has not been made in accordance with the recommendation, the making by or on behalf of an educational establishment, for the purposes of instruction, of reprographic copies of the works to which the recommendation relates shall be treated as licensed by the owners of the copyright in the works.
(2) For that purpose provision shall be regarded as having been made in accordance with the recommendation if—
(a) a certified licensing scheme has been established under which a licence is available to the establishment in question, or
(b) a general licence has been—
(i) granted to or for the benefit of that establishment, or
(ii) referred by or on behalf of that establishment to the Copyright Tribunal under section 125 (reference of terms of proposed licence), or
(iii) offered to or for the benefit of that establishment and refused without such a reference,
and the terms of the scheme or licence accord with the recommendation.
(3) The order shall also provide that any existing licence authorising the making of such copies (not being a licence granted under a certified licensing scheme or a general licence) shall cease to have effect to the extent that it is more restricted or more onerous than the licence provided for by the order.
(4) The order shall provide for the licence to be free of royalty but, as respects other matters, subject to any terms specified in the recommendation and to such other terms as the Secretary of State may think fit.
(5) The order may provide that where a copy which would otherwise be an infringing copy is made in accordance with the licence provided by the order but is subsequently dealt with, it shall be treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright for all subsequent purposes.
In this subsection “dealt with” means sold or let for hire, offered or exposed for sale or hire, or exhibited in public.
(6) The order shall not come into force until at least six months after it is made.
(7) An order may be varied from time to time, but not so as to include works other than those to which the recommendation relates or remove any terms specified in the recommendation, and may be revoked.
(8) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(9) In this section a “certified licensing scheme” means a licensing scheme certified for the purposes of this section under section 143.
(1) An application to settle the royalty or other sum payable in pursuance of section 66 (rental of sound recordings, films and computer programs) may be made to the Copyright Tribunal by the copyright owner or the person claiming to be treated as licensed by him.
(2) The Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.
(3) Either party may subsequently apply to the Tribunal to vary the order, and the Tribunal shall consider the matter and make such order confirming or varying the original order as it may determine to be reasonable in the circumstances.
(4) An application under subsection (3) shall not, except with the special leave of the Tribunal, be made within twelve months from the date of the original order or of the order on a previous application under that subsection.
(5) An order under subsection (3) has effect from the date on which it is made or such later date as may be specified by the Tribunal.
(1) A person operating or proposing to operate a licensing scheme may apply to the Secretary of State to certify the scheme for the purposes of—
(a) section 35 (educational recording of broadcasts or cable programmes),
(b) section 60 (abstracts of scientific or technical articles),
(c) section 66 (rental of sound recordings, films and computer programs),
(d) section 74 (sub-titled copies of broadcasts or cable programmes for people who are deaf or hard of hearing), or
(e) section 141 (reprographic copying of published works by educational establishments).
(2) The Secretary of State shall by order made by statutory instrument certify the scheme if he is satisfied that it—
(a) enables the works to which it relates to be identified with sufficient certainty by persons likely to require licences, and
(b) sets out clearly the charges (if any) payable and the other terms on which licences will be granted.
(3) The scheme shall be scheduled to the order and the certification shall come into operation for the purposes of section 35, 60, 66, 74 or 141, as the case may be—
(a) on such date, not less than eight weeks after the order is made, as may be specified in the order, or
(b) if the scheme is the subject of a reference under section 118 (reference of proposed scheme), any later date on which the order of the Copyright Tribunal under that section comes into force or the reference is withdrawn.
(4) A variation of the scheme is not effective unless a corresponding amendment of the order is made; and the Secretary of State shall make such an amendment in the case of a variation ordered by the Copyright Tribunal on a reference under section 118, 119 or 120, and may do so in any other case if he thinks fit.
(5) The order shall be revoked if the scheme ceases to be operated and may be revoked if it appears to the Secretary of State that it is no longer being operated according to its terms.
