Copyright and Designs Act 2004
COPYRIGHT AND DESIGNS ACT 2004
BERMUDA
2004 : 5
COPYRIGHT AND DESIGNS ACT 2004
[Date of Assent: 17 March 2004]
[Operative Date: 8 February 2008]
ARRANGEMENT OF SECTIONS
PART I
COPYRIGHT
CHAPTER I
PRELIMINARY
1 Index of defined
expressions
2 Minor definitions
3 General provisions as to
construction of this Part
4 Construction of references
to copyright owner
5 Meaning of "educational
establishment" and
related expressions
6 Meaning of publication
and commercial
publication
CHAPTER II
SUBSISTENCE, OWNERSHIP
AND DURATION OF
COPYRIGHT
Introductory
7 Copyright and copyright
works
8 Rights subsisting in
copyright works
Descriptions of work and related
provisions
9 Literary, dramatic and
musical works
10 Databases
11 Artistic works
12 Sound recordings
13 Films
1
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14 Broadcasts
15 Safeguards in case of
certain satellite
broadcasts
16 Cable programmes
17 Published editions
Authorship and ownership of
copyright
18 Authorship of work
19 Works of joint authorship
20 First ownership of
copyright
Duration of copyright
21 Duration of copyright in
literary, dramatic, musical
or artistic works
22 Duration of copyright in
sound recordings
23 Duration of copyright in
films
24 Duration of copyright in
broadcasts and cable
programmes
25 Duration of copyright in
typographical
arrangement of published
editions
26 Meaning of country of
origin
CHAPTER III
RIGHTS OF COPYRIGHT
OWNER
The acts restricted by copyright
27 The acts restricted by
copyright in a work
28 Infringement of copyright
by copying
29 Infringement by issue of
copies to the public
30 Infringement by rental or
lending of work to the
public
31 Infringement by
performance, showing or
playing of work in public
32 Infringement by
broadcasting or inclusion
in a cable programme
service
33 Infringement by making
adaptation or act done in
relation to adaptation
Secondary infringement of
copyright
34 Secondary infringement:
important infringing copy
35 Secondary infringement:
possessing or dealing with
infringing copy
36 Secondary infringement:
providing means for
making infringing copies
37 Secondary infringement:
permitting use of
premises for infringing
performance
38 Secondary infringement:
provision of apparatus for
infringing performance
etc.
Infringing copies
39 Meaning of "infringing
copy"
CHAPTER IV
ACTS PERMITTED IN
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RELATION TO COPYRIGHT
WORKS
Introductory
40 Introductory provisions
General
41 Research and private
study
42 Criticism, review and
news reporting
43 Incidental inclusion of
copyright material
Visual impairment
44 Making a single accessible
copy for personal use
45 Multiple copies for
visually impaired persons
46 Intermediate copies and
records
47 Licensing schemes
48 Limitations, etc. following
infringements of copyright
49 Definitions and other
supplementary provisions
for sections 44 to 48
Education
50 Things done for purposes
of instruction or
examination
51 Anthologies for
educational use
52 Performing, playing or
showing work in course of
activities of educational
establishment
53 Recording by educational
establishments of
broadcasts and cable
programmes
54 Reprographic copying by
educational
establishments of
passages from published
works
55 Lending of copies by
educational
establishments
Libraries and archives
56 Libraries and archives:
introductory
57 Copying by librarians:
articles in periodicals
58 Copying by librarians:
parts of published works
59 Restriction on production
of multiple copies of the
same material
60 Lending of copies by
libraries or archives
61 Copying by libraries:
supply of copies to other
libraries
62 Copying by librarians or
archivists: replacement
copies of works
63 Copying by librarians or
archivists: certain
unpublished works
64 Copy of work required to
be made as condition of
export
Public administration
65 Legislative and judicial
proceedings
66 Commissions and
statutory inquires
67 Material open to public
inspection or on official
register
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68 Material communicated to
the Crown in the course
of public business
69 Public records
70 Acts done under statutory
authority
Computer programs: lawful
users
71 Back up copies
72 Decompilation
73 Other acts permitted to
lawful users
Databases: permitted acts
74 Acts permitted in relation
to databases
Designs
75 Design documents and
models
76 Effect of exploitation of
design derived from
artistic work
77 Things done in reliance
on registration of design
Typefaces
78 Use of typeface in
ordinary course of
printing
79 Articles for producing
material in particular
typeface
Works in electronic form
80 Transfers of copies of
works in electronic form
Miscellaneous: literary, dramatic,
musical and artistic works
81 Anonymous or
pseudonymous works:
acts permitted on
assumptions as to expiry
of copyright or death of
author
82 Use of notes or recordings
of spoken words in
certain cases
83 Public reading or
recitation
84 Abstracts of scientific or
technical articles
85 Recordings of folksongs
86 Representation of certain
artistic works on public
display
87 Advertisement of sale of
artistic work
88 Making of subsequent
works by same artist
89 Reconstruction of
buildings
Miscellaneous: lending of works
and playing of sound recordings
90 Lending to public of
copies of certain works
91 Royalty or other sum
payable for lending of
certain works
Miscellaneous: films and sound
recordings
92 Films: acts permitted on
assumptions as to expiry
of copyright etc.
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93 Playing of sound
recordings for purposes of
club, society etc.
Miscellaneous: broadcasts and
cable programme
94 Incidental recordings for
purposes of broadcast or
cable programme
95 Recording for purposes of
supervision and control of
broadcasts and cable
programmes
96 Recording for purposes of
time-shifting
97 Photographs of television
broadcast or cable
programmes
98 Free public showing or
playing of broadcast or
cable programme
99 Reception and re-
transmission of broadcast
in cable programme
service
100 Provision of sub-titled
copies of broadcast or
cable programme
101 Recording for archival
purposes
Adaptations
102 Adaptations
CHAPTER V
MORAL RIGHTS
Right to be identified as author
or director
103 Right to be identified as
author or director
104 Requirement that right be
asserted
105 Exceptions to right
Right to object to derogatory
treatment of work
106 Right to object to
derogatory treatment of
work
107 Exceptions to right
108 Qualification of right in
certain cases
109 Infringement of right by
possessing or dealing with
infringing article
False attribution of work
110 False attribution of work
Right to privacy of certain
photographs and films
111 Right to privacy of certain
photographs and films
Supplementary
112 Duration of rights
113 Consent and waiver of
rights
114 Application of provisions
to joint works
115 Application of provisions
to parts of works
CHAPTER VI
DEALING WITH RIGHTS IN
COPYRIGHT WORKS
Copyright
116 Assignment and licences
117 Prospective ownership of
copyright
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118 Exclusive licences
119 Copyright to pass under
will with unpublished
work
120 Presumption of transfer of
rental right in case of film
production agreement
Right to equitable remuneration
where rental right transferred
121 Right to equitable
remuneration where
rental right transferred
122 Equitable remuneration:
reference of amount to
Copyright Tribunal
Moral rights
123 Moral rights not
assignable
124 Transmission of moral
rights on death
CHAPTER VII
REMEDIES FOR
INFRINGEMENT
Rights and remedies of copyright
owner
125 Infringement actionable
by copyright owner
126 Provisions as to damages
in infringement action
127 Order for delivery up
128 Right to seize infringing
copies and other articles
Rights and remedies of exclusive
licensee
129 Rights and remedies of
exclusive licensee
130 Exercise of concurrent
rights
Remedies for infringement of
moral rights
131 Remedies for infringement
of moral rights
Presumptions
132 Presumptions relevant to
literary, dramatic, musical
and artistic works
133 Presumptions relevant to
sound recordings, films
and computer
programmes
134 Presumptions relevant to
works subject to Crown
copyright
Offences
135 Criminal liability for
making or dealing with
infringing articles etc.
Enforcement by consumer
protection authority
136 Enforcement by
inspectors designated
under Consumer
Protection Act 1999
137 Order for delivery up in
criminal proceedings
138 Search warrants
Provision for preventing
importation of infringing copies
139 Infringing copies may be
treated as prohibited
goods
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140 Power of Minister of
Finance to make
regulations
Supplementary
141 Period after which remedy
of delivery up not
available
142 Order as to disposal of
infringing copy or other
article
143 Forfeiture of infringing
copies, etc.
144 Jurisdiction of
magistrates' court
CHAPTER VIII
COPYRIGHT LICENSING
Licensing schemes and licensing
bodies
145 Licensing schemes and
licensing bodies
Licensing schemes: references
and applications
146 Licensing schemes to
which the following
sections apply
147 Reference of proposed
licensing scheme to
Copyright Tribunal
148 Reference of licensing
schemes to Copyright
Tribunal
149 Further reference of
scheme to Copyright
Tribunal
150 Application for grant of
licence in connection with
licensing scheme
151 Application for review of
order as to entitlement to
licence
152 Effect of order of
Copyright Tribunal as to
licensing scheme
Licensing by licensing bodies:
references and applications
153 Licences to which
following sections apply
154 Reference to Copyright
Tribunal of proposed
licence
155 Reference to Copyright
Tribunal of expiring
licence
156 Application for review of
order as to licence
157 Effect of order of
Copyright Tribunal as to
licence
Factors to be taken into account
in certain classes of case
158 General considerations:
unreasonable
discrimination
159 Licences for reprographic
copying
160 Licences for educational
establishments in respect
of works included in
broadcasts or cable
programmes
161 Licences to reflect
conditions imposed by
promoters of events
162 Licences to reflect
payments in respect of
underlying rights
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163 Licences in respect of
works included in re-
transmissions
164 Mention of specific
matters not to exclude
other relevant
considerations
Use as of right of sound
recording in broadcasts and
cable programme services
165 Circumstances in which
right available
166 Notice of intention to
exercise right
167 Conditions for exercise of
right
168 Applications to settle
payments
169 References etc. about
conditions, information
and other terms
170 Application for review of
order
171 Factors to be taken into
account
172 Power to amend sections
165 to 171
Implied indemnity in schemes or
licences for reprographic copying
173 Implied indemnity in
certain schemes and
licences for reprographic
copying
Reprographic copying by
educational establishments
174 Power to extend coverage
of scheme or licence
175 Variation or discharge of
order extending scheme or
licence
176 Appeals against orders
177 Inquiry whether new
scheme or general licence
required
178 Statutory licence where
recommendation not
implemented
Royalty or other sum payable for
lending of certain works
179 Royalty or other sum
payable for lending of
certain works
Certification of licensing schemes
180 Certification of licensing
schemes
CHAPTER IX
THE COPYRIGHT TRIBUNAL
The Tribunal
181 The Copyright Tribunal
182 Membership of the
Copyright Tribunal
183 Financial provisions
184 Constitution for purposes
of proceedings
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Jurisdiction and procedure
185 Jurisdiction of the
Copyright Tribunal
186 General power to make
rules
187 Costs, proof of orders etc.
188 Award of interest
Appeals
189 Appeal to the court on
point of law
CHAPTER X
QUALIFICATION FOR AND
EXTENT OF COPYRIGHT
PROTECTION
Qualification for copyright
protection
190 Qualification for copyright
protection
191 Qualification by reference
to author
192 Qualification by reference
to country of first
publication
193 Qualification by reference
to place of transmission
Extent and application of this
Part
194 Application of this Part to
foreign countries
195 Denial of copyright
protection to citizens of
countries not giving
adequate protection to
Bermudian works
Supplementary
196 Territorial waters
197 Bermuda ships and
aircraft
CHAPTER XI
MISCELLANEOUS AND
GENERAL
Crown and Parliamentary
copyright
198 Crown copyright
199 Copyright in Acts
200 Parliamentary copyright
201 Copyright in Bills
202 The Legislature:
supplementary provisions
Other Miscellaneous Provisions
203 Copyright vesting in
certain international
organisations
204 Folklore etc.: anonymous
unpublished works
Requirement of signature
205 Requirement of signature:
application in relation to
body corporate
Transitional provisions and
savings
206 Transitional provisions
and savings
207 Rights and privileges
under other enactments
or the common law
PART II
RIGHTS IN PERFORMANCES
Preliminary
208 Index of defined
expressions
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209 Expressions having same
meaning as in copyright
provisions
210 Rights conferred on
performers and persons
having recording rights
Performers' rights
211 Qualifying performances
212 Consent required for
recording or transmission
of live performance
213 Consent required for
copying of recording
214 Consent required for issue
of copies to the public
215 Consent required for
rental or lending of copies
to public
216 Right to equitable
remuneration for
exploitation of sound
recording
217 Infringement of
performer's rights by use
of recording made without
consent
218 Infringement of
performer's rights by
importing, possessing or
dealing with illicit
recording
Rights of person having
recording rights
219 Exclusive recording
contracts and persons
having recording rights
220 Consent required for
recording of performance
subject to exclusive
contract
221 Infringement of recording
rights by use of recording
made without consent
222 Infringement of recording
rights by importing,
possessing or dealing with
illicit recording
Exceptions to rights conferred
223 Acts permitted
notwithstanding rights
conferred by this Part
224 Power of tribunal to give
consent on behalf of
performer in certain cases
Duration of rights
225 Duration of rights
Performers' property rights
226 Performers' property
rights
227 Assignment and licences
228 Prospective ownership of a
performer's property
rights
229 Exclusive licences
230 Performer's property right
to pass under will with
unpublished original
recording
231 Presumption of transfer of
rental right in case of film
production agreement
232 Right to equitable
remuneration where
rental right transferred
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233 Equitable remuneration:
reference of amount to
Copyright Tribunal
234 Infringement actionable
by rights owner
235 Provisions as to damages
in infringement actions
236 Rights and remedies for
exclusive licensee
237 Exercise of concurrent
rights
Non-property rights
238 Performers' non-property
rights
239 Transmissibility of rights
of persons having
recording rights
240 Consent
Remedies for infringement
241 Infringement actionable
as breach of statutory
duty
Delivery up or seizure of illicit
recordings
242 Order for delivery up
243 Right to seize illicit
recordings
244 Meaning of "illicit
recording"
Offences
245 Criminal liability for
making, dealing with or
using illicit recordings
Enforcement by consumer
protection authority
246 Enforcement by inspectors
designated under the
Consumer Protection Act
1999
247 Order for delivery up in
criminal proceedings
248 Search warrants
249 False representation of
authority to give consent
Supplementary provisions with
respect to delivery up and
seizure
250 Period after which remedy
of delivery up not
available
251 Order as to disposal of
illicit recording
252 Forfeiture of illicit
recordings
253 Jurisdiction of
magistrates' court
Licensing of performers' property
rights
254 Licensing of performers'
property rights
Jurisdiction of Copyright
Tribunal
255 Jurisdiction of Copyright
Tribunal
Qualification for protection and
extent
256 Qualifying countries,
individuals and persons
257 Countries enjoying
reciprocal protection
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258 Territorial waters
259 Bermuda ships and
aircraft
PART III
DATABASE RIGHT
Database right
260 Interpretation
261 Database right
262 The maker of a database
263 First ownership of
database right
264 Acts infringing database
right
265 Term of protection
266 Qualification for database
right
267 Avoidance of certain terms
affecting lawful users
268 Exceptions to database
right
269 Acts permitted on
assumption as to expiry of
database right
270 Presumptions relevant to
database right
271 Application of copyright
provisions to database
right
272 Licensing of database
right
273 Database right:
jurisdiction of Copyright
Tribunal
Savings and transitional
provisions
274 General rule
275 General savings
276 Savings for copyright in
certain existing database
277 Database right: term
applicable to certain
existing databases
PART IV
MISCELLANEOUS AND
GENERAL
Devices designed to circumvent
copy protection
278 Devices designed to
circumvent copy-
protection
Computer programs
279 Avoidance of certain terms
Databases
280 Avoidance of certain terms
relating to databases
Fraudulent reception of
transmission
281 Offence of fraudulently
receiving programmes
282 Unauthorised decoders
283 Search warrants
284 Forfeiture of unauthorised
decoders
285 Rights and remedies in
respect of apparatus etc.
for unauthorised
reception of transmission
286 Supplementary provisions
as to fraudulent reception
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PART V
DESIGN RIGHT
CHAPTER 1
DESIGN RIGHT IN ORIGINAL
DESIGNS
Interpretation
287 Index of defined
expressions
288 Minor definitions
289 Construction of references
to design right owner
290 Joint designs
291 Application of provisions
to articles in kit form
Introductory
292 Design right
293 The designer
294 Ownership of design right
295 Duration of design right
Qualifications for design right
protection
296 Qualifying individuals and
qualifying persons
297 Qualification by reference
to designer
298 Qualification by reference
to commissioner or
employer
299 Qualification by reference
to first marketing
300 Power to make further
provision as to
qualification
Dealings with design right
301 Assignment and licences
302 Prospective ownership of
design right
303 Assignment of right in
registered design
presumed to carry with it
design right
304 Exclusive licences
CHAPTER II
RIGHTS OF DESIGN RIGHT,
OWNER AND REMEDIES
Infringement of design right
305 Primary infringement of
design right
306 Secondary infringement:
importing or dealing with
infringing article
307 Meaning of "infringing
article"
Remedies for infringement
308 Rights and remedies of
design right owner
309 Order for delivery up
310 Order as to disposal of
infringing articles etc.
311 Jurisdiction of
magistrates' court
312 Innocent infringement
313 Rights and remedies of
exclusive licensee
314 Exercise of concurrent
rights
CHAPTER III
EXCEPTIONS TO RIGHTS OF
DESIGN RIGHT OWNERS
Infringement of copyright
315 Infringement of copyright
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Availability of licences of right
316 Licences available in last
five years of design
317 Undertaking to take
licence of right in
infringement proceedings
General
318 Power to provide for
further exceptions
CHAPTER IV
JURISDICTION OF THE
REGISTRAR-GENERAL AND
THE COURT
Jurisdiction of the Registrar-
General
319 Jurisdiction to decide
matters relating to design
right
320 Application to settle terms
of licence of right
321 Settlement of terms where
design right owner
unknown
322 Appeals as to terms of
licence of right
323 Rules
Jurisdiction of the court
324 References and appeals
on design right matters
CHAPTER V
MISCELLANEOUS AND
GENERAL
Miscellaneous
325 Remedy for groundless
threats of infringement
proceedings
326 Licensee under licence of
right not to claim
connection with design
right owner
327 Requirement of signature:
application in relation to
body corporate
Extent of operation of this Part
328 Countries enjoying
reciprocal protection
329 Territorial waters
330 Bermuda ships and aircraft
PART VI
GENERAL AND
SUPPLEMENTARY
Offences by body corporate
331 Offence by body
corporate: liability of
officers
Final provisions
332 Crown application
333 Consequential
amendment and repeal
334 Short title and
commencement
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SCHEDULES
Schedule 1
Copyright: Transitionals and
Savings
Schedule 2
Rights in Performances:
Permitted Acts
Schedule 3
Licensing of Performers'
Property Rights
Schedule 4
Exceptions to Database Right
for Public Administration
Schedule 5
Licensing of Database Right
WHEREAS it is expedient to restate the law of copyright with
amendments; to make fresh provisions with respect to the rights of
performers and others in performances; to make provision with respect
to devices designed to circumvent copy protection of works in electronic
form; to make fresh provision penalising the fraudulent reception of
transmissions; to make fresh provision with respect to database rights;
to confer a design right in original designs; and for connected purposes:
Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:⎯
PART I
COPYRIGHT
CHAPTER I
PRELIMINARY
Index of defined expressions
1. The following Table shows provisions defining or otherwise
explaining expressions used in this Part (other than provisions defining
or explaining an expression used only in the same section) ⎯
accessible copy section 49(3)
acts restricted by copyright section 27(1)
adaptation section 33(5)
approved body section 45(12)
archivist (in sections 56 to 63) section 56(5)
article (in a periodical) section 2
artistic work section 11(1)
author sections 18 and 19(4)
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broadcast (and related
expressions)
section 14
building section 11(2)
business section 2
cable programme, cable
programme service (and related
expressions)
section 16
collective work section 2
commencement (in Schedule 1) paragraph 1(2) of that Schedule
commercial publication section 6(2)
computer-generated section 2
copy and copying section 28
copyright (generally) section 7
copyright (in Schedule 1) paragraph 2(2) of that Schedule
copyright owner sections 4 and 129(2)
Copyright Tribunal section 181
copyright work section 7(2)
country section 2
country of origin section 26
the Crown section 2
Crown copyright sections 198(2) and 199(3)
database section 10(1)
dramatic work section 9(1)
educational establishment section 5(1)
electronic and electronic form section 2
employed, employee, employer
and employment
section 2
exclusive licence section 118 (1)
existing works (in Schedule 1) paragraph 1(3) of that Schedule
facsimile copy section 2
film section 13
future copyright section 117(2)
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general licence (in sections 177
and 178)
section 177(7)
graphic work section 11(2)
infringing copy section 39
international organisation section 2
issue of copies to the public section 29
joint authorship (work of) sections 19
judicial proceedings section 2
lawful user (in sections 71 to 73) section 71(2)
lending section 30 (2) to (6)]
librarian (in sections 56 to 63) section 56(5)
licence (in sections 154 to 157) section 153
licence of copyright owner sections 4, 116(4) and 117(3)
licensing body (in Chapter VIII) section 145(2)
licensing scheme (generally) section 145(1)
licensing scheme (in sections 147
to 152)
section 146(1)
literary work section 9(1)
made (in relation to a literary,
dramatic or musical work
section 9(2)
musical work section 9(1)
needletime section 165(5)
the new copyright provisions in
Schedule 1
paragraph 1(1) of that Schedule
the 1911 Act (in Schedule 1) paragraph 1(1) of that Schedule
the 1956 Act (in Schedule 1) paragraph 1(1) of that Schedule
on behalf of (in relation to an
educational establishment)
section 5(4)
original (in relation to a database) section 10(2)
Parliamentary copyright sections 200(2) and 201(5)
performance section 31(2)
photograph section 11(2)
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prescribed conditions (in sections
57 to 63)
section 56(1)(b)
prescribed library or archive (in
sections 57 to 63)
section 56(1)(a)
producer (in relation to a sound
recording or film)
section 2
programme (in the context of
broadcasting)
section 14(3)
prospective owner (of copyright) section 117(2)
publication and related
expressions
section 6
published edition (in the context
of copyright in the typographical
arrangement)
section 17
pupil section 5(3)
rental section 30(2) to (6)
rental right section 2
reprographic copies and
reprographic copying
section 2
reprographic process section 2
sculpture section 11(2)
signed section 205
sound recording sections 12 and 165(5)
sufficient acknowledgement section 2
sufficient disclaimer section 2
teacher section 5(3)
telecommunications system section 2
terms of payment section 165(5)
typeface section 2
unauthorised (as regards things
done in relation to a work)
section 2
unknown (in relation to the
author of a work)
section 18(5)
unknown authorship (work of) section 18(4)
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visually impaired persons section 49(9)
wireless telegraphy section 2
work (in Schedule 1) paragraph 2(1) of that Schedule
work of more than one author (in
Chapter VIII)
section 145(4)
writing and written section 2
Minor definitions
2. In this Part—
"article", in the context of an article in a periodical, includes an
item of any description;
"Bermudian status" has the meaning given in the Bermuda
Immigration and Protection Act 1956;
"business" includes a trade or profession;
"collective work" means —
(a) a work of joint authorship; or
(b) a work in which there are distinct contributions by different
authors or in which works or parts of works of different
authors are incorporated;
"computer-generated", in relation to a work, means that the work
is generated by computer in circumstances such that there is
no human author of the work;
"copyright owner" shall be construed in accordance with section
4;
"country" includes any territory;
"the Crown" means the Crown in right of Her Majesty's
Government in Bermuda;
"electronic" means actuated by electric, magnetic, electro-
magnetic, electro-chemical or electro-mechanical energy, and
"in electronic form" means in a form usable only by electronic
means;
"employed", "employee", "employer" and "employment" refer to
employment under a contract of service or of apprenticeship;
"facsimile copy" includes a copy which is reduced or enlarged in
scale;
"international organisation" means an organisation the members
of which include one or more states;
COPYRIGHT AND DESIGNS ACT 2004
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"judicial proceedings" includes proceedings before any court,
tribunal or person having authority to decide any matter
affecting a person's legal rights or liabilities;
"Minister" means the Minister responsible for matters relating to
intellectual property;
"premises" includes land, buildings, fixed or moveable
structures, vehicles, vessels, aircraft and hovercraft;
"producer", in relation to a sound recording or a film, means the
person by whom the arrangements necessary for the making
of the sound recording or film are undertaken;
"rental right" means the right of a copyright owner to authorise
or prohibit the rental of copies of the work;
"reprographic copy" and "reprographic copying" refer to copying
by means of a reprographic process;
"reprographic process" means a process⎯
(a) for making facsimile copies; or
(b) involving the use of an appliance for making multiple
copies;
and includes, in relation to a work held in electronic form, any
copying by electronic means, but does not include the making of
a film or sound recording;
"sufficient acknowledgement" means an acknowledgement
identifying the work in question by its title or other
description, and identifying the author unless⎯
(a) in the case of a published work, it is published
anonymously;
(b) in the case of an unpublished work, it is not possible for
a person to ascertain the identity of the author by
reasonable inquiry;
"sufficient disclaimer", in relation to an act capable of infringing
the right conferred by section 106 (right to object to
derogatory treatment of work), means a clear and reasonably
prominent indication⎯
(a) given at the time of the act; and
(b) if the author or director is then identified, appearing
along with the identification;
that the work has been subjected to treatment to which the
author or director has not consented;
COPYRIGHT AND DESIGNS ACT 2004
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"telecommunications system" means a system for conveying
visual images, sounds or other information by electronic
means;
"typeface" includes an ornamental motif used in printing;
"unauthorised", as regards anything done in relation to a work,
means done otherwise than⎯
(a) by or with the licence of the copyright owner; or
(b) if copyright does not subsist in the work, by or with the
licence of the author or, in a case where section 20(2)
would have applied, the author's employer or, in either
case, persons lawfully claiming under him; or
(c) in pursuance of section 68 (copying etc. of certain
material by the Crown);
"wireless telegraphy" means the sending of electro-magnetic
energy over paths not provided by a material substance
constructed or arranged for that purpose, but does not
include the transmission of microwave energy between
terrestrial fixed points;
"writing" includes any form of notation or code, whether by hand
or otherwise and regardless of the method by which, or
medium in or on which, it is recorded, and "written" shall be
construed accordingly.
General provisions as to construction of this Part
3. (1) This Part restates and amends the law of copyright, that is,
the provisions of the Copyright Act 1956 of the United Kingdom as
amended (as extended to Bermuda by the Copyright (Bermuda) Order
1962).
(2) A provision of this Part which corresponds to a provision of
the previous law shall not be construed as departing from the previous
law merely because of a change of expression.
(3) Decisions under the previous law may be referred to for the
purpose of establishing whether a provision of this Part departs from the
previous law, or otherwise for establishing the true construction of this
Part.
Construction of references to copyright owner
4. (1) Where different persons are (whether in consequence of a
partial assignment or otherwise) entitled to different aspects of copyright
in a work, the copyright owner for any purpose of this Part is the person
who is entitled to the aspect of copyright relevant for that purpose.
COPYRIGHT AND DESIGNS ACT 2004
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(2) Where copyright (or any aspect of copyright) is owned by
more than one person jointly, references in this Part to the copyright
owner are to all the owners, so that, in particular, any requirement of the
licence of the copyright owner requires the licence of all of them.
Meaning of "educational establishment" and related expressions
5. (1) In this Part "educational establishment" means —
(a) any school, within the meaning of the Education Act
1996; and
(b) any other description of educational establishment
specified for the purposes of this Part, or that provision,
by order of the Minister.
(2) An order under subsection (1)(b) may specify a description
of educational establishment by reference to the instruments from time
to time in force under any enactment specified in the order.
(3) In relation to an educational establishment the expressions
"teacher" and "pupil" in this Part include, respectively, any person who
gives and any person who receives instruction.
(4) References in this Part to anything being done "on behalf of"
an educational establishment are to its being done for the purposes of
that establishment by any person.
(5) An order made under this section is subject to negative
resolution procedure.
Meaning of publication and commercial publication
6. (1) In this Part "publication", in relation to a work —
(a) means the issue of copies to the public, and
(b) includes, in the case of a literary, dramatic, musical or
artistic work, making it available to the public by means
of an electronic retrieval system;
and related expressions shall be construed accordingly.
(2) In this Part "commercial publication", in relation to a
literary, dramatic, musical or artistic work means —
(a) issuing copies of the work to the public at a time when
copies made in advance of the receipt of orders are
generally available to the public; or
(b) making the work available to the public by means of an
electronic retrieval system;
and related expressions shall be construed accordingly.
COPYRIGHT AND DESIGNS ACT 2004
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(3) In the case of a work of architecture in the form of a
building, or an artistic work incorporated in a building, construction of
the building shall be treated as equivalent to publication of the work.
(4) The following do not constitute publication for the purposes
of this Part and references to commercial publication shall be construed
accordingly —
(a) in the case of a literary, dramatic or musical work —
(i) the performance of the work; or
(ii) the broadcasting of the work or its inclusion in a
cable programme service (otherwise than for the
purposes of an electronic retrieval system);
(b) in the case of an artistic work —
(i) the exhibition of the work;
(ii) the issue to the public of copies of a graphic work
representing, or of photographs of, a work of
architecture in the form of a building or a model for
a building, a sculpture or a work of artistic
craftsmanship;
(iii) the issue to the public of copies of a film including
the work; or
(iv) the broadcasting of the work or its inclusion in a
cable programme service (otherwise than for the
purposes of an electronic retrieval system);
(c) in the case of a sound recording or film—
(i) the work being played or shown in public; or
(ii) the broadcasting of the work or its inclusion in a
cable programme service.
(5) References in this Part to publication or commercial
publication do not include publication which is merely colourable and
not intended to satisfy the reasonable requirements of the public.
(6) No account shall be taken for the purposes of this section of
any unauthorised act.
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CHAPTER II
SUBSISTENCE, OWNERSHIP AND DURATION OF COPYRIGHT
Introductory
Copyright and copyright works
7. (1) Copyright is a property right which subsists in accordance
with this Part in the following descriptions of work—
(a) original literary, dramatic, musical or artistic works;
(b) sound recordings, films, broadcasts or cable
programmes; and
(c) the typographical arrangement of published editions.
(2) In this Part "copyright work" means a work of any of those
descriptions in which copyright subsists.
(3) Copyright does not subsist in a work unless the
requirements of this Part with respect to qualification for copyright
protection are met.
Rights subsisting in copyright works
8. (1) The owner of the copyright in a work of any description has
the exclusive right to do the acts specified in Chapter III (Rights of
Copyright Owner) as the acts restricted by the copyright in a work of that
description.
(2) In relation to certain descriptions of copyright work the
following rights conferred by Chapter V (moral rights) subsist in favour of
the author, director or commissioner of the work, whether or not he is
the owner of the copyright —
(a) section 103 (right to be identified as author or director);
(b) section 106 (right to object to derogatory treatment of
the work); and
(c) section 111 (right to privacy of certain photographs and
films).
Descriptions of work and related provisions
Literary, dramatic and musical works
9. (1) In this Part ⎯
"literary work" means any work, other than a dramatic or
musical work, which is written, spoken or sung, and
accordingly includes ⎯
(a) a table or compilation, other than a database;
COPYRIGHT AND DESIGNS ACT 2004
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(b) a computer program;
(c) preparatory design material for a computer program;
and
(d) a database;
"dramatic work" includes a work of dance or mime; and
"musical work" means a work consisting of music, exclusive of
any words or action intended to be sung, spoken or
performed with the music.
(2) Copyright does not subsist in a literary, dramatic or musical
work unless and until it is recorded, in writing or otherwise; and
references in this Part to the time at which such a work is made are to
the time at which it is so recorded.
(3) It is immaterial for the purposes of subsection (2) whether
the work is recorded by or with the permission of the author; and where
it is not recorded by the author, nothing in that subsection affects the
question whether copyright subsists in the record as distinct from the
work recorded.
Databases
10. (1) In this part "database" means a collection of independent
works, data or other materials which ⎯
(a) are arranged in a systematic or methodical way; and
(b) are individually accessible by electronic or other means.
(2) For the purposes of this Part, a literary work consisting of a
database is original if, and only if, by reason of the selection or
arrangement of the contents of the database it constitutes the author's
own intellectual creation.
Artistic works
11. (1) In this Part "artistic work" means ⎯
(a) a graphic work, photograph, sculpture or collage,
irrespective of artistic quality;
(b) a work of architecture, being a building or a model for a
building; or
(c) a work of artistic craftsmanship.
(2) In this Part ⎯
"building" includes any fixed structure and a part of a
building or fixed structure;
"graphic work" includes —
COPYRIGHT AND DESIGNS ACT 2004
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(a) any painting, drawing, diagram, map, chart or plan;
and
(b) any engraving, etching, lithograph, woodcut or
similar work;
"photograph" means a recording of light or other radiation on
any medium on which an image is produced or from
which an image may by any means be produced, and
which is not part of a film;
"sculpture" includes a cast or model made for the purposes of
sculpture.
Sound recordings
12. (1) In this Part "sound recording" means ⎯
(a) a recording of sounds, from which the sounds may be
reproduced; or
(b) a recording of the whole or any part of a literary,
dramatic or musical work, from which sounds
reproducing the work or part may be reproduced;
regardless of the medium on which the recording is made or the method
by which the sounds are reproduced or produced.
(2) Copyright does not subsist in a sound recording which is, or
to the extent that it is, a copy taken from a previous sound recording.
Films
13. (1) In this Part "film" means a recording on any medium from
which a moving image may by any means be produced.
(2) The sound track accompanying a film shall be treated as
part of the film for the purposes of this Part.
(3) Without prejudice to the generality of subsection (1), where
that subsection applies —
(a) references in this Part to showing a film include playing
the film sound track to accompany the film; and
(b) references to playing a sound recording do not include
playing the film sound track to accompany the film.
(4) Copyright does not subsist in a film which is, or to the
extent that it is, a copy taken from a previous film.
(5) Nothing in this section affects any copyright subsisting in a
film sound track as a sound recording.
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Broadcasts
14. (1) In this Part a "broadcast" means a transmission by wireless
telegraphy of visual images, sounds or other information which ⎯
(a) is capable of being lawfully received by members of the
public; or
(b) is transmitted for presentation to members of the public;
and references to broadcasting shall be construed accordingly.
(2) An encrypted transmission shall be regarded as capable of
being lawfully received by members of the public only if decoding
equipment has been made available to members of the public by or with
the authority of the person making the transmission or the person
providing the contents of the transmission.
(3) References in this Part to the person making a broadcast,
broadcasting a work, or including a work in a broadcast are—
(a) to the person transmitting the programme, if he has
responsibility to any extent for its contents; and
(b) to any person providing the programme who makes with
the person transmitting it the arrangements necessary
for its transmission;
and references in this Part to a programme, in the context of
broadcasting, are to any item included in a broadcast.
(4) For the purposes of this Part, the place from which a
broadcast is made is the place where, under the control and
responsibility of the person making the broadcast, the programme-
carrying signals are introduced into an uninterrupted chain of
communication (including, in the case of a satellite transmission, the
chain leading to the satellite and down towards the earth).
(5) Subsections (3) and (4) have effect subject to section 15
(safeguards in cases of certain satellite broadcasts).
(6) References in this Part to the reception of a broadcast
include reception of a broadcast relayed by means of a
telecommunications systems.
(7) Copyright does not subsist in a broadcast which infringes,
or to the extent that it infringes, the copyright in another broadcast or in
a cable programme.
Safeguards in case of certain satellite broadcasts
15. (1) This section applies where the place from which a broadcast
by way of satellite transmission is made is located in a country other
than Bermuda and the law of that country fails to provide at least the
following level of protection ⎯
COPYRIGHT AND DESIGNS ACT 2004
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(a) exclusive rights in relation to broadcasting equivalent to
those conferred by section 32 (infringement by
broadcasting) on the authors of literary, dramatic,
musical and artistic works, films and broadcasts;
(b) a right in relation to live broadcasting equivalent to that
conferred on a performer by section 212(1)(b) (consent
required for live broadcast of performance); and
(c) a right for authors of sound recordings and performers
to share in a single equitable remuneration in respect of
the broadcasting of sound recordings.
(2) Where the place from which the programme-carrying
signals are transmitted to the satellite ("the uplink station") is located in
Bermuda ⎯
(a) that place shall be treated as the place from which the
broadcast is made; and
(b) the person operating the uplink station shall be treated
as the person making the broadcast.
(3) Where the uplink station is not located in Bermuda but a
person who is established in Bermuda has commissioned the making of
the broadcast ⎯
(a) that person shall be treated as the person making the
broadcast; and
(b) the place in which he has his principal establishment in
Bermuda shall be treated as the place from which the
broadcast is made.
Cable programmes
16. (1) In this Part⎯
"cable programme" means any item included in a cable
programme service; and
"cable programme service" means a service which consists
wholly or mainly in sending visual images, sounds or
other information by means of a telecommunications
system, otherwise than by wireless telegraphy, for
reception —
(a) at two or more places (whether for simultaneous
reception or at different times in response to
requests by different users); or
(b) for presentation to members of the public;
and which is not, or so far as it is not, excepted by or
under the following provisions of this section.
COPYRIGHT AND DESIGNS ACT 2004
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(2) The following are excepted from the definition of "cable
programme service" ⎯
(a) a service or part of a service of which it is an essential
feature that while visual images, sounds or other
information are being conveyed by the person providing
the service there will or may be sent from each place of
reception, by means of the same system or (as the case
may be) the same part of it, information (other than
signals sent for the operation or control of the service)
for reception by the person providing the service or other
persons receiving it;
(b) a service run for the purposes of a business where —
(i) no person except the person carrying on the business
is concerned in the control of the apparatus
comprised in the system;
(ii) the visual images, sounds or other information are
conveyed by the system solely for purposes internal
to the running of the business and not by way of
rendering a service or providing amenities for others;
and
(iii) the system is not connected to any other
telecommunications system;
(c) a service run by a single individual where —
(i) all the apparatus comprised in the system is under
his control;
(ii) the visual images, sounds or other information
conveyed by the system are conveyed solely for
domestic purposes of his; and
(iii) the system is not connected to any other
telecommunications system;
(d) services where ⎯
(i) all the apparatus comprised in the system is
situated in, or connects, premises which are in
single occupation; and
(ii)the system is not connected to any other
telecommunications system;
other than services operated as part of the amenities
provided for residents or inmates of premises run as a
business;
COPYRIGHT AND DESIGNS ACT 2004
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(e) services which are, or to the extent that they are, run for
persons providing broadcasting or cable programme
services or providing programmes for such services.
(3) The Minister may by order, amend subsection (2) so as to
add or remove exceptions, subject to such transitional provision as
appears to him to be appropriate.
(4) An order made under this section is subject to affirmative
resolution procedure.
(5) References in this Part to the inclusion of a cable
programme or work in a cable programme service are to its transmission
as part of the service; and references to the person including it are to the
person providing the service.
(6) Copyright does not subsist in a cable programme —
(a) if it is included in a cable programme service by
reception and immediate re-transmission of a broadcast;
or
(b) if it infringes, or to the extent that it infringes, the
copyright in another cable programme or in a broadcast.
Published editions
17. (1) In this Part "published edition", in the context of copyright
in the typographical arrangement of a published edition, means a
published edition of the whole or any part of one or more literary,
dramatic or musical works.
(2) Copyright does not subsist in the typographical
arrangement of a published edition if, or to the extent that, it reproduces
the typographical arrangement of a previous edition.
Authorship and ownership of copyright
Authorship of work
18. (1) In this Part "author", in relation to a work, means the
person who creates it.
(2) That person shall be taken to be ⎯
(a) in the case of a sound recording, the producer;
(b) in the case of a film, the producer and the principal
director;
(c) in the case of a broadcast, the person making the
broadcast or, in the case of a broadcast which relays
another broadcast by reception and immediate re-
transmission, the person making that other broadcast;
COPYRIGHT AND DESIGNS ACT 2004
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(d) in the case of a cable programme, the person providing
the cable programme service in which the programme is
included;
(e) in the case of the typographical arrangement of a
published edition, the publisher.
(3) In the case of a literary, dramatic, musical or artistic work
which is computer-generated, the author shall be taken to be the person
by whom the arrangements necessary for the creation of the work are
undertaken.
(4) For the purposes of this Part a work is of "unknown
authorship" if the identity of the author is unknown or, in the case of a
work of joint authorship, if the identity of none of the authors is known.
(5) For the purposes of this Part the identity of an author shall
be regarded as unknown if it is not possible for a person to ascertain his
identity by reasonable inquiry; but if his identity is once known it shall
not subsequently be regarded as unknown.
Works of joint authorship
19. (1) In this Part a "work of joint authorship" means a work
produced by the collaboration of two or more authors in which the
contribution of each author is not distinct from that of the other author
or authors.
(2) A film shall be treated as a work of joint authorship unless
the producer and the principal director are the same person.
(3) A broadcast shall be treated as a work of joint authorship in
any case where more than one person is to be taken as making the
broadcast.
(4) References in this Part to the author of work shall, except
as otherwise provided, be construed in relation to a work of joint
authorship as references to all the authors of the work.
First ownership of copyright
20. (1) The author of a work is the first owner of any copyright in
it, subject to the following provisions.
(2) Where a literary, dramatic, musical or artistic work, or a
film, is made by an employee in the course of his employment, his
employer is the first owner of any copyright in the work subject to any
agreement to the contrary.
(3) This section does not apply to Crown copyright,
Parliamentary copyright or to copyright which subsists by virtue of
section [203] (copyright of certain international organisations).
COPYRIGHT AND DESIGNS ACT 2004
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Duration of copyright
Duration of copyright in literary, dramatic, musical or artistic works
21. (1) The following provisions have effect with respect to the
duration of copyright in a literary, dramatic, musical or artistic work.
(2) Copyright expires at the end of the period of 70 years from
the end of the calendar year in which the author dies, subject as follows.
(3) If the work is of unknown authorship, copyright expires ⎯
(a) at the end of the period of 70 years from the end of the
calendar year in which the work was made; or
(b) if during that period the work is made available to the
public, at the end of the period of 70 years from the end
of the calendar year in which it is first so made available;
subject as follows.
(4) Subsection (2) applies if the identity of the author becomes
known before the end of the period specified in paragraph (a) or (b) of
subsection (3).
(5) For the purposes of subsection (3), making available to the
public includes —
(a) in the case of a literary, dramatic or musical work⎯
(i) performance in public; or
(ii) being broadcast or included in a cable
programme service;
(b) in the case of an artistic work⎯
(i) exhibition in public;
(ii) a film including the work being shown in public; or
(iii) being included in a broadcast or cable programme
service;
but in determining generally for the purposes of that subsection whether
a work has been made available to the public no account shall be taken
of any unauthorised act.
(6) Where the country of origin of the work is not Bermuda and
the author of the work does not possess Bermudian status, the duration
of copyright is that to which the work is entitled in the country of origin,
provided that does not exceed the period which would apply under
subsections (2) to (5).
COPYRIGHT AND DESIGNS ACT 2004
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(7) If the work is computer-generated the above provisions do
not apply and copyright expires at the end of the period of 50 years from
the end of the calendar year in which the work was made.
(8) The provisions of this section are adapted as follows in
relation to a work of joint authorship ⎯
(a) the reference in subsection (2) to the death of the author
shall be construed ⎯
(i) if the identity of all the authors is known, as a
reference to the death of the last of them to die; and
(ii) if the identity of one or more of the authors is known
and the identity of one or more others is not, as a
reference to the death of the last whose identity is
known;
(b) the reference in subsection (4) to the identity of the
author becoming known shall be construed as a
reference to the identity of any of the authors becoming
known;
(c) the reference in subsection (6) to the author not
possessing Bermudian status shall be construed as a
reference to none of the authors possessing Bermudian
status.
(9) This section does not apply to Crown copyright,
Parliamentary copyright or to copyright which subsists by virtue of
section 203 (copyright of certain international organisations).
Duration of copyright in sound recordings
22. (1) The following provisions have effect with respect to the
duration of copyright in a sound recording.
(2) Copyright expires ⎯
(a) at the end of the period of 50 years from the end of the
calendar year in which it is made; or
(b) if during that period it is released, 50 years from the end
of the calendar year in which it is released;
subject as follows.
(3) For the purposes of subsection (2), a sound recording is
"released" when it is first published, played in public, broadcast or
included in a cable programme service; but in determining whether a
sound recording has been released no account shall be taken of any
unauthorised act.
(4) Where the author of a sound recording does not possess
Bermudian status, the duration of copyright is that to which the sound
COPYRIGHT AND DESIGNS ACT 2004
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recording is entitled in the country of which the author is a national,
provided that does not exceed the period which would apply under
subsections (2) and (3).
(5) If or to the extent that the application of subsection (4)
would be at variance with an international obligation to which Bermuda
became subject prior to 29 October 1993, the duration of copyright shall
be as specified in subsections (2) and (3).
Duration of copyright in films
23. (1) The following provisions have effect with respect to the
duration of copyright in a film.
(2) Copyright expires at the end of the period of 70 years from
the end of the calendar year in which the death occurs of the last to die
of the following persons —
(a) the principal director;
(b) the author of the screenplay;
(c) the author of the dialogue; or
(d) the composer of music specially created for and used in
the film;
subject as follows.
(3) If the identity of one or more of the persons referred to in
subsections (2)(a) to (d) is known and the identity of one or more others
is not, the reference in that subsection to the death of the last of them to
die shall be construed as a reference to the death of the last whose
identity is known.
(4) If the identity of the persons referred to in subsections (2)(a)
to (d) is unknown, copyright expires at⎯
(a) the end of the period of 70 years from the end of the
calendar year in which the film was made; or
(b) if during that period the film is made available to the
public, at the end of the period of 70 years from the end
of the calendar year in which it is first so made available.
(5) Subsections (2) and (3) apply if the identity of any of those
persons becomes known before the end of the period specified in
paragraph (a) or (b) of subsection (4).
(6) For the purposes of subsection (4) making available to the
public includes ⎯
(a) showing in public; or
(b) being broadcast or included in a cable programme
service;
COPYRIGHT AND DESIGNS ACT 2004
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but in determining generally for the purposes of that subsection whether
a film has been made available to the public no account shall be taken of
any unauthorised act.
(7) Where the country of origin is not Bermuda and the author
of the film does not possess Bermudian status, the duration of the
copyright is that to which the work is entitled in the country of origin,
provided that does not exceed the period which would apply under
subsections (2) to (6).
(8) In relation to a film of which there are joint authors, the
reference in subsection (7) to the author not possessing Bermudian
status shall be construed as a reference to none of the authors
possessing Bermudian status.
(9) If in any case there is no person falling within paragraphs
(a) to (d) of subsection (2), the above provisions do not apply and
copyright expires at the end of the period of 50 years from the end of the
calendar year in which the film was made.
(9) For the purposes of this section the identity of any of the
persons referred to in subsection (2)(a) to (d) shall be regarded as
unknown if it is not possible for a person to ascertain his identity by
reasonable inquiry; but if the identity of any such person is once known
it shall not subsequently be regarded as unknown.
Duration of copyright in broadcasts and cable programmes
24. (1) The following provisions have effect with respect to the
duration of copyright in a broadcast or cable programme.
(2) Copyright in a broadcast or cable programme expires at the
end of the period of 50 years from the end of the calendar year in which
the broadcast was made or the programme was included in a cable
programme service, subject as follows.
(3) Where the author of the broadcast or cable programme does
not possess Bermudian status, the duration of copyright in the
broadcast or cable programme is that to which it is entitled in the
country of which the author is a national, provided that does not exceed
the period which would apply under subsection (2).
(4 ) If or to the extent that the application of subsection (3)
would be at variance with an international obligation to which Bermuda
became subject prior to 29 October 1993, the duration of copyright shall
be as specified in subsection (2).
(5) Copyright in a repeat broadcast or cable programme expires
at the same time as the copyright in the original broadcast or cable
programme; and accordingly no copyright arises in respect of a repeat
broadcast or cable programme which is broadcast or included in a cable
programme service after the expiry of the copyright in the original
broadcast or cable programme.
COPYRIGHT AND DESIGNS ACT 2004
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(6) A repeat broadcast or cable programme means one which is
a repeat either of a broadcast previously made or of a cable programme
previously included in a cable programme service.
Duration of copyright in typographical arrangement of published
editions
25. Copyright in the typographical arrangement of a published
edition expires at the end of the period of 25 years from the end of the
calendar year in which the edition was first published.
Meaning of country of origin
26. (1) For the purposes of the provisions of this Part relating to the
duration of copyright, the country of origin of a work shall be determined
as follows.
(2) If the work is first published in a Berne Convention country
and is not simultaneously published elsewhere, the country of origin is
that country.
(3) If the work is first published simultaneously in two or more
countries only one of which is a Berne Convention country, the country
of origin is that country.
(4) If the work is first published simultaneously in two or more
countries of which two or more are Berne Convention countries, then ⎯
(a) if any of those countries is Bermuda, the country of
origin is that country; and
(b) if none of those countries is Bermuda, the country of
origin is the Berne Convention country which grants the
shorter or shortest period of copyright protection.
(5) If the work is unpublished or is first published in a country
which is not a Berne Convention country (and is not simultaneously
published in a Berne Convention country), the country of origin is ⎯
(a) if the work is a film and the maker of the film has his
headquarters in, or is domiciled or resident in a Berne
Convention country, that country;
(b) if the work is ⎯
(i) a work of architecture constructed in a Berne
Convention country, or
(ii) an artistic work incorporated in a building or
other structure situated in a Berne Convention
country;
that country;
COPYRIGHT AND DESIGNS ACT 2004
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(c) in any other case, the country of which the author of the
work is a national.
(6) In this section⎯
(a) a "Berne Convention country" means a country which is
a party to any Act of the International Convention for the
Protection of Literary and Artistic Works signed at Berne
on 9th September 1886; and
(b) references to simultaneous publication are to publication
within 30 days of first publication.
CHAPTER III
RIGHTS OF COPYRIGHT OWNER
The acts restricted by copyright
The acts restricted by copyright in a work
27. (1) The owner of the copyright in a work has, in accordance
with the following provisions of this Chapter, the exclusive right to do the
following acts in Bermuda—
(a) to copy the work;
(b) to issue copies of the work to the public;
(c) to rent or lend the work to the public;
(d) to perform, show or play the work in public;
(e) to broadcast the work or include it in a cable programme
service;
(f) to make an adaptation of the work or do any of the
above in relation to an adaptation;
and those acts are referred to in this Part as the "acts restricted by the
copyright".
(2) Copyright in a work is infringed by a person who without
the licence of the copyright owner does, or authorises another to do, any
of the acts restricted by the copyright.
(3) References in this Part to the doing of an act restricted by
the copyright in a work are to the doing of it—
(a) in relation to the work as a whole or any substantial part
of it; and
(b) either directly or indirectly;
and it is immaterial whether any intervening acts themselves infringe
copyright.
COPYRIGHT AND DESIGNS ACT 2004
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(4) This Chapter has effect subject to—
(a) the provisions of Chapter IV (acts permitted in relation
to copyright works); and
(b) the provisions of Chapter VIII (copyright licensing).
Infringement of copyright by copying
28. (1) The copying of the work is an act restricted by the copyright
in every description of copyright work; and references in this Part to
copying and copies shall be construed as follows.
(2) Copying in relation to a literary, dramatic, musical or
artistic work means reproducing the work in any material form, and
includes storing the work in any medium by electronic means.
(3) In relation to an artistic work copying includes the making
of a copy in three dimensions of a two-dimensional work and the making
of a copy in two dimensions of a three-dimensional work.
(4) Copying in relation to a film, television broadcast or cable
programme includes making a photograph of the whole or any
substantial part of any image forming part of the film, broadcast or cable
programme.
(5) Copying in relation to the typographical arrangement of a
published edition means making a facsimile copy of the arrangement.
(6) Copying in relation to any description of work includes the
making of copies which are transient or are incidental to some other use
of the work.
Infringement by issue of copies to the public
29. (1) The issue to the public of copies of the work is an act
restricted by the copyright in every description of copyright work.
(2) References in this Part to the issue to the public of copies of
a work are to —
(a) the act of putting into circulation in Bermuda copies not
previously put into circulation in Bermuda by or with
the consent of the copyright owner; or
(b) the act of putting into circulation outside Bermuda
copies not previously put into circulation in Bermuda or
elsewhere.
(3) References in this Part to the issue to the public of copies of
a work do not include —
(a) any subsequent distribution, sale, hiring or loan of
copies previously put into circulation; or
COPYRIGHT AND DESIGNS ACT 2004
39
(b) any subsequent importation of such copies into
Bermuda;
except so far as paragraph (a) of subsection (2) applies to putting into
circulation in Bermuda copies previously put into circulation outside
Bermuda.
(4) References in this Part to the issue of copies of a work
include the issue of the original.
Infringement by rental or lending of work to the public
30. (1) The rental or lending of copies of the work to the public is
an act restricted by the copyright in —
(a) a literary, dramatic or musical work;
(b) an artistic work, other than —
(i) a work of architecture in the form of a building or a
model for a building; or
(ii) a work of applied art; or
(c) a film or a sound recording.
(2) In this Part, subject to the following provisions of this
section ⎯
(a) "rental" means making a copy of the work available for
use, on terms that it will or may be returned, for direct
or indirect economic or commercial advantage; and
(b) "lending" means making a copy of the work available for
use, on terms that it will or may be returned, otherwise
than for direct or indirect economic or commercial
advantage, through an establishment which is accessible
to the public.
(3) The expressions "rental" and "lending" do not include ⎯
(a) making available for the purpose of public performance,
playing or showing in public, broadcasting or inclusion
in a cable programme service;
(b) making available for the purpose of exhibition in public;
or
(c) making available for on-the-spot reference use.
(4) The expression "lending" does not include making available
between establishments which are accessible to the public.
(5) Where lending by an establishment accessible to the public
gives rise to a payment the amount of which does not go beyond what is
necessary to cover the operating costs of the establishment, there is no
COPYRIGHT AND DESIGNS ACT 2004
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direct or indirect economic or commercial advantage for the purposes of
this section.
(6) References in this Part to the rental or lending of copies of a
work include the rental or lending of the original.
Infringement by performance, showing or playing of work in public
31. (1) The performance of the work in public is an act restricted
by the copyright in a literary, dramatic or musical work.
(2) In this Part "performance", in relation to a work ⎯
(a) includes delivery in the case of lectures, addresses,
speeches and sermons; and
(b) in general, includes any mode of visual or acoustic
presentation, including presentation by means of a
sound recording, film, broadcast or cable programme of
the work;
(3) The playing or showing of the work in public is an act
restricted by the copyright in a sound recording, film, broadcast or cable
programme.
(4) Where copyright in a work is infringed by its being
performed, played or shown in public by means of apparatus for
receiving visual images or sounds conveyed by electronic means, the
person by whom the visual images or sounds are sent, and in the case of
a performance the performers, shall not be regarded as responsible for
the infringement.
Infringement by broadcasting or inclusion in a cable programme
service
32. The broadcasting of the work or its inclusion in a cable
programme service is an act restricted by the copyright in —
(a) a literary, dramatic, musical or artistic work;
(b) a sound recording or film; or
(c) a broadcast or cable programme.
Infringement by making adaptation or act done in relation to
adaptation
33. (1) The making of an adaptation of the work is an act restricted
by the copyright in a literary, dramatic or musical work.
(2) For this purpose an adaptation is made when it is recorded,
in writing or otherwise.
COPYRIGHT AND DESIGNS ACT 2004
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(3) The doing of any of the acts specified in sections 28 to 32,
or subsection (1), in relation to an adaptation of the work is also an act
restricted by the copyright in a literary, dramatic or musical work.
(4) For this purpose it is immaterial whether the adaptation
has been recorded, in writing or otherwise, at the time the act is done.
(5) In this Part "adaptation" ⎯
(a) in relation to a literary work, other than a computer
program or a database, or in relation to a dramatic work,
means ⎯
(i) a translation of the work;
(ii) a version of a dramatic work in which it is
converted into a non-dramatic work or, as the case
may be, of a non-dramatic work in which it is
converted into a dramatic work;
(iii) a version of the work in which the story or action is
conveyed wholly or mainly by means of pictures in
a form suitable for reproduction in a book, or in a
newspaper, magazine or similar periodical;
(b) in relation to a computer program, means an
arrangement or altered version of the program or a
translation of it;
(c) in relation to a database, means an arrangement or
altered version of the database or a translation of it;
(d) in relation to a musical work, means an arrangement or
transcription of the work.
(6) In relation to a computer program a "translation" includes a
version of the program in which it is converted into or out of a computer
language or code or into a different computer language or code.
(7) No inference shall be drawn from this section as to what
does or does not amount to copying a work.
Secondary infringement of copyright
Secondary infringement: importing infringing copy
34. The copyright in a work is infringed by a person who, without
the licence of the copyright owner, imports into Bermuda, otherwise than
for his private and domestic use, an article which is, and which he
knows or has reason to believe is, an infringing copy of the work.
Secondary infringement: possessing or dealing with infringing copy
35. The copyright in a work is infringed by a person who, without
the licence of copyright owner —
COPYRIGHT AND DESIGNS ACT 2004
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(a) possesses in the course of a business;
(b) sells or lets for hire, or offers or exposes for sale or hire;
(c) in the course of a business exhibits in public or
distributes; or
(d) distributes otherwise than in the course of a business to
such an extent as to affect prejudicially the owner of the
copyright;
an article which is, and which he knows or has reason to believe is, an
infringing copy of the work.
Secondary infringement: providing means for making infringing
copies
36. (1) Copyright in a work is infringed by a person who, without
the licence of the copyright owner ⎯
(a) makes;
(b) imports into Bermuda;
(c) possesses in the course of a business; or
(d) sells or lets for hire, or offers or exposes for sale or hire;
an article specifically designed or adapted for making copies of that work,
knowing or having reason to believe that it is to be used to make
infringing copies.
(2) Copyright in a work is infringed by a person who without
the licence of the copyright owner transmits the work by means of a
telecommunications system (otherwise than by broadcasting or inclusion
in a cable programme service), knowing or having reason to believe that
infringing copies of the work will be made by means of the reception of
the transmission in Bermuda or elsewhere.
Secondary infringement: permitting use of premises for infringing
performance
37. (1) Where the copyright in a literary, dramatic or musical work
is infringed by a performance at a place of public entertainment, any
person who gave permission for that place to be used for the
performance is also liable for the infringement unless when he gave
permission he believed on reasonable grounds that the performance
would not infringe copyright.
(2) In this section "place of public entertainment" includes
premises which are occupied mainly for other purposes but are from
time to time made available for hire for the purposes of public
entertainment.
COPYRIGHT AND DESIGNS ACT 2004
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Secondary infringement: provision of apparatus for infringing
performance etc.
38. (1) Where copyright in a work is infringed by a public
performance of the work, or by the playing or showing of the work in
public, by means of apparatus for —
(a) playing sound recordings;
(b) showing films; or
(c) receiving visual images or sounds conveyed by electronic
means;
the following persons are also liable for the infringement.
(2) A person who supplied the apparatus, or any substantial
part of it, is liable for the infringement if when he supplied the apparatus
or part —
(a) he knew or had reason to believe that the apparatus was
likely to be so used as to infringe copyright; or
(b) in the case of apparatus whose normal use involves a
public performance, playing or showing, he did not
believe on reasonable grounds that it would not be so
used as to infringe copyright.
(3) An occupier of premises who gave permission for the
apparatus to be brought onto the premises is liable for the infringement
if when he gave permission he knew or had reason to believe that the
apparatus was likely to be so used as to infringe copyright.
(4) A person who supplied a copy of a sound recording or film
used to infringe copyright is liable for the infringement if when he
supplied it he knew or had reason to believe that what he supplied, or a
copy made directly or indirectly from it, was likely to be so used as to
infringe copyright.
Infringing copies
Meaning of "infringing copy"
39. (1) In this Part "infringing copy", in relation to a copyright
work, shall be construed in accordance with this section.
(2) An article is an infringing copy if its making constituted an
infringement of the copyright in the work in question.
(3) An article is also an infringing copy if —
(a) it has been or is proposed to be imported into Bermuda;
and
COPYRIGHT AND DESIGNS ACT 2004
44
(b) its making in Bermuda would have constituted an
infringement of the copyright in the work in question, or
a breach of an exclusive licence agreement relating to
that work.
(4) Where in any proceedings the question arises whether an
article is an infringing copy and it is shown —
(a) that the article is a copy of the work; and
(b) that copyright subsists in the work or has subsisted at
any time;
it shall be presumed until the contrary is proved that the article was
made at a time when copyright subsisted in the work.
(5) In this Part "infringing copy" includes a copy falling to be
treated as an infringing copy by virtue of any of the following
provisions —
(a) section 50(5) (copies made for purposes of instruction or
examination);
(b) section 53(3) (recordings made by educational
establishments for educational purposes);
(c) section 54(5) (reprographical copying by education
establishments for purposes of instruction);
(d) section 56(3)(b) (copies made by librarian or archivist in
reliance on false declaration);
(e) section 80(2) (further copies, adaptations etc. of work in
electronic form retained on transfer of principal copy);
(f) section 87(2) (copies made for purpose of advertising
artistic work for sale);
(g) section 94(4) (copies made for purpose of broadcast or
cable programme); or
(h) any provision of an order under section 178 (statutory
licence for certain reprographic copying by educational
establishments).
CHAPTER IV
ACTS PERMITTED IN RELATION TO COPYRIGHT WORKS
Introductory
Introductory provisions
40. (1) The provisions of this Chapter specify acts which may be
done in relation to copyright works notwithstanding the subsistence of
COPYRIGHT AND DESIGNS ACT 2004
45
copyright; they relate only to the question of infringement of copyright
and do not affect any other right or obligation restricting the doing of any
of the specified acts.
(2) Where it is provided by this Chapter that an act does not
infringe copyright, or may be done without infringing copyright, and no
particular description of copyright work is mentioned, the act in question
does not infringe the copyright in a work of any description.
(3) No inference shall be drawn from the description of any act
which may by virtue of this Chapter be done without infringing copyright
as to the scope of the acts restricted by the copyright in any description
of work.
(4) The provisions of this Chapter are to be construed
independently of each other, so that the fact that an act does not fall
within one provision does not mean that it is not covered by another
provision.
General
Research and private study
41. (1) Fair dealing with a literary work, other than a database, or
a dramatic, musical or artistic work for the purposes of research or
private study does not infringe any copyright in the work or, in the case
of a published edition, in the typographical arrangement.
(2) Fair dealing with a database for the purposes of research or
private study does not infringe any copyright in the database provided
that the source is indicated.
(3) Fair dealing with the typographical arrangement of a
published edition for the purposes mentioned in subsection (1) does not
infringe any copyright in the arrangement.
(4) Copying by a person other than the researcher or student
himself is not fair dealing if ⎯
(a) in the case of a librarian, or a person acting on behalf of
a librarian, he does anything which regulations under
section 59 would not permit to be done under section 57
or 58 (articles or parts of published works: restriction on
multiple copies of same material); or
(b) in any other case, the person doing the copying knows or
has reason to believe that it will result in copies of
substantially the same material being provided to more
than one person at substantially the same time and for
substantially the same purpose.
(5) It is not fair dealing ⎯
COPYRIGHT AND DESIGNS ACT 2004
46
(a) to convert a computer program expressed in a low level
language into a version expressed in a higher level
language; or
(b) incidentally in the course of so converting the program,
to copy it;
(these acts being permitted if done in accordance with
section 72 (Decompilation).
(6) The doing of anything in relation to a database for the
purposes of research for a commercial purpose is not fair dealing with
the database.
Criticism, review and news reporting
42. (1) Fair dealing with a work for the purpose of criticism or
review, of that or another work or of a performance of a work, does not
infringe any copyright in the work provided that it is accompanied by a
sufficient acknowledgement.
(2) Fair dealing with a work (other than a photograph) for the
purpose of reporting current events does not infringe any copyright in
the work provided that (subject to subsection (3)) it is accompanied by a
sufficient acknowledgement.
(3) No acknowledgement is required in connection with the
reporting of current events by means of a sound recording, film,
broadcast or cable programme.
Incidental inclusion of copyright material
43. (1) Copyright in a work is not infringed by its incidental
inclusion in an artistic work, sound recording, film, broadcast or cable
programme.
(2) Nor is the copyright infringed by the issue to the public of
copies, or the playing, showing, broadcasting or inclusion in a cable
programme service, of anything whose making was, by virtue of
subsection (1), not an infringement of the copyright.
(3) A musical work, words spoken or sung with music, or so
much of a sound recording, broadcast or cable programme as includes a
musical work or such words, shall not be regarded as incidentally
included in another work if it is deliberately included.
Visual impairment
Making a single accessible copy for personal use
44. (1) If a visually impaired person has lawful possession or lawful
use of a copy ("the master copy") of the whole or part of ⎯
(a) a literary, dramatic, musical or artistic work; or
COPYRIGHT AND DESIGNS ACT 2004
47
(b) a published edition;
which is not accessible to him because of the impairment, it is not an
infringement of copyright in the work, or in the typographical
arrangement of the published edition, for an accessible copy of the
master copy to be made for his personal use.
(2) Subsection (1) does not apply ⎯
(a) if the master copy is of a musical work, or part of a
musical work, and the making of an accessible copy
would involve recording a performance of the work or
part of it; or
(b) if the master copy is of a database, or part of a database,
and the making of an accessible copy would infringe
copyright in the database.
(3) Subsection (1) does not apply in relation to the making of
an accessible copy for a particular visually impaired person if, or to the
extent that, copies of the copyright work are commercially available, by
or with the authority of the copyright owner, in a form that is accessible
to that person.
(4) An accessible copy made under this section must be
accompanied by ⎯
(a) a statement that it is made under this section; and
(b) a sufficient acknowledgement.
(5) If a person makes an accessible copy on behalf of a visually
impaired person under this section and charges for it, the sum charged
must not exceed the cost of making and supplying the copy.
(6) If a person holds an accessible copy made under subsection
(1) when he is not entitled to have it made under that subsection, the
copy is to be treated as an infringing copy, unless he is a person falling
within subsection (7)(b).
(7) A person who holds an accessible copy made under
subsection (1) may transfer it to ⎯
(a) a visually impaired person entitled to have the accessible
copy made under subsection (1); or
(b) a person who has lawful possession of the master copy
and intends to transfer the accessible copy to a person
falling within paragraph (a).
(8) The transfer by a person ("V") of an accessible copy made
under subsection (1) to another person ("T") is an infringement of
copyright by V unless V has reasonable grounds for believing that T is a
person falling within subsection (7)(a) or (b).
COPYRIGHT AND DESIGNS ACT 2004
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(9) If an accessible copy which would be an infringing copy but
for this section is subsequently dealt with ⎯
(a) it is to be treated as an infringing copy for the purposes
of that dealing; and
(b) if that dealing infringes copyright, is to be treated as an
infringing copy for all subsequent purposes.
(10) In subsection (9), "dealt with" means sold or let for hire or
offered or exposed for sale or hire or included in a broadcast or cable
programme service.
Multiple copies for visually impaired persons
45. (1) If an approved body has lawful possession of a copy ("the
master copy") of the whole or part of ⎯
(a) a commercially published literary, dramatic, musical or
artistic work; or
(b) a commercially published edition;
it is not an infringement of copyright in the work, or in the typographical
arrangement of the published edition, for the body to make, or supply,
accessible copies for the personal use of visually impaired persons to
whom the master copy is not accessible because of their impairment.
(2) Subsection (1) does not apply ⎯
(a) if the master copy is of a musical work, or part of a
musical work, and the making of an accessible copy
would involve recording a performance of the work or
part of it; or
(b) if the master copy is of a database, or part of a database,
and the making of an accessible copy would infringe
copyright in the database.
(3) Subsection (1) does not apply in relation to the making of
an accessible copy if, or to the extent that, copies of the copyright work
are commercially available, by or with the authority of the copyright
owner, in a form that is accessible to the same or substantially the same
degree.
(4) Subsection (1) does not apply in relation to the supply of an
accessible copy of a particular visually impaired person if, or to the
extent that, copies of the copyright work are commercially available, by
or with the authority of the copyright owner, in a form that is accessible
to that person.
(5) An accessible copy made under this section must be
accompanied by ⎯
(a) a statement that it is made under this section; and
COPYRIGHT AND DESIGNS ACT 2004
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(b) a sufficient acknowledgement.
(6) If an approved body charges for supplying a copy made
under this section, the sum charged must not exceed the cost of making
and supplying the copy.
(7) An approved body making copies under this section must, if
it is an educational establishment, ensure that the copies will be used
only for its educational purposes.
(8) If the master copy is in copy-protected electronic form, any
accessible copy made of it under this section must, so far as it is
reasonably practicable to do so, incorporate the same, or equally
effective, copy protection (unless the copyright owner agrees otherwise).
(9) If an approved body continues to hold an accessible copy
made under subsection (1) when it would no longer be entitled to make
or supply such a copy under that subsection, the copy is to be treated as
an infringing copy.
(10) If an accessible copy which would be an infringing copy but
for this section is subsequently dealt with ⎯
(a) it is to be treated as an infringing copy for the purposes
of that dealing; and
(b) if that dealing infringes copyright, is to be treated as an
infringing copy for all subsequent purposes.
(11) In subsection (10), "dealt with" means sold or let for hire or
offered or exposed for sale or hire or included in a broadcast or cable
programme service.
(12) "Approved body" means an educational establishment or a
body that is not conducted for profit.
(13) "Supplying" includes lending.
Intermediate copies and records
46. (1) An approved body entitled to make accessible copies under
section 45 may hold an intermediate copy of the master copy which is
necessarily created during the production of the accessible copies, but
only ⎯
(a) if and so long as the approved body continues to be
entitled to make accessible copies of that master copy;
and
(b) for the purposes of the production of further accessible
copies.
(2) An intermediate copy which is held in breach of subsection
(1) is to be treated as an infringing copy.
COPYRIGHT AND DESIGNS ACT 2004
50
(3) An approved body may lend or transfer the intermediate
copy to another approved body which is entitled to make accessible
copies of the work or published edition under section 45.
(4) The loan or transfer by an approved body ("A") of an
intermediate copy to another person ("B") is an infringement of copyright
by A unless A has reasonable grounds for believing that B ⎯
(a) is another approved body which is entitled to make
accessible copies of the work or published edition under
section 45; and
(b) will use the intermediate copy only for the purposes of
the production of further accessible copies.
(5) If an approved body charges for lending or transferring the
intermediate copy, the sum charged must not exceed the cost of the loan
or transfer.
(6) An approved body must ⎯
(a) keep records of accessible copies made under section 45
and of the persons to whom they are supplied;
(b) keep records of any intermediate copy lent or transferred
under this section and of the persons to whom it is lent
or transferred; and
(c) allow the copyright owner or a person acting for him, on
giving reasonable notice, to inspect the records at any
reasonable time.
(7) Within a reasonable time of making an accessible copy
under section 45, or lending or transferring an intermediate copy under
this section, the approved body must ⎯
(a) notify each relevant representative body; or
(b) if there is no such body, notify the copyright owner.
(8) A relevant representative body is a body which ⎯
(a) represents particular copyright owners, or owners of
copyright in the type of copyright work concerned; and
(b) has given notice to the Minister of the copyright owners,
or the classes of copyright owner, represented by it.
(9) The requirement to notify the copyright owner under
subsection (7)(b) does not apply if it is not reasonably possible for the
approved body to ascertain the name and address of the copyright
owner.
COPYRIGHT AND DESIGNS ACT 2004
51
Licensing schemed
47. (1) Section 45 does not apply to the making of an accessible
copy in a particular form if ⎯
(a) a licensing scheme operated by a licensing body is in
force under which licences may be granted by the
licensing body permitting the making and supply of
copies of the copyright work in that form;
(b) the scheme is not unreasonably restrictive; and
(c) the scheme and any modification made to it have been
notified to the Minister by the licensing body.
(2) A scheme is unreasonably restrictive if it includes a term or
condition which ⎯
(a) purports to prevent or limit the steps that may be taken
under section 45 or 46; or
(b) has that effect.
(3) But subsection (2) does not apply if ⎯
(a) the copyright work is no longer published by or with the
authority of the copyright owner; and
(b) there are reasonable grounds for preventing or
restricting the making of accessible copies of the work.
(4) If section 45 or 46 is displaced by a licensing scheme,
sections 148 to 151 apply in relation to the scheme as if it were one to
which those sections applied as a result of section 146.
Limitations, etc. following infringement of copyright
48. (1) The Minister may make an order under this section if it
appears to him that the making of copies ⎯
(a) under section 45; or
(b) under a licence granted under a licensing scheme that
has been notified under section 47;
has led to infringement of copyright on a scale which, in the Minister's
opinion, would not have occurred if section 45 had not been in force, or
the licence had not been granted.
(2) The order may prohibit one or more named approved
bodies, or one or more specified categories of approved body, from ⎯
(a) acting under section 45; or
(b) acting under a licence of a description specified in the
order.
COPYRIGHT AND DESIGNS ACT 2004
52
(3) The order may disapply ⎯
(a) the provisions of section 45; or
(b) the provisions of a licence, or a licensing scheme, of a
description specified in the order,
in respect of the making of copies of a description so specified.
(4) If the Minister proposes to make an order he must, before
making it, consult ⎯
(a) such bodies representing copyright owners as he thinks
fit; and
(b) such bodies representing visually impaired persons as
he thinks fit.
(5) If the Minister proposes to make an order which includes a
prohibition he must, before making it, consult ⎯
(a) if the proposed order is to apply to one or more named
approved bodies, that body or those bodies;
(b) if it is to apply to one or more specified categories of
approved body, to such bodies representing approved
bodies of that category or those categories as he thinks
fit.
(6) An approved body which is prohibited by an order from
acting under a licence may not apply to the Copyright Tribunal under
section 150(1) in respect of a refusal or failure by a licensing body to
grant such a licence.
Definitions and other supplementary provisions for sections 44 to
48
49. (1) This section supplements sections 44 to 48 and includes
definitions.
(2) A copy of a copyright work (other than an accessible copy
made under section 44 or 45 is to be taken to be accessible to a visually
impaired person only if it is as accessible to him as it would be if he were
not visually impaired.
(3) "Accessible copy", in relation to a copyright work, means a
version which provides for a visually impaired person improved access to
the work.
(4) An accessible copy may include facilities for navigating
around the version of the copyright work but may not include ⎯
(a) changes that are not necessary to overcome problems
caused by visual impairment; or
COPYRIGHT AND DESIGNS ACT 2004
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(b) changes which infringe the right (provided by section
106 not to have the work subjected to derogatory
treatment.
(5) "Approved body" has the meaning given in section 45(12).
(6) "Lending", in relation to a copy, means making it available
for use, otherwise than for direct or indirect economic or commercial
advantage, on terms that it will or may be returned.
(7) For the purposes of subsection (6), a loan is not to be
treated as being for direct or indirect economic or commercial advantage
if a charge is made for the loan which does not exceed the cost of making
and supplying the copy.
(8) The definition of "lending" in section 30 does not apply for
the purposes of sections 45 and 46.
(9) "Visually impaired person" means a person⎯
(a) who is blind;
(b) who has an impairment of visual function which cannot
be improved, by the use of corrective lenses, to a level
that would normally be acceptable for reading without a
special level or kind of light;
(c) who is unable, through physical disability, to hold or
manipulate a book; or
(d) who is unable, through physical disability, to focus or
move his eyes to the extent that would normally be
acceptable for reading.
(10) The Minister may be regulations prescribe ⎯
(a) the form in which; or
(b) the procedure in accordance with which any notice
required under section 46 or 47, must be given.
(11) Any power to make regulations or orders is exercisable
subject to negative resolution procedure.
Education
Things done for purposes of instruction or examination
50. (1) Copyright in a literary, dramatic, musical or artistic work is
not infringed by its being copied in the course of instruction or of
preparation for instruction, provided the copying—
(a) is done by a person giving or receiving instruction; and
(b) is not by means of a reprographic process.
COPYRIGHT AND DESIGNS ACT 2004
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(2) Copyright in a sound recording, film, broadcast or cable
programme is not infringed by its being copied by making a film or film
sound-track in the course of instruction, or of preparation for
instruction, in the making of films or film sound-tracks, provided the
copying is done by a person giving or receiving instruction.
(3) Copyright is not infringed by anything done for the
purposes of an examination by way of setting the questions,
communicating the questions to the candidates or answering the
questions.
(4) Subsection (3) does not extend to the making of a
reprographic copy of a musical work for use by an examination candidate
in performing the work.
(5) Where a copy which would otherwise be an infringing copy
is made in accordance with this section but is subsequently dealt with, it
shall be treated as an infringing copy for the purpose of that dealing, and
if that dealing infringes copyright for all subsequent purposes.
(6) For this purpose "dealt with" means sold or let for hire or
offered or exposed for sale or hire.
Anthologies for educational use
51. (1) The inclusion of a short passage from a published literary or
dramatic work in a collection which ⎯
(a) is intended for use in educational establishments and is
so described in its title, and in any advertisements
issued by or on behalf of the publisher; and
(b) consists mainly of material in which no copyright
subsists;
does not infringe the copyright in the work if the work itself is not
intended for use in such establishments and the inclusion is
accompanied by a sufficient acknowledgement.
(2) Subsection (1) does not authorise the inclusion of more
than two excerpts from copyright works by the same author in
collections published by the same publisher over any period of five years.
(3) In relation to any given passage the reference in subsection
(2) to excerpts from works by the same author ⎯
(a) shall be taken to include excerpts from works by him in
collaboration with another; and
(b) if the passage in question is from such a work, shall be
taken to include excerpts from works by any of the
authors, whether alone or in collaboration with another.
COPYRIGHT AND DESIGNS ACT 2004
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(4) References in this section to the use of a work in an
educational establishment are to any use for the educational purposes of
such an establishment.
Performing, playing or showing work in course of activities of
educational establishment
52. (1) The performance of a literary, dramatic or musical work
before an audience consisting of teachers and pupils at an educational
establishment and other persons directly connected with the activities of
the establishment ⎯
(a) by a teacher or pupil in the course of the activities of the
establishment; or
(b) at the establishment by any person for the purposes of
instruction;
is not a public performance for the purposes of infringement of copyright.
(2) The playing or showing of a sound recording, film,
broadcast or cable programme before such an audience at an
educational establishment for the purposes of instruction is not a
playing or showing of the work in public for the purposes of infringement
of copyright.
(3) A person is not for this purpose directly connected with the
activities of the educational establishment simply because he is the
parent of a pupil at the establishment.
Recording by educational establishments of broadcasts and cable
programmes
53. (1) A recording of a broadcast or cable programme, or a copy of
such a recording, may be made by or on behalf of an educational
establishment for the educational purposes of that establishment
without thereby infringing the copyright in the broadcast or cable
programme, or in any work included in it.
(2) This section does not apply if or to the extent that there is a
licensing scheme certified for the purposes of this section under section
180 providing for the grant of licences.
(3) Where a copy which would otherwise be an infringing copy
is made in accordance with this section 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.
(4) For this purpose "dealt with" means sold or let for hire or
offered or exposed for sale or hire.
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Reprographic copying by educational establishments of passages
from published works
54. (1) Reprographic copies of passages from published literary,
dramatic or musical works may, to the extent permitted by this section,
be made by or on behalf of an educational establishment for the
purposes of instruction without infringing any copyright in the work, or
in the typographical arrangement.
(2) Not more than one per cent. of any work may be copied by
or on behalf of an establishment by virtue of this section in any quarter,
that is, in any period 1st January to 31st March, 1st April to 30th June,
1st July to 30th September or 1st October to 31st December.
(3) Copying is not authorised by this section if, or to the extent
that, licences are available authorising the copying in question and the
person making the copies knew or ought to have been aware of that fact.
(4) The terms of a licence granted to an educational
establishment authorising the reprographic copying for the purposes of
instruction of passages from published literary, dramatic or musical
works are of no effect so far as they purport to restrict the proportion of a
work which may be copied (whether on payment or free of charge) to less
than which would be permitted under this section.
(5) Where a copy which would otherwise be an infringing copy
is made in accordance with this section 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.
(6) For this purpose "dealt with" means sold or let for hire or
offered or exposed for sale or hire.
Lending of copies by educational establishments
55. Copyright in a work is not infringed by the lending of copies of
the work by an educational establishment.
Libraries and archives
Libraries and archives: introductory
56. (1) In sections 57 to 63 (copying by librarians and archivists)⎯
(a) references in any provision to a prescribed library or
archive are to a library or archive of a description
prescribed for the purposes of that provision by
regulations made by the Minister ; and
(b) references in any provision to the prescribed conditions
are to the conditions so prescribed.
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(2) The regulations may provide that, where a librarian or
archivist is required to be satisfied as to any matter before making or
supplying a copy of a work—
(a) he may rely on a signed declaration as to that matter by
the person requesting the copy, unless he is aware that
it is false in a material particular; and
(b) in such cases as may be prescribed, he shall not make
or supply a copy in the absence of a signed declaration
in such form as may be prescribed.
(3) Where a person requesting a copy makes a declaration
which is false in a material particular and is supplied with a copy which
would have been an infringing copy if made by him—
(a) he is liable for infringement of copyright as if he had
made the copy himself; and
(b) the copy shall be treated as an infringing copy.
(4) The regulations may make different provision for different
descriptions of libraries or archives and for different purposes.
(5) References in this section, and in sections 57 to 63, to the
librarian or archivist include a person acting on his behalf.
(6) Regulations made under this section are subject to negative
resolution procedure.
Copying by librarians: articles in periodicals
57. (1) The librarian of a prescribed library may, if the prescribed
conditions are complied with, make and supply a copy of an article in a
periodical without infringing any copyright in the text, in any
illustrations accompanying the text or in the typographical arrangement.
(2) The prescribed conditions shall include the following—
(a) that copies are supplied only to persons satisfying the
librarian that they require them for purposes of research
or private study, and will not use them for any other
purposes;
(b) that no person is furnished with more than one copy of
the same article or with copies of more than one article
contained in the same issue of a periodical; and
(c) that persons to whom copies are supplied are required to
pay for them a sum not less than the cost (including a
contribution to the general expenses of the library)
attributable to their production.
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Copying by librarians: parts of published works
58. (1) The librarian of a prescribed library may, if the prescribed
conditions are complied with, make and supply from a published edition
a copy of part of a literary, dramatic or musical work (other than an
article in a periodical) without infringing any copyright in the work, in
any illustrations accompanying the work or in the typographical
arrangement.
(2) The prescribed conditions shall include the following ⎯
(a) that copies are supplied only to persons satisfying the
librarian that they require them for purposes of research
or private study, and will not use them for any other
purpose;
(b) that no person is furnished with more than one copy of
the same material or with a copy of more than a
reasonable proportion of any work; and
(c) that persons to whom copies are supplied are required to
pay for them a sum not less than the cost (including a
contribution to the general expenses of the library)
attributable to their production.
Restriction on production of multiple copies of the same material
59. (1) Regulations for the purposes of sections 57 and 58 (copying
by librarian of article or part of published work) shall contain provision
to the effect that a copy shall be supplied only to a person satisfying the
librarian that his requirement is not related to any similar requirement of
another person.
(2) The regulations may provide —
(a) that requirements shall be regarded as similar if the
requirements are for copies of substantially the same
material at substantially the same time and for
substantially the same purpose; and
(b) that requirements of persons shall be regarded as
related if those persons receive instruction to which the
material is relevant at the same time and place.
Lending of copies by libraries or archives
60. Copyright in a work of any description is not infringed by the
lending of copies of the work by a prescribed library or archive which is
not conducted for profit.
Copying by librarians: supply of copies to other libraries
61. (1) The librarian of a prescribed library may, if the prescribed
conditions are complied with, make and supply to another prescribed
library a copy of —
COPYRIGHT AND DESIGNS ACT 2004
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(a) an article in a periodical; or
(b) the whole or part of a published edition of a literary,
dramatic or musical work;
without infringing any copyright in the text of the article or, as the case
may be, in the work, in any illustrations accompanying it or in the
typographical arrangement.
(2) Subsection (1)(b) does not apply if at the time the copy is
made the librarian making it knows, or could by reasonable inquiry
ascertain, the name and address of a person entitled to authorise the
making of the copy.
Copying by librarians or archivists: replacement copies of works
62. (1) The librarian or archivist of a prescribed library or archive
may, if the prescribed conditions are complied with, make a copy from
any item in the permanent collection of the library or archive—
(a) in order to preserve or replace that item by placing the
copy in its permanent collection in addition to or in place
of it; or
(b) in order to replace in the permanent collection of
another prescribed library or archive an item which has
been lost, destroyed or damaged;
without infringing the copyright in any literary, dramatic or musical
work, in any illustrations accompanying such a work or, in the case of a
published edition, in the typographical arrangement.
(2) The prescribed conditions shall include provision for
restricting the making of copies to cases where it is not reasonably
practicable to purchase a copy of the item in question to fulfil that
purpose.
Copying by librarians or archivists: certain unpublished works
63. (1) The librarian or archivist of a prescribed library or archive
may, if the prescribed conditions are complied with, make and supply a
copy of the whole or part of a literary, dramatic or musical work from a
document in the library or archive without infringing any copyright in
the work or any illustrations accompanying it.
(2) This section does not apply if—
(a) the work had been published before the document was
deposited in the library or archive; or
(b) the copyright owner has prohibited copying of the work;
and at the time the copy is made the librarian or archivist making it is,
or ought to be, aware of that fact.
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(3) The prescribed conditions shall include the following⎯
(a) that copies are supplied only to persons satisfying the
librarian or archivist that they require them for purposes
of research or private study and will not use them for
any other purpose;
(b) that no person is furnished with more than one copy of
the same material; and
(c) that persons to whom copies are supplied are required to
pay for them a sum not less than the cost (including a
contribution to the general expenses of the library or
archive) attributable to their production.
Copy of work required to be made as condition of export
64. If an article of cultural or historical importance or interest
cannot lawfully be exported from Bermuda unless a copy of it is made
and deposited in an appropriate library or archive, it is not an
infringement of copyright to make that copy.
Public administration
Parliamentary and judicial proceedings
65. (1) Copyright is not infringed by anything done for the
purposes of parliamentary or judicial proceedings.
(2) Copyright is not infringed by anything done for the
purposes of reporting such proceedings; but this shall not be construed
as authorising the copying of a work which is itself a published report of
the proceedings.
Commissions and statutory inquiries
66. (1) Copyright is not infringed by anything done for the
purposes of the proceedings of a commission or statutory inquiry.
(2) Copyright is not infringed by anything done for the purpose
of reporting any such proceedings held in public; but this shall not be
construed as authorising the copying of a work which is itself a
published report of the proceedings.
(3) Copyright in a work is not infringed by the issue to the
public of copies of the report of a commission or statutory inquiry
containing the work or material from it.
(4) In this section "statutory inquiry" means an inquiry held or
investigation conducted in pursuance of a duty imposed or power
conferred by or under an enactment.
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Material open to public inspection or on official register
67. (1) Where material is open to public inspection pursuant to a
statutory requirement, or is on a statutory register, any copyright in the
material as a literary work is not infringed by the copying of so much of
the material as contains factual information of any description, by or
with the authority of the appropriate person, for a purpose which does
not involve the issuing of copies to the public.
(2) Where material is open to public inspection pursuant to a
statutory requirement, copyright is not infringed by the copying or
issuing to the public of copies of the material, by or with the authority of
the appropriate person, for the purpose of enabling the material to be
inspected at a more convenient time or place or otherwise facilitating the
exercise of any right for the purpose of which the requirement is
imposed.
(3) Where material which is open to public inspection pursuant
to a statutory requirement, or which is on a statutory register, contains
information about matters of general scientific, technical, commercial or
economic interest, copyright is not infringed by the copying or issuing to
the public of copies of the material, by or with the authority of the
appropriate person, for the purpose of disseminating that information.
(4) The Minister may by order provide that subsection (1), (2) or
(3) shall, in such cases as may be specified in the order, apply only to
copies marked in such manner as may be so specified.
(5) The Minister may by order provide that subsections (1) to
(3) apply, to such extent and with such modifications as may be specified
in the order⎯
(a) to material made open to public inspection by⎯
(i) an international organisation specified in the
order; or
(ii) a person so specified who has functions in
Bermuda under an international agreement to
which Bermuda is party; or
(b) to a register maintained by an international organisation
specified in the order;
as they apply in relation to material open to public inspection pursuant
to a statutory requirement or to a statutory register.