(1) Where the matters specified in a report of the Monopolies and Mergers Commission as being those which in the Commission’s opinion operate, may be expected to operate or have operated against the public interest include—
(a) conditions in licences granted by the owner of copyright in a work restricting the use of the work by the licensee or the right of the copyright owner to grant other licences, or
(b) a refusal of a copyright owner to grant licences on reasonable terms,
the powers conferred by Part I of Schedule 8 to the [1973 c. 41.] Fair Trading Act 1973 (powers exercisable for purpose of remedying or preventing adverse effects specified in report of Commission) include power to cancel or modify those conditions and, instead or in addition, to provide that licences in respect of the copyright shall be available as of right.
(2) The references in sections 56(2) and 73(2) of that Act, and sections 10(2)(b) and 12(5) of the [1980 c. 21.] Competition Act 1980, to the powers specified in that Part of that Schedule shall be construed accordingly.
(3) A Minister shall only exercise the powers available by virtue of this section if he is satisfied that to do so does not contravene any Convention relating to copyright to which the United Kingdom is a party.
(4) The terms of a licence available by virtue of this section shall, in default of agreement, be settled by the Copyright Tribunal on an application by the person requiring the licence; and terms so settled shall authorise the licensee to do everything in respect of which a licence is so available.
(5) Where the terms of a licence are settled by the Tribunal, the licence has effect from the date on which the application to the Tribunal was made.
(1) The Tribunal established under section 23 of the [1956 c. 74.] Copyright Act 1956 is renamed the Copyright Tribunal.
(2) The Tribunal shall consist of a chairman and two deputy chairmen appointed by the Lord Chancellor, after consultation with the Lord Advocate, and not less than two or more than eight ordinary members appointed by the Secretary of State.
(3) A person is not eligible for appointment as chairman or deputy chairman unless he is a barrister, advocate or solicitor of not less than seven years' standing or has held judicial office.
(1) The members of the Copyright Tribunal shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.
(2) A member of the Tribunal may resign his office by notice in writing to the Secretary of State or, in the case of the chairman or a deputy chairman, to the Lord Chancellor.
(3) The Secretary of State or, in the case of the chairman or a deputy chairman, the Lord Chancellor may by notice in writing to the member concerned remove him from office if—
(a) he has become bankrupt or made an arrangement with his creditors or, in Scotland, his estate has been sequestrated or he has executed a trust deed for his creditors or entered into a composition contract, or
(b) he is incapacitated by physical or mental illness,
or if he is in the opinion of the Secretary of State or, as the case may be, the Lord Chancellor otherwise unable or unfit to perform his duties as member.
(4) If a member of the Tribunal is by reason of illness, absence or other reasonable cause for the time being unable to perform the duties of his office, either generally or in relation to particular proceedings, a person may be appointed to discharge his duties for a period not exceeding six months at one time or, as the case may be, in relation to those proceedings.
(5) The appointment shall be made—
(a) in the case of the chairman or deputy chairman, by the Lord Chancellor, who shall appoint a person who would be eligible for appointment to that office, and
(b) in the case of an ordinary member, by the Secretary of State;
and a person so appointed shall have during the period of his appointment, or in relation to the proceedings in question, the same powers as the person in whose place he is appointed.
(6) The Lord Chancellor shall consult the Lord Advocate before exercising his powers under this section.
(1) There shall be paid to the members of the Copyright Tribunal such remuneration (whether by way of salaries or fees), and such allowances, as the Secretary of State with the approval of the Treasury may determine.
(2) The Secretary of State may appoint such staff for the Tribunal as, with the approval of the Treasury as to numbers and remuneration, he may determine.
(3) The remuneration and allowances of members of the Tribunal, the remuneration of any staff and such other expenses of the Tribunal as the Secretary of State with the approval of the Treasury may determine shall be paid out of money provided by Parliament.
(1) For the purposes of any proceedings the Copyright Tribunal shall consist of—
(a) a chairman, who shall be either the chairman or a deputy chairman of the Tribunal, and
(b) two or more ordinary members.
(2) If the members of the Tribunal dealing with any matter are not unanimous, the decision shall be taken by majority vote; and if, in such a case, the votes are equal the chairman shall have a further, casting vote.
(3) Where part of any proceedings before the Tribunal has been heard and one or more members of the Tribunal are unable to continue, the Tribunal shall remain duly constituted for the purpose of those proceedings so long as the number of members is not reduced to less than three.
(4) If the chairman is unable to continue, the chairman of the Tribunal shall—
(a) appoint one of the remaining members to act as chairman, and
(b) appoint a suitably qualified person to attend the proceedings and advise the members on any questions of law arising.
(5) A person is “suitably qualified” for the purposes of subsection (4)(b) if he is, or is eligible for appointment as, a deputy chairman of the Tribunal.
The function of the Copyright Tribunal is to hear and determine proceedings under—
(a) section 118, 119, or 120 (reference of licensing scheme);
(b) section 121 or 122 (application with respect to entitlement to licence under licensing scheme);
(c) section 125, 126 or 127 (reference or application with respect to licensing by licensing body);
(d) section 139 (appeal against order as to coverage of licensing scheme or licence);
(e) section 142 (application to settle royalty or other sum payable for rental of sound recording, film or computer program);
(f) section 144(4) (application to settle terms of copyright licence available as of right);
(g) section 190 (application to give consent for purposes of Part II on behalf of performer);
(h) paragraph 5 of Schedule 6 (determination of royalty or other remuneration to be paid to trustees for the Hospital for Sick Children).
(1) The Lord Chancellor may, after consultation with the Lord Advocate, make rules for regulating proceedings before the Copyright Tribunal and, subject to the approval of the Treasury, as to the fees chargeable in respect of such proceedings.
(2) The rules may apply in relation to the Tribunal—
(a) as respects proceedings in England and Wales, any of the provisions of the [1950 c. 27.] Arbitration Act 1950;
(b) as respects proceedings in Northern Ireland, any of the provisions of the [1937 c. 8 (N.I.).] Arbitration Act (Northern Ireland) 1937;
and any provisions so applied shall be set out in or scheduled to the rules.
(3) Provision shall be made by the rules—
(a) prohibiting the Tribunal from entertaining a reference under section 118, 119 or 120 by a representative organisation unless the Tribunal is satisfied that the organisation is reasonably representative of the class of persons which it claims to represent;
(b) specifying the parties to any proceedings and enabling the Tribunal to make a party to the proceedings any person or organisation satisfying the Tribunal that they have a substantial interest in the matter; and
(c) requiring the Tribunal to give the parties to proceedings an opportunity to state their case, in writing or orally as the rules may provide.
(4) The rules may make provision for regulating or prescribing any matters incidental to or consequential upon any appeal from the Tribunal under section 152 (appeal to the court on point of law).
(5) Rules under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) The Copyright Tribunal may order that the costs of a party to proceedings before it shall be paid by such other party as the Tribunal may direct; and the Tribunal may tax or settle the amount of the costs, or direct in what manner they are to be taxed.
(2) A document purporting to be a copy of an order of the Tribunal and to be certified by the chairman to be a true copy shall, in any proceedings, be sufficient evidence of the order unless the contrary is proved.
(3) As respect proceedings in Scotland, the Tribunal has the like powers for securing the attendance of witnesses and the production of documents, and with regard to the examination of witnesses on oath, as an arbiter under a submission.
(1) An appeal lies on any point of law arising from a decision of the Copyright Tribunal to the High Court or, in the case of proceedings of the Tribunal in Scotland, to the Court of Session.
(2) Provision shall be made by rules under section 150 limiting the time within which an appeal may be brought.
(3) Provision may be made by rules under that section—
(a) for suspending, or authorising or requiring the Tribunal to suspend, the operation of orders of the Tribunal in cases where its decision is appealed against;
(b) for modifying in relation to an order of the Tribunal whose operation is suspended the operation of any provision of this Act as to the effect of the order;
(c) for the publication of notices or the taking of other steps for securing that persons affected by the suspension of an order of the Tribunal will be informed of its suspension.
Copyright, Designs and Patents Act 1988