(6) In this section—
"appropriate person" means the person required to make
the material open to public inspection or, as the case
may be, the person maintaining the register;
"statutory register" means a register maintained in
pursuance of a statutory requirement; and
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"statutory requirement" means a requirement imposed by
provision made by or under an enactment.
(7) An order made under this section is subject to negative
resolution procedure.
Material communicated to the Crown in the course of public
business
68. (1) This section applies where a literary, dramatic, musical or
artistic work has in the course of public business been communicated to
the Crown for any purpose, by or with the licence of the copyright owner
and a document or other material thing recording or embodying the work
is owned by or in the custody or control of the Crown.
(2) The Crown may, for the purpose which the work was
communicated to it, or any related purpose which could reasonably have
been anticipated by the copyright owner, copy the work and issue copies
of the work to the public without infringing any copyright in the work.
(3) The Crown may not copy a work, or issue copies of a work
to the public, by virtue of this section if the work has previously been
published otherwise than by virtue of this section.
(4) In subsection (1) "public business" includes any activity
carried on by the Crown.
(5) This section has effect subject to any agreement to the
contrary between the Crown and the copyright owner.
Public records
69. Material which is comprised in public records which are open to
public inspection in pursuance of an enactment may be copied, and a
copy may be supplied to any person, by or with the authority of any
officer appointed under that enactment without infringement of the
copyright.
Acts done under statutory authority
70. (1) Where the doing of a particular act is specifically authorised
by an Act, whenever passed, then, unless the Act provides otherwise, the
doing of that act does not infringe copyright.
(2) Nothing in this section shall be construed as excluding any
defence of statutory authority otherwise available under or by virtue of
any enactment.
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Computer programs: lawful users
Back up copies
71. (1) It is not an infringement of copyright for a lawful user of a
copy of a computer program to make any back up copy of it which it is
necessary for him to have for the purposes of his lawful use.
(2) For the purposes of this section and sections 72 and 73 a
person is a lawful user of a computer program if (whether under a
licence to do any acts restricted by the copyright in the program or
otherwise), he has a right to use the program.
(3) Where an act is permitted under this section, it is irrelevant
whether or not there exists any term or condition in an agreement which
purports to prohibit or restrict the act (such terms being by virtue of
section 279, void).
Decompilation
72. (1) It is not an infringement of copyright for a lawful user of a
copy of a computer program expressed in a low level language ⎯
(a) to convert it into a version expressed in a higher level
language; or
(b) incidentally in the course of so converting the program,
to copy it, (that is, to "decompile" it), provided that the
conditions in subsection (2) are met.
(2) The conditions are that ⎯
(a) it is necessary to decompile the program to obtain the
information necessary to create an independent program
which can be operated with the program decompiled or
with another program ("the permitted objective"); and
(b) the information so obtained is not used for any purpose
other than the permitted objective.
(3) In particular, the conditions in subsection (2) are not met if
the lawful user ⎯
(a) has readily available to him the information necessary to
achieve the permitted objective;
(b) does not confine the decompiling to such acts as are
necessary to achieve the permitted objective;
(c) supplies the information obtained by the decompiling to
any person to whom it is not necessary to supply it in
order to achieve the permitted objective; or
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(d) uses the information to create a program which is
substantially similar in its expression to the program
decompiled or to do any act restricted by copyright.
(4) Where an act is permitted under this section, it is irrelevant
whether or not there exists any term or condition in an agreement which
purports to prohibit or restrict the act (such terms being, by virtue of
section 279, void).
Other acts permitted to lawful users
73. (1) It is not an infringement of copyright for a lawful user of a
copy of a computer program to copy or adapt it, provided that the
copying or adapting —
(a) is necessary for his lawful use; and
(b) is not prohibited under any term or condition of an
agreement regulating the circumstances in which his
use is lawful.
(2) It may, in particular, be necessary for the lawful use of a
computer program to copy it or adapt it for the purpose of correcting
errors in it.
(3) This section does not apply to any copying or adapting
permitted under section 71 or 72.
Databases: permitted acts
Acts permitted in relation to databases
74. (1) It is not an infringement of copyright in a database for a
person who has a right to use the database or any part of the database,
(whether under a licence to do any of the acts restricted by the copyright
in the database or otherwise) to do, in the exercise of that right, anything
which is necessary for the purposes of access to and use of the contents
of the database or of that part of the database.
(2) Where an act which would otherwise infringe copyright in a
database is permitted under this section, it is irrelevant whether or not
there exists any term or condition in any agreement which purports to
prohibit or restrict the act (such terms being, by virtue of section 280
void).
Designs
Design documents and models
75. (1) It is not an infringement of any copyright in a design
document or model recording or embodying a design for anything other
than an artistic work or a typeface to make an article to the design or to
copy an article made to the design.
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(2) Nor is it an infringement of the copyright to issue to the
public, or include in a film, broadcast or cable programme service,
anything the making of which was, by virtue of subsection (1), not an
infringement of that copyright.
(3) In this section—
"design" means the design of any aspect of the shape or
configuration (whether internal or external) of the whole
or part of an article, other than surface decoration; and
"design document" means any record of a design, whether
in the form of a drawing, a written description, a
photograph, data stored in a computer or otherwise.
Effect of exploitation of design derived from artistic work
76. (1) This section applies where an artistic work has been
exploited, by or with the licence of the copyright owner, by —
(a) making by an industrial process articles falling to be
treated for the purposes of this Part as copies of the
work; and
(b) marketing such articles in Bermuda or elsewhere.
(2) After the end of the period of 25 years from the end of the
calendar year in which such articles are first marketed, the work may be
copied by making articles of any description, or doing anything for the
purpose of making articles of any description, and anything may be done
in relation to articles so made, without infringing copyright in the work.
(3) Where only part of an artistic work is exploited as
mentioned in subsection (1), subsection (2) applies only in relation to
that part.
(4) The Minister may by order make provision —
(a) as to the circumstances in which an article, or any
description of article, is to be regarded for the purposes
of this section as made by an industrial process;
(b) excluding from the operation of this section such articles
of a primarily literary or artistic character as he thinks
fit.
(5) In this section —
(a) references to articles do not include films; and
(b) references to the marketing of an article are to its being
sold or let for hire or offered or exposed for sale or hire.
(6) An order made under this section is subject to negative
resolution procedure.
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Things done in reliance on registration of design
77. (1) The copyright in an artistic work is not infringed by
anything done —
(a) in pursuance of an assignment or licence made or
granted by a person registered under the Patents and
Designs Act 1930 as the proprietor of a corresponding
design; and
(b) in good faith in reliance on the registration and without
notice of any proceedings for the cancellation of the
registration or for rectifying the relevant entry in the
register of designs;
and this is so notwithstanding that the person registered as the
proprietor was not the proprietor of the design for the purposes of the
1930 Act.
(2) In subsection (1) a "corresponding design", in relation to an
artistic work, means a design within the meaning of the 1930 Act which
if applied to an article would produce something which would be treated
for the purposes of the this Act as a copy of the artistic work.
Typefaces
Use of typeface in ordinary course of printing
78. (1) It is not an infringement of copyright in an artistic work
consisting of the design of a typeface —
(a) to use the typeface in the ordinary course of typing,
composing text, typesetting or printing;
(b) to posses an article for the purpose of such use; or
(c) to do anything in relation to material produced by such
use;
and this is so notwithstanding that an article is used which is an
infringing copy of the work.
(2) However, the following provisions of this Part apply in
relation to persons making, importing or dealing with articles specifically
designed or adapted for producing material in a particular typeface, or
possessing such articles for the purpose of dealing with them, as if the
production of material as mentioned in subsection (1) did infringe
copyright in the artistic work consisting of the design of the typeface —
(a) section 36 (secondary infringement: making; importing,
possessing or dealing with article for making infringing
copy);
(b) sections 127 and 128 (order for delivery up and right of
seizure),
COPYRIGHT AND DESIGNS ACT 2004
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(c) section 135(2) (offence of making or possessing such an
article); and
(d) section 137 (order for delivery up in criminal
proceedings).
(3) The references in subsection (2) to "dealing with" an article
are to selling, letting for hire, or offering or exposing for sale or hire,
exhibiting in public, or distributing.
Articles for producing material in particular typeface
79. (1) This section applies to the copyright in an artistic work
consisting of the design of a typeface where articles specifically designed
or adapted for producing material in that typeface have been marketed
by or with the licence of the copyright owner.
(2) After the period of 25 years from the end of the calendar
year in which the first such articles are marketed, the work may be
copied by making further such articles, or doing anything for the
purpose of making such articles, and anything may be done in relation to
articles so made, without infringing copyright in the work.
(3) In subsection (1) "marketed" means sold, let for hire or
offered or exposed for sale or hire, in Bermuda or elsewhere.
Works in electronic form
Transfers of copies of works in electronic form
80. (1) This section applies where a copy of a work in electronic
form has been purchased on terms which, expressly or impliedly or by
virtue of any rule of law, allow the purchaser to copy the work, or to
adapt it or make copies of an adaptation, in connection with his use of it.
(2) If there are no express terms —
(a) prohibiting the transfer of the copy by the purchaser,
imposing obligations which continue after a transfer,
prohibiting the assignment of any licence or terminating
any licence on a transfer; or
(b) providing for the terms on which a transferee may do the
things which the purchaser was permitted to do;
anything which the purchaser was allowed to do may also be done
without infringement of copyright by a transferee; but any copy,
adaptation or copy of an adaptation made by the purchaser which is not
also transferred shall be treated as an infringing copy for all purposes
after the transfer.
(3) The same applies where the original purchased copy is no
longer usable and what is transferred is a further copy used in its place.
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(4) The above provisions also apply on a subsequent transfer,
with the substitution for references in subsection (2) to the purchaser of
references to the subsequent transferor.
Miscellaneous: literary, dramatic, musical and artistic works
Anonymous or pseudonymous works: acts permitted on assumptions
as to expiry of copyright or death of author
81. (1) Copyright in a literary, dramatic, musical or
artistic work is not infringed by an act done at a time
when, or in pursuance of arrangements made at a time
when ⎯(a) it is not possible by reasonable inquiry
to ascertain the identity of the author; and
(b) it is reasonable to assume —
(i) that copyright has expired; or
(ii) that the author died 70 years or more before the
beginning of the calendar year in which the act is
done or the arrangements are made.
(2) Subsection (1)(b)(ii) does not apply in relation to ⎯
(a) a work in which Crown copyright subsists; or
(b) a work in which copyright originally vested in an
international organisation by virtue of section 203 and in
respect of which an Order under that section specifies a
copyright period longer than 70 years.
(3) In relation to a work of joint authorship ⎯
(a) the reference in subsection (1) to its being possible to
ascertain the identity of the author shall be construed as
a reference to its being possible to ascertain the identity
of any of the authors; and
(b) the reference in subsection (1)(b)(ii) to the author having
died shall be construed as a reference to all the authors
having died.
Use of notes or recordings of spoken words in certain cases
82. (1) Where a record of spoken words is made, in writing or
otherwise, for the purpose ⎯
(a) of reporting current events; or
(b) of broadcasting or including in a cable programme
service the whole or part of the work;
it is not an infringement of any copyright in the words as a literary work
to use the record or material taken from it (or to copy the record, or any
COPYRIGHT AND DESIGNS ACT 2004
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such material, and use the copy) for that purpose, provided the following
conditions are met.
(2) The conditions are that ⎯
(a) the record is a direct record of the spoken words and is
not taken from a previous record or from a broadcast or
cable programme;
(b) the making of the record was not prohibited by the
speaker and, where copyright already subsisted in the
work, did not infringe copyright;
(c) the use made of the record or material taken from it is
not of a kind prohibited by or on behalf of the speaker or
copyright owner before the record was made; and
(d) the use is by or with the authority of a person who is
lawfully in possession of the record.
Public reading or recitation
83. (1) The reading or recitation in public by one person of a
reasonable extract from a published literary or dramatic work does not
infringe any copyright in the work if it is accompanied by a sufficient
acknowledgement.
(2) Copyright in a work is not infringed by the making of a
sound recording, or the broadcasting or inclusion in a cable programme
service, of a reading or recitation which by virtue of subsection (1) does
not infringe copyright in the work, provided that the recording, broadcast
or cable programme consists mainly of material in relation to which it is
not necessary to rely on that subsection.
Abstracts of scientific or technical articles
84. (1) Where an article on a scientific or technical subject is
published in a periodical accompanied by an abstract indicating the
contents of the article, it is not an infringement of copyright in the
abstract, or in the article, to copy the abstract or issue copies of it to the
public.
(2) This section does not apply if or to the extent that is a
licensing scheme certified for the purposes of this section under section
180 providing for the grant of licences.
Recordings of folksongs
85. (1) A sound recording of a performance of a song may be made
for the purpose of including it in an archive maintained by a designated
body without infringing any copyright in the words as a literary work or
in the accompanying musical work, provided the conditions in
subsection (2) are met.
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(2) The conditions are that ⎯
(a) the words are unpublished and of unknown authorship
at the time the recording is made;
(b) the making of the recording does not infringe any other
copyright; and
(c) its making is not prohibited by any performer.
(3) Copies of a sound recording made in reliance on subsection
(1) and included in an archive maintained by a designated body may, if
the prescribed conditions are met, be made and supplied by the archivist
without infringing copyright in the recording or the works included in it.
(4) The prescribed conditions shall include the following ⎯
(a) that copies are only supplied to persons satisfying the
archivist that they require them for purposes of research
or private study and will not use them for any other
purpose; and
(b) that no person is furnished with more than one copy of
the same recording.
(5) In this section−
(a) "designated" means designated for the purposes of this
section by order of the Minister who shall not designate
a body unless satisfied that it is not established or
conducted for profit;
(b) "prescribed" means prescribed for the purposes of this
section by order of the Minister.
(c) references to the archivist include a person acting on his
behalf.
(6) An order made under this section is subject to negative
resolution procedure.
Representation of certain artistic works on public display
86. (1) This section applies to ⎯
(a) buildings; and
(b) sculptures, models for buildings and works of artistic
craftsmanship, if permanently situated in a public place
or in premises open to the public.
(2) The copyright in such a work is not infringed by ⎯
(a) making a graphic work representing it;
(b) making a photograph or film of it; or
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(c) broadcasting or including in a cable programme service
a visual image of it.
(3) Nor is the copyright infringed by the issue to the public of
copies, or the broadcasting or inclusion in a cable programme service, of
anything whose making was, by virtue of this section, not an
infringement of the copyright.
Advertisement of sale of artistic work
87. (1) It is not an infringement of copyright in an artistic work to
copy it, or to issue copies to the public, for the purpose of advertising the
sale of the work.
(2) Where a copy which would otherwise be an infringing copy
is made in accordance with this section but is subsequently dealt with
for any other purpose, it shall be treated as an infringing copy for the
purposes of that dealing, and if that dealing infringes copyright for all
subsequent purposes.
(3) For this purpose "dealt with" means sold or let for hire,
offered or exposed for sale or hire, exhibited in public or distributed.
Making of subsequent works by same artist
88. Where the author of an artistic work is not the copyright owner,
he does not infringe the copyright by copying the work in making another
artistic work, provided he does not repeat or imitate the main design of
the earlier work.
Reconstruction of buildings
89. Anything done for the purposes of reconstructing a building does
not infringe any copyright —
(a) in the building; or
(b) in any drawings or plans in accordance with which the
building was, by or with the licence of the copyright
owner, constructed.
Miscellaneous: lending of works and playing of sound recordings
Lending to public of copies of certain works
90. (1) The Minister may by order provide that in such cases as
may be specified in the order the lending to the public of copies of
literary, dramatic, musical or artistic works, sound recordings or films
shall be treated as licensed by the copyright owner subject only to the
payment of such reasonable royalty or other payment as may be agreed
or determined in default of agreement by the Copyright Tribunal.
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(2) No such order shall apply if, or to the extent that, there is a
licensing scheme certified for the purposes of this section under section
180 providing for the grant of licences.
(3) An order may make different provision for different cases
and may specify cases by reference to any factor relating to the work, the
copies lent, the lender or the circumstances of the lending.
(4) An order made under this section is subject to affirmative
resolution procedure.
(5) Nothing in this section affects any liability under section 35
(secondary infringement: possessing or dealing with infringing copy) in
respect of the lending of infringing copies.
Royalty or other sum payable for lending of certain works
91. (1) An application to settle the royalty or other sum payable in
pursuance of section 90 (lending of copies of certain copyright works)
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.
Miscellaneous: films and sound recordings
Films: acts permitted on assumptions as to expiry of copyright, etc.
92. (1) Copyright in a film is not infringed by an act done at a time
when, or in pursuance of arrangements made at a time when —
(a) it is not possible by reasonable inquiry to ascertain the
identity of any of the persons referred to in section
23(2)(a) to (d) (persons by reference to whose life the
copyright period is ascertained); and
(b) it is reasonable to assume ⎯
COPYRIGHT AND DESIGNS ACT 2004
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(i) that copyright has expired; or
(ii) that the last to die of those persons died 70 years or
more before the beginning of the calendar year in
which the act is done or the arrangements are made.
(2) Subsection (1)(b)(ii) does not apply in relation to ⎯
(a) a film in which Crown copyright subsists; or
(b) a film in which copyright originally vested in an
international organisation by virtue of section 203 and in
respect of which an order under that section specifies a
copyright period longer than 70 years.
Playing of sound recordings for purposes of club, society; etc.
93. (1) It is not an infringement of the copyright in a sound
recording to play it as part of the activities of, or for the benefit of, a club,
society or other organisation if the following conditions are met.
(2) The conditions are ⎯
(a) that the organisation is not established or conducted for
profit and its main objects are charitable or are
otherwise concerned with the advancement of religion,
education or social welfare; and
(b) that the proceeds of any charge for admission to the
place where the recording is to be heard are applied
solely for the purposes of the organisation.
Miscellaneous: broadcasts and cable programmes
Incidental recordings for purposes of broadcast or cable programme
94. (1) This section applies where by virtue of a licence or
assignment of copyright a person is authorised to broadcast or include in
a cable programme service ⎯
(a) a literary, dramatic or musical work, or an adaptation of
such a work;
(b) an artistic work; or
(c) a sound recording or film.
(2) That person shall by virtue of this section be treated as
licensed by the owner of the copyright in the work to do or authorise any
of the following for the purposes of the broadcast or cable programme ⎯
(a) in the case of a literary, dramatic or musical work, or an
adaptation of such a work, to make a sound recording or
film of the work or adaptation;
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(b) in the case of an artistic work, to take a photograph or
make a film of the work;
(c) in case of a sound recording or film, to make a copy of it.
(3) That licence is subject to the condition that the recording,
film, photograph or copy in question —
(a) shall not be used for any other purpose; and
(b) shall be destroyed within 28 days of being first used for
broadcasting the work or, as the case may be, including
it in a cable programme service.
(4) A recording, film, photograph or copy made in accordance
with this section shall be treated as an infringing copy ⎯
(a) for the purposes of any use in breach of the condition
mentioned in subsection (3)(a); and
(b) for all purposes after that condition or the condition
mentioned in subsection (3)(b) is broken.
Recording for purposes of supervision and control of broadcasts and
cable programmes
95. (1) Copyright is not infringed by the making or use by a
prescribed broadcasting undertaking, for the purpose of maintaining
supervision and control over programmes broadcast by that
undertaking, of recordings of those programmes.
(2) Copyright is not infringed by the making or use by the
Broadcasting Commissioners of recordings of programmes in connection
with and for the purpose of carrying out their functions under the
Broadcasting Commissioners Act 1953.
(3) In this section "prescribed" means prescribed by order of
the Minister.
(4) An order made under this section shall be subject to
negative resolution procedure.
Recording for purposes of time-shifting
96. The making for private and domestic use of a recording of a
broadcast or cable programme solely for the purpose of enabling it to be
viewed or listened to at a more convenient time does not infringe any
copyright in the broadcast or cable programme or in any work included
in it.
Photographs of television broadcasts or cable programmes
97. The making for private and domestic use of a photograph of the
whole or any part of an image forming part of a television broadcast or
cable programme, or a copy of such a photograph, does not infringe any
COPYRIGHT AND DESIGNS ACT 2004
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copyright in the broadcast or cable programme or in any film included in
it.
Free public showing or playing of broadcast or cable programme
98. (1) The showing or playing in public of a broadcast or cable
programme to an audience who have not paid for admission to the place
where the broadcast or programme is to be seen or heard does not
infringe any copyright in ⎯
(a) the broadcast or cable programme; or
(b) any sound recording or film included in it.
(2) The audience shall be treated as having paid for admission
to a place ⎯
(a) if they have paid for admission to a place of which that
place forms part; or
(b) if goods or services are supplied at that place (or a place
of which it forms part) ⎯−
(i) at prices which are substantially attributable to the
facilities afforded for seeing or hearing the broadcast
or programme; or
(ii) at prices exceeding those usually charged there and
which are partly attributable to those facilities.
(3) The following shall not be regarded as having paid for
admission to a place ⎯
(a) persons admitted as residents or inmates of the place;
(b) persons admitted as members of a club or society where
the payment is only for membership of the club or
society and the provision of facilities for seeing or
hearing broadcasts or programmes is only incidental to
the main purposes of the club or society.
(4) Where the making of the broadcast or inclusion of the
programme in a cable programme service was an infringement of the
copyright in a sound recording or film, the fact that it was heard or seen
in public by the reception of the broadcast or programme shall be taken
into account in assessing the damages for that infringement.
Reception and re-transmission of broadcast in cable programme
service
99. (1) This section applies where a broadcast made from a place in
Bermuda is, by reception and immediate re-transmission, included in a
cable programme service.
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(2) The copyright in the broadcast and in any work included in
the broadcast is not infringed if the inclusion is in pursuance of a
relevant requirement.
(3) In this section "relevant requirement" means a requirement
under regulations made pursuant to section 59 of the
Telecommunications Act 1986 regulating the provision of cable television
service in Bermuda.
Provision of sub-titled copies of broadcast or cable programme
100. (1) A designated body may, for the purpose of providing people
who are deaf or hard of hearing, or physically or mentally handicapped
in other ways, with copies which are sub-titled or otherwise modified for
their special needs, make copies of television broadcasts or cable
programmes and issue copies to the public, without infringing any
copyright in the broadcasts or cable programmes or works included in
them.
(2) A "designated body" means a body designated for the
purposes of this section by order of the Minister; who shall not
designate a body unless he is satisfied that it is not established or
conducted for profit.
(3) An order made under this section is subject to negative
resolution procedure.
(4) This section does not apply if, or to the extent that, there is
a licensing scheme certified for the purposes of this section under
section 180 providing for the grant of licences.
Recording for archival purposes
101. (1) A recording of a broadcast or cable programme of a
designated class, or a copy of such a recording, may be made for the
purpose of being placed in an archive maintained by a designated body
without thereby infringing any copyright in the broadcast or cable
programme or in any work included in it.
(2) In subsection (1) "designated" means designated for the
purposes of this section by order of the Minister, who shall not designate
a body unless he is satisfied that it is not established or conducted for
profit.
(3) An order made under this section is subject to negative
resolution procedure.
Adaptations
Adaptations
102. An act which by virtue of this Chapter may be done without
infringing copyright in a literary, dramatic or musical work does not,
COPYRIGHT AND DESIGNS ACT 2004
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where that work is an adaptation, infringe any copyright in the work
from which the adaptation was made.
CHAPTER V
MORAL RIGHTS
Right to be identified as author or director
Right to be identified as author or director
103. (1) The author of a copyright literary, dramatic, musical or
artistic work, and the director of a copyright film, has the right to be
identified as the author or director of the work in the circumstances
mentioned in this section; but the right is not infringed unless it has
been asserted in accordance with section 104.
(2) The author of a literary work (other than words intended to
be sung or spoken with music) or a dramatic work has the right to be
identified whenever —
(a) the work is published commercially, performed in public,
broadcast or included in a cable programme service; or
(b) copies of a film or sound recording including the work
are issued to the public;
and that right includes the right to be identified whenever any of those
events occur in relation to an adaptation of the work as the author of the
work from which the adaptation was made.
(3) The author of a musical work, or a literary work consisting
of words intended to be sung or spoken with music, has the right to be
identified whenever —
(a) the work is published commercially;
(b) copies of a sound recording of the work are issued to the
public; or
(c) a film of which the sound-track includes the work is
shown in public or copies of such a film are issued to the
public;
and that right includes the right to be identified whenever any of those
events occur in relation to an adaptation of the work as the author of the
work from which the adaptation was made.
(4) The author of an artistic work has the right to be identified
whenever —
(a) the work is published commercially or exhibited in
public, or a visual image of it is broadcast or included in
a cable programme service;
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(b) a film including a visual image of the work is shown in
public or copies of such a film are issued to the public;
or
(c) in the case of a work of architecture in the form of a
building or a model for a building, a sculpture or a work
of artistic craftsmanship, copies of a graphic work
representing it, or of a photograph of it, are issued to the
public.
(5) The author of a work of architecture in the form of a
building also has the right to be identified on the building as constructed
or, where more than one building is constructed to the design, on the
first to be constructed.
(6) The director of a film has the right to be identified whenever
the film is shown in public, broadcast or included in a cable programme
service or copies of the film are issued to the public.
(7) The right of the author or director under this section is —
(a) in the case of commercial publication or the issue to the
public of copies of a film or sound recording, to be
identified in or on each copy or, if that is not
appropriate, in some other manner likely to bring his
identity to the notice of a person acquiring a copy;
(b) in the case of identification on a building, to be identified
by appropriate means visible to persons entering or
approaching the building; and
(c) in any other case, to be identified in a manner likely to
bring his identity to the attention of a person seeing or
hearing the performance, exhibition, showing, broadcast
or cable programme in question;
and the identification must in each case be clear and reasonably
prominent.
(8) If the author or director in asserting his right to be
identified specifies a pseudonym, initials or some other particular form of
identification, that form shall be used; otherwise any reasonable form of
identification may be used.
(9) This section has effect subject to section 105 (exceptions to
right).
Requirement that right be asserted
104. (1) A person does not infringe the right conferred by section
103 (right to be identified as author or director) by doing any of the acts
mentioned in that section unless the right has been asserted in
accordance with the following provisions so as to bind him in relation to
that act.
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(2) The right may be asserted generally, or in relation to any
specified act or description of acts —
(a) on an assignment of copyright in the work, by including
in the instrument effecting the assignment a statement
that the author or director asserts in relation to that
work his right to be identified; or
(b) by instrument in writing signed by the author or
director.
(3) The right may also be asserted in relation to the public
exhibition of an artistic work —
(a) by securing that when the author or other first owner of
copyright parts with possession of the original, or of a
copy made by him or under his direction or control, the
author is identified on the original or copy, or on a
frame, mount or other thing to which it is attached; or
(b) by including in a licence by which the author or other
first owner of copyright authorises the making of copies
of the work a statement signed by or on behalf of the
person granting the licence that the author asserts his
right to be identified in the event of the public exhibition
of a copy made in pursuance of the licence.
(4) The persons bound by an assertion of the right under
subsection (2) or (3) are —
(a) in the case of an assertion under subsection (2)(a), the
assignee and anyone claiming through him, whether or
not he has notice of the assertion;
(b) in the case of an assertion under subsection (2)(b),
anyone to whose notice the assertion is brought;
(c) in the case of an assertion under subsection (3)(a),
anyone into whose hands that original or copy comes,
whether or not the identification is still present or
visible;
(d) in the case of an assertion under subsection (3)(b), the
licensee and anyone into whose hands a copy made in
pursuance of the licence comes, whether or not he has
notice of the assertion.
(5) In an action for infringement of the right the court shall, in
considering remedies, take into account any delay in asserting the right.
Exceptions to right
105. (1) The right conferred by section 103 (right to be identified as
author or director) is subject to the following exceptions.
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(2) The right does not apply in relation to the following
descriptions of work —
(a) a computer program;
(b) the design of a typeface;
(c) any computer-generated work.
(3) The right does not apply to anything done by or with the
authority of the copyright owner where copyright in the work originally
vested —
(a) in the author's employer by virtue of section 20(2) (works
produced in course of employment);or
(b) in the director's employer by virtue of section 18(2)(b)
(person to be treated as author of film).
(4) The right is not infringed by an act which by virtue of any of
the following provisions would not infringe copyright in the work —
(a) section 42 (fair dealing for certain purposes), so far as it
relates to the reporting of current events by means of a
sound recording, film, broadcast or cable programme;
(b) section 43 (incidental inclusion of work in an artistic
work, sound recording, film, broadcast or cable
programme);
(c) section 50(3) (examination questions);
(d) section 65 (Parliamentary and judicial proceedings);
(e) section 66(1) or (2) (Commissions and statutory
inquiries);
(f) section 75 (use of design documents and models);
(g) section 76 (effect of exploitation of design derived from
artistic work);
(h) section 81 or 92 (acts permitted on assumptions as to
expiry of copyright etc.).
(5) The right does not apply in relation to any work made for
the purpose of reporting current events.
(6) The right does not apply in relation to the publication in —
(a) a newspaper, magazine or similar periodical; or
(b) an encyclopaedia, dictionary, yearbook or other
collective work of reference;
COPYRIGHT AND DESIGNS ACT 2004
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of a literary, dramatic, musical or artistic work made for the purposes of
such publication or made available with the consent of the author for the
purposes of such publication.
(7) The right does not apply in relation to —
(a) a work in which Crown copyright or Parliamentary
copyright subsists; or
(b) a work in which copyright originally vested in an
international organisation by virtue of section 203;
unless the author or director has previously been identified as such in or
on published copies of the work.
Right to object to derogatory treatment of work
Right to object to derogatory treatment of work
106. (1) The author of a copyright literary, dramatic, musical or
artistic work, and the director of a copyright film, has the right in the
circumstances mentioned in this section not to have his work subjected
to derogatory treatment.
(2) For the purposes of this section —
(a) "treatment" of a work means any addition to, deletion
from or alteration to or adaptation of the work, other
than —
(i) a translation of a literary or dramatic work; or
(ii) an arrangement or transcription of a musical work
involving no more than a change of key or register;
and
(b) the treatment of a work is derogatory if it amounts to
distortion or mutilation of the work or is otherwise
prejudicial to the honour or reputation of the author or
director;
and in the following provisions of this section references to a derogatory
treatment of a work shall be construed accordingly.
(3) In the case of a literary, dramatic or musical work the right
is infringed by a person who —
(a) publishes commercially, performs in public, broadcasts
or includes in a cable programme service a derogatory
treatment of the work; or
(b) issues to the public copies of a film or sound recording
of, or including, a derogatory treatment of the work.
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(4) In the case of an artistic work the right is infringed by a
person who —
(a) publishes commercially or exhibits in public a
derogatory treatment of the work, or broadcasts or
includes in a cable programme service a visual image of
a derogatory treatment of the work;
(b) shows in public a film including a visual image of a
derogatory treatment of the work or issues to the public
copies of such a film; or
(c) in the case of —
(i) a work of architecture in the form of a model for a
building;
(ii) a sculpture; or
(iii) a work of artistic craftsmanship;
issues to the public copies of a graphic work representing, or of a
photograph of, a derogatory treatment of the work.
(5) Subsection (4) does not apply to a work of architecture in
the form of a building; but where the author of such a work is identified
on the building and it is the subject of derogatory treatment he has the
right to require the identification to be removed.
(6) In the case of a film, the right is infringed by a person
who —
(a) shows in public, broadcasts or includes in a cable
programme service a derogatory treatment of the film; or
(b) issues to the public copies of a derogatory treatment of
the film.
(7) The right conferred by this section extends to the treatment
of parts of a work resulting from a previous treatment by a person other
than the author or director, if those parts are attributed to, or are likely
to be regarded as the work of, the author or director.
(8) This section has effect subject to sections 107 and 108
(exceptions to and qualifications of right).
Exceptions to right
107. (1) The right conferred by section 106 (right to object to
derogatory treatment of work) is subject to the following exceptions.
(2) The right does not apply to a computer program or to any
computer-generated work.
(3) The right does not apply in relation to any work made for
the purpose of reporting current events.
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(4) The right does not apply in relation to the publication in —
(a) a newspaper, magazine or similar periodical; or
(b) an encyclopaedia, dictionary, yearbook or other
collective work of reference;
of a literary, dramatic, musical or artistic work made for the purposes of
such publication or made available with the consent of the author for the
purposes of such publication.
Nor does the right apply in relation to any subsequent
exploitation elsewhere of such a work without any modification of the
published version.
(5) The right is not infringed by an act which by virtue of
section 81 or 92 acts permitted on assumptions as to expiry of copyright
or death of author) would not infringe copyright.
(6) The right is not infringed by anything done for the purpose
of —
(a) avoiding the commission of an offence; or
(b) complying with a duty imposed by or under an
enactment;
provided, where the author or director is identified at the time of the
relevant act or has previously been identified in or on published copies of
the work, that there is a sufficient disclaimer.
Qualification of right in certain cases
108. (1) This section applies to—
(a) works in which copyright originally vested in the
author's employer by virtue of section 20(2) (works
produced in course of employment) or in the director's
employer by virtue of section 18(2)(b) (person to be
treated as author of film);
(b) works in which Crown copyright or Parliamentary
copyright subsists; and
(c) works in which copyright originally vested in an
international organisation by virtue of section 203.
(2) The right conferred by section 106 (right to object to
derogatory treatment of work) does not apply to anything done in relation
to such a work by or with the authority of the copyright owner unless the
author or director—
(a) is identified at the time of the relevant act; or
(b) has previously been identified in or on published copies
of the work;
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and where in such a case the right does apply, it is not infringed if there
is a sufficient disclaimer.
Infringement of right by possessing or dealing with infringing article
109. (1) The right conferred by section 106 (right to object to
derogatory treatment of work) is also infringed by a person who —
(a) possesses in the course of a business; or
(b) sells or lets for hire, or offers or exposes for sale or hire;
or
(c) in the course of a business exhibits in public or
distributes; or
(d) distributes otherwise than in the course of a business so
as to affect prejudicially the honour or reputation of the
author or director;
an article which is, and which he knows or has reason to believe is, an
infringing article.
(2) An "infringing article" means a work or a copy of a work
which —
(a) has been subjected to derogatory treatment within the
meaning of section 106; and
(b) has been or is likely to be the subject of any of the acts
mentioned in that section in circumstances infringing
that right.
False attribution of work
False attribution of work
110. (1) A person has the right in the circumstances mentioned in
this section —
(a) not to have a literary, dramatic, musical or artistic work
falsely attributed to him as author; and
(b) not to have a film falsely attributed to him as director;
and in this section an "attribution", in relation to such a work, means a
statement (express or implied) as to who is the author or director.
(2) The right is infringed by a person who —
(a) issues to the public copies of a work of any of those
descriptions in or on which there is a false attribution;
or
(b) exhibits in public an artistic work, or a copy of an
artistic work, in or on which there is a false attribution.
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(3) The right is also infringed by a person who —
(a) in the case of a literary, dramatic or musical work,
performs the work in public, broadcasts it or includes it
in a cable programme service as being the work of a
person; or
(b) in the case of a film, shows it in public, broadcasts it or
includes it in a cable programme service as being
directed by a person;
knowing or having reason to believe that the attribution is false.
(4) The right is also infringed by the issue to the public or
public display of material containing a false attribution in connection
with any of the acts mentioned in subsection (2) or (3).
(5) The right is also infringed by a person who in the course of
a business —
(a) possesses or deals with a copy of a work of any of the
descriptions mentioned in subsection (1) in or on which
there is a false attribution; or
(b) in the case of an artistic work, possesses or deals with
the work itself when there is a false attribution in or on
it;
knowing or having reason to believe that there is such an attribution and
that it is false.
(6) In the case of an artistic work the right is also infringed by a
person who in the course of a business —
(a) deals with a work which has been altered after the
author parted with possession of it as being the
unaltered work of the author; or
(b) deals with a copy of such a work as being a copy of the
unaltered work of the author;
knowing or having reason to believe that that is not the case.
(7) References in this section to dealing are to selling or letting
for hire, offering or exposing for sale or hire, exhibiting in public, or
distributing.
(8) This section applies where, contrary to the fact —
(a) a literary, dramatic or musical work is falsely
represented as being an adaptation of the work of a
person; or
(b) a copy of an artistic work is falsely represented as being
a copy made by the author of the artistic work;
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as it applies where the work is falsely attributed to a person as author.
Right to privacy of certain photographs and films
Right to privacy of certain photographs and films
111. (1) A person who for private and domestic purposes
commissions the taking of a photograph or the making of a film has,
where copyright subsists in the resulting work, the right not to have —
(a) copies of the work issued to the public;
(b) the work exhibited or shown in public; or
(c) the work broadcast or included in a cable programme
service;
and, except as mentioned in subsection (2), a person who does or
authorises the doing of any of those acts infringes that right.
(2) The right is not infringed by an act which by virtue of any of
the following provisions would not infringe copyright in the work —
(a) section 43 (incidental inclusion of work in an artistic
work, film, broadcast or cable programme);
(b) section 65 (Parliamentary and judicial proceedings);
(c) section 66 ( Commissions and statutory inquiries);
(d) section 70 (acts done under statutory authority);
(e) section 81 or 92 (acts permitted on assumptions as to
expiry of copyright, etc.).
Supplementary
Duration of rights
112. (1) The rights conferred by section 103 (right to be identified as
author or director), section 106 (right to object to derogatory treatment of
work) and section 111 (right to privacy of certain photographs and films)
continue to subsist so long as copyright subsists in the work.
(2) The right conferred by section 110 (false attribution)
continues to subsist until 20 years after a person's death.
Consent and waiver of rights
113. (1) It is not an infringement of any of the rights conferred by
this Chapter to do any act to which the person entitled to the right has
consented.
(2) Any of those rights may be waived by instrument in writing
signed by the person giving up the right.
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(3) A waiver —
(a) may relate to a specific work, to works of a specified
description or to works generally, and may relate to
existing or future works; and
(b) may be conditional or unconditional and may be
expressed to be subject to revocation;
and if made in favour of the owner or prospective owner of the copyright
in the work or works to which it relates, it shall be presumed to extend to
his licensees and successors in title unless a contrary intention is
expressed.
(4) Nothing in this Chapter shall be construed as excluding the
operation of the general law of contract or estoppel in relation to an
informal waiver or other transaction in relation to any of the rights
mentioned in subsection (1).
Application of provisions to joint works
114. (1) The right conferred by section 103 (right to be identified as
author or director) is, in the case of a work of joint authorship, a right of
each joint author to be identified as a joint author and must be asserted
in accordance with section 104 by each joint author in relation to
himself.
(2) The right conferred by section 106 (right to object to
derogatory treatment of work) is, in the case of a work of joint
authorship, a right of each joint author and his right is satisfied if he
consents to the treatment in question.
(3) A waiver under section 113 of those rights by one joint
author does not affect the rights of the other joint authors.
(4) The right conferred by section 110 (false attribution) is
infringed, in the circumstances mentioned in that section —
(a) by any false statement as to the authorship of a work of
joint authorship; and
(b) by the false attribution of joint authorship in relation to
a work of sole authorship;
and such a false attribution infringes the right of every person to whom
authorship of any description is, whether rightly or wrongly, attributed.
(5) The above provisions also apply (with any necessary
adaptations) in relation to a film which was, or is alleged to have been,
jointly directed, as they apply to a work which is, or is alleged to be, a
work of joint authorship.
(6) A film is "jointly directed" if it is made by the collaboration
of two or more directors and the contribution of each director is not
distinct from that of the other director or directors.
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(7) The right conferred by section 111 (right to privacy of
certain photographs and films) is, in the case of a work made in
pursuance of a joint commission, a right of each person who
commissioned the making of the work, so that —
(a) the right of each is satisfied if he consents to the act in
question; and
(b) a waiver under section 113 by one of them does not
affect the rights of the others.
Application of provisions to parts of works
115. (1) The rights conferred by section 103 (right to be identified as
author or director) and section 111 (right to privacy of certain
photographs and films) apply in relation to the whole or any substantial
part of a work.
(2) The rights conferred by section 106 (right to object to
derogatory treatment of work) and section 110 (false attribution) apply in
relation to the whole or any part of a work.
CHAPTER VI
DEALING WITH RIGHTS IN COPYRIGHT WORKS
Copyright
Assignment and licences
116. (1) Copyright is transmissible by assignment, by testamentary
disposition or by operation of law, as personal or moveable property.
(2) An assignment or other transmission of copyright may be
partial, that is, limited so as to apply—
(a) to one or more, but not all, of the things the copyright
owner has the exclusive right to do;
(b) to part, but not the whole, of the period for which the
copyright is to subsist.
(3) An assignment of copyright is not effective unless it is in
writing signed by or on behalf of the assignor.
(4) A licence granted by a copyright owner is binding on every
successor in title to his interest in the copyright, except a purchaser in
good faith for valuable consideration and without notice (actual or
constructive) of the licence or a person deriving title from such a
purchaser; and references in this Part to doing anything with, or without,
the licence of the copyright owner shall be construed accordingly.
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Prospective ownership of copyright
117. (1) Where by an agreement made in relation to future
copyright, and signed by or on behalf of the prospective owner of the
copyright, the prospective owner purports to assign the future copyright
(wholly or partially) to another person, then if, on the copyright coming
into existence, the assignee or another person claiming under him would
be entitled as against all other persons to require the copyright to be
vested in him, the copyright shall vest in the assignee or his successor in
title by virtue of this subsection.
(2) In this Part —
"future copyright" means copyright which will or may come into
existence in respect of a future work or class of works or on
the occurrence of a future event; and
"prospective owner" shall be construed accordingly, and includes
a person who is prospectively entitled to copyright by virtue of
such an agreement as is mentioned in subsection (1).
(3) A licence granted by a prospective owner of copyright is
binding on every successor in title to his interest (or prospective interest)
in the right, except a purchaser in good faith for valuable consideration
and without notice (actual or constructive) of the licence or a person
deriving title from such a purchaser; and references in this Part to doing
anything with, or without, the licence of the copyright owner shall be
construed accordingly.
Exclusive licences
118. (1) In this Part an "exclusive licence" means a licence in writing
signed by or on behalf of the copyright owner authorising the licensee to
the exclusion of all other persons, including the person granting the
licence, to exercise a right which would otherwise be exercisable
exclusively by the copyright owner.
(2) The licensee under an exclusive licence has the same rights
against a successor in title who is bound by the licence as he has against
the person granting the licence.
Copyright to pass under will with unpublished work
119. Where under a bequest (whether specific or general) a person is
entitled, beneficially or otherwise, to —
(a) an original document or other material thing recording
or embodying a literary, dramatic, musical or artistic
work which was not published before the death of the
testator; or
(b) an original material thing containing a sound recording
or film which was not published before the death of the
testator;
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the bequest shall, unless a contrary intention is indicated in the
testator's will or a codicil to it, be construed as including the copyright in
the work in so far as the testator was the owner of the copyright
immediately before his death.
Presumption of transfer of rental right in case of film production
agreement
120. (1) Where an agreement concerning film production is
concluded between an author and a film producer, the author shall be
presumed, unless the agreement provides to the contrary, to have
transferred to the film producer any rental right in relation to the film
arising by virtue of the inclusion of a copy of the author's work in the
film.
(2) In this section "author" means an author, or prospective
author, of a literary, dramatic, musical or artistic work.
(3) Subsection (1) does not apply to any rental right in relation
to the film arising by virtue of the inclusion in the film of the screenplay,
the dialogue or music specifically created for and used in the film.
(4) Where this section applies, the absence of a signature by or
on behalf of the author does not exclude the operation of section 117(1)
(effect of purported assignment of future copyright).
(5) The reference in subsection (1) to an agreement concluded
between an author and a film producer includes any agreement having
effect between those persons, whether made by them directly or through
intermediaries.
(6) Section 121 (right to equitable remuneration on transfer of
rental right) applies where there is a presumed transfer by virtue of this
section as in the case of an actual transfer.
Right to equitable remuneration where rental right transferred
Right to equitable remuneration where rental right transferred
121. (1) Where an author to whom this section applies has
transferred his rental right concerning a sound recording or a film to the
producer of the sound recording or film, he retains the right to equitable
remuneration for the rental.
(2) The authors to whom this section applies are —
(a) the author of a literary, dramatic, musical or artistic
work; and
(b) the principal director of a film.
(3) The right to equitable remuneration under this section may
not be assigned by the author except to a collecting society for the
purpose of enabling it to enforce the right on his behalf.
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(4) The right is, however, transmissible by testamentary
disposition or by operation of law as personal or moveable property; and
it may be assigned or further transmitted by any person into whose
hands it passes.
(5) Equitable remuneration under this section is payable by the
person for the time being entitled to the rental right, that is, the person
to whom the right was transferred or any successor in title of his.
(6) The amount payable by way of equitable remuneration is as
agreed by or on behalf of the persons by and to whom it is payable,
subject to section 122 (reference of amount to Copyright Tribunal).
(7) An agreement is of no effect in so far as it purports to
exclude or restrict the right to equitable remuneration under this
section.
(8) References in this section to the transfer of rental right by
one person to another include any arrangement having that effect,
whether made by them directly or through intermediaries.
(9) In this section a "collecting society" means a society or other
organisation which has as its main object, or one of its main objects, the
exercise of the right to equitable remuneration under this section on
behalf of more than one author.
Equitable remuneration: reference of amount to Copyright Tribunal
122. (1) In default of agreement as to the amount payable by way of
equitable remuneration under section 121, the person by or to whom it
is payable may apply to the Copyright Tribunal to determine the amount
payable.
(2) A person to or by whom equitable remuneration is payable
under that section may also apply to the Copyright Tribunal—
(a) to vary any agreement as to the amount payable; or
(b) to vary any previous determination of the Tribunal as to
that matter;
but except with the special leave of the Tribunal no such application may
be made within twelve months from the date of a previous determination.
(3) An order made on an application under subsection (2) has
effect from the date on which it is made or such later date as may be
specified by the Tribunal.
(4) On an application under this section the Tribunal shall
consider the matter and make such order as to the method of calculating
and paying equitable remuneration as it may determine to be reasonable
in the circumstances, taking into account the importance of the
contribution of the author to the film or sound recording.
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(5) Remuneration shall not be considered inequitable merely
because it was paid by way of a single payment or at the time of the
transfer of the rental right.
(6) An agreement is of no effect in so far as it purports to
prevent a person questioning the amount of equitable remuneration or to
restrict the powers of the Copyright Tribunal under this section.
Moral rights
Moral rights not assignable
123. The rights conferred by Chapter V (moral rights) are not
assignable.
Transmission of moral rights on death
124. (1) On the death of a person entitled to the right conferred by
section 103 (right to identification of author or director), section 106
(right to object to derogatory treatment of work) or section 111 (right to
privacy of certain photographs and films)—
(a) the right passes to such person as he may by
testamentary disposition specifically direct;
(b) if there is no such direction but the copyright in the
work in question forms part of his estate, the right
passes to the person to whom the copyright passes; and
(c) if or to the extent that the right does not pass under
paragraph (a) or (b) it is exercisable by his personal
representatives.
(2) Where copyright forming part of a person's estate passes in
part to one person and in part to another, as for example where a
bequest is limited so as to apply—
(a) to one or more, but not all, of the things the copyright
owner has the exclusive right to do or authorise; or
(b) to part, but not the whole, of the period for which the
copyright is to subsist;
any right which passes with the copyright by virtue of subsection (1) is
correspondingly divided.
(3) Where by virtue of subsection (1)(a) or (b) a right becomes
exercisable by more than one person—
(a) it may, in the case of the right conferred by section 103
(right to identification of author or director), be asserted
by any of them;
(b) it is, in the case of the right conferred by section 106
(right to object to derogatory treatment of work) or
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section 111 (right to privacy of certain photographs and
films), a right exercisable by each of them and is
satisfied in relation to any of them if he consents to the
treatment or act in question; and
(c) any waiver of the right in accordance with section 113 by
one of them does not affect the rights of the others.
(4) A consent or waiver previously given or made binds any
person to whom a right passes by virtue of subsection (1).
(5) Any infringement after a person's death of the right
conferred by section 110 (false attribution) is actionable by his personal
representatives.
(6) Any damages recovered by personal representatives by
virtue of this section in respect of an infringement after a person's death
shall devolve as part of his estate as if the right of action had subsisted
and been vested in him immediately before his death.
CHAPTER VII
REMEDIES FOR INFRINGEMENT
Rights and remedies of copyright owner
Infringement actionable by copyright owner
125. (1) An infringement of copyright is actionable by the copyright
owner.
(2) In an action for infringement of copyright all such relief by
way of damages, injunctions, accounts or otherwise is available to the
plaintiff as is available in respect of the infringement of any other
property right.
(3) This section has effect subject to the following provisions of
this Chapter.
Provisions as to damages in infringement action
126. (1) Where in an action for infringement of copyright it is shown
that at the time of the infringement the defendant did not know, and had
no reason to believe, that copyright subsisted in the work to which the
action relates, the plaintiff is not entitled to damages against him, but
without prejudice to any other remedy.
(2) The court may in an action for infringement of copyright
having regard to all the circumstances, and in particular to—
(a) the flagrancy of the infringement; and
(b) any benefit accruing to the defendant by reason of the
infringement;
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award such additional damages as the justice of the case may require.
Order for delivery up
127. (1) Where a person—
(a) has an infringing copy of a work in his possession,
custody or control in the course of a business; or
(b) has in his possession, custody or control an article
specifically designed or adapted for making copies of a
particular copyright work, knowing or having reason to
believe that it has been or is to be used to make
infringing copies;
the owner of the copyright in the work may apply to the court for an
order that the infringing copy or article be delivered up to him or to such
other person as the court may direct.
(2) An application shall not be made after the end of the period
specified in section 141 (period after which remedy of delivery up not
available); and no order shall be made unless the court also makes, or it
appears to the court that there are grounds for making, an order under
section 142 (order as to disposal of infringing copy or other article).
(3) A person to whom an infringing copy or other article is
delivered up in pursuance of an order under this section shall, if an
order under section 142 is not made, retain it pending the making of an
order, or the decision not to make an order, under that section.
(4) Nothing in this section affects any other power of the court.
Right to seize infringing copies and other articles
128. (1) An infringing copy of a work which is found exposed or
otherwise immediately available for sale or hire, and in respect of which
the copyright owner would be entitled to apply for an order under section
127, may be seized and detained by him or a person authorised by him.
(2) The right to seize and detain is exercisable subject to the
following conditions and is subject to any decision of the court under
section 142.
(3) Before anything is seized under this section notice of the
time and place of the proposed seizure must be given to the
Commissioner of Police.
(4) A person may for the purpose of exercising the right
conferred by this section enter premises to which the public have access
but may not seize anything in the possession, custody or control of a
person at a permanent or regular place of business of his, and may not
use any force.
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(5) At the time when anything is seized under this section there
shall be left at the place where it was seized a notice in the prescribed
form containing prescribed particulars as to the person by whom or on
whose authority the seizure is made and the grounds on which it is
made.
(6) In this section "prescribed" means prescribed by an order of
the Minister .
(7) An order made under this section is subject to negative
resolution procedure.
Rights and remedies of exclusive licensee
Rights and remedies of exclusive licensee
129. (1) An exclusive licensee has, except against the copyright
owner, the same rights and remedies in respect of matters occurring
after the grant of the licence as if the licence had been an assignment.
(2) His rights and remedies are concurrent with those of the
copyright owner; and references in the relevant provisions of this Part to
the copyright owner shall be construed accordingly.
(3) In an action brought by an exclusive licensee by virtue of
this section a defendant may avail himself of any defence which would
have been available to him if the action had been brought by the
copyright owner.
Exercise of concurrent rights
130. (1) Where an action for infringement of copyright brought by
the copyright owner or an exclusive licensee relates (wholly or partly) to
an infringement in respect of which they have concurrent rights of
action, the copyright owner or, as the case may be, the exclusive licensee
may not, without the leave of the court, proceed with the action unless
the other is either joined as a plaintiff or added as a defendant.
(2) A copyright owner or exclusive licensee who is added as a
defendant in pursuance of subsection (1) is not liable for any costs in the
action unless he takes part in the proceedings.
(3) The above provisions do not affect the granting of
interlocutory relief on an application by a copyright owner or exclusive
licensee alone.
(4) Where an action for infringement of copyright is brought
which relates (wholly or partly) to an infringement in respect of which the
copyright owner and an exclusive licensee have or had concurrent rights
of action—
(a) the court shall in assessing damages take into account—
(i) the terms of the licence; and
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(ii) any pecuniary remedy already awarded or available
to either of them in respect of the infringement;
(b) no account of profits shall be directed if an award of
damages has been made, or an account of profits has
been directed, in favour of the other of them in respect of
the infringement; and
(c) the court shall if an account of profits is directed
apportion the profits between them as the court
considers just, subject to any agreement between them;
and these provisions apply whether or not the copyright owner and the
exclusive licensee are both parties to the action.
(5) The copyright owner shall notify any exclusive licensee
having concurrent rights before applying for an order under section 127
(order for delivery up) or exercising the right conferred by section 128
(right of seizure); and the court may on the application of the licensee
make such order under section 127 or, as the case may be, prohibiting
or permitting the exercise by the copyright owner of the right conferred
by section 128, as it thinks fit having regard to the terms of the licence.
Remedies for infringement of moral rights
Remedies for infringement of moral rights
131. (1) An infringement of a right conferred by Chapter V (moral
rights) is actionable as a breach of statutory duty owed to the person
entitled to the right.
(2) In proceedings for infringement of the right conferred by
section 106 (right to object to derogatory treatment of work) the court
may, if it thinks it is an adequate remedy in the circumstances, grant an
injunction on terms prohibiting the doing of any act unless a disclaimer
is made, in such terms and in such manner as may be approved by the
court, dissociating the author or director from the treatment of the work.
Presumptions
Presumptions relevant to literary, dramatic, musical and artistic
works
132. (1) The following presumptions apply in proceedings brought
by virtue of this Chapter with respect to a literary, dramatic, musical or
artistic work.
(2) Where a name purporting to be that of the author appeared
on copies of the work as published or on the work when it was made, the
person whose name appeared shall be presumed, until the contrary is
proved—
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(a) to be the author of the work;
(b) to have made it in circumstances not falling within
section 20(2), 198, 200 or 203 (works produced in
course of employment, Crown copyright or Parliamentary
copyright or copyright of certain international
organisations).
(3) In the case of a work alleged to be a work of joint
authorship, subsection (2) applies in relation to each person alleged to be
one of the authors.
(4) Where no name purporting to be that of the author
appeared as mentioned in subsection (2) but—
(a) the work qualifies for copyright protection by virtue of
section 192 (qualification by reference to country of first
publication); and
(b) a name purporting to be that of the publisher appeared
on copies of the work as first published;
the person whose name appeared shall be presumed, until the contrary
is proved, to have been the owner of the copyright at the time of
publication.
(5) If the author of the work is dead or the identity of the
author cannot be ascertained by reasonable inquiry, it shall be
presumed, in the absence of evidence to the contrary—
(a) that the work is an original work; and
(b) that the plaintiff's allegations as to what was the first
publication of the work and as to the country of first
publication are correct.
Presumptions relevant to sound recordings, films and computer
programs
133. (1) In proceedings brought by virtue of this Chapter with
respect to a sound recording, where copies of the recording as issued to
the public bear a label or other mark stating—
(a) that a named person was the owner of copyright in the
recording at the date of issue of the copies; or
(b) that the recording was first published in a specified year
or in a specified country;
the label or mark shall be admissible as evidence of the facts stated and
shall be presumed to be correct until the contrary is proved.
(2) In proceedings brought by virtue of this Chapter with
respect to a film, where copies of the film as issued to the public bear a
statement—
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(a) that a named person was the director or producer of the
film;
(b) that a named person was the principal director, the
author of the screenplay, the author of the dialogue or
the composer of music specifically created for and used
in the film;
(c) that a named person was the owner of copyright in the
film at the date of issue of the copies; or
(d) that the film was first published in a specified year or in
a specified country;
the statement shall be admissible as evidence of the facts stated and
shall be presumed to be correct until the contrary is proved.
(3) In proceedings brought by virtue of this Chapter with
respect to a computer program, where copies of the program are issued
to the public in electronic form bearing a statement—
(a) that a named person was the owner of copyright in the
program at the date of issue of the copies; or
(b) that the program was first published in a specified
country or that copies of it were first issued to the public
in electronic form in a specified year;
the statement shall be admissible as evidence of the facts stated and
shall be presumed to be correct until the contrary is proved.
(4) The above presumptions apply equally in proceedings
relating to an infringement alleged to have occurred before the date on
which the copies were issued to the public.
(5) In proceedings brought by virtue of this Chapter with
respect to a film, where the film as shown in public, broadcast or
included in a cable programme service bears a statement—
(a) that a named person was the director or producer of the
film;
(b) that a named person was the principal director of the
film, the author of the screenplay, the author of the
dialogue or the composer of music specifically created
for and used in the film; or
(c) that a named person was the owner of copyright in the
film immediately after it was made;
the statement shall be admissible as evidence of the facts stated and
shall be presumed to be correct until the contrary is proved.
(6) This presumption applies equally in proceedings relating to
an infringement alleged to have occurred before the date on which the
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film was shown in public, broadcast or included in a cable programme
service.
(7) For the purposes of this section, a statement that a person
was the director of a film shall be taken, unless a contrary indication
appears, as meaning that he was the principal director of the film.
Presumptions relevant to works subject to Crown copyright
134. In proceedings brought by virtue of this Chapter with respect to
a literary, dramatic or musical work in which Crown copyright subsists,
where there appears on printed copies of the work a statement of the
year in which the work was first published commercially, that statement
shall be admissible as evidence of the fact stated and shall be presumed
to be correct in the absence of evidence to the contrary.
Offences
Criminal liability for making or dealing with infringing articles etc.
135. (1) A person commits an offence who, without the licence of the
copyright owner—
(a) makes for sale or hire;
(b) imports into Bermuda otherwise than for his private and
domestic use;
(c) possesses in the course of a business with a view to
committing any act infringing the copyright;
(d) in the course of a business—
(i) sells or lets for hire;
(ii) offers or exposes for sale or hire;
(iii) exhibits in public; or
(iv) distributes; or
(e) distributes otherwise than in the course of a business to
such an extent as to affect prejudicially the owner of the
copyright;
an article which is, and which he knows or has reason to believe is, an
infringing copy of a copyright work.
(2) A person commits an offence who—
(a) makes an article specifically designed or adapted for
making copies of a particular copyright work; or
(b) has such an article in his possession;
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knowing or having reason to believe that it is to be used to make
infringing copies for sale or hire or for use in the course of a business.
(3) Where copyright is infringed (otherwise than by reception of
a broadcast or cable programme)—
(a) by the public performance of a literary, dramatic or
musical work; or
(b) by the playing or showing in public of a sound recording
or film;
any person who caused the work to be so performed, played or shown is
guilty of an offence if he knew or had reason to believe that copyright
would be infringed.
(4) A person guilty of an offence under subsection (1)(a), (b),
(d)(iv) or (e) is liable—
(a) on summary conviction to imprisonment for a term of six
months or a fine of $10,000 or both;
(b) on conviction on indictment to imprisonment for a term
of ten years or a fine of $250,000 or both.
(5) A person guilty of any other offence under this section is
liable on summary conviction to imprisonment for a term of six months
or a fine of $10,000 or both.
(6) Sections 132 to 134 (presumptions as to various matters
connected with copyright) do not apply to proceedings for an offence
under this section; but without prejudice to their application in
proceedings for an order under section 137.
Enforcement by consumer protection authority
Enforcement by inspectors designated under the Consumer
Protection Act 1999
136. It is the duty of every inspector designated under section 27 of
the Consumer Protection Act 1999 to enforce the provisions of section
135.
(2) The following provisions of the Consumer Protection Act
1999 apply in relation to the enforcement of that section by such
inspector as they apply in relation to the enforcement of that Act ⎯
(a) section 28 (power to make test purchases, etc.);
(b) section 29 (power to enter premises and to seize goods,
etc.);
(c) section 30 (offences connected to exercise of powers
under section 29);
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(d) section 31 (notice of test);
(e) section 32 (compensation).
Order for delivery up in criminal proceedings
137. (1) The court before which proceedings are brought against a
person for an offence under section 135 may, if satisfied that at the time
of his arrest or charge—
(a) he had in his possession, custody or control in the
course of a business an infringing copy of a copyright
work; or
(b) he had in his possession, custody or control an article
specifically designed or adapted for making copies of a
particular copyright work, knowing or having reason to
believe that it had been or was to be used to make
infringing copies;
order that the infringing copy or article be delivered up to the copyright
owner or to such other person as the court may direct.
(2) For this purpose a person shall be treated as charged with
an offence when he is orally charged or is served with a summons or
indictment.
(3) An order may be made by the court of its own motion or on
the application of the prosecutor, and may be made whether or not the
person is convicted of the offence, but shall not be made—
(a) after the end of the period specified in section 141
(period after which remedy of delivery up not available);
or
(b) if it appears to the court unlikely that any order will be
made under section 142 (order as to disposal of
infringing copy or other article).
(4) An appeal lies from an order made under this section by a
magistrates' court to the Supreme Court.
(5) A person to whom an infringing copy or other article is
delivered up in pursuance of an order under this section shall retain it
pending the making of an order, or the decision not to make an order,
under section 142.
(6) Nothing in this section affects the powers of the court as to
forfeiture under the Criminal Code Act 1907 or any other enactment.
Search warrants
138. (1) Where a magistrate is satisfied by information on oath given
by a police officer that there are reasonable grounds for believing—
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(a) that an offence under section 135 (1) or (2) has been or
is about to be committed in any premises; and
(b) that evidence that such an offence has been or is about
to be committed is in those premises;
he may issue a warrant authorising a police officer to enter and search
the premises, using such reasonable force as is necessary.
(2) A warrant under this section—
(a) may authorise persons to accompany any police officer
executing the warrant; and
(b) remains in force for 28 days from the date of its issue.
(3) In executing a warrant issued under this section a police
officer may seize an article if he reasonably believes that it is evidence
that any offence under section 135 (1) or (2) has been or is about to be
committed.
Provision for preventing importation of infringing copies
Infringing copies may be treated as prohibited goods
139. (1) The owner of the copyright in a published literary, dramatic
or musical work may give notice in writing to the Collector of Customs—
(a) that he is the owner of the copyright in the work; and
(b) that he requests the Collector, for a period specified in
the notice, to treat as prohibited goods printed copies of
the work which are infringing copies.
(2) The period specified in a notice under subsection (1) shall
not exceed five years and shall not extend beyond the period for which
copyright is to subsist.
(3) The owner of the copyright in a sound recording or film may
give notice in writing to the Collector of Customs—
(a) that he is the owner of the copyright in the work;
(b) that infringing copies of the work are expected to arrive
in Bermuda at a time and a place specified in the notice;
and
(c) that he requests the Collector of Customs to treat the
copies as prohibited goods.
(4) The Collector of Customs may treat as prohibited goods only
infringing copies of works which arrive from outside Bermuda.
(5) This section does not apply to goods entered, or expected to
be entered, for free circulation, export, re-export or for a suspensive
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procedure in respect of which an application may be made under
regulations made under subsection (7).
(6) Subject to subsections (4) and (5), when a notice is in force
under this section the importation of goods to which the notice relates,
otherwise than by a person for his private and domestic use, is
prohibited; but a person is not by reason of the prohibition liable to any
penalty other than forfeiture of the goods.
(7) The Minister may make regulations laying down measures
to prohibit the release for free circulation, export, re-export or entry for a
suspensive procedure of counterfeit and pirated goods.
(8) Regulations made under this section are subject to
affirmative resolution procedure.
Power of Minister of Finance to make regulations
140. (1) The Minister of Finance may make regulations, prescribing
the form in which notice is to be given under section 139 and may
require a person giving notice—
(a) to furnish the Collector of Customs with such evidence
as may be specified in the regulations, either on giving
notice or when the goods are imported, or at both those
times; and
(b) to comply with such other conditions as may be
specified in the regulations.
(2) The regulations may, in particular, require a person giving
such a notice—
(a) to pay such fees in respect of the notice as may be
specified by the regulations;
(b) to give such security as may be so specified in respect of
any liability or expense which the Collector of Customs
may incur in consequence of the notice by reason of the
detention of any article or anything done to an article
detained;
(c) to indemnify the Collector of Customs against any such
liability or expense, whether security has been given or
not.
(3) The regulations may make different provision as respects
different classes of case to which they apply and may include such
incidental and supplementary provisions as the Minister of Finance
considers expedient.
(4) Regulations made under this section are subject to negative
resolution procedure.
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Supplementary
Period after which remedy of delivery up not available
141. (1) An application for an order under section 127 (order for
delivery up in civil proceedings) may not be made after the end of the
period of six years from the date on which the infringing copy or article
in question was made, subject to the following provisions.
(2) If during the whole or any part of that period the copyright
owner—
(a) is under a disability within the meaning of the Limitation
Act 1984; or
(b) is prevented by fraud or concealment from discovering
the facts entitling him to apply for an order;
an application may be made at any time before the end of the period of
six years from the date on which he ceased to be under a disability or, as
the case may be, could with reasonable diligence have discovered those
facts.
(3) An order under section 137 (order for delivery up in
criminal proceedings) shall not, in any case, be made after the end of the
period of six years from the date on which the infringing copy or article
in question was made.
Order as to disposal of infringing copy or other article
142. (1) An application may be made to the court for an order that
an infringing copy or other article delivered up in pursuance of an order
under section 127 or 137, or seized and detained in pursuance of the
right conferred by section 128, shall be—
(a) forfeited to the copyright owner; or
(b) destroyed or otherwise dealt with as the court may think
fit;
or for a decision that no such order should be made.
(2) In considering what order (if any) should be made, the court
shall consider whether other remedies available in an action for
infringement of copyright would be adequate to compensate the
copyright owner and to protect his interests.
(3) Provision shall be made by rules of court as to the service of
notice on persons having an interest in the copy or other articles, and
any such person is entitled—
(a) to appear in proceedings for an order under this section,
whether or not he was served with notice; and
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(b) to appeal against any order made, whether or not he
appeared;
and an order shall not take effect until the end of the period within
which notice of an appeal may be given or, if before the end of that
period notice of appeal is duly given, until the final determination or
abandonment of the proceedings on the appeal.
(4) Where there is more than one person interested in a copy or
other article, the court shall make such order as it thinks just and may
(in particular) direct that the article be sold, or otherwise dealt with, and
the proceeds divided.
(5) If the court decides that no order should be made under
this section, the person in whose possession, custody or control the copy
or other article was before being delivered up or seized is entitled to its
return.
(6) References in this section to a person having an interest in
a copy or other article include any person in whose favour an order could
be made in respect of it under this section or under section 251 or 310 of
this Act or section 7 of the Trade Marks Act 1974 (which makes similar
provision in relation to infringement of rights in performances and trade
marks).
Forfeiture of infringing copies, etc.
143. (1) Where there have come into the possession of any person in
connection with the investigation or prosecution of a relevant offence ⎯
(a) infringing copies of a copyright work; or
(b) articles specifically designed or adapted for making
copies of a particular copyright work;
that person may apply under this section for an order for the forfeiture of
the infringing copies or articles.
(2) For the purposes of this section "relevant offence" means ⎯
(a) an offence under section 135 (1) or (2) (criminal liability
for making or dealing with infringing articles, etc.);
(b) an offence under the Merchandise Marks Act 1889; or
(c) an offence involving dishonesty or deception.
(3) An application under this section may be made ⎯
(a) where proceedings have been brought in any court for a
relevant offence relating to some or all of the infringing
copies or articles, to that court; or
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(b) where no application for the forfeiture of the infringing
copies or articles has been made under paragraph (a), by
way of complaint to a magistrates' court.
(4) On an application under this section, the court shall make
an order for the forfeiture of any infringing copies or articles only if it is
satisfied that a relevant offence has been committed in relation to the
infringing copies or articles.
(5) A court may infer for the purposes of this section that such
an offence has been committed in relation to any infringing copies or
articles if it is satisfied that such an offence has been committed in
relation to infringing copies or articles which are representative of the
infringing copies or articles in question (whether by reason of being of
the same design or part of the same consignment or batch or otherwise).
(6) Any person aggrieved by an order made under this section
by a magistrates' court, or by a decision of such a court not to make
such an order, may appeal against that order for decision to the
Supreme Court.
(7) An order under this section may contain such provision as
appears to the court to be appropriate for delaying the coming into force
of the order pending the making and determination of any appeal.
(8) Subject to subsection (9), where any infringing copies or
articles are forfeited under this section they shall be destroyed in
accordance with such directions as the court may give.
(9) On making an order under this section the court may direct
that the infringing copies or articles to which the order relates shall
(instead of being destroyed) be forfeited to the owner of the copyright in
question or dealt with in such other way as the court consider
appropriate.
Jurisdiction of magistrates' court
144. (1) A magistrates' court may entertain proceedings under—
(a) section 127 (order for delivery up of infringing
copy or other article);
(b) section 130(5) (order as to exercise of rights by
copyright owner where exclusive licensee has
concurrent rights); or
(c) section 142 (order as to disposal of infringing
copy or other article);
where the value of the infringing copies and other articles in question
does not exceed the magistrates' court limit for actions in tort.
(2) Nothing in this section shall be construed as limiting the
jurisdiction of the Supreme Court.
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CHAPTER VIII
COPYRIGHT LICENSING
Licensing schemes and licensing bodies
Licensing schemes and licensing bodies
145. (1) In this Part a "licensing scheme" means a scheme setting
out—
(a) the classes of case in which the operator of the scheme,
or the person on whose behalf he acts, is willing to grant
copyright licences; and
(b) the terms on which licences would be granted in those
classes of case;
and for this purpose a "scheme" includes anything in the nature of a
scheme, whether described as a scheme or as a tariff or by any other
name.
(2) In this Chapter a "licensing body" means a society or other
organisation which has as its main object, or one of its main objects, the
negotiation or granting, either as owner or prospective owner of copyright
or as agent for him, of copyright licences, and whose objects include the
granting of licences covering works of more than one author.
(3) In this section "copyright licences" means licences to do, or
authorise the doing of, any of the acts restricted by copyright.
(4) References in this Chapter to licences or licensing schemes
covering works of more than one author do not include licences or
schemes covering only—
(a) a single collective work or collective works of which the
authors are the same; or
(b) works made by, or by employees of or commissioned by,
a single individual, firm, company or group of
companies.
(5) For this purpose a group of companies means a holding
company and its subsidiaries, within the meaning of section 86 of the
Companies Act 1981.
Licensing schemes: references and applications
Licensing schemes to which the following sections apply
146. Sections 147 to 152 (references and applications with respect to
licensing schemes) apply to licensing schemes which are operated by
licensing bodies and cover works of more than one author, so far as they
relate to licences for—
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(a) copying the work;
(b) rental or lending of copies of the work to the public;
(c) performing, showing or playing the work in public; or
(d) broadcasting the work or including it in a cable
programme service;
and references in those sections to a licensing scheme shall be construed
accordingly.
Reference of proposed licensing scheme to Copyright Tribunal
147. (1) The terms of a licensing scheme proposed to be operated by
a licensing body may be referred to the Copyright Tribunal by an
organisation claiming to be representative of persons claiming that they
require licences in cases of a description to which the scheme would
apply, either generally or in relation to any description of case.
(2) The Tribunal shall first decide whether to entertain the
reference, and may decline to do so on the ground that the reference is
premature.
(3) If the Tribunal decides to entertain the reference it shall
consider the matter referred and make such order, either confirming or
varying the proposed scheme, either generally or so far as it relates to
cases of the description to which the reference relates, as the Tribunal
may determine to be reasonable in the circumstances.
(4) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
Reference of licensing scheme to Copyright Tribunal
148. (1) If while a licensing scheme is in operation a dispute arises
between the operator of the scheme and—
(a) a person claiming that he requires a licence in a case of
a description to which the scheme applies; or
(b) an organisation claiming to be representative of such
persons;
that person or organisation may refer the scheme to the Copyright
Tribunal in so far as it relates to cases of that description.
(2) A scheme which has been referred to the Tribunal under
this section shall remain in operation until proceedings on the reference
are concluded.
(3) The Tribunal shall consider the matter in dispute and make
such order, either confirming or varying the scheme so far as it relates to
cases of the description to which the reference relates, as the Tribunal
may determine to be reasonable in the circumstances.
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(4) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
Further reference of scheme to Copyright Tribunal
149. (1) Where the Copyright Tribunal has on a previous reference
of a licensing scheme under section 147 or 148, or under this section,
made an order with respect to the scheme, then, while the order remains
in force—
(a) the operator of the scheme;
(b) a person claiming that he requires a licence in a case of
the description to which the order applies; or
(c) an organisation claiming to be representative of such
persons;
may refer the scheme again to the Tribunal so far as it relates to cases of
that description.
(2) A licensing scheme shall not, except with the special leave
of the Tribunal, be referred again to the Tribunal in respect of the same
description of cases—
(a) within twelve months from the date of the order on the
previous reference; or
(b) if the order was made so as to be in force for 15 months
or less, until the last three months before the expiry of
the order.
(3) A scheme which has been referred to the Tribunal under
this section shall remain in operation until proceedings on the reference
are concluded.
(4) The Tribunal shall consider the matter in dispute and make
such order, either confirming, varying or further varying the scheme so
far as it relates to cases of the description to which the reference relates,
as the Tribunal may determine to be reasonable in the circumstances.
(5) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
Application for grant of licence in connection with licensing scheme
150. (1) A person who claims, in a case covered by a licensing
scheme, that the operator of the scheme has refused to grant him or
procure the grant to him of a licence in accordance with the scheme, or
has failed to do so within a reasonable time after being asked, may apply
to the Copyright Tribunal.
(2) A person who claims, in a case excluded from a licensing
scheme, that the operator of the scheme either—
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(a) has refused to grant him a licence or procure the grant
to him of a licence, or has failed to do so within a
reasonable time of being asked, and that in the
circumstances it is unreasonable that a licence should
not be granted; or
(b) proposes terms for a licence which are unreasonable;
may apply to the Tribunal.
(3) A case shall be regarded as excluded from a licensing
scheme for the purposes of subsection (2) if—
(a) the scheme provides for the grant of licences subject to
terms excepting matters from the licence and the case
falls within such an exception; or
(b) the case is so similar to those in which licences are
granted under the scheme that it is unreasonable that it
should not be dealt with in the same way.
(4) If the Tribunal is satisfied that the claim is well-founded, it
shall make an order declaring that, in respect of the matters specified in
the order, the applicant is entitled to a licence on such terms as the
Tribunal may determine to be applicable in accordance with the scheme
or, as the case may be, to be reasonable in the circumstances.
(5) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
Application for review of order as to entitlement to licence
151. (1) Where the Copyright Tribunal has made an order under
section 150 that a person is entitled to a licence under a licensing
scheme, the operator of the scheme or the original applicant may apply
to the Tribunal to review its order.
(2) An application shall not be made, except with the special
leave of the Tribunal—
(a) within twelve months from the date of the order, or of
the decision on a previous application under this
section; or
(b) if the order was made so as to be in force for fifteen
months or less, or as a result of the decision on a
previous application under this section is due to expire
within 15 months of that decision, until the last three
months before the expiry date.
(3) The Tribunal shall on an application for review confirm or
vary its order as the Tribunal may determine to be reasonable having
regard to the terms applicable in accordance with the licensing scheme
or, as the case may be, the circumstances of the case.
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Effect of order of Copyright Tribunal as to licensing scheme
152. (1) A licensing scheme which has been confirmed or varied by
the Copyright Tribunal—
(a) under section 147 (reference of terms of proposed
scheme); or
(b) under section 148 or 149 (reference of existing scheme
to Copyright Tribunal);
shall be in force or, as the case may be, remain in operation, so far as it
relates to the description of case in respect of which the order was made,
so long as the order remains in force.
(2) While the order is in force a person who in a case of a class
to which the order applies—
(a) pays to the operator of the scheme any charges payable
under the scheme in respect of a licence covering the
case in question or, if the amount cannot be ascertained,
gives an undertaking to the operator to pay them when
ascertained; and
(b) complies with the other terms applicable to such a
licence under the scheme;
shall be in the same position as regards infringement of copyright as if
he had at all material times been the holder of a licence granted by the
owner of the copyright in question in accordance with the scheme.
(3) The Tribunal may direct that the order, so far as it varies
the amount of charges payable, has effect from a date before that on
which it is made, but not earlier than the date on which the reference
was made or, if later, on which the scheme came into operation.
(4) If such a direction is made—
(a) any necessary repayments, or further payments, shall be
made in respect of charges already paid; and
(b) the reference in subsection (2)(a) to the charges payable
under the scheme shall be construed as a reference to
the charges so payable by virtue of the order.
(5) No such direction may be made where subsection (6)
applies.
(6) An order of the Tribunal under section 148 or 149 made
with respect to a scheme which is certified for any purpose under section
180 has effect, so far as it varies the scheme by reducing the charges
payable for licences, from the date on which the reference was made to
the Tribunal.
(7) Where the Tribunal has made an order under section 150
(order as to entitlement to licence under licensing scheme) and the order
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remains in force, the person in whose favour the order is made shall if
he—
(a) pays to the operator of the scheme any charges payable
in accordance with the order or, if the amount cannot be
ascertained, gives an undertaking to pay the charges
when ascertained; and
(b) complies with the other terms specified in the order;
be in the same position as regards infringement of copyright as if he had
at all material times been the holder of a licence granted by the owner of
the copyright in question on the terms specified in the order.
Licensing by licensing bodies: references and applications
Licences to which following sections apply
153. Sections 154 to 157 (references and applications with respect to
licensing by licensing bodies) apply to licences which are granted by a
licensing body otherwise than in pursuance of a licensing scheme and
cover works of more than one author, so far as they authorise—
(a) copying the work;
(b) rental or lending of copies of the work to the public;
(c) performing, showing or playing the work in public; or
(d) broadcasting the work or including it in a cable
programme service;
and references in those sections to a licence shall be construed
accordingly.
Reference to Copyright Tribunal of proposed licence
154. (1) The terms on which a licensing body proposes to grant a
licence may be referred to the Copyright Tribunal by the prospective
licensee.
(2) The Tribunal shall first decide whether to entertain the
reference, and may decline to do so on the ground that the reference is
premature.
(3) If the Tribunal decides to entertain the reference it shall
consider the terms of the proposed licence and make such order, either
confirming or varying the terms, as it may determine to be reasonable in
the circumstances.
(4) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
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Reference to Copyright Tribunal of expiring licence
155. (1) A licensee under a licence which is due to expire, by
effluxion of time or as a result of notice given by the licensing body, may
apply to the Copyright Tribunal on the ground that it is unreasonable in
the circumstances that the licence should cease to be in force.
(2) Such an application may not be made until the last three
months before the licence is due to expire.
(3) A licence in respect of which a reference has been made to
the Tribunal shall remain in operation until proceedings on the reference
are concluded.
(4) If the Tribunal finds the application well-founded, it shall
make an order declaring that the licensee shall continue to be entitled to
the benefit of the licence on such terms as the Tribunal may determine
to be reasonable in the circumstances.
(5) An order of the Tribunal under this section may be made so
as to be in force indefinitely or for such period as the Tribunal may
determine.
Application for review of order as to licence
156. (1) Where the Copyright Tribunal has made an order under
section 154 or 155, the licensing body or the person entitled to the
benefit of the order may apply to the Tribunal to review its order.
(2) An application shall not be made, except with the special
leave of the Tribunal—
(a) within twelve months from the date of the order or of the
decision on a previous application under this section; or
(b) if the order was made so as to be in force for fifteen
months or less, or as a result of the decision on a
previous application under this section is due to expire
within fifteen months of that decision, until the last
three months before the expiry date.
(3) The Tribunal shall on an application for review confirm or
vary its order as the Tribunal may determine to be reasonable in the
circumstances.
Effect of order of Copyright Tribunal as to licence
157. (1) Where the Copyright Tribunal has made an order under
section 154 or 155 and the order remains in force, the person entitled to
the benefit of the order shall if he —
(a) pays to the licensing body any charges payable in
accordance with the order or, if the amount cannot be
ascertained, gives an undertaking to pay the charges
when ascertained; and
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(b) complies with the other terms specified in the order;
be in the same position as regards infringement of copyright as if he had
at all material times been the holder of a licence granted by the owner of
the copyright in question on the terms specified in the order.
(2) The benefit of the order may be assigned —
(a) in the case of an order under section 154, if assignment
is not prohibited under the terms of the Tribunal's order;
and
(b) in the case of an order under section 155, if assignment
was not prohibited under the terms of the original
licence.
(3) The Tribunal may direct that an order under section 154 or
155, or an order under section 156 varying such an order, so far as it
varies the amount of charges payable, has effect from a date before that
on which it is made, but not earlier than the date on which the reference
or application was made or, if later, on which the licence was granted or,
as the case may be, was due to expire.
(4) If such a direction is made—
(a) any necessary repayments, or further payments, shall be
made in respect of charges already paid; and
(b) the reference in subsection (1)(a) to the charges payable
in accordance with the order shall be construed, where
the order is varied by a later order, as a reference to the
charges so payable by virtue of the later order.
Factors to be taken into account in certain classes of case
General considerations: unreasonable discrimination
158. In determining what is reasonable on a reference or application
under this Chapter relating to a licensing scheme or licence, the
Copyright Tribunal shall have regard to —
(a) the availability of other schemes, or the granting of other
licences, to other persons in similar circumstances; and
(b) the terms of those schemes or licences;
and shall exercise its powers so as to secure that there is no
unreasonable discrimination between licensees, or prospective licensees,
under the scheme or licence to which the reference or application relates
and licensees under other schemes operated by, or other licences
granted by, the same person.
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Licences for reprographic copying
159. 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.
Licences for educational establishments in respect of works
included in broadcasts or cable programmes
160. (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.
Licences to reflect conditions imposed by promoters of events
161. (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.
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Licences to reflect payments in respect of underlying rights
162. (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 or lending of copies of a work;
or
(b) on an application under section 179 (royalty or other
sum payable for lending of certain works);
the Copyright Tribunal shall take into account any reasonable payments
which the owner of the copyright in the work 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 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.
Licences in respect of works included in re-transmissions
163. (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.
Mention of specific matters not to exclude other relevant
considerations
164. The mention in sections 158 to 163 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.
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Use as of right of sound recording in broadcasts and cable programme
services
Circumstances in which right available
165. (1) Section 167 applies to the inclusion in a broadcast or cable
programme service of any sound recordings if —
(a) a licence to include those recordings in the broadcast or
cable programme service could be granted by a licensing
body or such a body could procure the grant of a licence
to do so;
(b) the condition in subsection (2) or (3) applies; and
(c) the person including those recordings in the broadcast
or cable programme service has complied with section
166.
(2) Where the person including the recordings in the broadcast
or cable programme service does not hold a licence to do so, the
condition is that the licensing body refuses to grant, or procure the grant
of, such a licence, being a licence —
(a) whose terms as to payment for including the recordings
in the broadcast or cable programme service would be
acceptable to him or comply with an order of the
Copyright Tribunal under section 168 relating to such a
licence or any scheme under which it would be granted;
and
(b) allowing unlimited needletime or such needletime as he
has demanded.
(3) Where he holds a licence to include the recordings in the
broadcast or cable programme service, the condition is that the terms of
the licence limit needletime and the licensing body refuses to substitute
or procure the substitution of terms allowing unlimited needletime or
such needletime as he has demanded, or refuses to do so on terms that
fall within subsection (2)(a).
(4) The references in subsection (2) to refusing to grant, or
procure the grant of, a licence, and in subsection (3) to refusing to
substitute or procure the substitution of terms, include failing to do so
within a reasonable time of being asked.
(5) In this section and sections 166 to 171 —
"needletime" means the time in any period (whether determined
as a number of hours in the period or a proportion of the
period, or otherwise) in which any recordings may be
included in a broadcast or cable programme service;
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"sound recording" does not include a film sound track when
accompanying a film;
"terms of payment" means terms as to payment for including
sound recordings in a broadcast or cable programme service.
Notice of intention to exercise right
166. (1) A person intending to avail himself of the right conferred by
section 167 must—
(a) give notice to the licensing body of his intention to
exercise the right, asking the body to propose terms of
payment; and
(b) after receiving the proposal or the expiry of a reasonable
period, give reasonable notice to the licensing body of
the date on which he proposes to begin exercising that
right, and the terms of payment in accordance with
which he intends to do so.
(2) Where he has a licence to include the recordings in a
broadcast or cable programme service, the date specified in a notice
under subsection (1)(b) must not be sooner than the date of expiry of
that licence except in a case falling within section 165(3).
(3) Before the person intending to avail himself of the right
begins to exercise it, he must—
(a) give reasonable notice to the Copyright Tribunal of his
intention to exercise the right, and of the date on which
he proposes to begin to do so; and
(b) apply to the Tribunal under section 168 to settle the
terms of payment.
Conditions for exercise of right
167. (1) A person who, on or after the date specified in a notice
under section 166 (1)(b), includes in a broadcast or cable programme
service any sound recordings in circumstances in which this section
applies, and who—
(a) complies with any reasonable condition, notice of which
has been given to him by the licensing body, as to
inclusion in the broadcasting or cable programme
service of those recordings;
(b) provides that body with such information about their
inclusion in the broadcast or cable programme service as
it may reasonably require; and
(c) makes the payments to the licensing body that are
required by this section;
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shall be in the same position as regards infringement of copyright as if
he had at all material times been the holder of a licence granted by the
owner of the copyright in question.
(2) Payments are to be made at not less than quarterly
intervals in arrears.
(3) The amount of any payment is that determined in
accordance with any order of the Copyright Tribunal under section 168
or, if no such order has been made—
(a) in accordance with any proposal for terms of payment
made by the licensing body pursuant to a request under
section 166; or
(b) where no proposal has been so made or the amount
determined in accordance with the proposal so made is
unreasonably high, in accordance with the terms of
payment notified to the licensing body under section
166(1)(b).
(4) Where this section applies to the inclusion in a broadcast or
cable programme service of any sound recordings, it does so in place of
any licence.
Applications to settle payments
168. (1) On an application to settle the terms of payment, the
Copyright Tribunal shall consider the matter and make such order as it
may determine to be reasonable in the circumstances.
(2) An order under subsection (1) has effect from the date the
applicant begins to exercise the right conferred by section 167 and any
necessary repayments, or further payments, shall be made in respect of
amounts that have fallen due.
References etc. about conditions, information and other terms
169. (1) A person exercising the right conferred by section 167, or
who has given notice to the Copyright Tribunal of his intention to do so,
may refer to the Tribunal—
(a) any question whether any condition as to the inclusion
in a broadcast or cable programme service of sound
recordings, notice of which has been given to him by the
licensing body in question, is a reasonable condition; or
(b) any question whether any information is information
which the licensing body can reasonably require him to
provide.
(2) On a reference under this section, the Tribunal shall
consider the matter and make such order as it may determine to be
reasonable in the circumstances.
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Application for review of order
170. (1) A person exercising the right conferred by section 167 or
the licensing body may apply to the Copyright Tribunal to review any
order under section 168 or 169.
(2) An application shall not be made, except with the special
leave of the Tribunal—
(a) within twelve months from the date of the order, or of
the decision on a previous application under this
section; or
(b) if the order was made so as to be in force for fifteen
months or less, or as a result of a decision on a previous
application is due to expire within fifteen months of that
decision, until the last three months before the expiry
date.
(3) On the application 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 order under this section has effect from the date on
which it is made or such later date as may be specified by the Tribunal.
Factors to be taken into account
171. (1) In determining what is reasonable on an application or
reference under section 168 or 169, or on reviewing any order under
section 170, the Copyright Tribunal shall—
(a) have regard to the terms of any orders which it has
made in the case of persons in similar circumstances
exercising the right conferred by section 167; and
(b) exercise its powers so as to secure that there is no
unreasonable discrimination between persons exercising
that right against the same licensing body.
(2) In settling the terms of payment under section 168, the
Tribunal shall not be guided by any order it has made under any
enactment other than that section.
(3) Section 163 (factors to be taken into account: re
transmissions) applies on an application or reference under sections 168
to 170 as it applies on an application or reference relating to a licence.
Power to amend sections 165 to 171
172. (1) The Minister may by order amend sections 165 to 171 so
as—
(a) to include in any reference to sound recordings any
works of a description specified in the order; or
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(b) to exclude from any reference to a broadcast or cable
programme service any broadcast or cable programme
service of a description so specified.
(2) An order may be made subject to such transitional
provisions as appear to the Minister to be appropriate.
(3) An order made under this section is subject to affirmative
resolution procedure.
Implied indemnity in schemes or licences for reprographic copying
Implied indemnity in certain schemes and licences for reprographic
copying
173. (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
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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.
Reprographic copying by educational establishments
Power to extend coverage of scheme or licence
174. (1) This section applies to—
(a) a licensing scheme to which sections 147 to 152 apply
and which is operated by a licensing body; or
(b) a licence to which sections 154 to 157 apply;
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 Minister 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 Minister
shall give notice of the proposal to—
(a) the copyright owners;
(b) the licensing body in question; and
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(c) such persons or organisations representative of
educational establishments, and such other persons or
organisations, as the Minister thinks fit.
(4) The notice shall inform those persons of their right to make
written or oral representations to the Minister about the proposal within
six months from the date of the notice; and if any of them wishes to
make oral representations, the Minister shall appoint a person to hear
the representations and report to him.
(5) In considering whether to make an order the Minister 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.
Variation or discharge of order extending scheme or licence
175. (1) The owner of the copyright in a work in respect of which an
order is in force under section 174 may apply to the Minister for the
variation or discharge of the order, stating his reasons for making the
application.
(2) The Minister 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 Minister
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 Minister 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 Minister shall appoint a
person to hear the representations and report to him.
(5) In considering the application the Minister 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 Minister 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.
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Appeals against orders
176. (1) The owner of the copyright in a work which is the subject of
an order under section 174 (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 Minister has made an order under section 175
(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 Minister 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 174 or 175 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.
Inquiry whether new scheme or general licence required
177. (1) The Minister 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 Minister not to be covered by an
existing licensing scheme or general licence and not to fall within the
power conferred by section 174 (power to extend existing schemes and
licences to similar works).
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(2) The Minister may prescribe by regulations, the procedure to
be followed in relation to an inquiry.
(3) The regulations shall, in particular, provide for notice to be
given to—
(a) persons or organisations appearing to the Minister to
represent the owners of copyright in works of that
description; and
(b) persons or organisations appearing to the Minister 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 made under this section are subject to negative
resolution procedure.
(7) In this section and section 178, a "general licence" means a
licence granted by a licensing body which covers all works of the
description to which it applies.
Statutory licence where recommendation not implemented
178. (1) The Minister may, within one year of the making of a
recommendation under section 177 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—
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(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 154 (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 Minister 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.
(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 made under this section is subject to negative
resolution procedure.
(9) In this section⎯
"dealt with" means sold or let for hire, offered or exposed for sale
or hire, or exhibited in public;
"certified licensing scheme" means a licensing scheme certified
for the purposes of this section under section 180.
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Royalty or other sum payable for lending of certain works
Royalty or other sum payable for lending of certain works
179. (1) An application to settle the royalty or other sum payable in
pursuance of section 90 (lending of copies of certain copyright works)
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.
Certification of licensing schemes
Certification of licensing schemes
180. (1) A person operating or proposing to operate a licensing
scheme may apply to the Minister to certify the scheme for the purposes
of—
(a) section 53 (educational recording of broadcasts or cable
programmes);
(b) section 84 (abstracts of scientific or technical articles);
(c) section 90 (lending to public of copies of certain works);
(d) section 100 (sub-titled copies of broadcasts or cable
programmes for people who are deaf or hard of hearing);
or
(e) section 178 (reprographic copying of published works by
educational establishments).
(2) The Minister shall by order, 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
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(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 53, 84,
90, 100 or 178, 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
147 (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 Minister shall
make such an amendment in the case of a variation ordered by the
Copyright Tribunal on a reference under section 147, 148 or 149, 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 Minister that it is no
longer being operated according to its terms.
(6) An order made under this section is subject to negative
resolution procedure.
CHAPTER IX
THE COPYRIGHT TRIBUNAL
The Tribunal
The Copyright Tribunal
181. (1) There shall be a Copyright Tribunal for Bermuda.
(2) The Tribunal shall consist of a chairman, a deputy
chairman and a panel of not less than six other members, appointed by
the Minister after consultation with the Registrar-General.
(3) A person is not eligible for appointment as chairman or
deputy chairman unless—
(a) he is a barrister and attorney of at least seven years
standing or he has held judicial office; or
(b) he has considerable experience of copyright matters.
Membership of the Copyright Tribunal
182. (1) The members of the Copyright Tribunal shall hold and
vacate office in accordance with their terms of appointment, subject to
the following provisions.
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(2) The term of appointment of a member of the Tribunal shall
not exceed 3 years, and may be renewed.
(3) A member of the Tribunal may resign his office by notice in
writing to the Minister.
(4) The Minister 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;
(b) he is incapacitated by physical or mental illness; or
(c) he is in the opinion of the Minister otherwise unable or
unfit to perform his duties as member.
(5) 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 by the Minister 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.
Financial provisions
183. (1) There shall be paid to the members of the Copyright
Tribunal such remuneration, and such allowances, as the Minister with
the approval of the Minister of Finance may determine.
(2) The Minister may with the approval of the Minister of
Finance appoint such staff for the Tribunal as he may determine.
(3) The remuneration of any staff and such other expenses of
the Tribunal as the Minister with the approval of the Minster of Finance
may determine, shall be paid out of money provided by the Legislature.
Constitution for purposes of proceedings
184. (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 other members appointed by the Minister from the
panel of 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) If the chairman is unable to continue, he shall appoint one
of the remaining members to act as chairman.
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(4) The chairman may (where necessary) appoint a suitably
qualified person to attend the proceedings and advise the members on
any technical questions on copyright issues arising.
(5) A person is suitably qualified for the purpose of subsection
(4) if he is, or is eligible for appointment as, chairman or deputy
chairman of the Tribunal.
Jurisdiction and procedure
Jurisdiction of the Copyright Tribunal
185. The Copyright Tribunal has jurisdiction under this Part to hear
and determine proceedings under—
(a) section 122 (application to determine amount of
equitable remuneration under section 121);
(b) section 147, 148 or 149 (reference of licensing scheme);
(c) section 150 or 151 (application with respect to
entitlement to licence under licensing scheme);
(d) section 154, 155 or 156 (reference or application with
respect to licensing by licensing body);
(e) section 168 or 169 (application or reference with respect
to use as of right of sound recordings in broadcasts or
cable programme services);
(f) section 176 (appeal against order as to coverage of
licensing scheme or licence);
(g) section 179 (application to settle royalty or other sum
payable for lending of certain works).
General power to make rules
186. (1) The Minister may make rules for regulating proceedings
before the Copyright Tribunal and, with the approval of the Minister of
Finance, as to the fees chargeable in respect of such proceedings.
(2) The rules may apply in relation to the Tribunal any of the
provisions of the Arbitration Act 1986.
(3) Provision shall be made by the rules—
(a) prohibiting the Tribunal from entertaining a reference
under section 147, 148 or 149 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
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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 189 (appeal to the court on point of law).
(5) Rules made under this section are subject to negative
resolution procedure.
Costs, proof of orders etc.
187. (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.
Award of interest
188. (1) Any of the following, namely—
(a) a direction under section 152(3) so far as relating to a
licence for broadcasting a work or including a work in a
cable programme service;
(b) a direction under section 157 (3) so far as so relating;
(c) an order under section 168(1); and
(d) an order under section 170 confirming or varying an
order under section 168(1),
may award simple interest at such rate for such period, beginning not
earlier than the relevant date and ending not later than the date of the
order, as the Copyright Tribunal thinks reasonable in the circumstances.
(2) In this section "the relevant date" means—
(a) in relation to a direction under section 152 (3), the date
on which the reference was made;
(b) in relation to a direction under section 157 (3), the date
on which the reference or application was made;
(c) in relation to an order under section 168 (1), the date on
which the first payment under section 167 (2) became
due; and
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(d) in relation to an order under section 170, the date on
which the application was made.
Appeals
Appeal to the court on point of law
189. (1) An appeal lies on any point of law arising from a decision of
the Copyright Tribunal to the Supreme Court.
(2) Provision shall be made by rules under section 186 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.
CHAPTER X
QUALIFICATION FOR AND EXTENT OF
COPYRIGHT PROTECTION
Qualification for copyright protection
Qualification for copyright protection
190. (1) Copyright does not subsist in a work unless the
qualification requirements of this Chapter are satisfied as regards—
(a) the author; or
(b) the country in which the work was first published;
(c) in the case of a broadcast or cable programme, the
country from which the broadcast was made or the cable
programme was sent .
(2) Subsection (1) does not apply in relation to Crown copyright
or Parliamentary copyright or to copyright subsisting by virtue of section
203 (copyright of certain international organisations).
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(3) If the qualification requirements of this Chapter, or section
198, 200 or 203, are once satisfied in respect of a work, copyright does
not cease to subsist by reason of any subsequent event.
Qualification by reference to author
191. (1) A work qualifies for copyright protection if at the material
time the author—
(a) possesses Bermudian status;
(b) is an individual domiciled or resident in Bermuda; or
(c) is a body incorporated under the law of Bermuda.
(2) Where, or so far as, provision is made by order under
section 194 (application of this Part to foreign countries ), a work also
qualifies for copyright protection if at the material time the author was a
citizen or subject of, an individual domiciled or resident in, or a body
incorporated under the law of, a country to which the order relates.
(3) A work of joint authorship qualifies for copyright protection
if at the material time any of the authors satisfies the requirements of
subsection (1) or (2); but where a work qualifies for copyright protection
only under this section, only those authors who satisfy those
requirements shall be taken into account for the purposes of—
(a) section 20(1) and (2) (first ownership of copyright;
entitlement of author or author's employer);
(b) section 21 (duration of copyright), and section 18 (4)
(meaning of "unknown authorship") so far as it applies
for the purposes of section 21; and
(c) section 81 (anonymous or pseudonymous works: acts
permitted on assumptions as to expiry of copyright or
death of author).
(4) The material time in relation to a literary, dramatic, musical
or artistic work is—
(a) in the case of an unpublished work, when the work was
made or, if the making of the work extended over a
period, a substantial part of that period;
(b) in the case of a published work, when the work was first
published or, if the author had died before that time,
immediately before his death.
(5) The material time in relation to other descriptions of work is
as follows—
(a) in the case of a sound recording or film when it was
made;
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(b) in the case of a broadcast, when the broadcast was
made;
(c) in the case of a cable programme, when the programme
was included in a cable programme service;
(d) in the case of the typographical arrangement of a
published edition, when the edition was first published.
Qualification by reference to country of first publication
192. (1) A literary, dramatic, musical or artistic work, a sound
recording or film, or the typographical arrangement of a published
edition, qualifies for copyright protection if it is first published in
Bermuda.
(2) Where, or so far as, provision is made by order under
section 194 (application of this Part to foreign countries), such a work
also qualifies for copyright protection if it is first published in a country
to which the order relates.
(3) For the purposes of this section, publication in one country
shall not be regarded as other than the first publication by reason of
simultaneous publication elsewhere; and for this purpose publication
elsewhere within the previous 30 days shall be treated as simultaneous.
Qualification by reference to place of transmission
193. (1) A broadcast qualifies for copyright protection if it is made
from, and a cable programme qualifies for copyright protection if it is
sent from, a place in Bermuda.
(2) Where, or so far as, provision is made by order under
section 194 (application of this Part to foreign countries), a broadcast or
cable programme also qualifies for copyright protection if it is made from
or, as the case may be, sent from a place in a country to which the order
relates.
Extent and application of this Part
Application of this Part to foreign countries
194. (1) The Minister may by order make provision for applying in
relation to a foreign country any of the provisions of this Part specified in
the order, so as to secure that those provisions—
(a) apply in relation to persons who are citizens or subjects
of that country or are domiciled or resident there, as
they apply to persons who possess Bermudian status or
who are domiciled or resident in Bermuda;
(b) apply in relation to bodies incorporated under the law of
that country as they apply in relation to bodies
incorporated under the law of Bermuda;
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(c) apply in relation to works first published in that country
as they apply in relation to works first published in
Bermuda; or
(d) apply in relation to broadcasts made from or cable
programmes sent from that country as they apply in
relation to broadcasts made from or cable programmes
sent from Bermuda.
(2) An order may make provision for all or any of the matters
mentioned in subsection (1) and may—
(a) apply any provisions of this Part subject to such
exceptions and modifications as are specified in the
order; and
(b) direct that any provisions of this Part apply either
generally or in relation to such classes of works, or other
classes of case, as are specified in the order.
(3) Except in the case of a Convention country, the Minister
shall not make an order under this section in relation to a country
unless satisfied that provision has been or will be made under the law of
that country, in respect of the class of works to which the order relates,
giving adequate protection to the owners of copyright under this Part.
(4) In subsection (3) "Convention country" means a country
which is a party to a Convention relating to copyright to which Bermuda
is also a party.
(5) An order made under this section is subject to negative
resolution procedure.
Denial of copyright protection to citizens of countries not giving
adequate protection to Bermudian works
195. (1) If it appears to the Minister that the law of a country fails to
give adequate protection to Bermudian works to which this section
applies, or to one or more classes of such works, the Minister may, make
provision by order in accordance with this section restricting the rights
conferred by this Part in relation to works of authors connected with that
country.
(2) An order under this section shall designate the country
concerned and provide that, for the purposes specified in the order,
works first published after a date specified in the order shall not be
treated as qualifying for copyright protection by virtue of such
publication if at that time the authors are—
(a) citizens or subjects of that country (not domiciled or
resident in Bermuda); or
(b) bodies incorporated under the law of that country;
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and the order may make such provision for all the purposes of this Part
or for such purposes as are specified in the order, and either generally or
in relation to such class of cases as are specified in the order, having
regard to the nature and extent of that failure referred to in subsection
(1).
(3) This section applies to literary, dramatic, musical and
artistic works, sound recordings and films.
(4) In this section "Bermudian works" means works of which
the author was a qualifying person at the material time within the
meaning of section 191.
(5) An order made under this section is subject to negative
resolution procedure.
Supplementary
Territorial waters
196. For the purposes of this Part the territorial waters of Bermuda
shall be treated as part of Bermuda.
Bermuda ships and aircraft
197. (1) This Part applies to things done on a Bermuda ship or
aircraft as it applies to things done in Bermuda.
(2) In this section "Bermuda ship” and "Bermuda aircraft"
mean, respectively, a ship or an aircraft registered in Bermuda.
CHAPTER XI
MISCELLANEOUS AND GENERAL
Crown and Parliamentary copyright
Crown copyright
198. (1) Where a work is made by Her Majesty or by an officer or
servant of the Crown in the course of his duties—
(a) the work qualifies for copyright protection
notwithstanding section 190(1) (ordinary requirement as
to qualification for copyright protection); and
(b) the Crown is the first owner of any copyright in the
work.
(2) Copyright in such a work is referred to in this Part as
"Crown copyright", notwithstanding that it may be, or have been,
assigned to another person.
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(3) Crown copyright in a literary, dramatic, musical or artistic
work continues to subsist—
(a) until the end of the period of 125 years from the end of
the calendar year in which the work was made; or
(b) if the work is published commercially before the end of
the period of 75 years from the end of the calendar year
in which it was made, until the end of the period of 50
years from the end of the calendar year in which it was
first so published.
(4) In the case of a work of joint authorship where one or more
but not all of the authors are persons falling within subsection (1), this
section applies only in relation to those authors and the copyright
subsisting by virtue of their contribution to the work.
(5) Except as mentioned above, and subject to any express
exclusion elsewhere in this Part, the provisions of this Part apply in
relation to Crown copyright as to other copyright.
(6) This section does not apply to a work if, or to the extent
that, Parliamentary copyright subsists in the work.
Copyright in Acts
199. (1) Her Majesty is entitled to copyright in every Act of the
Legislature.
(2) The copyright subsists from Governor's Assent until the end
of the period of 50 years from the end of the calendar year in which the
Assent was given.
(3) References in this Part to Crown copyright (except in section
198) include copyright under this section; and, except as mentioned
above, the provisions of this Part apply in relation to copyright under this
section as to other Crown copyright.
(4) No other copyright, or right in the nature of copyright,
subsists in an Act.
Parliamentary copyright
200. (1) Where a work is made by or under the direction or control of
the Senate or House of Assembly⎯
(a) the work qualifies for copyright protection
notwithstanding section 190(1) (ordinary requirement as
to qualification for copyright protection);
(b) the House by whom, or under whose direction or
control, the work is made is the first owner of any
copyright in the work; and
Comment [VSC1]:
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(c) if the work is made by or under the direction or control
of both Houses, the two houses are joint first owners of
copyright.
(2) Copyright in such a work is referred to in this Part as
"Parliamentary copyright", notwithstanding that it may be, or have been,
assigned to another person.
(3) Parliamentary copyright in a literary, dramatic, musical or
artistic work continues to subsist until the end of the period of 50 years
from the end of the calendar year in which the work was made.
(4) For the purposes of this section, works made by or under the
direction or control of the Senate or House of Assembly include⎯
(a) any work made by an officer or employee of that House
in the course of his duties; and
(b) any sound recording, film, live broadcast or live cable
programme of the proceedings of that House;
but a work shall not be regarded as made by or under the direction or
control of either House by reason only of its being commissioned by or on
behalf of that House.
(5) In the case of a work of joint authorship where one or more
but not all of the authors are acting on behalf of, or under the direction
or control of, the Senate or House of Assembly, this section applies only
in relation to those authors and the copyright subsisting by virtue of
their contribution to the work.
(6) Except as mentioned above, and subject to any express
exclusion elsewhere in this Part, the provisions of this Part apply in
relation to Parliamentary copyright as to other copyright.
Copyright in Bills
201. (1) Copyright in every Bill introduced into the Legislature
belongs, in accordance with the following provisions, to one or both
Houses of the Legislature.
(2) Copyright in a public Bill belongs in the first instance to the
House into which the Bill is introduced, and after the Bill has been
carried to the second House to both Houses jointly, and subsists from
the time when the text of the Bill is handed in to the House in which it is
introduced.
(3) Copyright in a private Bill belongs to both Houses jointly
and subsists from the time when a copy of the Bill is first deposited in
either House.
(4) Copyright under this section ceases⎯-
(a) on Governor's Assent; or
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(b) if the Bill does not receive Governor's Assent, on the
withdrawal or rejection of the Bill or the end of the
Session:
Provided that, copyright in a Bill continues to subsist
notwithstanding its rejection in any session by the Senate if, by virtue of
sections 37 and 38 of the Constitution it remains possible for it to be
presented for the Governor's Assent in that session.
(5) References in this Part to Parliamentary copyright (except in
section 200) include copyright under this section; and, except as
mentioned above, the provisions of this Part apply in relation to
copyright under this section as to other Parliamentary copyright.
(6) No other copyright, or right in the nature of copyright,
subsists in a Bill after copyright has once subsisted under this section;
but without prejudice to the subsequent operation of this section in
relation to a Bill which, not having passed in one session, is reintroduced
in a subsequent session.
The Legislature: supplementary provisions
202. (1) For the purposes of holding, dealing with and enforcing
copyright, and in connection with all legal proceedings relating to
copyright, each House of the Legislature shall be treated as having the
legal capacities of a body corporate, which shall not be affected by a
prorogation or dissolution.
(2) The functions of the House of Assembly as owner of copyright
shall be exercised by the Speaker on behalf of the House; and if so
authorised by the Speaker, or in case of a vacancy in the office of
Speaker, those functions may be discharged by the Deputy Speaker.
(3) The functions of the Senate as owner of copyright shall be
exercised by the President of the Senate on behalf of the Senate; and if
so authorised by him, or in case of a vacancy in the office of the
President, those functions may be discharged by the Vice-President.
(4) For this purpose a person who on the dissolution of the
Legislature was Speaker or Deputy Speaker of the House of Assembly, or
President or Vice-President of the Senate may continue to act until the
corresponding appointment is made in the next Session of the
Legislature.
(5) Legal proceedings relating to copyright ⎯
(a) shall be brought by or against the House of Assembly in
the name of "The Speaker of the House of Assembly";
and
(b) shall be brought by or against the Senate in the name of
"The President of the Senate".
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Other miscellaneous provisions
Copyright vesting in certain international organisations
203. (1) Where an original literary, dramatic, musical or artistic
work—
(a) is made by an officer or employee of, or is published by,
an international organisation to which this section
applies; and
(b) does not qualify for copyright protection under section
191 (qualification by reference to author) or section 192
(qualification by reference to country of first publication);
copyright nevertheless subsists in the work by virtue of this section and
the organisation is first owner of that copyright.
(2) The international organisations to which this section
applies are those as to which the Minister has, by order declared that it
is expedient that this section should apply.
(3) Copyright of which an international organisation is first
owner by virtue of this section continues to subsist until the end of the
period of 50 years from the end of the calendar year in which the work
was made or such longer period as may be specified by the Minister by
order, for the purpose of complying with the international obligations of
Bermuda.
(4) An international organisation to which this section applies
shall be deemed to have, and to have had at all material times, the legal
capacities of a body corporate for the purpose of holding, dealing with
and enforcing copyright and in connection with all legal proceedings
relating to copyright.
(5) An order made under this section is subject to negative
resolution procedure.
Folklore etc.: anonymous unpublished works
204. (1) Where in the case of an unpublished literary, dramatic,
musical or artistic work of unknown authorship there is evidence that
the author (or, in the case of a joint work, any of the authors) was a
qualifying individual by connection with a country outside Bermuda, it
shall be presumed until the contrary is proved that he was such a
qualifying individual and that copyright accordingly subsists in the work,
subject to the provisions of this Part.
(2) If under the law of that country a body is appointed to
protect and enforce copyright in such works, the Minister may, by order
designate that body for the purposes of this section.
(3) A body so designated shall be recognised in Bermuda as
having authority to do in place of the copyright owner anything, other
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than assign copyright, which it is empowered to do under the law of that
country; and it may, in particular, bring proceedings in its own name.
(4) In subsection (1) a "qualifying individual" means an
individual who at the material time (within the meaning of section 191)
was a person whose works qualified under that section for copyright
protection.
(5) This section does not apply if there has been an assignment
of copyright in the work by the author of which notice has been given to
the designated body; and nothing in this section affects the validity of an
assignment of copyright made, or licence granted, by the author or a
person lawfully claiming under him.
(6) An order made under this section is subject to negative
resolution procedure.
Requirement of signature
Requirement of signature: application in relation to body corporate
205. (1) The requirement in the following provisions that an
instrument be signed by or on behalf of a person is also satisfied in the
case of a body corporate by the affixing of its seal—
(a) section 104(3)(b) (assertion by licensor of right to
identification of author in case of public exhibition of
copy made in pursuance of the licence);,
(b) section 116(3) (assignment of copyright);
(c) section 117(1) (assignment of future copyright);
(d) section 118(1) (grant of exclusive licence).
(2) The requirement in the following provisions that an
instrument be signed by a person is satisfied in the case of a body
corporate by signature on behalf of the body or by the affixing of its
seal—
(a) section 104(2)(b) (assertion by instrument in writing of
right to have author identified);
(b) section 113(2) (waiver of moral rights).
Transitional provisions and savings
Transitional provisions and savings
206. Schedule 1 contains transitional provisions and savings relating
to works made, and acts or events occurring, before the commencement
of this Part, and otherwise with respect to the operation of the provisions
of this Part.
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Rights and privileges under other enactments or the common law
207. (1) Nothing in this Part affects—
(a) any right or privilege of any person under any enactment
(except where the enactment is expressly repealed,
amended or modified by this Act);
(b) any right or privilege of the Crown subsisting otherwise
than under an enactment;
(c) any right or privilege of either House of the Legislature;
(d) the right of the Crown or any person deriving title from
the Crown to sell, use or otherwise deal with articles
forfeited under the laws relating to customs;
(e) the operation of any rule of equity relating to breaches of
trust or confidence.
(2) Subject to those savings, no copyright or right in the nature
of copyright shall subsist otherwise than by virtue of this Part or some
other enactment in that behalf.
(3) Nothing in this Part affects any rule of law preventing or
restricting the enforcement of copyright, on grounds of public interest or
otherwise.
(4) Nothing in this Part affects any right of action or other
remedy, whether civil or criminal, available otherwise than under this
Part in respect of acts infringing any of the rights conferred by Chapter V
(moral rights).
(5) The savings in subsection (1) have effect subject to section
199(4) and section 201(6) (copyright in Acts and Bills: exclusion of other
rights in the nature of copyright).
PART II
RIGHTS IN PERFORMANCES
Preliminary
Index of defined expressions
208. The following Table shows provisions defining or otherwise
explaining expressions used in this Part (other than provisions defining
or explaining an expression used only in the same section)⎯
broadcast (and related
expressions)
section 209 (and section 14)
business section 209(1) (and section 2)
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cable programme, cable
programme service (and related
expressions)
section 209(1) (and section 16)
consent of performer (in relation
to performers property rights)
section 226(2)
country section 209(1) (and section 2)
distribution right section 214(5)
exclusive recording contract section 219(1)
film section 209(1) (and section 13)
illicit recording section 244
lending right section 215(7)
literary work section 209(1) (and section 9(1))
performance section 210(2)
performers non-property rights section 238(1)
performers property rights section 226(1)
published section 209(1) (and section 6)
qualifying country section 256(1)
qualifying individual section 256(1) and (2)
qualifying performance section 211
qualifying person section 256(1) and (3)
recording (of a performance) section 210(2)
recording rights (person having) section 219(2) and (3)
rental right section 215(7)
reproduction right section 213(3)
rights owner (in relation to
performers property rights)
section 226(3) and (4)
sound recording section 209(1) (and section 12)
Expressions having same meaning as in copyright provisions
209. (1) The following expressions have the same meaning in this
Part as in Part I (copyright)—
Bermudian status
broadcast
business
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cable programme
cable programme service
country
film
literary work
published
premises
prescribed
sound recording.
(2) The provisions of sections 14 (3) to (6), section 16(5) and
31(4) (supplementary provisions relating to broadcasting and cable
programme services) apply for the purposes of this Part, and in relation
to an infringement of the rights conferred by this Part, as they apply for
the purposes of Part I and in relation to an infringement of copyright.
Rights conferred on performers and persons having recording rights
210. (1) This Part confers rights—
(a) on a performer, by requiring his consent to the
exploitation of his performances; and
(b) on a person having recording rights in relation to a
performance, in relation to recordings made without his
consent or that of the performer;
and creates offences in relation to dealing with or using illicit recordings
and certain other related acts.
(2) In this Part ⎯
"performance" means—
(a) a dramatic performance (which includes dance and
mime);
(b) a musical performance;
(c) a reading or recitation of a literary work; or
(d) a performance of a variety act or any similar
presentation;
which is, or so far as it is, a live performance given by one or
more individuals; and
"recording", in relation to a performance, means a film or sound
recording—
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(a) made directly from the live performance;
(b) made from a broadcast of, or cable programme
including, the performance; or
(c) made, directly or indirectly, from another recording of
the performance.
(3) The rights conferred by this Part apply in relation to
performances taking place before the commencement of this Part; but no
act done before commencement, or in pursuance of arrangements made
before commencement, shall be regarded as infringing those rights.
(4) The rights conferred by this Part are independent of—
(a) any copyright in, or moral rights relating to, any work
performed or any film or sound recording of, or
broadcast or cable programme including, the
performance; and
(b) any other right or obligation arising otherwise than
under this Part.
Performers' rights
Qualifying performances
211. A performance is a qualifying performance for the purposes of
the provisions of this Part relating to performers' rights if it is given by a
qualifying individual or takes place in a qualifying country.
Consent required for recording or transmission of live performance
212. (1) A performer's rights are infringed by a person who, without
his consent—
(a) makes a recording of the whole or any substantial part
of a qualifying performance directly from the live
performance;
(b) broadcasts live, or includes live in a cable programme
service, the whole or any substantial part of a qualifying
performance; or
(c) makes a recording of the whole or any substantial part
of a qualifying performance directly from a broadcast of,
or cable programme including, the live performance.
(2) A performer's rights are not infringed by the making of any
such recording by a person for his private and domestic use.
(3) In an action for infringement of a performer's rights brought
by virtue of this section damages shall not be awarded against a
defendant who shows that at the time of the infringement he believed on
reasonable grounds that consent had been given.
Comment [VSC2]:
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Consent required for copying of recording
213. (1) A performer's rights are infringed by a person who, without
his consent, makes, otherwise than for his private and domestic use, a
copy of a recording of the whole or any substantial part of a qualifying
performance.
(2) It is immaterial whether the copy is made directly or
indirectly.
(3) The right of a performer under this section to authorise or
prohibit the making of such copies is referred to in this Part as
"reproduction right".
Consent required for issue of copies to the public
214. (1) A performer's rights are infringed by a person who, without
his consent, issues to the public copies of a recording of the whole or any
substantial part of a qualifying performance.
(2) References in this Part to the issue to the public of copies of
a recording are to ⎯
(a) the act of putting into circulation in Bermuda copies not
previously put into circulation in Bermuda by or with
the consent of the performer; or
(b) the act of putting into circulation outside Bermuda
copies not previously put in circulation in Bermuda or
elsewhere.
(3) References in this Part to the issue to the public of copies of
a recording do not include—
(a) any subsequent distribution, sale, hiring or loan of
copies previously put into circulation; or
(b) any subsequent importation of such copies into
Bermuda;
except so far as subsection (2)(a) applies to putting into circulation in
Bermuda copies previously put into circulation outside Bermuda.
(4) References in this Part to the issue of copies of a recording
of a performance include the issue of the original recording of the live
performance.
(5) The right of a performer under this section to authorise or
prohibit the issue of copies to the public is referred to in this Part as
"distribution right".
Consent required for rental or lending of copies to public
215. (1) A performer's rights are infringed by a person who, without
his consent, rents or lends to the public copies of a recording of the
whole or any substantial part of a qualifying performance.
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(2) In this Part, subject to the following provisions of this
section—
(a) "rental" means making a copy of a recording available for
use, on terms that it will or may be returned, for direct
or indirect economic or commercial advantage; and
(b) "lending" means making a copy of a recording available
for use, on terms that it will or may be returned,
otherwise than for direct or indirect economic or
commercial advantage, through an establishment which
is accessible to the public.
(3) The expressions "rental" and "lending" do not include—
(a) making available for the purpose of public performance,
playing or showing in public, broadcasting or inclusion
in a cable programme service;
(b) making available for the purpose of exhibition in public;
or
(c) making available for on-the-spot reference use.
(4) The expression "lending" does not include making available
between establishments which are accessible to the public.
(5) Where lending by an establishment accessible to the public
gives rise to a payment the amount of which does not go beyond what is
necessary to cover the operating costs of the establishment, there is no
direct or indirect economic or commercial advantage for the purposes of
this section.
(6) References in this Part to the rental or lending of copies of a
recording of a performance include the rental or lending of the original
recording of the live performance.
(7) In this Part—
"rental right" means the right of a performer under this section
to authorise or prohibit the rental of copies to the public; and
"lending right" means the right of a performer under this section
to authorise or prohibit the lending of copies to the public.
Right to equitable remuneration for exploitation of sound recording
216. (1) Where a commercially published sound recording of the
whole or any substantial part of a qualifying performance—
(a) is played in public; or
(b) is included in a broadcast or cable programme service;
the performer is entitled to equitable remuneration from the owner of the
copyright in the sound recording.
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(2) The right to equitable remuneration under this section may
not be assigned by the performer except to a collecting society for the
purpose of enabling it to enforce the right on his behalf.
(3) The right is, however, transmissible by testamentary
disposition or by operation of law as personal or moveable property; and
it may be assigned or further transmitted by any person into whose
hands it passes.
(4) The amount payable by way of equitable remuneration is as
agreed by or on behalf of the persons by and to whom it is payable,
subject to the following provisions.
(5) In default of agreement as to the amount payable by way of
equitable remuneration, the person by or to whom it is payable may
apply to the Copyright Tribunal to determine the amount payable.
(6) A person to or by whom equitable remuneration is payable
may also apply to the Tribunal—
(a) to vary any agreement as to the amount payable; or
(b) to vary any previous determination of the Tribunal as to
that matter;
but except with the special leave of the Tribunal no such application may
be made within twelve months from the date of a previous determination.
(7) An order made on an application under subsection (6) has
effect from the date on which it is made or such later date as may be
specified by the Tribunal.
(8) On an application under subsection (6) the Tribunal shall
consider the matter and make such order as to the method of calculating
and paying equitable remuneration as it may determine to be reasonable
in the circumstances, taking into account the importance of the
contribution of the performer to the sound recording.
(9) An agreement is of no effect in so far as it purports—
(a) to exclude or restrict the right to equitable remuneration
under this section; or
(b) to prevent a person questioning the amount of equitable
remuneration or to restrict the powers of the Tribunal
under this section.
Infringement of performer's rights by use of recording made without
consent
217. A performer's rights are infringed by a person who, without his
consent—
(a) shows or plays in public the whole or any substantial
part of a qualifying performance; or
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(b) broadcasts or includes in a cable programme service the
whole or any substantial part of a qualifying
performance;
by means of a recording which was, and which that person knows or has
reason to believe was, made without the performer's consent.
Infringement of performer's rights by importing, possessing or
dealing with illicit recording
218. (1) A performer's rights are infringed by a person who, without
his consent—
(a) imports into Bermuda otherwise than for his private and
domestic use; or
(b) in the course of a business possesses, sells or lets for
hire, offers or exposes for sale or hire, or distributes;
a recording of a qualifying performance which is, and which that person
knows or has reason to believe is, an illicit recording.
(2) Where in an action for infringement of a performer's rights
brought by virtue of this section a defendant shows that the illicit
recording was innocently acquired by him or a predecessor in title of his,
the only remedy available against him in respect of the infringement is
damages not exceeding a reasonable payment in respect of the act
complained of.
(3) In subsection (2) "innocently acquired" means that the
person acquiring the recording did not know and had no reason to
believe that it was an illicit recording.
Rights of person having recording rights
Exclusive recording contracts and persons having recording rights
219. (1) In this Part an "exclusive recording contract" means a
contract between a performer and another person under which that
person is entitled to the exclusion of all other persons (including the
performer) to make recordings of one or more of his performances with a
view to their commercial exploitation.
(2) References in this Part to a "person having recording
rights", in relation to a performance, are (subject to subsection (3)) to a
person—
(a) who is party to and has the benefit of an exclusive
recording contract to which the performance is subject;
or
(b) to whom the benefit of such a contract has been
assigned;
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and who is a qualifying person.
(3) If a performance is subject to an exclusive recording
contract but the person mentioned in subsection (2) is not a qualifying
person, references in this Part to a "person having recording rights" in
relation to the performance are to any person—
(a) who is licensed by such a person to make recordings of
the performance with a view to their commercial
exploitation; or
(b) to whom the benefit of such a licence has been assigned;
and who is a qualifying person.
(4) In this section "with a view to commercial exploitation"
means with a view to the recordings being sold or let for hire, or shown
or played in public.
Consent required for recording of performance subject to exclusive
contract
220. (1) A person infringes the rights of a person having recording
rights in relation to a performance who, without his consent or that of
the performer, makes a recording of the whole or any substantial part of
the performance, otherwise than for his private and domestic use.
(2) In an action for infringement of those rights brought by
virtue of this section damages shall not be awarded against a defendant
who shows that at the time of the infringement he believed on reasonable
grounds that consent had been given.
Infringement of recording rights by use of recording made without
consent
221. (1) A person infringes the rights of a person having recording
rights in relation to a performance who, without his consent or, in the
case of a qualifying performance, that of the performer—
(a) shows or plays in public the whole or any substantial
part of the performance; or
(b) broadcasts or includes in a cable programme service the
whole or any substantial part of the performance;
by means of a recording which was, and which that person knows or has
reason to believe was, made without the appropriate consent.
(2) The reference in subsection (1) to "the appropriate consent"
is to the consent of—
(a) the performer; or
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(b) the person who at the time the consent was given had
recording rights in relation to the performance (or, if
there was more than one such person, of all of them).
Infringement of recording rights by importing, possessing or dealing
with illicit recording
222. (1) A person infringes the rights of a person having recording
rights in relation to a performance who, without his consent or, in the
case of a qualifying performance, that of the performer—
(a) imports into Bermuda otherwise than for his private and
domestic use; or
(b) in the course of a business possesses, sells or lets for
hire, offers or exposes for sale or hire, or distributes;
a recording of the performance which is, and which that person knows or
has reason to believe is, an illicit recording.
(2) Where in an action for infringement of those rights brought
by virtue of this section a defendant shows that the illicit recording was
innocently acquired by him or a predecessor in title of his, the only
remedy available against him in respect of the infringement is damages
not exceeding a reasonable payment in respect of the act complained of.
(3) In subsection (2) "innocently acquired" means that the
person acquiring the recording did not know and had no reason to
believe that it was an illicit recording.
Exceptions to rights conferred
Acts permitted notwithstanding rights conferred by this Part
223. The provisions of Schedule 2 specify acts which may be done
notwithstanding the rights conferred by this Part, being acts which
correspond broadly to certain of those specified in Chapter IV of Part I
(acts permitted notwithstanding copyright).
Power of tribunal to give consent on behalf of performer in certain
cases
224. (1) The Copyright Tribunal may, on the application of a person
wishing to make a copy of a recording of a performance, give consent in a
case where the identity or whereabouts of the person entitled to the
reproduction right cannot be ascertained by reasonable inquiry.
(2) Consent given by the Tribunal has effect as consent of the
person entitled to the reproduction right for the purposes of—
(a) the provisions of this Part relating to performers' rights;
and
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(b) section 245(3)(a) (criminal liability: sufficient consent in
relation to qualifying performances);
and may be given subject to any conditions specified in the Tribunal's
order.
(3) The Tribunal shall not give consent under subsection (1)
except after the service or publication of such notices as may be required
by rules made under section 186 (general procedural rules) or as the
Tribunal may in any particular case direct.
(4) In any case the Tribunal shall take into account the
following factors—
(a) whether the original recording was made with the
performer's consent and is lawfully in the possession or
control of the person proposing to make the further
recording;
(b) whether the making of the further recording is
consistent with the obligations of the parties to the
arrangements under which, or is otherwise consistent
with the purposes for which, the original recording was
made.
(5) Where the Tribunal gives consent under this section it shall,
in default of agreement between the applicant and the person entitled to
the reproduction right, make such order as it thinks fit as to the
payment to be made to that person in consideration of consent being
given.
Duration of rights
Duration of rights
225. (1) The following provisions have effect with respect to the
duration of the rights conferred by this Part.
(2) The rights conferred by this Part in relation to a
performance expire⎯
(a) at the end of the period of 50 years from the end of the
calendar year in which the performance takes place; or
(b) if during that period a recording of the performance is
released, 50 years from the end of the calendar year in
which it is released;
subject as follows.
(3) For the purposes of subsection (2) a recording is "released"
when it is first published, played or shown in public, broadcast or
included in a cable programme service; but in determining whether a
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recording has been released no account shall be taken of any
unauthorised act.
(4) Where a performer does not possess Bermudian status, the
duration of the rights conferred by this Part in relation to his
performance is that to which the performance is entitled in the country
of which he is a national, provided that does not exceed the period which
would apply under subsections (2) and (3).
(5) If or to the extent that the application of subsection (4) would be
at variance with an international obligation to which Bermuda became
subject prior to 29th October 1993, the duration of the rights conferred
by this Part shall be as specified in subsections (2) and (3).
Performers' property rights
Performers' property rights
226. (1) The following rights conferred by this Part on a performer—
(a) reproduction right (section 213);
(b) distribution right (section 214);
(c) rental right and lending right (section 215);
are property rights ("a performer's property rights").
(2) References in this Part to the consent of the performer shall
be construed in relation to a performer's property rights as references to
the consent of the rights owner.
(3) Where different persons are (whether in consequence of a
partial assignment or otherwise) entitled to different aspects of a
performer's property rights in relation to a performance, the rights owner
for any purpose of this Part is the person who is entitled to the aspect of
those rights relevant for that purpose.
(4) Where a performer's property rights (or any aspect of them)
are owned by more than one person jointly, references in this Part to the
rights owner are to all the owners, so that, in particular, any requirement
of the licence of the rights owner requires the licence of all of them.
Assignment and licences
227. (1) A performer's property rights are transmissible by
assignment, by testamentary disposition or by operation of law, as
personal or moveable property.
(2) An assignment or other transmission of a performer's
property rights may be partial, that is, limited so as to apply—
(a) to one or more, but not all, of the things requiring the
consent of the rights owner;
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(b) to part, but not the whole, of the period for which the
rights are to subsist.
(3) An assignment of a performer's property rights is not
effective unless it is in writing signed by or on behalf of the assignor.
(4) A licence granted by the owner of a performer's property
rights is binding on every successor in title to his interest in the rights,
except a purchaser in good faith for valuable consideration and without
notice (actual or constructive) of the licence or a person deriving title
from such a purchaser; and references in this Part to doing anything
with, or without, the licence of the rights owner shall be construed
accordingly.
Prospective ownership of a performer's property rights
228. (1) This section applies where by an agreement made in
relation to a future recording of a performance, and signed by or on
behalf of the performer, the performer purports to assign his performer's
property rights (wholly or partially) to another person.
(2) If on the rights coming into existence the assignee or
another person claiming under him would be entitled as against all other
persons to require the rights to be vested in him, they shall vest in the
assignee or his successor in title by virtue of this subsection.
(3) A licence granted by a prospective owner of a performer's
property rights is binding on every successor in title to his interest (or
prospective interest) in the rights, except a purchaser in good faith for
valuable consideration and without notice (actual or constructive) of the
licence or a person deriving title from such a purchaser.
(4) References in this Part to doing anything with, or without,
the licence of the rights owner shall be construed accordingly.
(5) In subsection (3) "prospective owner" in relation to a
performer's property rights means a person who is prospectively entitled
to those rights by virtue of such an agreement as is mentioned in
subsection (1).
Exclusive licences
229. (1) In this Part an "exclusive licence" means a licence in writing
signed by or on behalf of the owner of a performer's property rights
authorising the licensee to the exclusion of all other persons, including
the person granting the licence, to do anything requiring the consent of
the rights owner.
(2) The licensee under an exclusive licence has the same rights
against a successor in title who is bound by the licence as he has against
the person granting the licence.
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Performer's property right to pass under will with unpublished
original recording
230. Where under a bequest (whether general or specific) a person is
entitled beneficially or otherwise to any material thing containing an
original recording of a performance which was not published before the
death of the testator, the bequest shall, unless a contrary intention is
indicated in the testator's will or a codicil to it, be construed as including
any performer's rights in relation to the recording to which the testator
was entitled immediately before his death.
Presumption of transfer of rental right in case of film production
agreement
231. (1) Where an agreement concerning film production is
concluded between a performer and a film producer, the performer shall
be presumed, unless the agreement provides to the contrary, to have
transferred to the film producer any rental right in relation to the film
arising from the inclusion of a recording of his performance in the film.
(2) Where this section applies, the absence of signature by or
on behalf of the performer does not exclude the operation of section 228
(effect of purported assignment of future rights).
(3) The reference in subsection (1) to an agreement concluded
between a performer and a film producer includes any agreement having
effect between those persons, whether made by them directly or through
intermediaries.
(4) Section 232 (right to equitable remuneration on transfer of
rental right) applies where there is a presumed transfer by virtue of this
section as in the case of an actual transfer.
Right to equitable remuneration where rental right transferred
232. (1) Where a performer has transferred his rental right
concerning a sound recording or a film to the producer of the sound
recording or film, he retains the right to equitable remuneration for the
rental.
(2) The reference in subsection (1) to the transfer of rental right
by one person to another includes any arrangement having that effect,
whether made by them directly or through intermediaries.
(3) The right to equitable remuneration under this section may
not be assigned by the performer except to a collecting society for the
purpose of enabling it to enforce the right on his behalf.
(4) The right is, however, transmissible by testamentary
disposition or by operation of law as personal or moveable property; and
it may be assigned or further transmitted by any person into whose
hands it passes.
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(5) Equitable remuneration under this section is payable by the
person for the time being entitled to the rental right, that is, the person
to whom the right was transferred or any successor in title of his.
(6) The amount payable by way of equitable remuneration is as
agreed by or on behalf of the persons by and to whom it is payable,
subject to section 233 (reference of amount to Copyright Tribunal).
(7) An agreement is of no effect in so far as it purports to
exclude or restrict the right to equitable remuneration under this
section.
(8) In this section a "collecting society" means a society or other
organisation which has as its main object, or one of its main objects, the
exercise of the right to equitable remuneration on behalf of more than
one performer.
Equitable remuneration: reference of amount to Copyright Tribunal
233. (1) In default of agreement as to the amount payable by way of
equitable remuneration under section 232, the person by or to whom it
is payable may apply to the Copyright Tribunal to determine the amount
payable.
(2) A person to or by whom equitable remuneration is payable
may also apply to the Tribunal—
(a) to vary any agreement as to the amount payable; or
(b) to vary any previous determination of the Tribunal as to
that matter;
but except with the special leave of the Tribunal no such application may
be made within twelve months from the date of a previous determination.
(3) An order made on an application under subsection (2) has
effect from the date on which it is made or such later date as may be
specified by the Tribunal.
(4) On an application under this section the Tribunal shall
consider the matter and make such order as to the method of calculating
and paying equitable remuneration as it may determine to be reasonable
in the circumstances, taking into account the importance of the
contribution of the performer to the film or sound recording.
(5) Remuneration shall not be considered inequitable merely
because it was paid by way of a single payment or at the time of the
transfer of the rental right.
(6) An agreement is of no effect in so far as it purports to
prevent a person questioning the amount of equitable remuneration or to
restrict the powers of the Copyright Tribunal under this section.
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Infringement actionable by rights owner
234. (1) An infringement of a performer's property rights is
actionable by the rights owner.
(2) In an action for infringement of a performer's property
rights all such relief by way of damages, injunctions, accounts or
otherwise is available to the plaintiff as is available in respect of the
infringement of any other property right.
(3) This section has effect subject to the following provisions of
this Part.
Provisions as to damages in infringement actions
235. (1) Where in an action for infringement of a performer's
property rights it is shown that at the time of the infringement the
defendant did not know and had no reason to believe, that the rights
subsisted in the recording to which the action relates, the plaintiff is not
entitled to damages against him, but without prejudice to any other
remedy.
(2) The court may in an action for infringement of a performer's
property rights having regard to all the circumstances, and in particular
to—
(a) the flagrancy of the infringement; and
(b) any benefit accruing to the defendant by reason of the
infringement;
award such additional damages as the justice of the case may require.
Rights and remedies for exclusive licensee
236. (1) An exclusive licensee has, except against the owner of a
performer's property rights, the same rights and remedies in respect of
matters occurring after the grant of the licence as if the licence had been
an assignment.
(2) His rights and remedies are concurrent with those of the
rights owner; and references in the relevant provisions of this Part to the
rights owner shall be construed accordingly.
(3) In an action brought by an exclusive licensee by virtue of
this section a defendant may avail himself of any defence which would
have been available to him if the action had been brought by the rights
owner.
Exercise of concurrent rights
237. (1) Where an action for infringement of a performer's property
rights brought by the rights owner or an exclusive licensee relates
(wholly or partly) to an infringement in respect of which they have
concurrent rights of action, the rights owner or, as the case may be, the
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exclusive licensee may not, without the leave of the court, proceed with
the action unless the other is either joined as plaintiff or added as a
defendant.
(2) A rights owner or exclusive licensee who is added as a
defendant in pursuance of subsection (1) is not liable for any costs in the
action unless he takes part in the proceedings.
(3) The above provisions do not affect the granting of
interlocutory relief on an application by the rights owner or exclusive
licensee alone.
(4) Where an action for infringement of a performer's property
rights is brought which relates (wholly or partly) to an infringement in
respect of which the rights owner and an exclusive licensee have or had
concurrent rights of action—
(a) the court shall in assessing damages take into account—
(i) the terms of the licence; and
(ii) any pecuniary remedy already awarded or available
to either of them in respect of the infringement;
(b) no account of profits shall be directed if an award of
damages has been made, or an account of profits has
been directed, in favour of the other of them in respect of
the infringement; and
(c) the court shall if an account of profits is directed
apportion the profits between them as the court
considers just, subject to any agreement between them;
and these provisions apply whether or not the rights owner and the
exclusive licensee are both parties to the action.
(5) The owner of a performer's property rights shall notify any
exclusive licensee having concurrent rights before applying for an order
under section 242 (order for delivery up) or exercising the right conferred
by section 243 (right of seizure); and the court may on the application of
the licensee make such order under section 242 or, as the case may be,
prohibiting or permitting the exercise by the rights owner of the right
conferred by section 243, as it thinks fit having regard to the terms of the
licence.
Non-property rights
Performers' non-property rights
238. (1) The rights conferred on a performer by—
(a) section 212 (consent required for recording etc. of live
performance);
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(b) section 217 (infringement of performer's rights by use of
recording made without consent); and
(c) section 218 (infringement of performer's rights by
importing, possessing or dealing with illicit recording);
are not assignable or transmissible, except to the following extent
referred to in this Part as "a performer's non-property rights").
(2) On the death of a person entitled to any such right—
(a) the right passes to such person as he may by
testamentary disposition specifically direct; and
(b) if or to the extent that there is no such direction, the
right is exercisable by his estate representatives.
(3) References in this Part to the performer, in the context of
the person having any such right, shall be construed as references to the
person for the time being entitled to exercise those rights.
(4) Where by virtue of subsection (2)(a) a right becomes
exercisable by more than one person, it is exercisable by each of them
independently of the other or others.
(5) Any damages recovered by personal representatives by
virtue of this section in respect of an infringement after a person's death
shall devolve as part of his estate as if the right of action had subsisted
and been vested in him immediately before his death.
Transmissibility of rights of person having recording rights
239. (1) The rights conferred by this Part on a person having
recording rights are not assignable or transmissible.
(2) This does not affect section 219 (2)(b) or (3)(b), so far as
those provisions confer rights under this Part on a person to whom the
benefit of a contract or licence is assigned.
Consent
240. (1) Consent for the purposes of this Part by a person having a
performer's non-property rights, or by a person having recording rights,
may be given in relation to a specific performance, a specified description
of performances or performances generally, and may relate to past or
future performances.
(2) A person having recording rights in a performance is bound
by any consent given by a person through whom he derives his rights
under the exclusive recording contract or licence in question, in the
same way as if the consent had been given by him.
(3) Where a performer's non-property right passes to another
person, any consent binding on the person previously entitled binds the
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person to whom the right passes in the same way as if the consent had
been given by him.
Remedies for infringement
Infringement actionable as breach of statutory duty
241. An infringement of—
(a) a performer's non-property rights; or
(b) any right conferred by this Part on a person having
recording rights;
is actionable by the person entitled to the right as a breach of statutory
duty.
Delivery up or seizure of illicit recordings
Order for delivery up
242. (1) Where a person has in his possession, custody or control in
the course of a business an illicit recording of a performance, a person
having performer's rights or recording rights in relation to the
performance under this Part may apply to the court for an order that the
recording be delivered up to him or to such other person as the court
may direct.
(2) An application shall not be made after the end of the period
specified in section 250; and no order shall be made unless the court
also makes, or it appears to the court that there are grounds for making,
an order under section 251 (order as to disposal of illicit recording).
(3) A person to whom a recording is delivered up in pursuance
of an order under this section shall, if an order under section 251 is not
made, retain it pending the making of an order, or the decision not to
make an order, under that section.
(4) Nothing in this section affects any other power of the court.
Right to seize illicit recordings
243. (1) An illicit recording of a performance which is found exposed
or otherwise immediately available for sale or hire, and in respect of
which a person would be entitled to apply for an order under section
242, may be seized and detained by him or a person authorised by him.
(2) The right to seize and detain is exercisable subject to the
following conditions and is subject to any decision of the court under
section 251.
(3) Before anything is seized under this section notice of the
time and place of the proposed seizure must be given to the
Commissioner of Police.
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(4) A person may for the purpose of exercising the right
conferred by this section enter premises to which the public have access
but may not seize anything in the possession, custody or control of a
person at a permanent or regular place of business of his and may not
use any force.
(5) At the time when anything is seized under this section there
shall be left at the place where it was seized a notice in the prescribed
form containing the prescribed particulars as to the person by whom or
on whose authority the seizure is made and the grounds on which it is
made.
(6) In this section "prescribed" means prescribed by order of
the Minister.
(7) An order of the Minister under this section is subject to
negative resolution procedure.
Meaning of "illicit recording"
244. (1) In this Part "illicit recording", in relation to a performance,
shall be construed in accordance with this section.
(2) For the purposes of a performer's rights, a recording of the
whole or any substantial part of a performance of his is an illicit
recording if it is made, otherwise than for private purposes, without his
consent.
(3) For the purposes of the rights of a person having recording
rights, a recording of the whole or any substantial part of a performance
subject to the exclusive recording contract is an illicit recording if it is
made, otherwise than for private purposes, without his consent or that of
the performer.
(4) For the purposes of sections 245 and 247 (offences and
orders for delivery up in criminal proceedings), a recording is an illicit
recording if it is an illicit recording for the purposes mentioned in
subsection (2) or subsection (3).
(5) In this Part "illicit recording" includes a recording falling to
be treated as an illicit recording by virtue of any of the following
provisions of Schedule 2—
(a) paragraph 4(3) (recordings made for purposes of
instruction or examination);
(b) paragraph 6(2) (recordings made by educational
establishments for educational purposes);
(c) paragraph 13(2) (recordings of performance in electronic
form retained on transfer of principal recording); or
(d) paragraph 18(3) (recordings made for purposes of
broadcast or cable programme);
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but otherwise does not include a recording made in accordance with any
of the provisions of that Schedule.
(6) It is immaterial for the purposes of this section where the
recording was made.
Offences
Criminal liability for making, dealing with or using illicit recordings
245. (1) A person commits an offence who without sufficient
consent—
(a) makes for sale or hire; or
(b) imports into Bermuda otherwise than for his private and
domestic use; or
(c) possesses in the course of a business with a view to
committing any act infringing the rights conferred by
this Part; or
(d) in the course of a business—
(i) sells or lets for hire; or
(ii) offers or exposes for sale or hire; or
(iii) distributes;
a recording which is, and which he knows or has reason to believe is, an
illicit recording.
(2) A person commits an offence who causes a recording of a
performance made without sufficient consent to be—
(a) shown or played in public; or
(b) broadcast or included in a cable programme service;
thereby infringing any of the rights conferred by this Part, if he knows or
has reason to believe that those rights are thereby infringed.
(3) In subsections (1) and (2) "sufficient consent" means—
(a) in the case of a qualifying performance, the consent of
the performer; and
(b) in the case of a non-qualifying performance subject to an
exclusive recording contract—
(i) for the purposes of subsection (1)(a) (making of
recording), the consent of the performer or the
person having recording rights; and
(ii) for the purposes of subsections (1)(b), (c) and (d)
and subsection (2) (dealing with or using
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recording), the consent of the person having
recording rights.
(4) The references in this subsection to the person having
recording rights are to the person having those rights at the time the
consent is given or, if there is more than one such person, to all of them.
(5) No offence is committed under subsection (1) or (2) by the
commission of an act which by virtue of any provision of Schedule 2 may
be done without infringing the rights conferred by this Part.
(6) A person guilty of an offence under subsection (1)(a), (b) or
(d)(iii) is liable—
(a) on summary conviction to imprisonment for a term of six
months or a fine of $10,000, or both;
(b) on conviction on indictment to imprisonment for a term
of ten years or to a fine of $250,000, or both.
(7) A person guilty of any other offence under this section is
liable on summary conviction to a fine of $10,000 or imprisonment for a
term of six months, or both.
Enforcement by consumer protection authority
Enforcement by inspectors designated under the Consumer
Protection Act 1999
246. (1) It is the duty of every inspector designated under section 27
of the Consumer Protection Act 1999 to enforce the provisions of section
245.
(2) The following provisions of the Consumer Protection Act
1999 apply in relation to the enforcement of that section by such
inspector as they apply in relation to the enforcement of that Act⎯
(a) section 28 (power to make test purchases, etc.);
(b) section 29 (power to enter premises and to seize goods,
etc.)
(c) section 30 (offences connected to exercise of powers
under section 29);
(d) section 31 (notice of test);
(e) section 32 (compensation).
Order for delivery up in criminal proceedings
247. (1) The court before which proceedings are brought against a
person for an offence under section 245 may, if satisfied that at the time
of his arrest or charge he had in his possession, custody or control in the
course of a business an illicit recording of a performance, order that it be
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delivered up to a person having performers' rights or recording rights in
relation to the performance or to such other person as the court may
direct.
(2) For this purpose a person shall be treated as charged with
an offence when he is orally charged or is served with a summons or
indictment.
(3) An order may be made by the court of its own motion or on
the application of the prosecutor, and may be made whether or not the
person is convicted of the offence, but shall not be made—
(a) after the end of the period specified in section 250
(period after which remedy of delivery up not available);
or
(b) if it appears to the court unlikely that any order will be
made under section 251 (order as to disposal of illicit
recording).
(4) An appeal lies from an order made under this section by a
magistrates' court to the Supreme Court.
(5) A person to whom an illicit recording is delivered up in
pursuance of an order under this section shall retain it pending the
making of an order, or the decision not to make an order, under section
251.
(6) Nothing in this section affects the powers of the court as to
forfeiture under the Criminal Code Act 1907 or any other enactment.
Search warrants
248. (1) Where a magistrate is satisfied by information on oath given
by a police officer that there are reasonable grounds for believing—
(a) that an offence under section 245(1) (offences of making,
importing, possessing, selling etc. or distributing illicit
recordings) has been or is about to be committed in any
premises; and
(b) that evidence that such an offence has been or is about
to be committed is in those premises;
he may issue a warrant authorising a police officer to enter and search
the premises, using such reasonable force as is necessary.
(2) A warrant under subsection (1)—
(a) may authorise persons to accompany any police officer
executing the warrant; and
(b) remains in force for 28 days from the date of its issue.
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(3) In executing a warrant issued under subsection (1) a police
officer may seize an article if he reasonably believes that it is evidence
that any offence under section 245(1) has been or is about to be
committed.
False representation of authority to give consent
249. (1) It is an offence for a person to represent falsely that he is
authorised by any person to give consent for the purposes of this Part in
relation to a performance, unless he believes on reasonable grounds that
he is so authorised.
(2) A person guilty of an offence under this section is liable on
summary conviction to imprisonment for a term of six months or a fine of
$10,000 or both.
Supplementary provisions with respect to delivery up and seizure
Period after which remedy of delivery up not available
250. (1) An application for an order under section 242 (order for
delivery up in civil proceedings) may not be made after the end of the
period of six years from the date on which the illicit recording in question
was made, subject to the following provisions.
(2) If during the whole or any part of that period a person
entitled to apply for an order—
(a) is under a disability, within the meaning of the
Limitation Act 1984; or
(b) is prevented by fraud or concealment from discovering
the facts entitling him to apply;
an application may be made by him at any time before the end of the
period of six years from the date on which he ceased to be under a
disability or, as the case may be, could with reasonable diligence have
discovered those facts.
(4) An order under section 247 (order for delivery up in
criminal proceedings) shall not, in any case, be made after the end of the
period of six years from the date on which the illicit recording in question
was made.
Order as to disposal of illicit recording
251. (1) An application may be made to the court for an order that
an illicit recording of a performance delivered up in pursuance of an
order under section 242 or 247, or seized and detained in pursuance of
the right conferred by section 243, shall be—
(a) forfeited to such person having performer's rights or
recording rights in relation to the performance as the
court may direct; or
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(b) destroyed or otherwise dealt with as the court may think
fit;
or for a decision that no such order should be made.
(2) In considering what order (if any) should be made, the court
shall consider whether other remedies available in an action for
infringement of the rights conferred by this Part would be adequate to
compensate the person or persons entitled to the rights and to protect
their interests.
(3) Provision shall be made by rules of court as to the service of
notice on persons having an interest in the recording, and any such
person is entitled—
(a) to appear in proceedings for an order under this section,
whether or not he was served with notice; and
(b) to appeal against any order made, whether or not he
appeared;
and an order shall not take effect until the end of the period within
which notice of an appeal may be given or, if before the end of that
period notice of appeal is duly given, until the final determination or
abandonment of the proceedings on the appeal.
(4) Where there is more than one person interested in a
recording, the court shall make such order as it thinks just and may (in
particular) direct that the recording be sold, or otherwise dealt with, and
the proceeds divided.
(5) If the court decides that no order should be made under
this section, the person in whose possession, custody or control the
recording was before being delivered up or seized is entitled to its return.
(6) References in this section to a person having an interest in
a recording include any person in whose favour an order could be made
in respect of the recording under this section or under section 142 or
310 .
Forfeiture of illicit recordings
252. (1) Where illicit recordings of a performance have come into the
possession of any person in connection with the investigation or
prosecution of a relevant offence, that person may apply under this
section for an order for the forfeiture of the illicit recordings.
(2) For the purposes of this section "relevant offence" means ⎯
(a) an offence under section 245(1) (criminal liability for
making or dealing with illicit recordings),
(b) an offence under the Merchandise Marks Act 1889; or
(c) an offence involving dishonesty or deception.
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(3) An application under this section may be made ⎯
(a) where proceedings have been brought in any court for a
relevant offence relating to some or all of the illicit
recordings, to that court; or
(b) where no application for the forfeiture of the illicit
recordings has been made under paragraph (a), by way
of complaint to a magistrates' court.
(4) On an application under this section, the court shall make
an order for the forfeiture of any illicit recordings only if it is satisfied
that a relevant offence has been committed in relation to the illicit
recordings.
(5) A court may infer for the purposes of this section that such
an offence has been committed in relation to any illicit recordings if it is
satisfied that such an offence has been committed in relation to illicit
recordings which are representative of the illicit recordings in question
(whether by reason of being part of the same consignment or batch or
otherwise).
(6) Any person aggrieved by an order made under this section
by a magistrates' court, or by a decision of such a court not to make
such an order, may appeal against that order or decision to the Supreme
Court.
(7) An order under this section may contain such provision as
appears to the court to be appropriate for delaying the coming into force
of the order pending the making and determination of any appeal.
(8) Subject to subsection (9), where any illicit recordings are
forfeited under this section they shall be destroyed in accordance with
such directions as the court may give.
(9) On making an order under this section the court may direct
that the illicit recordings to which the order relates shall (instead of being
destroyed) be forfeited to the person having the performers' rights or
recording rights in question or dealt with in such other way as the court
considers appropriate.
Jurisdiction of magistrates' court
253. (1) A magistrates' court may entertain proceedings under—
(a) section 242 (order for delivery up of illicit recording); or
(b) section 251 (order as to disposal of illicit recording).
(2) Nothing in this section shall be construed as affecting the
jurisdiction of the Supreme Court.
Licensing of performers' property rights.
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Licensing of performers' property rights
254. The provisions of Schedule 3 have effect with respect to the
licensing of performers' property rights.
Jurisdiction of Copyright Tribunal
Jurisdiction of Copyright Tribunal
255. (1) The Copyright Tribunal has jurisdiction under this Part to
hear and determine proceedings under—
(a) section 216 (amount of equitable remuneration for
exploitation of commercial sound recording);
(b) section 224 (application to give consent on behalf of
owner of reproduction right);
(c) section 233 (amount of equitable remuneration on
transfer of rental right);
(d) paragraph 3, 4 or 5 of Schedule 3 and paragraphs 3, 4
and 5 of Schedule 5 (reference of licensing scheme);
(e) paragraph 6 or 7 of Schedule 3 and paragraphs 6 or 7
of Schedule 5 (application with respect to licence under
licensing scheme);
(f) paragraph 10, 11 or 12 of Schedule 3 and paragraph
10, 11 or 12 of Schedule 5 (reference or application with
respect to licensing by licensing body);
(g) paragraph 15 of Schedule 3 (application to settle royalty
for certain lending).
(2) The provisions of Chapter IX of Part I (general provisions
relating to the Copyright Tribunal) apply in relation to the Tribunal when
exercising any jurisdiction under this Part.
(3) Provision shall be made by rules under section 186
prohibiting the Tribunal from entertaining a reference under paragraph
3, 4 or 5 of Schedule 3 (reference of licensing scheme) 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.
Qualification for protection and extent
Qualifying countries, individuals and persons
256. (1) In this Part⎯
"qualifying country" means—
(a) Bermuda; or
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(b) to the extent that an order under section 257 so
provides, a country designated under that section as
enjoying reciprocal protection;
"qualifying individual" means a citizen or subject of, or an
individual resident in, a qualifying country; and
"qualifying person" means a qualifying individual or a body
corporate or other body having legal personality which—
(a) is formed under the law of Bermuda or another
qualifying country; and
(b) has in any qualifying country a place of business at
which substantial business activity is carried on.
(2) The reference in the definition of "qualifying individual" to a
person's being a citizen or subject of a qualifying country shall be
construed in relation to Bermuda, as a reference to his possessing
Bermudian status.
(3) In determining for the purposes of the definition of
"qualifying person" whether substantial business activity is carried on at
a place of business in any country, no account shall be taken of dealings
in goods which are at all material times outside that country.
Countries enjoying reciprocal protection
257. (1) The Minister may by order designate as enjoying reciprocal
protection under this Part—
(a) a Convention country; or
(b) a country as to which the Minister is satisfied that
provision has been or will be made under its law giving
adequate protection for Bermudian performances.
(2) A "Convention country" means a country which is a party to
a Convention relating to performers' rights to which Bermuda is also a
party.
(3) A "Bermudian performance" means a performance—
(a) given by an individual who has Bermudian status or is
domiciled or resident in Bermuda; or
(b) taking place in Bermuda.
(4) If the law of that country provides adequate protection only
for certain descriptions of performance, an order under subsection (1)(b)
designating that country shall contain provision limiting to a
corresponding extent the protection afforded by this Part in relation to
performances connected with that country.
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(5) An order made under this section is subject to negative
resolution procedure.
Territorial waters
258. For the purposes of this Part the territorial waters of Bermuda
shall be treated as part of Bermuda.
Bermuda ships and aircraft
259. (1) This Part applies to things done on a Bermuda ship or
aircraft as it applies to things done in Bermuda.
(2) In this section "Bermuda ship" and "Bermuda aircraft"
mean respectively, a ship or an aircraft registered in Bermuda.
PART III
DATABASE RIGHT
Database right
Interpretation
260. (1) In this Part—
"Bermudian status" has the meaning given in section 2;
"database" has the meaning given in section 10(1);
"extraction", in relation to any contents of a database, means the
permanent or temporary transfer of those contents to another
medium by any means or in any form;
"insubstantial", in relation to part of the contents of a database,
shall be construed subject to section 264(2);
"investment" includes any investment, whether of financial,
human or technical resources;
"jointly", in relation to the making of a database, shall be
construed in accordance with section 262(6);
"lawful user", in relation to a database, means any person who
(whether under a licence to do any of the acts restricted by
any database right in the database or otherwise) has a right
to use the database;
"maker", in relation to a database, shall be construed in
accordance with section 262;
"re-utilisation", in relation to any contents of a database, means
making those contents available to the public by any means;
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"substantial", in relation to any investment, extraction or re-
utilisation, means substantial in terms of quantity or quality
or a combination of both.
(2) The making of a copy of a database available for use, on
terms that it will or may be returned, otherwise than for direct or indirect
economic or commercial advantage, through an establishment which is
accessible to the public shall not be taken for the purposes of this Part to
constitute extraction or re-utilisation of the contents of the database.
(3) Where the making of a copy of a database available through
an establishment which is accessible to the public gives rise to a
payment the amount of which does not go beyond what is necessary to
cover the costs of the establishment, there is no direct or indirect
economic or commercial advantage for the purposes of subsection (2).
(4) Subsection (2) does not apply to the making of a copy of a
database available for on-the-spot reference use.
(5) Where a copy of a database has been sold within Bermuda
by, or with the consent of, the owner of the database right in the
database, the further sale within Bermuda of that copy shall not be
taken for the purposes of this Part to constitute extraction or re-
utilisation of the contents of the database.
Database right
261. (1) A property right ("database right") subsists, in accordance
with this Part, in a database if there has been a substantial investment
in obtaining, verifying or presenting the contents of the database.
(2) For the purposes of subsection (1) it is immaterial whether
or not the database or any of its contents is a copyright work, within the
meaning of Part I.
(3) This section has effect subject to section 266.
The maker of a database
262. (1) Subject to subsections (2) and (3), the person who takes the
initiative in obtaining, verifying or presenting the contents of a database
and assumes the risk of investing in that obtaining, verification or
presentation shall be regarded as the maker of, and as having made, the
database.
(2) Where a database is made by an employee in the course of
his employment, his employer shall be regarded as the maker of the
database, subject to any agreement to the contrary.
(3) Subject to subsection (4), where a database is made by an
officer or servant of the Crown in the course of his duties, the Crown
shall be regarded as the maker of the database.
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(4) Where a database is made by or under the directions or
control of the Senate or the House of Assembly⎯
(a) the Senate or House of Assembly by whom, or under
whose direction or control, the database is made shall be
regarded as the maker of the database; and
(b) if the database is made by or under the direction or
control of both Houses, the Senate and House of
Assembly shall be regarded as the joint makers of the
database.
(5) For the purposes of this Part a database is made jointly if
two or more persons acting together in collaboration take the initiative in
obtaining, verifying or presenting the contents of the database and
assume the risk of investing in that obtaining, verification or
presentation.
(6) References in this Part to the maker of a database shall,
except as otherwise provided, be construed, in relation to a database
which is made jointly, as references to all the makers of the database.
First ownership of database right
263. The maker of a database is the first owner of database right in it.
Acts infringing database right
264. (1) Subject to this Part, a person infringes database right in a
database if, without the consent of the owner of the right, he extracts or
re-utilises all or a substantial part of the contents of the database.
(2) For the purposes of this Part, the repeated and systematic
extraction or re-utilisation of insubstantial parts of the contents of a
database may amount to the extraction or re-utilisation of a substantial
part of those contents.
Term of protection
265. (1) Database right in a database expires at the end of the
period of 15 years from the end of the calendar year in which the making
of the database was completed.
(2) Where a database is made available to the public before the
end of the period referred to in subsection (1), database right in the
database shall expire 15 years from the end of the calendar year in
which the database was first made available to the public.
(3) Any substantial change to the contents of a database,
including a substantial change resulting from the accumulation of
successive additions, deletions or alterations, which would result in the
database being considered to be substantial new investment shall qualify
the database resulting from that investment for its own term of
protection.
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(4) This section has effect subject to section 277.
Qualification for database right
266. (1) Database right does not subsist in a database unless, at the
material time, its maker, or if it was made jointly, one or more of its
makers, was—
(a) an individual who possessed Bermudian status or was
ordinarily resident in Bermuda; or
(b) was a body incorporated under the law of Bermuda and
which, at that time, satisfied one of the conditions in
subsection (2); or
(c) a partnership or other unincorporated body which was
formed under the law of Bermuda and which, at that
time, satisfied one of the conditions of subsection (2)(a).
(2) The conditions mentioned in subsections (1)(b) and (c) are⎯
(a) that the body has its principal place of business in
Bermuda; or
(b) that the body has its registered office in Bermuda and
the body's operations are linked on an ongoing basis
with the economy of Bermuda.
(3) In this section, "the material time" means the time when the
database was made, or if the making extended over a period, a
substantial part of that period.
Avoidance of certain terms affecting lawful users
267. (1) A lawful user of a database which has been made available
to the public in any manner shall be entitled to extract or re-utilise
insubstantial parts of the contents of the database for any purpose.
(2) Where under an agreement a person has a right to use a
database, or part of a database, which has been made available to the
public in any manner, any term or condition in the agreement shall be
void in so far as it purports to prevent that person from extracting or re-
utilising insubstantial parts of the contents of the database, or of that
part of the database, for any purpose.
Exceptions to database right
268. (1) Database right in a database which has been made
available to the public in any manner is not infringed by fair dealing with
a substantial part of its contents if—
(a) that part is extracted from the database by a person who
is apart from this paragraph a lawful user of the
database;
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(b) it is extracted for the purpose of illustration for teaching
or research and not for any commercial purpose; and
(c) the source is indicated.
(2) The provisions of Schedule 4 specify other acts which may
be done in relation to a database notwithstanding the existence of
database right.
Acts permitted on assumption as to expiry of database right
269. (1) Database right in a database is not infringed by the
extraction or re-utilisation of a substantial part of the contents of the
database at a time when, or in pursuance of arrangements made at a
time when—
(a) it is not possible by reasonable inquiry to ascertain the
identify of the maker; and
(b) it is reasonable to assume that database right has
expired.
(2) In the case of a database alleged to have been made jointly,
subsection (1) applies in relation to each person alleged to be one of the
makers.
Presumptions relevant to database right
270. (1) The following presumptions apply in proceedings brought
by virtue of this Part with respect to a database.
(2) Where a name purporting to be that of the maker appeared
on copies of the database as published, or on the database when it was
made, the person whose name appeared shall be presumed, until the
contrary is proved—
(a) to be the maker of the database; and
(b) to have made it in circumstances not falling within
section 262(2) to (4).
(3) Where copies of the database as published bear a label or a
mark stating—
(a) that a named person was the maker of the database; or
(b) that the database was first published in a specified year;
the label or mark shall be admissible as evidence of the facts stated and
shall be presumed to be correct until the contrary is proved.
(4) In the case of a database alleged to have been made jointly,
subsections (2) and (3), so far as applicable, apply in relation to each
person alleged to be one of the makers.
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Application of copyright provisions to database right
271. The following provisions—
(a) sections 116 to 119 (dealing with rights in copyright
works);
(b) sections 125 and 126 (rights and remedies of copyright
owner);
(c) sections 129 and 130 (rights and remedies of exclusive
licensee);
apply in relation to database right and databases in which that right
subsists as they apply in relation to copyright and copyright works.
Licensing of database right
272. The provisions of Schedule 5 have effect with respect to the
licensing of database right.
Database right: jurisdiction of Copyright Tribunal
273. (1) The Copyright Tribunal has jurisdiction under this Part to
hear and determine proceedings under the following provisions of
Schedule 5—
(a) paragraph 3, 4 or 5 (reference of licensing scheme);
(b) paragraph 6 or 7 (application with respect to licence
under licensing scheme);
(c) paragraph 10, 11 or 12 (reference or application with
respect to licence by licensing body).
(2) The provisions of Chapter IX of Part I (general provisions
relating to the Copyright Tribunal) apply in relation to the Tribunal
when exercising any jurisdiction under this Part.
(3) Provision shall be made by rules under section 186
prohibiting the Tribunal from entertaining a reference under paragraph
3, 4 or 5 of Schedule 5 (reference of licensing scheme) 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.
Savings and transitional provisions
General rule
274. Subject to sections 275 and 276, this Part applies to databases
made before or after commencement.
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General savings
275. (1) Nothing in this Part affects any agreement made before
commencement.
(2) No act done—
(a) before commencement; or
(b) after commencement, in pursuance of an agreement
made before commencement;
shall be regarded as an infringement of database right in a database.
Saving for copyright in certain existing databases
276. (1) Where a database⎯
(a) was created on or before 27 March 1996; and
(b) is a copyright work immediately before commencement;
copyright shall continue to subsist in the database for the remainder of
its copyright term.
(2) In this section "copyright term" means the period of the
duration of copyright under section 21 (duration of copyright in literary,
dramatic, musical or artistic works).
Database right: term applicable to certain existing databases
277. Where⎯
(a) the making of a database was complete on or after 1
January 1983; and
(b) on commencement, database right begins to subsist in
the database;
database right shall subsist in the database for the period of 15 years
beginning with the date of commencement of this section..
Part IV
Miscellaneous and General
Devices designed to circumvent copy protection
Devices designed to circumvent copy-protection
278. (1) This section applies where copies of a copyright work are
issued to the public, by or with the licence of the copyright owner, in an
electronic form which is copy-protected.
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(2) The person issuing the copies to the public has the same
rights against a person who, knowing or having reason to believe that it
will be used to make infringing copies—
(a) makes, imports, sells or lets for hire, offers or exposes
for sale or hire, or advertises for sale or hire, any device
or means specifically designed or adapted to circumvent
the form of copy-protection employed; or
(b) publishes information intended to enable or assist
persons to circumvent that form of copy-protection;
as a copyright owner has in respect of an infringement of copyright.
(3) Where the copies being issued to the public as mentioned in
subsection (1) are copies of a computer program, subsection (2) applies
as if for the words "or advertises for sale or hire" there were substituted
"advertises for sale or hire or possesses in the course of a business.
(4) Further, that person has the same rights under section 127
or 128 (delivery up or seizure of certain articles) in relation to any such
device or means which a person has in his possession, custody or control
with the intention that it should be used to make infringing copies of
copyright works, as a copyright owner has in relation to an infringing
copy.
(5) References in this section to copy-protection include any
device or means intended to prevent or restrict copying of a work or to
impair the quality of copies made.
Computer programs
Avoidance of certain terms
279. (1) Where a person has the use of a computer program under an
agreement, any term or condition in the agreement shall be void in so far
as it purports to prohibit or restrict⎯
(a) the making of any back up copy of the program which it
is necessary for him to have for the purposes of the
agreed use;
(b) where the conditions in section 72(2) are met, the
decompiling of the program; or
(c) the use of any device or means to observe, study or test
the functioning of the program in order to understand
the ideas and principles which underlie any element of
the program.
(2) In this section, decompile, in relation to a computer program,
has the same meaning as in section 72.
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Databases
Avoidance of certain terms relating to databases
280. Where under an agreement a person has a right to use a
database or part of a database, any term or condition in the agreement
shall be void in so far as it purports to prohibit or restrict the
performance of any act which would but for section 74 infringe the
copyright in the database.
Fraudulent reception of transmission
Offence of fraudulently receiving programmes
281. A person who dishonestly receives a programme included in a
broadcasting or cable programme service provided from a place in
Bermuda with intent to avoid payment of any charge applicable to the
reception of the programme commits an offence and is liable on
summary conviction to a fine of $10,000.
Unauthorised decoders
282. (1) A person who makes, imports, sells or lets for hire, offers or
exposes for sale or hire, or advertises for sale or hire, any unauthorised
decoder shall be guilty of an offence and liable⎯
(a) on summary conviction to imprisonment for a term of six
months, or to a fine of $10,000 or to both;
(b) on conviction on indictment, to imprisonment for a term
of ten years, or to a fine of $250,000, or to both.
(2) It is a defence to any prosecution for an offence under this
section for the defendant to prove that he did not know, and had no
reasonable ground for knowing, that the decoder was an unauthorised
decoder.
(3) This section does not have effect in relation to any offence
committed before the commencement of this section.
(4) In this section⎯
"apparatus" includes any device, component or electronic data;
"decoder" means any apparatus which is designed or adapted to
enable (whether on its own or with any other apparatus) an
encrypted transmission to be decoded;
"transmission" means any programme included in a
broadcasting or cable programme service which is provided
from a place in Bermuda; and
"unauthorised", in relation to a decoder, means a decoder which
will enable encrypted transmissions to be viewed in decoded
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form without payment of the fee (however imposed) which the
person making the transmission, or on whose behalf it is
made, charges for viewing those transmissions, or viewing
any service of which they form part.
Search warrants
283. (1) Where a magistrate is satisfied by information on oath given
by a police officer that there are reasonable grounds for believing ⎯
(a) that an offence under section 282(1) has been or is
about to be committed in any premises; and
(b) that evidence that such an offence has been or is about
to be committed is in those premises;
he may issue a warrant authorising a police officer to enter and search
the premises, using such reasonable force as is necessary.
(2) A warrant under subsection (1) ⎯
(a) may authorise persons to accompany any police officer
executing the warrant; and
(b) remains in force for 28 days from the date of its issue.
(3) In executing a warrant issued under subsection (1) a police
officer may seize an article if he reasonably believes that it is evidence
that any offence under section 282(1) has been or is about to be
committed.
(4) In this section "premises" includes land, buildings, fixed or
moveable structures, vehicles, vessels, aircraft and hovercraft.
Forfeiture of unauthorised decoders
284. (1) Where unauthorised decoders have come into the
possession of any person in connection with the investigation or
prosecution of a relevant offence, that person may apply under this
section for an order for the forfeiture of the unauthorised decoders.
(2) For the purposes of this section "relevant offence" means ⎯
(a) an offence under section 282(1) (criminal liability for
making, importing, etc. unauthorised decoders),
(b) an offence under the Merchandise Marks Act 1974; or
(c) an offence involving dishonesty or deception.
(3) An application under this section may be made ⎯
(a) where proceedings have been brought in any court for a
relevant offence relating to some or all of the
unauthorised decoders, to that court; or
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(b) where no application for the forfeiture of the
unauthorised decoders has been made under paragraph
(a), by way of complaint to a magistrates' court.
(4) On an application under this section, the court shall make
an order for the forfeiture of any unauthorised decoders only if it is
satisfied that a relevant offence has been committed in relation to the
unauthorised decoders.
(5) A court may infer for the purposes of this section that such
an offence has been committed in relation to any unauthorised decoders
if it is satisfied that such an offence has been committed in relation to
unauthorised decoders which are representative of the unauthorised
decoders in question (whether by reason of being of the same design or
part of the same consignment or batch or otherwise).
(6) Any person aggrieved by an order made under this section
by a magistrates' court, or by a decision of such a court not to make
such an order, may appeal against that order or decision to the Supreme
Court.
(7) An order under this section may contain such provision as
appears to the court to be appropriate for delaying the coming into force
of the order pending the making and determination of any appeal.
(8) Subject to subsection (9), where any unauthorised decoders
are forfeited under this section they shall be destroyed in accordance
with such directions as the court may give.
(9) On making an order under this section the court may direct
that the unauthorised decoders to which the order relates shall (instead
of being destroyed) be forfeited to a person who has rights or remedies
under section 285 in relation to the unauthorised decoders in question,
or dealt with in such other way as the court considers appropriate.
Rights and remedies in respect of apparatus, etc. for unauthorised
reception of transmissions
285. (1) A person who⎯
(a) makes charges for the reception of programmes included
in a broadcasting or cable programme service provided
from a place in Bermuda; or
(b) sends encrypted transmissions of any other description
from a place in Bermuda;
is entitled to the following rights and remedies.
(2) He has the same rights and remedies against a person who
⎯
(a) makes, imports or sells or lets for hire, offers or exposes
for sale or hire, or advertises for sale or hire, any
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apparatus or device designed or adapted to enable or
assist persons to receive the programmes or other
transmissions when they are not entitled to do so; or
(b) publishes any information which is calculated to enable
or assist persons to receive the programmes or other
transmissions when they are not entitled to do so;
as a copyright owner has in respect of an infringement of copyright.
(3) Further, he has the same rights under section 127 or 128
(delivery up or seizure of certain articles) in relation to any such
apparatus or device as a copyright owner has in relation to an infringing
copy.
(4) In section 126 (1) (innocent infringement of copyright) as it
applies to proceedings for infringement of the rights conferred by this
section, the reference to the defendant not knowing or having reason to
believe that copyright subsisted in the work shall be construed as a
reference to his not knowing or having reason to believe that his acts
infringed the rights conferred by this section.
(6) Section 142 applies, with the necessary modifications, in
relation to the disposal of anything delivered up or seized by virtue of
subsection (3).
Supplementary provisions as to fraudulent reception
286.(1) The Minister may by order ⎯
(a) provide that section 281 applies in relation to
programmes included in services provided from a
country or territory outside Bermuda; and
(b) provide that section 285 applies in relation to such
programmes and to encrypted transmissions sent from
such a country or territory.
(2) Where sections 281 and 285 apply in relation to a
broadcasting service or cable programme service, they also apply to any
service run for the person providing that service, or a person providing
programmes for that service, which consists wholly or mainly in the
sending by means of a telecommunications system of sounds or visual
images, or both.
(3) In sections 281, 282 and 285, and this section, "programme",
"broadcasting" and "cable programme service", and related expressions,
have the same meaning as in Part I (copyright).
(4) An order made under this section is subject to negative
resolution procedure.
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PART V
DESIGN RIGHT
CHAPTER 1
DESIGN RIGHT IN ORIGINAL DESIGNS
Interpretation
Index of defined expressions
287. The following Table shows provisions defining or otherwise
explaining expressions used in this Part (other than provisions defining
or explaining an expression used only in the same section)⎯
Bermudian design section 288(1)
business section 288(1)
commercial purposes section 288(3)
commission section 288(1)
computer-generated section 288(1)
country section 288(1)
design section 292(2)
design document section 288(1)
designer sections 290(2) and 293(2)
design right section 292(1)
design right owner sections 289(2) and 313(2)
employee, employment and
employer
section 288(1)
exclusive licence section 304(1)
infringing article section 307
joint design section 290(1)
licence (of the design right owner) sections 289(2), 301(4) and 302(3)
making articles to a design section 305(2)
marketing (and related
expressions)
section 288(2)
original section 292(4)
qualifying individual section 296(1)
qualifying person sections 296(1) and (2)
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signed section 327
Minor definitions
288. (1) In this Part⎯
"Bermudian design" means a design which qualifies for design
right protection by reason of a connection with Bermuda of
the designer or the person by whom the design is
commissioned or the designer is employed;
"business" includes a trade or profession;
"commission" means a commission for money or money's worth;
"computer-generated", in relation to a design, means that the
design is generated by computer in circumstances such that
there is no human designer,
"country" includes any territory;
"design document" means any record of a design, whether in the
form of a drawing, a written description, a photograph, data
stored in a computer or otherwise;
"employee", "employment" and "employer" refer to employment
under a contract of service or of apprenticeship;
(2) References in this Part to "marketing", in relation to an
article, are to its being sold or let for hire, or offered or exposed for sale
or hire, in the course of a business, and related expressions shall be
construed accordingly; but no account shall be taken for the purposes of
this Part of marketing which is merely colourable and not intended to
satisfy the reasonable requirements of the public.
(3) References in this Part to an act being done in relation to an
article for "commercial purposes" are to its being done with a view to the
article in question being sold or hired in the course of a business.
Construction of references to design right owner
289. (1) Where different persons are (whether in consequence of a
partial assignment or otherwise) entitled to different aspects of design
right in a work, the design right owner for any purpose of this Part is the
person who is entitled to the right in the respect relevant for that
purpose.
(2) Where design right (or any aspect of design right) is owned by
more than one person jointly, references in this Part to the design right
owner are to all the owners, so that, in particular, any requirement of the
licence of the design right owner requires the licence of all of them.
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Joint designs
290. (1) In this Part a "joint design" means a design produced by the
collaboration of two or more designers in which the contribution of each
is not distinct from that of the other or others.
(2) References in this Part to the designer of a design shall,
except as otherwise provided, be construed in relation to a joint design
as references to all the designers of the design.
Application of provisions to articles in kit form
291. (1) The provisions of this Part apply in relation to a kit, that is, a
complete or substantially complete set of components intended to be
assembled into an article, as they apply in relation to the assembled
article.
(2) Subsection (1) does not affect the question whether design
right subsists in any aspect of the design of the components of a kit as
opposed to the design of the assembled article.
Introductory
Design right
292. (1) Design right is a property right which subsists in
accordance with this Part in an original design.
(2) In this Part "design" means the design of any aspect of the
shape or configuration (whether internal or external) of the whole or part
of an article.
(3) Design right does not subsist in⎯
(a) a method or principle of construction;
(b) features of shape or configuration of an article which⎯
(i) enable the article to be connected to, or placed in,
around or against, another article so that either
article may perform its function; or
(ii) are dependent upon the appearance of another article
of which the article is intended by the designer to
form an integral part; or
(c) surface decoration.
(4) A design is not "original" for the purposes of this Part if it is
commonplace in the design field in question at the time of its creation.
(5) Design right subsists in a design only if the design qualifies
for design right protection by reference to⎯
(a) the designer or the person by whom the design was
commissioned or the designer employed; or
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(b) the person by whom and country in which articles made
to the design were first marketed;
or in accordance with any order under section 300 (power to make
further provision with respect to qualification).
(6) Design right does not subsist unless and until the design
has been recorded in a design document or an article has been made to
the design.
(7) Design right does not subsist in a design which was so
recorded, or to which an article was made, before the commencement of
this Part.
The designer
293. (1) In this Part the "designer", in relation to a design, means
the person who creates it.
(2) In the case of a computer-generated design the person by
whom the arrangements necessary for the creation of the design are
undertaken shall be taken to be the designer.
Ownership of design right
294. (1) The designer is the first owner of any design right in a
design which is not created in pursuance of a commission or in the
course of employment.
(2) Where a design is created in pursuance of a commission,
the person commissioning the design is the first owner of any design
right in it.
(3) Where, in a case not falling within subsection (2) a design is
created by an employee in the course of his employment, his employer is
the first owner of any design right in the design.
(4) If a design qualifies for design right protection by virtue of
section 299 (qualification by reference to first marketing of articles made
to the design), the above rules do not apply and the person by whom the
articles in question are marketed is the first owner of the design right.
Duration of design right
295. (1) Design right expires⎯
(a) 15 years from the end of the calendar year in which the
design was first recorded in a design document or an
article was first made to the design, whichever first
occurred; or
(b) if articles made to the design are made available for sale
or hire within 5 years from the end of that calendar year,
10 years from the end of the calendar year in which that
first occurred.
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(2) The reference in subsection (1) to articles being made
available for sale or hire is to their being made so available anywhere in
the world by or with the licence of the design right owner.
Qualifications for design right protection
Qualifying individuals and qualifying persons
296. (1) In this Part⎯
"qualifying individual" means a citizen or subject of, or an
individual ordinarily resident in, a qualifying country; and
"qualifying person" means ⎯
(a) a qualifying individual; or
(b) a body corporate or other body having legal personality
which⎯
(i) is formed under the law of a part of or another
qualifying country; and
(ii) has in any qualifying country a place of business
at which substantial business activity is carried
on.
(2) References in this Part to a qualifying person include the
Crown and the government of any other qualifying country.
(3) In this section "qualifying country" means⎯
(a) Bermuda; or
(b) to the extent that an order under section 328 so
provides, a country designated under that section as
enjoying reciprocal protection.
(4) The reference in the definition of "qualifying individual" to a
person's being a citizen or subject of a qualifying country shall be
construed in relation to Bermuda, as a reference to his possessing
Bermudian status.
(5) In determining for the purpose of the definition of
"qualifying person" whether substantial business activity is carried on at
a place of business in any country, no account shall be taken of dealings
in goods which are at all material times outside that country.
Qualification by reference to designer
297. (1) This section applies to a design which is not created in
pursuance of a commission or in the course of employment.
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(2) A design to which this section applies qualifies for design
right protection if the designer is a qualifying individual or, in the case of
a computer-generated design, a qualifying person.
(3) A joint design to which this section applies qualifies for
design right protection if any of the designers is a qualifying individual
or, as the case may be, a qualifying person.
(4) Where a joint design qualifies for design right protection
under this section, only those designers who are qualifying individuals or
qualifying persons are entitled to design right under section 294(1) (first
ownership of design right: entitlement of designer).
Qualification by reference to commissioner or employer
298. (1) A design qualifies for design right protection if it is created
in pursuance of a commission from, or in the course of employment with,
a qualifying person.
(2) In the case of a joint commission or joint employment a
design qualifies for design right protection if any of the commissioners or
employers is a qualifying person.
(3) Where a design which is jointly commissioned or created in
the course of joint employment qualifies for design right protection under
this section, only those commissioners or employers who are qualifying
persons are entitled to design right under section 294(2) or (3) (first
ownership of design right: entitlement of commissioner or employer).
Qualification by reference to first marketing
299. (1) A design which does not qualify for design right protection
under section 297 or 298 (qualification by reference to designer,
commissioner or employer) qualifies for design right protection if the first
marketing of articles made to the design⎯
(a) is by a qualifying person who is exclusively authorised to
put such articles on the market in Bermuda; and
(b) takes place in Bermuda.
(2) If the first marketing of articles made to the design is done
jointly by two or more persons, the design qualifies for design right
protection if any of those persons meets the requirements specified in
subsection (1)(a).
(3) In such a case only the persons who meet those
requirements are entitled to design right under section 294(4) (first
ownership of design right: entitlement of first marketer of articles made
to the design).
(4) In subsection (1)(a) "exclusively authorised" refers⎯
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(a) to authorisation by the person who would have been first
owner of design right as designer, commissioner of the
design or employer of the designer if he had been a
qualifying person, or by a person lawfully claiming under
such a person; and
(b) to exclusivity capable of being enforced by legal
proceedings in Bermuda.
Power to make further provision as to qualification
300. (1) The Minister may, with a view to fulfilling an international
obligation of Bermuda, by order provide that a design qualifies for design
right protection if such requirements as are specified in the order are
met.
(2) An order may make different provision for different
descriptions of design or article; and may make such consequential
modifications of the operation of section 294 (ownership of design right)
and sections 297 to 299 (other means of qualification) as appear to the
Minister to be appropriate.
(3) An order made under this section is subject to negative
resolution procedure.
Dealings with design right
Assignment and licences
301. (1) Design right is transmissible by assignment, by
testamentary disposition or by operation of law, as personal or moveable
property.
(2) An assignment or other transmission of design right may be
partial, that is, limited so as to apply⎯
(a) to one or more, but not all, of the things the design right
owner has the exclusive right to do;
(b) to part, but not the whole, of the period for which the
right is to subsist.
(3) An assignment of design right is not effective unless it is in
writing signed by or on behalf of the assignor.
(4) A licence granted by the owner of design right is binding on
every successor in title to his interest in the right, except a purchaser in
good faith for valuable consideration and without notice (actual or
constructive) of the licence or a person deriving title from such a
purchaser; and references in this Part to doing anything with, or without,
the licence of the design right owner shall be construed accordingly.
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Prospective ownership of design right
302. (1) Where by an agreement made in relation to future design
right, and signed by or on behalf of the prospective owner of the design
right, the prospective owner purports to assign the future design right
(wholly or partially) to another person, then if, on the right coming into
existence, the assignee or another person claiming under him would be
entitled as against all other persons to require the right to be vested in
him, the right shall vest in him by virtue of this section.
(2) In this section⎯
"future design right" means design right which will or may come
into existence in respect of a future design or class of designs
or on the occurrence of a future event; and
"prospective owner" shall be construed accordingly, and includes
a person who is prospectively entitled to design right by
virtue of such an agreement as is mentioned in subsection
(1).
(3) A licence granted by a prospective owner of design right is
binding on every successor in title to his interest (or prospective interest)
in the right, except a purchaser in good faith for valuable consideration
and without notice (actual or constructive) of the licence or a person
deriving title from such a purchaser; and references in this Part to doing
anything with, or without, the licence of the design right owner shall be
construed accordingly.
Assignment of right in registered design presumed to carry with it
design right
303. Where a design consisting of a design in which design right
subsists is registered under the Patents and Designs Act 1930 and the
proprietor of the registered design is also the design right owner, an
assignment of the right in the registered design shall be taken to be also
an assignment of the design right, unless a contrary intention appears.
Exclusive licences
304. (1) In this Part an "exclusive licence" means a licence in writing
signed by or on behalf of the design right owner authorising the licensee
to the exclusion of all other persons, including the person granting the
licence, to exercise a right which would otherwise be exercisable
exclusively by the design right owner.
(2) The licensee under an exclusive licence has the same rights
against any successor in title who is bound by the licence as he has
against the person granting the licence.
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CHAPTER II
RIGHTS OF DESIGN RIGHT, OWNER AND REMEDIES
Infringement of design right
Primary infringement of design right
305. (1) The owner of design right in a design has the exclusive right
to reproduce the design for commercial purposes⎯
(a) by making articles to that design; or
(b) by making a design document recording the design for
the purpose of enabling such articles to be made.
(2) Reproduction of a design by making articles to the design
means copying the design so as to produce articles exactly or
substantially to that design, and references in this Part to making
articles to a design shall be construed accordingly.
(3) Design right is infringed by a person who without the
licence of the design right owner does, or authorises another to do,
anything which by virtue of this section is the exclusive right of the
design right owner.
(4) For the purposes of this section reproduction may be direct
or indirect, and it is immaterial whether any intervening acts themselves
infringe the design right.
(5) This section has effect subject to the provisions of Chapter
III (exceptions to rights of design right owner).
Secondary infringement: importing or dealing with infringing article
306. (1) Design right is infringed by a person who, without the
licence of the design right owner⎯
(a) imports into Bermuda for commercial purposes; or
(b) has in his possession for commercial purposes; or
(c) sells, lets for hire, or offers or exposes for sale or hire, in
the course of a business;
an article which is, and which he knows or has reason to believe is, an
infringing article.
(2) This section has effect subject to the provisions of Chapter
III (exceptions to rights of design right owner).
Meaning of "infringing article"
307. (1) In this Part "infringing article", in relation to a design, shall
be construed in accordance with this section.
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(2) An article is an infringing article if its making to that design
was an infringement of design right in the design.
(3) An article is also an infringing article if—
(a) it has been or is proposed to be imported into Bermuda;
and
(b) its making to that design in Bermuda would have been
an infringement of design right in the design or a breach
of an exclusive licence agreement relating to the design.
(4) Where it is shown that an article is made to a design in
which design right subsists or has subsisted at any time, it shall be
presumed until the contrary is proved that the article was made at a time
when design right subsisted.
(5) The expression "infringing article" does not include a design
document, notwithstanding that its making was or would have been an
infringement of design right.
Remedies for infringement
Rights and remedies of design right owner
308. (1) An infringement of design right is actionable by the design
right owner.
(2) In an action for infringement of design right all such relief
by way of damages, injunctions, accounts or otherwise is available to the
plaintiff as is available in respect of the infringement of any other
property right.
(3) The court may in an action for infringement of design right,
having regard to all the circumstances and in particular to ⎯
(a) the flagrancy of the infringement; and
(b) any benefit accruing to the defendant by reason of the
infringement;
award such additional damages as the justice of the case may require.
(4) This section has effect subject to section 312 (innocent
infringement).
Order for delivery up
309. (1) Where a person—
(a) has in his possession, custody or control for commercial
purposes an infringing article; or
(b) has in his possession, custody or control anything
specifically designed or adapted for making articles to a
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particular design, knowing or having reason to believe
that it has been or is to be used to make an infringing
article;
the owner of the design right in the design in question may apply to the
court for an order that the infringing article or other thing be delivered
up to him or to such other person as the court may direct.
(2) An application shall not be made after the end of the period
specified in the following provisions of this section; and no order shall be
made unless the court also makes, or it appears to the court that there
are grounds for making, an order under section 310 (order as to disposal
of infringing article, etc.).
(3) Subject to subsection (4), an application for an order under
this section may not be made after the end of the period of 6 years from
the date on which the article or thing in question was made.
(4) If during the whole or any part of that period the design
right owner—
(a) is under a disability; or
(b) is prevented by fraud or concealment from discovering
the facts entitling him to apply for an order;
an application may be made at any time before the end of the period of 6
years from the date on which he ceased to be under a disability or, as the
case may be, could with reasonable diligence have discovered those
facts.
(5) In subsection (4) "disability" has the same meaning as in
the Limitation Act 1984.
(6) A person to whom an infringing article or other thing is
delivered up in pursuance of an order under this section shall, if an
order under section 310 is not made, retain it pending the making of an
order, or the decision not to make an order, under that section.
(7) Nothing in this section affects any other power of the court.
Order as to disposal of infringing articles, etc.
310. (1) An application may be made to the court for an order that
an infringing article or other thing delivered up in pursuance of an order
under section 309 shall be—
(a) forfeited to the design right owner; or
(b) destroyed or otherwise dealt with as the court may think
fit;
or for a decision that no such order should be made.
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(2) In considering what order (if any) should be made, the court
shall consider whether other remedies available in an action for
infringement of design right would be adequate to compensate the design
right owner and to protect his interests.
(3) Provision shall be made by rules of court as to the service of
notice on persons having an interest in the article or other thing, and
any such person is entitled—
(a) to appear in proceedings for an order under this section,
whether or not he was served with notice; and
(b) to appeal against any order made, whether or not he
appeared;
and an order shall not take effect until the end of the period within
which notice of an appeal may be given or, if before the end of that
period notice of appeal is duly given, until the final determination or
abandonment of the proceedings on the appeal.
(4) Where there is more than one person interested in an
article or other thing, the court shall make such order as it thinks just
and may (in particular) direct that the thing be sold, or otherwise dealt
with, and the proceeds divided.
(5) If the court decides that no order should be made under
this section, the person in whose possession, custody or control the
article or other thing was before being delivered up or seized is entitled to
its return.
(6) References in this section to a person having an interest in
an article or other thing include any person in whose favour an order
could be made in respect of it under this section or under section 142 or
251 (which make similar provision in relation to infringement of
copyright, and rights in performances).
Jurisdiction of magistrates' court
311. (1) A magistrates 'court may entertain proceedings under—
(a) section 309 (order for delivery up of infringing article,
etc.);
(b) section 310 (order as to disposal of infringing article,
etc.); or
(c) section 314(5) (application by exclusive licensee having
concurrent rights),
(2) Nothing in this section shall be construed as affecting the
jurisdiction of the Supreme Court.
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Innocent infringement
312. (1) Where in an action for infringement of design right brought
by virtue of section 305 (primary infringement) it is shown that at the
time of the infringement the defendant did not know, and had no reason
to believe, that design right subsisted in the design to which the action
relates, the plaintiff is not entitled to damages against him, but without
prejudice to any other remedy.
(2) Where in an action for infringement of design right brought
by virtue of section 306 (secondary infringement) a defendant shows that
the infringing article was innocently acquired by him or a predecessor in
title of his, the only remedy available against him in respect of the
infringement is damages not exceeding a reasonable royalty in respect of
the act complained of.
(3) In subsection (2) "innocently acquired" means that the
person acquiring the article did not know and had no reason to believe
that it was an infringing article.
Rights and remedies of exclusive licensee
313. (1) An exclusive licensee has, except against the design right
owner, the same rights and remedies in respect of matters occurring
after the grant of the licence as if the licence had been an assignment.
(2) His rights and remedies are concurrent with those of the
design right owner; and references in the relevant provisions of this Part
to the design right owner shall be construed accordingly.
(3) In an action brought by an exclusive licensee by virtue of
this section a defendant may avail himself of any defence which would
have been available to him if the action had been brought by the design
right owner.
Exercise of concurrent rights
314. (1) Where an action for infringement of design right brought by
the design right owner or an exclusive licensee relates (wholly or partly)
to an infringement in respect of which they have concurrent rights of
action, the design right owner or, as the case may be, the exclusive
licensee may not, without the leave of the court, proceed with the action
unless the other is either joined as a plaintiff or added as a defendant.
(2) A design right owner or exclusive licensee who is added as a
defendant in pursuance of subsection (1) is not liable for any costs in the
action unless he takes part in the proceedings.
(3) The above provisions do not affect the granting of
interlocutory relief on the application of the design right owner or an
exclusive licensee.
(4) Where an action for infringement of design right is brought
which relates (wholly or partly) to an infringement in respect of which the
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design right owner and an exclusive licensee have concurrent rights of
action—
(a) the court shall, in assessing damages, take into
account—
(i) the terms of the licence; and
(ii) any pecuniary remedy already awarded or available
to either of them in respect of the infringement;
(b) no account of profits shall be directed if an award of
damages has been made, or an account of profits has
been directed, in favour of the other of them in respect of
the infringement; and
(c) the court shall if an account of profits is directed
apportion the profits between them as the court
considers just, subject to any agreement between them;
and these provisions apply whether or not the design right owner and the
exclusive licensee are both parties to the action.
(5) The design right owner shall notify any exclusive licensee
having concurrent rights before applying for an order under section 309
(order for delivery up of infringing article, etc.); and the court may on the
application of the licensee make such order under that section as it
thinks fit having regard to the terms of the licence.
CHAPTER III
EXCEPTIONS TO RIGHTS OF DESIGN RIGHT OWNERS
Infringement of copyright
Infringement of copyright
315. Where copyright subsists in a work which consists of or includes
a design in which design right subsists, it is not an infringement of
design right in the design to do anything which is an infringement of the
copyright in that work.
Availability of licences of right
Licences available in last five years of design
316. (1) Any person is entitled as of right to a licence to do in the
last 5 years of the design right term anything which would otherwise
infringe the design right.
(2) The terms of the licence shall, in default of agreement, be
settled by the Registrar-General.
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(3) The Minister may if it appears to him necessary in order
to—
(a) comply with an international obligation of Bermuda; or
(b) secure or maintain reciprocal protection for Bermuda
designs in other countries;
by order exclude from the operation of subsection (1) designs of a
description specified in the order or designs applied to articles of a
description so specified.
(4) An order made under this section is subject to negative
resolution procedure.
Undertaking to take licence of right in infringement proceedings
317. (1) If in proceedings for infringement of design right in a design
in respect of which a licence is available as of right under section 316 the
defendant undertakes to take a licence on such terms as may be agreed
or, in default of agreement, settled by the Registrar-General under that
section—
(a) no injunction shall be granted against him;
(b) no order for delivery up shall be made under section
309; and
(c) the amount recoverable against him by way of damages
or on an account of profits shall not exceed double the
amount which would have been payable by him as
licensee if such a licence on those terms had been
granted before the earliest infringement.
(2) An undertaking may be given at any time before final order
in the proceedings, without any admission of liability.
(3) Nothing in this section affects the remedies available in
respect of an infringement committed before licences of right were
available.
General
Power to provide for further exceptions
318. (1) The Minister may if it appears to him necessary in order
to—
(a) comply with an international obligation of; or
(b) secure or maintain reciprocal protection for Bermudian
designs in other countries;
by order , provide that acts of a description specified in the order do not
infringe design right.
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(2) An order made under this section is subject to negative
resolution procedure and may make different provision for different
descriptions of design or article.
CHAPTER IV
JURISDICTION OF THE REGISTRAR-GENERAL AND THE
COURT
Jurisdiction of the Registrar-General
Jurisdiction to decide matters relating to design right
319. (1) A party to a dispute as to any of the following matters may
refer the dispute to the Registrar-General for his decision—
(a) the subsistence of design right;
(b) the term of design right; or
(c) the identity of the person in whom design right first
vested;
and the Registrar-General's decision on the reference is binding on the
parties to the dispute.
(2) No other court or tribunal shall decide any such matter
except—
(a) on a reference or appeal from the Registrar-General;
(b) in infringement or other proceedings in which the issue
arises incidentally; or
(c) in proceedings brought with the agreement of the parties
or the leave of the Registrar-General.
(3) The Registrar-General has jurisdiction to decide any
incidental question of fact or law arising in the course of a reference
under this section.
Application to settle terms of licence of right
320. (1) A person requiring a licence which is available as of right by
virtue of section 316 (licences available in last five years of design right)
may apply to the Registrar-General to settle the terms of the licence.
(2) No application for the settlement of the terms of a licence
available by virtue of section 316 may be made earlier than one year
before the earliest date on which the licence may take effect under that
section.
(3) The terms of a licence settled by the Registrar-General shall
authorise the licensee to do everything which would be an infringement
of the design right in the absence of a licence.
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(4) In settling the terms of a licence the Registrar-General shall
have regard to such factors as may be prescribed by the by order.
(5) An order made under subsection (4) is subject to negative
resolution procedure.
(6) Where the terms of a licence are settled by the Registrar-
General, the licence has effect in the case of an application in respect of
a licence available by virtue of section 316 made before the earliest date
on which the licence may take effect under that section, from that date.
Settlement of terms where design right owner unknown
321. (1) This section applies where a person making an application
under section 320 (settlement of terms of licence of right) is unable on
reasonable inquiry to discover the identity of the design right owner.
(2) The Registrar-General may in settling the terms of the
licence order that the licence shall be free of any obligation as to royalties
or other payments.
(3) If such an order is made the design right owner may apply
to the Registrar-General to vary the terms of the licence with effect from
the date on which his application is made.
(4) If the terms of a licence are settled by the Registrar-General
and it is subsequently established that a licence was not available as of
right, the licensee shall not be liable in damages for, or for an account of
profits in respect of, anything done before he was aware of any claim by
the design right owner that a licence was not available.
Appeals as to terms of licence of right
322. An appeal lies from any decision of the Registrar General under
section 320 or 321 (settlement of terms of licence of right) to the
Supreme Court.
Rules
323. (1) The Minister may make rules, for regulating the procedure
to be followed in connection with any proceeding before the Registrar-
General under this Part.
(2) Rules may, in particular, make provision−
(a) prescribing forms;
(b) authorising the rectification of irregularities of
procedure;
(c) regulating the mode of giving evidence and empowering
the Registrar-General to compel the attendance of
witnesses and the discovery of and production of
documents;
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(d) providing for the appointment of advisers to assist the
Registrar-General in proceedings before him;
(e) prescribing time limits for doing anything required to be
done (and providing for the alteration of any such limit);
and
(f) empowering the Registrar-General to award costs and to
direct how, to what party and from what parties, costs
are to be paid.
(3) The Minister of Finance may prescribe the fees to be paid
under the Government Fees Act 1965 in connection with proceedings
before the Registrar-General.
(4) The remuneration of an adviser appointed to assist the
Registrar-General shall be determined by the Minister with the consent
of the Minister of Finance and shall be defrayed out of money provided
by the Legislature.
Jurisdiction of the court
References and appeals on design right matters
324. (1) In any proceedings before him under section 319 (reference
of matter relating to design right), the Registrar-General may at any time
order the whole proceedings or any question or issue (whether of fact or
law) to be referred, on such terms as he may direct, to the Supreme
Court.
(2) The Registrar-General shall make such an order if the
parties to the proceedings agree that he should do so.
(3) On a reference under this section the court may exercise
any power available to the Registrar-General by virtue of this Part as
respects the matter referred to it and, following its determination, may
refer any matter back to the Registrar-General.
(4) An appeal lies from any decision of the Registrar-General in
proceedings before him under section 319 (decisions on matters relating
to design right) to the Supreme Court.
CHAPTER V
MISCELLANEOUS AND GENERAL
Miscellaneous
Remedy for groundless threats of infringement proceedings
325. (1) Where a person threatens another person with proceedings
for infringement of design right, a person aggrieved by the threats may
bring an action against him claiming—
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(a) a declaration to the effect that the threats are
unjustifiable;
(b) an injunction against the continuance of the threats;
(c) damages in respect of any loss which he has sustained
by the threats.
(2) If the plaintiff proves that the threats were made and that
he is a person aggrieved by them, he is entitled to the relief claimed
unless the defendant shows that the acts in respect of which proceedings
were threatened did constitute, or if done would have constituted, an
infringement of the design right concerned.
(3) Proceedings may not be brought under this section in
respect of a threat to bring proceedings for an infringement alleged to
consist of making or importing anything.
(4) Mere notification that a design is protected by design right
does not constitute a threat of proceedings for the purposes of this
section.
Licensee under licence of right not to claim connection with design
right owner
326. (1) A person who has a licence in respect of a design by virtue of
section 316 (licences of right) shall not, without the consent of the design
right owner—
(a) apply to goods which he is marketing, or proposes to
market, in reliance on that licence a trade description
indicating that he is the licensee of the design right
owner; or
(b) use any such trade description in an advertisement in
relation to such goods.
(2) A contravention of subsection (1) is actionable by the design
right owner.
(3) In this section "trade description", the reference to applying
a trade description to goods has the same meaning as in the
Merchandise Marks Act 1889.
Requirement of signature: application in relation to body corporate
327. The requirement in the following provisions that an instrument
be signed by or on behalf of a person is also satisfied in the case of a
body corporate by affixing its seal⎯
(a) section 301(3) (assignment of design right);
(b) section 302(1) (assignment of future design right);
(c) section 304(1) (grant of exclusive licence).
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Extent of operation of this Part
Countries enjoying reciprocal protection
328. (1) The Minister may, if it appears to him that the law of a
country provides adequate protection for Bermudian designs, by order
designate that country as one enjoying reciprocal protection under this
Part.
(2) If the law of a country provides adequate protection only for
certain classes of Bermudian design, or only for designs applied to
certain classes of article, any order designating that country shall
contain provision limiting, to a corresponding extent, the protection
afforded by this Part in relation to designs connected with that country.
(3) An order made under this section is subject to negative
resolution procedure.
Territorial waters
329. For the purposes of this Part the territorial waters of Bermuda
shall be treated as part of Bermuda.
Bermuda ships and aircraft
330. (1) This Part applies to things done on a ship or aircraft
registered in Bermuda as it applies to things done in Bermuda.
(2) In this section, 'Bermuda Ship' or 'Bermuda aircraft' means
respectively a ship or aircraft registered in Bermuda.
PART VI
GENERAL AND SUPPLEMENTARY
Offences by body corporate
Offence by body corporate: liability of officers
331. (1) Where an offence under this Act committed by a body
corporate is proved to have been committed with the consent or
connivance of a director, manager, secretary or other similar officer of
the body, or a person purporting to act in any such capacity, he as well
as the body corporate is guilty of the offence and liable to be proceeded
against and punished accordingly.
(2) In relation to a body corporate whose affairs are managed
by its members "director" means a member of the body corporate.
Final provisions
Crown application
332. This Act binds the Crown.
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Consequential amendment and repeal
333. (1) Section 4 of the Crown Proceedings Act 1966 is amended by
inserting the words "or design right" after the word "copyright" where it
first occurs in subsection (1).
(2) The Performers' Protection Act 1967 is repealed.
Short title and commencement
334. (1) This Act may be cited as the Copyright and Designs Act
2004.
(2) Except for this section, the provisions of this Act shall come
into force on such day as the Minister may appoint by notice published
in the Gazette, and the Minister may appoint different days for different
provisions or different purposes.
SCHEDULE 1 (section 206)
COPYRIGHT: TRANSITIONAL PROVISIONS AND SAVINGS
Introductory
1 (1) In this Schedule ⎯
"the 1911 Act" means the Copyright Act 1911 as applied in
Bermuda;
"the 1956 Act" means the Copyright Act 1956 of the United
Kingdom as applied in Bermuda; and
"the new copyright provisions" means the provisions of this Act
relating to copyright, that is, Part I (including this Schedule).
(2) References in this Schedule to "commencement", without
more, are to the date on which the new copyright provisions come into
force.
(3) References in this Schedule to "existing works" are to works
made before commencement; and for this purpose a work of which the
making extended over a period shall be taken to have been made when
its making was completed.
2 (1) In relation to the 1956 Act, references in this Schedule to a
work include any work or other subject-matter within the meaning of
that Act.
(2) In relation to the 1911 Act ⎯
(a) references in this Schedule to copyright include the right
conferred by section 24 of the Act in substitution for a
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right subsisting immediately before the commencement
of that Act;
(b) references in this Schedule to copyright in a second
recording are to the copyright under that Act in records
embodying the recording; and
(c) references in this Schedule to copyright in a film are to
any copyright under that Act in the film (so far as it
constituted a dramatic work for the purposes of that Act)
or in photographs forming part of the film.
General principles: continuity of the law
3 The new copyright provisions apply in relation to things existing
at commencement as they apply in relation to things coming into
existence after commencement, subject to any express provision to the
contrary.
4 (1) The provisions of this paragraph have effect for securing the
continuity of the law so far as the new copyright provisions re-enact (with
or without modification) earlier provisions.
(2) A reference in an enactment, instrument or other document
to copyright, or to a work or other subject-matter in which copyright
subsists, which apart from this Act would be construed as referring to
copyright under the 1956 Act shall be construed, so far as may be
required for continuing its effect, as being, or as the case may require,
including, a reference to copyright under this Act or to works in which
copyright subsists under this Act.
(3) Anything done (including subordinate legislation made), or
having effect as done, under or for the purposes of a provision repealed
by this Act has effect as if done under or for the purposes of the
corresponding provision of the new copyright provisions.
(4) References (expressed or implied) in this Act or any other
enactment, instrument or document to any of the new copyright
provisions shall, so far as the context permits, be construed as including,
in relation to times, circumstances and purposes before commencement,
a reference to corresponding earlier provisions.
(5) A reference (express or implied) in an enactment,
instrument or other document to a provision repealed by this Act shall
be construed, so far as may be required for continuing its effect, as a
reference to the corresponding provision of this Act.
(6) The provisions of this paragraph have effect subject to any
specific transitional provision or saving and to any express amendment
made by this Act.
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Subsistence of copyright
5 (1) Copyright subsists in an existing work after commencement
only if copyright subsisted in it immediately before commencement.
(2) Subparagraph (1) does not prevent an existing work
qualifying for copyright protection after commencement⎯
(a) under section 192 (qualification by virtue of first
publication); or
(b) by virtue of an order under section 194 (application of
Part I to foreign countries).
6 (1) Copyright shall not subsist by virtue of this Act in an
artistic work made before 6th August 1962 which at the time when the
work was made constituted a design capable of registration under the
Patents and Designs Act 1930 or under the enactments repealed by that
Act, and was used, or intended to be used, as a model or pattern to be
multiplied by an industrial process.
(2) For this purpose a design shall be deemed to be used as a
model or pattern to be multiplied by any industrial process ⎯
(a) when the design is reproduced or is intended to be
reproduced on more than 50 single articles, unless all
the articles in which the design is reproduced or is
intended to be reproduced together form only a single set
of articles; or
(b) when the design is to be applied to ⎯
(i) printed paper hangings;
(ii) carpets, floor cloths or oil cloths, manufactured or
sold in lengths or pieces;
(iii) textile piece goods, or textile goods manufactured or
sold in lengths or pieces; or
(iv) lace, not made by hand.
(3) In subparagraph (2)(a) "set of articles" means a number of
articles of the same general character ordinarily on sale or intended to be
used together, to each of which the same design, or the same design with
modifications or variations not sufficient to alter the character or
substantially to affect the identity thereof, is applied.
7 (1) No copyright subsists in a film, as such, made before 6th
August 1962.
(2) When a film made before that date was original dramatic
work within the meaning of the 1911 Act, the new copyright provisions
have effect in relation to the film as of it was an original dramatic work
within the meaning of Part 1.
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(3) The new copyright provisions have effect in relation to
photographs forming part of a film made before 6th August 1962 as they
have effect in relation to photographs not forming part of a film.
8 (1) A film sound-track to which section 13(9) of the 1956 Act
applied before commencement (film to be taken to include sounds in
associated sound-track) shall be treated for the purposes of the new
copyright provisions not as part of the film, but as a sound recording.
(2) However⎯
(a) copyright subsists in the sound recording only if
copyright subsisted in the film immediately before
commencement, and it continues to subsist until
copyright in the film expires;
(b) the author and first owner of copyright in the film shall
be treated as having been author and first owner of the
copyright in the sound recording; and
(c) anything done before commencement under or in
relation to the copyright in the film continues to have
effect in relation to the sound recording as in relation to
the film.
9 No copyright subsists in⎯
(a) a broadcast made before 6th August 1962; or
(b) a cable programme included in a cable programme
service before 1st January 1985;
and any such broadcast or cable programme shall be disregarded for the
purposes of section 24(5) (duration of copyright in repeats).
Authorship of work
10 The question who was the author of an existing work shall be
determined in accordance with the new copyright provisions for the
purposes of the rights conferred by Chapter V of Part I (moral rights),
and for all other purposes shall be determined in accordance with the
law in force at the time the work was made.
First ownership of copyright
11 (1) The question who was first owner of copyright in an existing
work shall be determined in accordance with the law in force at the time
the work was made.
(2) Where before commencement a person commissioned the
making of a work in circumstances falling within⎯
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(a) section 4(3) of the 1956 Act or paragraph (a) of the
proviso to section 5(1) of the 1911 Act (photographs,
portraits and engravings); or
(b) the proviso to section 12(4) of the 1956 Act (sound
recordings);
those provisions apply to determine first ownership of copyright in any
work made in pursuance of the commission after commencement.
Duration of copyright in existing works
12 (1) The following provisions have effect with respect to the
duration of copyright in existing works.
(2) The question which provision applies to a work shall be
determined by reference to the facts immediately before commencement;
and expressions used in this paragraph which were defined for the
purposes of the 1956 Act have the same meaning as in that Act.
(3) Copyright in the following descriptions of work continues to
subsist until the date on which it would have expired under the 1956 Act
⎯
(a) literary, dramatic or musical works in relation to which
the period of 50 years mentioned in the proviso to
section 2(3) of the 1956 Act (duration of copyright in
works made available to the public after the death of the
author) has begun to run;
(b) engravings in relation to which the period of 50 years
mentioned in the proviso to section 3(4) of the 1956 Act
(duration of copyright in works published after the death
of the author) has begun to run;
(c) published photographs and photographs taken before
6th August 1962;
(d) published sound recordings and sound recordings made
before 6th August 1962;
(e) published films and films falling within section 13(3)(a)
of the 1956 Act (films registered under former
enactments relating to registration of films).
(4) Copyright in anonymous or pseudonymous literary,
dramatic, musical or artistic works (other than photographs) continues
to subsist⎯
(a) if the work is published, until the date on which it would
have expired in accordance with the 1956 Act; and
(b) if the work is unpublished, until the end of the period of
50 years from the end of the calendar year in which the
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new copyright provisions come into force or, if during
that period the work is first made available to the public
within the meaning of section 21(3) (duration of
copyright in works of unknown authorship), the date on
which copyright expires in accordance with that
provision;
unless, in any case, the identity of the author becomes known before
that date, in which case section 21(2) applies (general rule: life of the
author plus 70 years).
(5) Copyright in the following descriptions of work continues to
subsist until the end of the period of 50 years from the end of the
calendar year in which the new copyright provisions come into force ⎯
(a) literary, dramatic and musical works of which the
author has died and in relation to which none of the acts
mentioned in paragraphs (a) to (e) of the proviso to
section 2(3) of the 1956 Act has been done;
(b) unpublished engravings of which the author has died;
(c) unpublished photographs taken on or after 6th August
1962.
(6) Copyright in the following descriptions of work continues to
subsist until the end of the period of 50 years from the end of the
calendar year in which the new copyright provisions come into force ⎯
(a) unpublished sound recordings made on or after 6th
August 1962;
(b) films not falling within subparagraph (3)(e);
unless the recording or film is published before the end of that period in
which case copyright in it shall continue until the end of the period of 50
years from the end of the calendar year in which the recording or film is
published.
(7) Copyright in any other description of existing work
continues to subsist until the date on which copyright in that description
of work expires in accordance with sections 21 to 25.
(8) The above provisions do not apply to works subject to
Crown or Parliamentary copyright.
Acts infringing copyright
13 (1) The provisions of Chapters III and IV of Part I as to the acts
constituting an infringement of copyright apply only in relation to acts
done after commencement; the provisions of the 1956 Act continue to
apply in relation to acts done before commencement.
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(2) So much of section 29(2) as extends the restricted act of
issuing copies to the public to include the rental to the public of copies of
sound recordings, films or computer programs does not apply in relation
to a copy of a sound recording, film or computer program acquired by
any person before commencement for the purpose of renting it to the
public.
(3) For the purposes of section 39 (meaning of "infringing copy")
the question whether the making of an article constituted an
infringement of copyright, or would have done if the article had been
made in Bermuda, shall be determined
(a) in relation to an article made on or after 6th August
1962 and before commencement, by reference to the
1956 Act; and
(b) in relation to an article made before 6th August 1962, by
reference to the 1911 Act.
(4) For the purposes of the application of sections 43(2), 75(2)
and 86(3) (subsequent exploitation of things whose making was, by
virtue of an earlier provision of the section, not an infringement of
copyright) to things made before commencement, it shall be assumed
that the new copyright provisions were in force at all material times.
(5) Section 79 (articles for producing material in a particular
typeface) applies where articles have been marketed as mentioned in
subsection (1) before commencement with the substitution for the period
mentioned in subsection (2) of the period of 25 years from the end of the
calendar year in which the new copyright provisions come into force.
(6) Section 80 (transfer of copies, adaptations, etc. of work in
electronic form) does not apply in relation to a copy purchased before
commencement.
(7) In section 89 (reconstruction of buildings) the reference to
the owner of the copyright in the drawings or plans is, in relation to
buildings constructed before commencement, to the person who at the
time of the construction was the owner of the copyright in the drawings
or plans under the 1956 Act, the 1911 Act or any enactment repealed by
the 1911 Act.
14 (1) Section 81 (anonymous or pseudonymous works: acts
permitted on assumptions as to expiry of copyright or death of author)
has effect in relation to existing works subject to the following provisions.
(2) Subsection (1)(b)(i) of section 81 (assumption as to expiry of
copyright) does not apply in relation to photographs.
(3) Subsection (1)(b)(ii) of section 81 (assumption as to death of
author) applies only⎯
COPYRIGHT AND DESIGNS ACT 2004
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(a) where paragraph 12(4)(b) applies (unpublished
anonymous or pseudonymous works), after the end of
the period of 50 years from the end of the calendar year
in which the new copyright provisions come into force; or
(b) where paragraph 12(7) applies (cases in which the
duration of copyright is the same under the new
copyright provisions as under the previous law).
15 The following provisions of section 7 of the 1956 Act continue to
apply in relation to existing works⎯
(a) subsection (6) (copying of unpublished works from
manuscript or copy in library, museum or other
institution);
(b) subsection (7) (publication of work containing material to
which subsection (6) applies), except paragraph (a) (duty
to give notice of intended publication);
(c) subsection (8) (subsequent broadcasting, performance,
etc. of material published in accordance with subsection
(7));
and subsection (9)(d) (illustrations) continues to apply for the purposes of
those provisions.
16 Where in the case of a dramatic or musical work made before 1st
July 1912, the right conferred by the 1911 Act did not include the sole
right to perform the work in public, the acts restricted by the copyright
shall be treated as not including⎯
(a) performing the work in public;
(b) broadcasting the work or including it in a cable
programme service; or
(c) doing any of the above in relation to an adaptation of the
work;
and where the right conferred by the 1911 Act consisted only of the sole
right to perform the work in public, the acts restricted by the copyright
shall be treated as consisting only of those acts.
17 Where a work made before 1st July 1912 consists of an essay,
article or portion forming part of and first published in a review,
magazine or other periodical or work of a like nature, the copyright is
subject to any right of publishing the essay, article, or portion in a
separate form to which the author was entitled at the commencement of
the 1911 Act, or would if that Act had not been passed, have become
entitled under section 18 of the Copyright Act 1842.
COPYRIGHT AND DESIGNS ACT 2004
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Designs
18 (1) Section 75 (exclusion of copyright protection in relation to
works recorded or embodied in design document or models) does not
apply for 10 years after commencement in relation to a design recorded
or embodied in a design document or model before commencement.
(2) During those ten years the following provisions of Part III
(design right) apply to any relevant copyright as in relation to design
right⎯
(a) sections 316 and 317 (availability of licences of right);
and
(b) sections 320 and 321 (application to Registrar-General
to settle terms of licence of right).
(3) In section 316 as it applies by virtue of this paragraph, for
the reference in subsection (1) to the last 5 years of the design right term
there shall be substituted a reference to the last 5 years of the period of
10 years referred to in subparagraph (1), or to so much of those last 5
years during which copyright subsists.
(4) In section 317 as it applies by virtue of this paragraph, for
the reference in subsection (1)(b) to section 309 there shall be
substituted a reference to section 127.
(5) Where a licence of right is available by virtue of this
paragraph, a person to whom a licence was granted before
commencement may apply to the Registrar-General for an order
adjusting the terms of that licence.
(6) The provisions of sections 322 and 323 (appeals and rules)
apply in relation to proceedings brought under or by virtue of this
paragraph as to proceedings under Part V.
(7) A licence granted by virtue of this paragraph shall relate
only to acts which would be permitted by section 75 if the design
document or model had been made after commencement.
(8) Section 128 (right to seize infringing copies, etc.) does not
apply during the period of 10 years referred to in subparagraph (1) in
relation to anything to which it would not apply if the design in question
had been first recorded or embodied in a design document or model after
commencement.
(9) Nothing in this paragraph affects the operation of any rule
of law preventing or restricting the enforcement of copyright in relation to
a design.
19 (1) Where section 10 of the 1956 Act (effect of industrial
application of design corresponding to artistic work) applied in relation to
an artistic work at any time before commencement, section 76(2) of this
Act applies with the substitution for the period of 25 years mentioned
COPYRIGHT AND DESIGNS ACT 2004
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there of the relevant period of 15 years as defined in section 10(3) of the
1956 Act.
(2) Except as provided in subparagraph (1), section 76 applies
only where articles are marketed as mentioned in subsection (1)(b) after
commencement.
Moral rights
20 (1) No act done before commencement is actionable by virtue of
any provision of Chapter V of Part I (moral rights).
(2) Section 43 of the 1956 Act (false attribution of authorship)
continues to apply in relation to acts done before commencement.
21 (1) The following provisions have effect with respect to the
rights conferred by⎯
(a) section 103 (right to be identified as author or director),
and
(b) section 106 (right to object to derogatory treatment of
work).
(2) The rights do not apply⎯
(a) in relation to a literary, dramatic, musical and artistic
work of which the author died before commencement; or
(b) in relation to a film made before commencement.
(3) The rights in relation to an existing literary, dramatic,
musical or artistic work do not apply⎯
(a) where copyright first vested in the author, to anything
which by virtue of an assignment of copyright made or
licence granted before commencement may be done
without infringing copyright;
(b) where copyright first vested in a person other than the
author, to anything done by or with the licence of the
copyright owner.
22 The right conferred by section 111 (right to privacy of certain
photographs and films) does not apply to photographs taken or films
made before commencement.
Assignments and licences
23 (1) Any document made or event occurring before
commencement which had any operation⎯
(a) affecting the ownership of the copyright in an existing
work; or
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(b) creating, transferring or terminating an interest, right or
licence in respect of the copyright in an existing work;
has the corresponding operation in relation to copyright in the work
under this Act.
(2) Expressions used in such a document shall be construed in
accordance with their effect immediately before commencement.
24 (1) Section 117(1) (assignment of future copyright: statutory
vesting of legal interest on copyright coming into existence) does not
apply in relation to an agreement made before 6th August 1962.
(2) The repeal by this Act of section 37(2) of the 1956 Act
(assignment of future copyright: devolution of right where assignee dies
before copyright comes into existence) does not affect the operation of
that provision in relation to an agreement made before commencement.
25 Section 118(2) (rights of exclusive licensee against successors in
title of person granting licence) does not apply in relation to an exclusive
licence granted before commencement.
26 (1) Where the author of a literary, dramatic, musical or artistic
work was the first owner of the copyright in it, no assignment of the
copyright and no grant of any interest in it, made by him (otherwise than
by will) after the passing of the 1911 Act and before 6th August 1962,
shall be operative to vest in the assignee or grantee any rights with
respect to the copyright in the work beyond the expiration of 25 years
from the death of the author.
(2) The reversionary interest in the copyright expectant on the
termination of that period may after commencement be assigned by the
author during his life but in the absence of any assignment shall, on his
death, devolve on his legal personal representatives as part of his estate.
(3) Nothing in this paragraph affects⎯
(a) an assignment of the reversionary interest by a person to
whom it has been assigned;
(b) an assignment of the reversionary interest after the
death of the author by his personal representatives or
any person becoming entitled to it; or
(c) any assignment of the copyright after the reversionary
interest has fallen in.
(4) Nothing in this paragraph applies to the assignment of the
copyright in a collective work or a licence to publish a work or part of a
work as part of a collective work.
(5) In sub-paragraph (4) "collective work" means⎯
(a) any encyclopaedia, dictionary, yearbook, or similar work;
COPYRIGHT AND DESIGNS ACT 2004
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(b) a newspaper, review, magazine, or similar periodical;
and
(c) any work written in distinct parts by different authors,
or in which works or parts of works of different authors
are incorporated.
27 (1) This paragraph applies where copyright subsists in a
literary, dramatic, musical or artistic work made before 1st July 1912 in
relation to which the author, before the commencement of the 1911 Act,
made such an assignment.
(2) If before commencement any event has occurred or notice
has been given which by virtue of paragraph 38 of Schedule 7 to the
1956 Act had any operation in relation to copyright in the work under
that Act, the event or notice has the corresponding operation in relation
to copyright under this Act.
(3) Any right which immediately before commencement would
by virtue of paragraph 38(3) of that Schedule have been exercisable in
relation to the work, or copyright in it, is exercisable in relation to the
work or copyright in it under this Act.
(4) If in accordance with paragraph 38(4) of that Schedule
copyright would, on a date after the commencement of the 1956 Act,
have reverted to the author or his personal representatives and that date
falls after the commencement of the new copyright provisions⎯
(a) the copyright in the work shall revert to the author or
his personal representatives, as the case may be; and
(b) any interest of any other person in the copyright which
subsists on that date by virtue of any document made
before the commencement of the 1911 Act shall
thereupon determine.
28 Section 118(2) (rights of exclusive licensee against successors in
title of person granting licence) does not apply in relation to an exclusive
licence granted before commencement.
Bequests
29 (1) Section 119 (copyright to pass under will with original
document or other material thing embodying unpublished work)⎯
(a) does not apply where the testator died before 6th August
1962; and
(b) where the testator died on or after that date and before
commencement, applies only in relation to an original
document embodying a work.
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(2) In the case of an author who died before 6th August 1962,
the ownership after his death of a manuscript of his, where such
ownership has been acquired under a testamentary disposition made by
him and the manuscript is of a work which has not been published or
performed in public, is prima facie proof of the copyright being with the
owner of the manuscript.
Remedies for infringement
30 (1) Sections 125 and 126 (remedies for infringement) apply
only in relation to an infringement of copyright committed after
commencement; section 17 of the 1956 Act continues to apply in relation
to infringements committed before commencement.
(2) Sections 127 and 128 (delivery up or seizure of infringing
copies, etc.) apply to infringing copies and other articles made before or
after commencement; section 18 of the 1956 Act and section 7 of the
1911 Act (conversion damages, etc.), do not apply after commencement
except for the purposes of proceedings begun before commencement.
(3) Sections 129 and 130 (rights and remedies of exclusive
licensee) apply where sections 125 to 128 apply; section 19 of the 1956
Act continues to apply where section 17 or 18 of that Act applies.
(4) Sections 132 to 134 (presumptions) apply only in
proceedings brought by virtue of this Act; section 20 of the 1956 Act
continues to apply in proceedings brought by virtue of that Act.
31 Sections 129 and 130 (rights and remedies of exclusive licensee)
do not apply to a licence granted before 6th August 1962.
32 (1) The provisions of section 135 (criminal liability for making
or dealing with infringing articles, etc.) apply only in relation to acts done
after commencement; section 21 of the 1956 Act (penalties and summary
proceedings in respect of dealings which infringe copyright) continues to
apply in relation to acts done before commencement.
(2) Section 138 (search warrants) applies in relation to
offences committed before commencement in relation to which section
21A of the 1956 Act applied; section 21A continues to apply in relation
to warrants issued before commencement.
Qualification for copyright protection
33 Every work in which copyright subsisted under the 1956 Act
immediately before commencement shall be deemed to satisfy the
requirements of Part I of this Act as to qualification for copyright
protection.
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Territorial waters
34 Section 196 (application of Part I to things done in territorial
waters), does not apply in relation to anything done before
commencement.
Bermuda ships and aircraft
35 Section 197 (Bermuda ships and aircraft) does not apply in
relation to anything done before commencement.
Crown copyright
36 (1) Section 198 (general provisions as to Crown copyright)
applies to an existing work if⎯
(a) section 39 of the 1956 Act applies to the work
immediately before commencement; and
(b) the work is not one to which section 199, 200 or 201
applies (copyright in Acts and Bills and Parliamentary
copyright;
(2) Section 198(1)(b) (first ownership of copyright) has effect
subject to any agreement entered into before commencement under
section 39(6) of the 1956 Act.
37 (1) The following provisions have effect with respect to the
duration of copyright in existing works to which section 198 (Crown
copyright) applies.
(2) The question which provision applies to a work shall be
determined by reference to the facts immediately before commencement;
and expressions used in this paragraph which were defined for the
purposes of the 1956 Act have the same meaning as in that Act.
(3) Copyright in the following descriptions of work continues to
subsist until the date on which it would have expired in accordance with
the 1956 Act⎯
(a) published literary, dramatic or musical works;
(b) artistic works other than engravings or photographs;
(c) published engravings;
(d) published photographs and photographs taken before
6th August 1962;
(e) published sound recordings and sound recordings made
before 6th August 1962;
COPYRIGHT AND DESIGNS ACT 2004
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(f) published films and films falling within section 13(3)(a)
of the 1956 Act (films registered under former
enactments relating to registration of films).
(4) Copyright in unpublished literary, dramatic or musical
works continues to subsist until⎯
(a) the date on which copyright expires in accordance with
section 198(3); or
(b) the end of the period of 50 years from the end of the
calendar year in which the new copyright provisions
come into force;
whichever is the later.
(5) Copyright in the following descriptions of work continues to
subsist until the end of the period of 50 years from the end of the
calendar year in which the new copyright provisions come into force ⎯
(a) unpublished engravings;
(b) unpublished photographs taken on or after 6th August
1962.
(6) Copyright in a film or sound recording not falling within
subparagraph (2) continues to subsist until the end of the period of 50
years from the end of the calendar year in which the new copyright
provisions come into force, unless the film or recording is published
before the end of that period, in which case copyright expires 50 years
from the end of the calendar year in which it is published.
38 Section 199 (copyright in Acts) applies to existing Acts of the
Legislature.
Parliamentary copyright
39 (1) Section 200 (general provisions as to Parliamentary
copyright) applies to existing unpublished literary, dramatic, musical or
artistic works, but does not otherwise apply to existing works.
(2) Section 201 (copyright in Bills) does not apply⎯
(a) to a public Bill which was introduced into the
Legislature and published before commencement; or
(b) to a private Bill of which a copy was deposited in either
House before commencement.
Copyright vesting in certain international organisations
40 (1) Any work in which immediately before commencement
copyright subsisted by virtue of section 33 of the 1956 Act shall be
deemed to satisfy the requirements of section 203(1); but otherwise
COPYRIGHT AND DESIGNS ACT 2004
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section 203 does not apply to works made or, as the case may be,
published before commencement.
(2) Copyright in any such work which is unpublished continues
to subsist until the date on which it would have expired in accordance
with the 1956 Act, or the end of the period of 50 years from the end of
the calendar year in which the new copyright provisions come into force,
whichever is the earlier.
Meaning of "publication"
41 Section 6(3) (construction of building treated as equivalent to
publication) applies only where the construction of the building began
after commencement.
Meaning of "unauthorised"
42 For the purposes of the application of the definition in section 2
(minor definitions) of the expression "unauthorised" in relation to things
done before commencement⎯
(a) paragraph (a) applies in relation to things done before
6th August 1962 as if the reference to the licence of the
copyright owner were a reference to his consent or
acquiescence;
(b) paragraph (b) applies with the substitution for the words
from "or, in a case" to the end of the words "or any
person lawfully claiming under him"; and
(c) paragraph (c) shall be disregarded.
SCHEDULE 2 (section 223)
RIGHTS IN PERFORMANCES: PERMITTED ACTS
Introductory
1 (1) The provisions of this Schedule specify acts which may be
done in relation to a performance or recording notwithstanding the rights
conferred by Part II; they relate only to the question of infringement of
those rights and do not affect any other right or obligation restricting the
doing of any of the specified acts.
(2) No inference shall be drawn from the description of any act
which may by virtue of this Schedule be done without infringing the
rights conferred by Part II as to the scope of those rights.
(3) The provisions of this Schedule are to be construed
independently of each other, so that the fact that an act does not fall
within one provision does not mean that it is not covered by another
provision.
COPYRIGHT AND DESIGNS ACT 2004
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Criticism, reviews and news reporting
2 (1) Fair dealing with a performance or recording—
(a) for the purpose of criticism or review, of that or another
performance or recording, or of a work; or
(b) for the purpose of reporting current events;
does not infringe any of the rights conferred by Part II.
(2) Expressions used in this paragraph have the same meaning
as in section 42.
Incidental inclusion of performance or recording
3 (1) The rights conferred by Part II are not infringed by the
incidental inclusion of a performance or recording in a sound recording,
film, broadcast or cable programme.
(2) Nor are those rights infringed by anything done in relation
to copies of, or the playing, showing, broadcasting or inclusion in a cable
programme service of, anything whose making was, by virtue of sub-
paragraph (1), not an infringement of those rights.
(3) A performance or recording so far as it consists of music, or
words spoken or sung with music, shall not be regarded as incidentally
included in a sound recording, broadcast or cable programme if it is
deliberately included.
(4) Expressions used in this paragraph have the same meaning
as in section 43.
Things done for purposes of instruction or examination
4 (1) The rights conferred by Part II are not infringed by the
copying of a recording of a performance in the course of instruction, or of
preparation for instruction, in the making of films or film sound-tracks,
provided the copying is done by a person giving or receiving instruction.
(2) The rights conferred by Part II are not infringed—
(a) by the copying of a recording of a performance for the
purposes of setting or answering the questions in an
examination; or
(b) by anything done for the purposes of an examination by
way of communicating the questions to the candidates.
(3) Where a recording which would otherwise be an illicit
recording is made in accordance with this paragraph but is subsequently
dealt with, it shall be treated as an illicit recording for the purposes of
that dealing, and if that dealing infringes any right conferred by Part II
for all subsequent purposes.
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(4) For this purpose "dealt with" means sold or let for hire, or
offered or exposed for sale or hire.
(5) Expressions used in this paragraph have the same meaning
as in section 50.
Playing or showing sound recording, film, broadcast or cable
programme at educational establishment
5 (1) The playing or showing of a sound recording, film,
broadcast or cable programme at an educational establishment for the
purposes of instruction before an audience consisting of teachers and
pupils at the establishment and other persons directly connected with
the activities of the establishment is not a playing or showing of a
performance in public for the purposes of infringement of the rights
conferred by Part II.
(2) A person is not for this purpose directly connected with the
activities of the educational establishment simply because he is the
parent of a pupil at the establishment.
(3) Expressions used in this paragraph have the same meaning
as in section 52, and any provision made under section 5(2) with respect
to the application of that section also applies for the purposes of this
paragraph.
Recording of broadcasts and cable programmes by educational
establishments
6 (1) A recording of a broadcast or cable programme, or a copy of
such a recording, may be made by or on behalf of an educational
establishment for the educational purposes of that establishment
without thereby infringing any of the rights conferred by Part II in
relation to any performance or recording included in it.
(2) Where a recording which would otherwise be an illicit
recording is made in accordance with this paragraph but is subsequently
dealt with, it shall be treated as an illicit recording for the purposes of
that dealing, and if that dealing infringes any right conferred by Part II
for all subsequent purposes.
(3) For this purpose "dealt with" means sold or let for hire, or
offered or exposed for sale or hire.
(4) Expressions used in this paragraph have the same meaning
as in section 53, and any provision made under section 5(2) with respect
to the application of that section also applies for the purposes of this
paragraph.
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Lending of copies by educational establishments
7 (1) The rights conferred by Part II are not infringed by the
lending of copies of a recording of a performance by an educational
establishment.
(2) Expressions used in this paragraph have the same meaning
as in section 55, and any provision made under section 5(2) with respect
to the application of that section also applies for the purposes of this
paragraph.
Lending of copies by libraries or archives
8 (1) The rights conferred by Part II are not infringed by the
lending of copies of a recording of a performance by a prescribed library
or archive which is not conducted for profit.
(2) Expressions used in this paragraph have the same meaning
as in section 60; and any provision under section 56 prescribing libraries
or archives for the purposes of that section applies also for the purposes
of this paragraph.
Parliamentary and judicial proceedings
9 (1) The rights conferred by Part II are not infringed by anything
done for the purposes of parliamentary or judicial proceedings or for the
purpose of reporting such proceedings.
(2) Expressions used in this paragraph have the same meaning
as in section 65.
Commissions and statutory inquiries
10 (1) The rights conferred by Part II are not infringed by anything
done for the purposes of the proceedings of a commission or statutory
inquiry or for the purpose of reporting any such proceedings held in
public.
(2) Expressions used in this paragraph have the same meaning
as in section 66.
Public records
11 (1) Material which is comprised in public records which are
open to public inspection in pursuance of an enactment may be copied,
and a copy may be supplied to any person, by or with the authority of
any officer appointed under that enactment, without infringing any right
conferred by Part II.
(2) Expressions used in this paragraph have the same meaning
as in section 69.
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Acts done under statutory authority
12 (1) Where the doing of a particular act is specifically authorised
by an enactment, whenever passed, then, unless the enactment provides
otherwise, the doing of that act does not infringe the rights conferred by
Part II.
(2) Nothing in this paragraph shall be construed as excluding
any defence of statutory authority otherwise available under or by virtue
of any enactment.
(3) Expressions used in this paragraph have the same meaning
as in section 70.
Transfer of copies of works in electronic form
13 (1) This paragraph applies where a recording of a performance
in electronic form has been purchased on terms which, expressly or
impliedly or by virtue of any rule of law, allow the purchaser to make
further recordings in connection with his use of the recording.
(2) If there are no express terms—
(a) prohibiting the transfer of the recording by the
purchaser, imposing obligations which continue after a
transfer, prohibiting the assignment of any consent or
terminating any consent on a transfer; or
(b) providing for the terms on which a transferee may do the
things which the purchaser was permitted to do;
anything which the purchaser was allowed to do may also be done by a
transferee without infringement of the rights conferred by this Part, but
any recording made by the purchaser which is not also transferred shall
be treated as an illicit recording for all purposes after the transfer.
(3) Subparagraphs (1) and (2) apply where the original
purchased recording is no longer usable and what is transferred is a
further copy used in its place.
(4) The above provisions also apply on a subsequent transfer,
with the substitution for references in subparagraph (2) to the purchaser
of references to the subsequent transferor.
(5) This paragraph does not apply in relation to a recording
purchased before the commencement of Part II.
(6) Expressions used in this paragraph have the same meaning
as in section 80.
Use of recordings of spoken works in certain cases
14 (1) Where a recording of the reading or recitation of a literary
work is made for the purpose—
COPYRIGHT AND DESIGNS ACT 2004
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(a) of reporting current events; or
(b) of broadcasting or including in a cable programme
service the whole or part of the reading or recitation;
it is not an infringement of the rights conferred by Part II to use the
recording (or to copy the recording and use the copy) for that purpose,
provided the conditions in subparagraph (2) are met.
(2) The conditions are that—
(a) the recording is a direct recording of the reading or
recitation and is not taken from a previous recording or
from a broadcast or cable programme;
(b) the making of the recording was not prohibited by or on
behalf of the person giving the reading or recitation;
(c) the use made of the recording is not of a kind prohibited
by or on behalf of that person before the recording was
made; and
(d) the use is by or with the authority of a person who is
lawfully in possession of the recording.
(3) Expressions used in this paragraph have the same meaning
as in section 82.
Recordings of folksongs
15 (1) A recording of a performance of a song may be made for the
purpose of including it in an archive maintained by a designated body
without infringing any of the rights conferred by Part II, provided the
conditions in subparagraph (2) are met.
(2) The conditions are that—
(a) the words are unpublished and of unknown authorship
at the time the recording is made;
(b) the making of the recording does not infringe any
copyright; and
(c) its making is not prohibited by any performer.
(3) Copies of a recording made in reliance on subparagraph (1)
and included in an archive maintained by a designated body may, if the
prescribed conditions are met, be made and supplied by the archivist
without infringing any of the rights conferred by Part II.
(4) In this paragraph—
"designated body" means a body designated for the purposes of
section 85; and
COPYRIGHT AND DESIGNS ACT 2004
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"the prescribed conditions" means the conditions prescribed for
the purposes of subsection (3) of that section;
and other expressions used in this paragraph have the same meaning as
in that section.
Lending of certain recordings
16 (1) The Minister may by order provide that in such cases as
may be specified in the order the lending to the public of copies of films
or sound recordings shall be treated as licensed by the performer subject
only to the payment of such reasonable royalty or other payment as may
be agreed or determined in default of agreement by the Copyright
Tribunal.
(3) An order may make different provision for different cases
and may specify cases by reference to any factor relating to the work, the
copies lent, the lender or the circumstances of the lending.
(4) An order shall be made subject to the affirmative resolution
procedure.
(5) Nothing in this section affects any liability under section
211(1)(b) (secondary infringement: possessing or dealing with illicit
recording) in respect of the lending of illicit recordings.
(6) Expressions used in this paragraph have the same meaning
as in section 90.
Playing of sound recordings for purposes of club, society etc.
17 (1) It is not an infringement of any right conferred by Part II to
play a sound recording as part of the activities of, or for the benefit of, a
club, society or other organisation if the following conditions are met.
(2) The conditions are—
(a) that the organisation is not established or conducted for
profit and its main objects are charitable or are
otherwise concerned with the advancement of religion,
education or social welfare; and
(b) that the proceeds of any charge for admission to the
place where the recording is to be heard are applied
solely for the purposes of the organisation.
(3) Expressions used in this paragraph have the same meaning
as in section 93.
Incidental recording for purposes of broadcast or cable programme
18 (1) A person who proposes to broadcast a recording of a
performance, or include a recording of a performance in a cable
COPYRIGHT AND DESIGNS ACT 2004
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programme service, in circumstances not infringing the rights conferred
by Part II shall be treated as having consent for the purposes of that Part
for the making of a further recording for the purposes of the broadcast or
cable programme.
(2) That consent is subject to the condition that the further
recording—
(a) shall not be used for any other purpose; and
(b) shall be destroyed within 28 days of being first used for
broadcasting the performance or including it in a cable
programme service.
(3) A recording made in accordance with this paragraph shall
be treated as an illicit recording—
(a) for the purposes of any use in breach of the condition
mentioned in subparagraph (2)(a); and
(b) for all purposes after that condition or the condition
mentioned in subparagraph (2)(b) is broken.
(4) Expressions used in this paragraph have the same meaning
as in section 94.
Recordings for purposes of supervision and control of broadcasts and cable
programmes
19 (1) The rights conferred by Part II are not infringed by the
making or use by the Broadcasting Commissioners, for the purpose of
maintaining supervision and control over programmes broadcast by
them, of recordings of those programmes.
(2) In this paragraph "Broadcasting Commissioners" has the
same meaning as in the Broadcasting Commissioners Act 1953.
Free public showing or playing of broadcast or cable programme
20 (1) The showing or playing in public of a broadcast or cable
programme to an audience who have not paid for admission to the place
where the broadcast or programme is to be seen or heard does not
infringe any right conferred by Part II in relation to a performance or
recording included in—
(a) the broadcast or cable programme; or
(b) any sound recording or film which is played or shown in
public by reception of the broadcast or cable
programme.
(2) The audience shall be treated as having paid for admission
to a place—
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(a) if they have paid for admission to a place of which that
place forms part; or
(b) if goods or services are supplied at that place (or a place
of which it forms part)—
(i) at prices which are substantially attributable to the
facilities afforded for seeing or hearing the broadcast
or programme; or
(ii) at prices exceeding those usually charged there and
which are partly attributable to those facilities.
(3) The following shall not be regarded as having paid for
admission to a place—
(a) persons admitted as residents or inmates of the place;
(b) persons admitted as members of a club or society where
the payment is only for membership of the club or
society and the provision of facilities for seeing or
hearing broadcasts or programmes is only incidental to
the main purposes of the club or society.
(4) Where the making of the broadcast or inclusion of the
programme in a cable programme service was an infringement of the
rights conferred by Part II in relation to a performance or recording, the
fact that it was heard or seen in public by the reception of the broadcast
or programme shall be taken into account in assessing the damages for
that infringement.
(5) Expressions used in this paragraph have the same meaning
as in section 98.
Reception and re-transmission of broadcast in cable programme service
21 (1) This paragraph applies where a broadcast made from a
place in Bermuda is, by reception and immediate re-transmission,
included in a cable programme service.
(2) The rights conferred by Part II in relation to a performance
or recording included in the broadcast are not infringed if and to the
extent that the broadcast is made for reception in the area in which the
cable programme service is provided; but where the making of the
broadcast was an infringement of those rights, the fact that the
broadcast was re-transmitted as a programme in a cable programme
service shall be taken into account in assessing the damages for that
infringement.
(3) The Minister may by order —
(a) provide that in specified cases subparagraph (2) is to
apply in relation to broadcasts of a specified description
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which are not made as mentioned in that sub-
paragraph; or
(b) exclude the application of that subparagraph in relation
to broadcasts of a specified description made as
mentioned in that subparagraph.
(4) An order made under this paragraph may contain such
transitional provisions as appear to the Minister to be appropriate is
subject to negative resolution procedure.
(5) Expressions used in this paragraph have the same meaning
as in section 99.
Provision of sub-titled copies of broadcast or cable programme
22 (1) A designated body may, for the purpose of providing people
who are deaf or hard of hearing, or physically or mentally handicapped
in other ways, with copies which are sub-titled or otherwise modified for
their special needs, make recordings of television broadcasts or cable
programmes without infringing any right conferred by Part II in relation
to a performance or recording included in the broadcast or cable
programme.
(2) In this paragraph "designated body" means a body
designated for the purposes of section 100 and other expressions used in
this paragraph have the same meaning as in that section.
Recording of broadcast or cable programme for archival purposes
23 (1) A recording of a broadcast or cable programme of a
designated class, or a copy of such a recording, may be made for the
purpose of being placed in an archive maintained by a designated body
without thereby infringing any right conferred by Part II in relation to a
performance or recording included in the broadcast or cable programme.
(2) In this paragraph "designated class" and "designated body"
means a class or body designated for the purposes of section 101 and
other expressions used in this paragraph have the same meaning as in
that section.
SCHEDULE 3 (section 254)
LICENSING OF PERFORMERS' PROPERTY RIGHTS
Licensing schemes and licensing bodies
1 (1) In Part II a "licensing scheme" means a scheme setting out
⎯
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(a) the classes of case in which the operator of the scheme,
or the person on whose behalf he acts, is willing to grant
performers' property right licences; and
(b) the terms on which licences would be granted in those
classes of case;
and for this purpose a "scheme" includes anything in the nature of a
scheme, whether described as a scheme or as a tariff or by any other
name.
(2) In Part II a "licensing body" means a society or other
organisation which has as its main object, or one of its main objects, the
negotiating or granting, whether as owner or prospective owner of a
performer's property rights or as agent for him, of performers' property
right licences, and whose objects include the granting of licences
covering the performances of more than one performer.
(3) In this paragraph "performers' property right licences"
means licences to do, or authorise the doing of, any of the things for
which consent is required under section 213, 214 or 215.
(4) References in this Part to licences or licensing schemes
covering the performances of more than one performer do not include
licences or schemes covering only⎯
(a) performances recorded in a single recording;
(b) performances recorded in more than one recording
where⎯
(i) the performers giving the performances are the
same; or
(ii) the recordings are made by, or by employees of or
commissioned by, a single individual, firm,
company or group of companies.
(5) For this purpose a group of companies means a holding
company and its subsidiaries within the meaning of section 2 of the
Companies Act 1981.
References and applications with respect to licensing schemes
2 Paragraphs 3 to 8 (references and applications with respect to
licensing schemes) apply to licensing schemes operated by licensing
bodies in relation to a performer's property rights which cover the
performances of more than one performer, so far as they relate to
licences for⎯
(a) copying a recording of the whole or any substantial part
of a qualifying performance; or
(b) renting or lending copies of a recording to the public;
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and in those paragraphs "licensing scheme" means a licensing scheme of
any of those descriptions.
Reference of proposed licensing scheme to tribunal
3 (1) The terms of a licensing scheme proposed to be operated by
a licensing body may be referred to the Copyright Tribunal by an
organisation claiming to be representative of persons claiming that they
require licences in cases of a description to which the scheme would
apply, either generally or in relation to any description of case.
(2) The Tribunal shall first decide whether to entertain the
reference, and may decline to do so on the ground that the reference is
premature.
(3) If the Tribunal decides to entertain the reference it shall
consider the matter referred and make such order, either confirming or
varying the proposed scheme, either generally or so far as it relates to
cases of the description to which the reference relates, as the Tribunal
may determine to be reasonable in the circumstances.
(4) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
Reference of licensing scheme to tribunal
4 (1) If while a licensing scheme is in operation a dispute arises
between the operator of the scheme and⎯
(a) a person claiming that he requires a licence in a case of
a description to which the scheme applies; or
(b) an organisation claiming to be representative of such
persons;
that person or organisation may refer the scheme to the Copyright
Tribunal in so far as it relates to cases of that description.
(2) A scheme which has been referred to the Tribunal under
this paragraph shall remain in operation until proceedings on the
reference are concluded.
(3) The Tribunal shall consider the matter in dispute and make
such order, either confirming or varying the scheme so far as it relates to
cases of the description to which the reference relates, as the Tribunal
may determine to be reasonable in the circumstances.
(4) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
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Further reference of scheme to tribunal
5 (1) Where the Copyright Tribunal has on a previous reference
of a licensing scheme under paragraph 3 or 4, or under this paragraph,
made an order with respect to the scheme, then, while the order remains
in force⎯
(a) the operator of the scheme;
(b) a person claiming that he requires a licence in a case of
the description to which the order applies; or
(c) an organisation claiming to be representative of such
persons;
may refer the scheme again to the Tribunal so far as it relates to cases of
that description.
(2) A licensing scheme shall not, except with the special leave
of the Tribunal, be referred again to the Tribunal in respect of the same
description of cases⎯
(a) within 12 months from the date of the order on the
previous reference; or
(b) if the order was made so as to be in force for 15 months
or less, until the last 3 months before the expiry of the
order.
(3) A scheme which has been referred to the Tribunal under
this paragraph shall remain in operation until proceedings on the
reference are concluded.
(4) The Tribunal shall consider the matter in dispute and make
such order, either confirming, varying or further varying the scheme so
far as it relates to cases of the description to which the reference relates,
as the Tribunal may determine to be reasonable in the circumstances.
(5) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
Application for grant of licence in connection with licensing scheme
6 (1) A person who claims, in a case covered by a licensing
scheme, that the operator of the scheme has refused to grant him or
procure the grant to him of a licence in accordance with the scheme, or
has failed to do so within a reasonable time after being asked, may apply
to the Copyright Tribunal.
(2) A person who claims, in a case excluded from a licensing
scheme, that the operator of the scheme either ⎯
(a) has refused to grant him a licence or procure the grant
to him of a licence, or has failed to do so within a
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reasonable time of being asked, and that in the
circumstances it is unreasonable that a licence should
not be granted; or
(b) proposes terms for a licence which are unreasonable;
may apply to the Copyright Tribunal.
(3) A case shall be regarded as excluded from a licensing
scheme for the purposes of subparagraph (2) if⎯
(a) the scheme provides for the grant of licences subject to
terms excepting matters from the licence and the case
falls within such an exception; or
(b) the case is so similar to those in which licences are
granted under the scheme that it is unreasonable that it
should not be dealt with in the same way.
(4) If the Tribunal is satisfied that the claim is well-founded, it
shall make an order declaring that, in respect of the matters specified in
the order, the applicant is entitled to a licence on such terms as the
Tribunal may determine to be applicable in accordance with the scheme
or, as the case may be, to be reasonable in the circumstances.
(5) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
Application for review of order as to entitlement to licence
7 (1) Where the Copyright Tribunal has made an order under
paragraph 6 that a person is entitled to a licence under a licensing
scheme, the operator of the scheme or the original applicant may apply
to the Tribunal to review its order.
(2) An application shall not be made, except with the special
leave of the Tribunal⎯
(a) within 12 months from the date of the order, or of the
decision on a previous application under this paragraph;
or
(b) if the order was made so as to be in force for 15 months
or less, or as a result of the decision on a previous
application under this paragraph is due to expire within
15 months of that decision, until the last 3 months
before the expiry date.
(3) The Tribunal shall on an application for review confirm or
vary its order as the Tribunal may determine to be reasonable having
regard to the terms applicable in accordance with the licensing scheme
or, as the case may be, the circumstances of the case.
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Effect of order of tribunal as to licensing scheme
8 (1) A licensing scheme which has been confirmed or varied by
the Copyright Tribunal⎯
(a) under paragraph 3 (reference of terms of proposed
scheme); or
(b) under paragraph 4 or 5 (reference of existing scheme to
Tribunal);
shall be in force or, as the case may be, remain in operation, so far as it
relates to the description of case in respect of which the order was made,
so long as the order remains in force.
(2) While the order is in force a person who in a case of a class
to which the order applies⎯
(a) pays to the operator of the scheme any charges payable
under the scheme in respect of a licence covering the
case in question or, if the amount cannot be ascertained,
gives an undertaking to the operator to pay them when
ascertained; and
(b) complies with the other terms applicable to such a
licence under the scheme;
shall be in the same position as regards infringement of performers'
property rights as if he had at all material times been the holder of a
licence granted by the rights owner in question in accordance with the
scheme.
(3) The Tribunal may direct that the order, so far as it varies
the amount of charges payable, has effect from a date before that on
which it is made, but not earlier than the date on which the reference
was made or, if later, on which the scheme came into operation.
(4) If such a direction is made⎯
(a) any necessary repayments, or further payments, shall be
made in respect of charges already paid; and
(b) the reference in subparagraph (2)(a) to the charges
payable under the scheme shall be construed as a
reference to the charges so payable by virtue of the
order.
(5) No such direction may be made where subparagraph (6)
applies.
(6) An order of the Tribunal under paragraph 4 or 5 made with
respect to a scheme which is certified for any purpose under paragraph
16 has effect, so far as it varies the scheme by reducing the charges
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payable for licences, from the date on which the reference was made to
the Tribunal.
(7) Where the Tribunal has made an order under paragraph 6
(order as to entitlement to licence under licensing scheme) and the order
remains in force, the person in whose favour the order is made shall if he
⎯
(a) pays to the operator of the scheme any charges payable
in accordance with the order or, if the amount cannot be
ascertained, gives an undertaking to pay the charges
when ascertained; and
(b) complies with the other terms specified in the order;
be in the same position as regards infringement of performers' property
rights as if he had at all material times been the holder of a licence
granted by the rights owner in question on the terms specified in the
order.
References and applications with respect to licensing by licensing bodies
9 Paragraphs 10 to 13 (references and applications with respect to
licensing by licensing bodies) apply to licences relating to a performer's
property rights which cover the performance of more than one performer
granted by a licensing body otherwise than in pursuance of a licensing
scheme, so far as the licences authorise⎯
(a) copying a recording of the whole or any substantial part
of a qualifying performance; or
(b) renting or lending copies of a recording to the public;
and references in those paragraphs to a licence shall be construed
accordingly.
Reference to tribunal of proposed licence
10 (1) The terms on which a licensing body proposes to grant a
licence may be referred to the Copyright Tribunal by the prospective
licensee.
(2) The Tribunal shall first decide whether to entertain the
reference, and may decline to do so on the ground that the reference is
premature.
(3) If the Tribunal decides to entertain the reference it shall
consider the terms of the proposed licence and make such order, either
confirming or varying the terms as it may determine to be reasonable in
the circumstances.
(4) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
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Reference to tribunal of expiring licence
11 (1) A licensee under a licence which is due to expire, by
effluxion of time or as a result of notice given by the licensing body, may
apply to the Copyright Tribunal on the ground that it is unreasonable in
the circumstances that the licence should cease to be in force.
(2) Such an application may not be made until the last 3
months before the licence is due to expire.
(3) A licence in respect of which a reference has been made to
the Tribunal shall remain in operation until proceedings on the reference
are concluded.
(4) If the Tribunal finds the application well-founded, it shall
make an order declaring that the licensee shall continue to be entitled to
the benefit of the licence on such terms as the Tribunal may determine
to be reasonable in the circumstances.
(5) An order of the Tribunal under this paragraph may be made
so as to be in force indefinitely or for such period as the Tribunal may
determine.
Application for review of order as to licence
12 (1) Where the Copyright Tribunal has made an order under
paragraph 10 or 11, the licensing body or the person entitled to the
benefit of the order may apply to the Tribunal to review its order.
(2) An application shall not be made, except with the special
leave of the Tribunal⎯
(a) within 12 months from the date of the order or of the
decision on a previous application under this paragraph;
or
(b) if the order was made so as to be in force for 15 months
or less, or as a result of the decision on a previous
application under this paragraph is due to expire within
15 months of that decision, until the last 3 months
before the expiry date.
(3) The Tribunal shall on an application for review confirm or
vary its order as the Tribunal may determine to be reasonable in the
circumstances.
Effect of order of tribunal as to licence
13 (1) Where the Copyright Tribunal has made an order under
paragraph 10 or 11 and the order remains in force, the person entitled to
the benefit of the order shall if he⎯
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(a) pays to the licensing body any charges payable in
accordance with the order or, if the amount cannot be
ascertained, gives an undertaking to pay the charges
when ascertained; and
(b) complies with the other terms specified in the order;
be in the same position as regards infringement of performers' property
rights as if he had at all material times been the holder of a licence
granted by the rights owner in question on the terms specified in the
order.
(2) The benefit of the order may be assigned⎯
(a) in the case of an order under paragraph 10, if
assignment is not prohibited under the terms of the
Tribunal's order; and
(b) in the case of an order under paragraph 11, if
assignment was not prohibited under the terms of the
original licence.
(3) The Tribunal may direct that an order under paragraph 10
or 11, or an order under paragraph 12 varying such an order, so far as it
varies the amount of charges payable, has effect from a date before that
on which it is made, but not earlier than the date on which the reference
or application was made or, if later, on which the licence was granted or,
as the case may be, was due to expire.
(4) If such a direction is made⎯
(a) any necessary repayments, or further payments, shall be
made in respect of charges already paid; and
(b) the reference in subparagraph (1)(a) to the charges
payable in accordance with the order shall be construed,
where the order is varied by a later order, as a reference
to the charges so payable by virtue of the later order.
General considerations: unreasonable discrimination
14 (1) In determining what is reasonable on a reference or
application under this Schedule relating to a licensing scheme or licence,
the Copyright Tribunal shall have regard to⎯
(a) the availability of other schemes, or the granting of other
licences, to other persons in similar circumstances; and
(b) the terms of those schemes or licences;
and shall exercise its powers so as to secure that there is no
unreasonable discrimination between licensees, or prospective licensees,
under the scheme or licence to which the reference or application relates
COPYRIGHT AND DESIGNS ACT 2004
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and licensees under other schemes operated by, or other licences
granted by, the same person.
(2) Subparagraph (1) does not affect the Tribunal's general
obligation in any case to have regard to all relevant circumstances.
Application to settle royalty or other sum payable for lending
15 (1) An application to settle the royalty or other sum payable in
pursuance of paragraph 16 of Schedule 2 (lending of certain recordings)
may be made to the Copyright Tribunal by the owner of a performer's
property rights 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 subparagraph (3) shall not, except
with the special leave of the Tribunal, be made within 12 months from
the date of the original order or of the order on a previous application
under that subparagraph.
(5) An order under subparagraph (3) has effect from the date
on which it is made or such later date as may be specified by the
Tribunal.
Certification of licensing schemes
16 (1) A person operating or proposing to operate a licensing
scheme may apply to the Minister to certify the scheme for the purposes
of paragraph 16 of Schedule 2 (lending of certain recordings).
(2) The Minister shall by order 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 paragraph 16
of Schedule 2⎯
(a) on such date, being not less than 8 weeks after the order
is made, as may be specified in the order; or
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(b) if the scheme is the subject of a reference under
paragraph 3 (reference of proposed scheme), any later
date on which the order of the Copyright Tribunal under
that paragraph 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 Minister shall
make such an amendment in the case of a variation ordered by the
Copyright Tribunal on a reference under paragraph 3,4 or 5, 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 Minister that it is no
longer being operated according to its terms.
(6) An order made under this section is subject to negative
resolution procedure.
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SCHEDULE 4 (section 268(4))
EXCEPTIONS TO DATABASE RIGHT FOR PUBLIC
ADMINISTRATION
Legislative and judicial proceedings
1 Database right in a database is not infringed by anything done
for the purposes of parliamentary or judicial proceedings or for the
purposes of reporting such proceedings.
Commissions and statutory inquiries
2 (1) Database right in a database is not infringed by anything
done for—
(a) the purposes of the proceedings of a commission or
statutory inquiry; or
(b) the purpose of reporting any such proceedings held in
public.
(2) Database right in a database is not infringed by the issue to
the public of copies of the report of a commission or statutory inquiry
containing the contents of the database.
Material open to public inspection or on official register
3 (1) Where the contents of a database are open to public
inspection pursuant to a statutory requirement, or are on a statutory
register, database right in the database is not infringed by the extraction
of all or a substantial part of the contents containing factual information
of any description, by or with the authority of the appropriate person, for
a purpose which does not involve re-utilisation of all or a substantial
part of the contents.
(2) Where the contents of a database are open to public
inspection pursuant to a statutory requirement, database right in the
database is not infringed by the extraction or re-utilisation of all or a
substantial part of the contents, by or with the authority of the
appropriate person, for the purpose of enabling the contents to be
inspected at a more convenient time or place or otherwise facilitating the
exercise of any right for the purpose of which the requirement is
imposed.
(3) Where the contents of a database which is open to public
inspection pursuant to a statutory requirement, or which is on a
statutory register, contain information about matters of general
scientific, technical, commercial or economic interest, database right in
the database is not infringed by the extraction or re-utilisation of all or a
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substantial part of the contents, by or with the authority of the
appropriate person, for the purpose of disseminating that information.
(4) In this paragraph—
"appropriate person" means the person required to make the
contents of the database open to public inspection or, as the
case may be, the person maintaining the register;
"statutory register" means a register maintained in pursuance of
a statutory requirement; and
"statutory requirement" means a requirement imposed by
provision made by or under an enactment.
Material communicated to the Crown in the course of public business
4 (1) This paragraph applies where the contents of a database
have in the course of public business been communicated to the Crown
for any purpose, by or with the licence of the owner of the database right
and a document or other material thing recording or embodying the
contents of the database is owned by or in the custody or control of the
Crown.
(2) The Crown may, for the purpose for which the contents of
the database were communicated to it, or any related purpose which
could reasonably have been anticipated by the owner of the database
right in the database, extract or re-utilise all or a substantial part of the
contents without infringing database right in the database.
(3) The Crown may not re-utilise the contents of a database by
virtue of this paragraph if the contents have previously been published
otherwise than by virtue of this paragraph.
(4) In subparagraph (1) "public business" includes any activity
carried on by the Crown.
(5) This paragraph has effect subject to any agreement to the
contrary between the Crown and the owner of the database right in the
database.
Public records
5 Material which is comprised in public records which are open to
public inspection in pursuance of an enactment may be copied, and a
copy may be supplied to any person, by or with the authority of any
officer appointed under the enactment in question without infringement
of database right in the database.
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Acts done under statutory authority
6 (1) Where the doing of a particular act is specifically authorised
by an enactment, whenever passed, then, unless it provides otherwise,
the doing of that act does not infringe database right in a database.
(2) Nothing in this paragraph shall be construed as excluding
any defence of statutory authority otherwise available under or by virtue
of any enactment.
SCHEDULE 5 (section 272)
LICENSING OF DATABASE RIGHT
Licensing scheme and licensing bodies
1 (1) In this Schedule a "licensing scheme" means a scheme
setting out—
(a) the classes of case in which the operator of the scheme,
or the person on whose behalf he acts, is willing to grant
database right licences; and
(b) the terms on which licences would be granted in those
classes of case;
and for this purpose a "scheme" includes anything in the nature of a
scheme, whether described as a scheme or as a tariff or by any other
name.
(2) In this Schedule a "licensing body" means a society or other
organisation which has as its main object, or one of its main objects, the
negotiating or granting, whether as owner or prospective owner of a
database right or as agent for him, of database right licences, and whose
objects include the granting of licences covering the databases of more
than one maker.
(3) In this paragraph "database right licences" means licences
to do, or authorise the doing of, any of the things for which consent is
required under section 264.
2 Paragraphs 3 to 8 apply to licensing schemes which are operated
by licensing bodies and cover databases of more than one maker so far
as they relate to licences for extracting or re-utilising all or a substantial
part of the contents of a database; and references in those paragraphs to
a licensing scheme shall be construed accordingly.
Reference of proposed licensing scheme to tribunal
3 (1) The terms of a licensing scheme proposed to be operated by
a licensing body may be referred to the Copyright Tribunal by an
organisation claiming to be representative of persons claiming that they
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require licences in cases of a description to which the scheme would
apply, either generally or in relation to any description of case.
(2) The Tribunal shall first decide whether to entertain the
reference, and may decline to do so on the ground that the reference is
premature.
(3) If the Tribunal decides to entertain the reference it shall
consider the matter referred and make such order, either confirming or
varying the proposed scheme, either generally or so far as it relates to
cases of the description to which the reference relates, as the Tribunal
may determine to be reasonable in the circumstances.
(4) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
Reference of licensing scheme to tribunal
4 (1) If while a licensing scheme is in operation a dispute arises
between the operator of the scheme and—
(a) a person claiming that he requires a licence in a case of
a description to which the scheme applies; or
(b) an organisation claiming to be representative of such
persons;
that person or organisation may refer the scheme to the Copyright
Tribunal in so far as it relates to cases of that description.
(2) A scheme which has been referred to the Tribunal under
this paragraph shall remain in operation until proceedings on the
reference are concluded.
(3) The Tribunal shall consider the matter in dispute and make
such order, either confirming or varying the scheme so far as it relates to
cases of the description to which the reference relates, as the Tribunal
may determine to be reasonable in the circumstances.
(4) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
Further reference of scheme to tribunal
5 (1) Where the Copyright Tribunal has on a previous reference
of a licensing scheme under paragraph 3 or 4, or under this paragraph,
made an order with respect to the scheme, then, while the order remains
in force—
(a) the operator of the scheme;
(b) a person claiming that he requires a licence in a case of
the description to which the order applies; or
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(c) an organisation claiming to be representative of such
persons;
may refer the scheme again to the Tribunal so far as it relates to cases of
that description.
(2) A licensing scheme shall not, except with the special leave
of the Tribunal, be referred again to the Tribunal in respect of the same
description of cases—
(a) within 12 months from the date of the order on the
previous reference; or
(b) if the order was made so as to be in force for 15 months
or less, until the last 3 months before the expiry of the
order.
(3) A scheme which has been referred to the Tribunal under
this section shall remain in operation until proceedings on the reference
are concluded.
(4) The Tribunal shall consider the matter in dispute and make
such order, either confirming, varying or further varying the scheme so
far as it relates to cases of the description to which the reference relates,
as the Tribunal may determine to be reasonable in the circumstances.
(5) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
Application for grant of licence in connection with licensing scheme
6 (1) A person who claims, in a case covered by a licensing
scheme, that the operator of the scheme has refused to grant him or
procure the grant to him of a licence in accordance with the scheme, or
has failed to do so within a reasonable time after being asked, may apply
to the Copyright Tribunal.
(2) A person who claims, in a case excluded from a licensing
scheme, that the operator of the scheme either—
(a) has refused to grant him a licence or procure the grant
to him of a licence, or has failed to do so within a
reasonable time of being asked, and that in the
circumstances it is unreasonable that a licence should
not be granted; or
(b) proposes terms for a licence which are unreasonable,
may apply to the Copyright Tribunal.
(3) A case shall be regarded as excluded from a licensing
scheme for the purposes of subparagraph (2) if—
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(a) the scheme provides for the grant of licences subject to
terms excepting matters from the licence and the case
falls within such an exception; or
(b) the case is so similar to those in which licences are
granted under the scheme that it is unreasonable that it
should not be dealt with in the same way.
(4) If the Tribunal is satisfied that the claim is well-founded, it
shall make an order declaring that, in respect of the matters specified in
the order, the applicant is entitled to a licence on such terms as the
Tribunal may determine to be applicable in accordance with the scheme
or, as the case may be, to be reasonable in the circumstances.
(5) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
Application for review of order as to entitlement to licence
7 (1) Where the Copyright Tribunal has made an order under
paragraph 6 that a person is entitled to a licence under a licensing
scheme, the operator of the scheme or the original applicant may apply
to the Tribunal to review its order.
(2) An application shall not be made, except with the special
leave of the Tribunal—
(a) within 12 months from the date of the order, or of the
decision on a previous application under this section; or
(b) if the order was made so as to be in force for 15 months
or less, or as a result of the decision on a previous
application under this section is due to expire within 15
months of that decision, until the last 3 months before
the expiry date.
(3) The Tribunal shall on an application for review confirm or
vary its order as the Tribunal may determine to be reasonable having
regard to the terms applicable in accordance with the licensing scheme
or, as the case may be, the circumstances of the case.
Effect of order of tribunal as to licensing scheme
8 (1) A licensing scheme which has been confirmed or varied by
the Copyright Tribunal—
(a) under paragraph 3 (reference of terms of proposed
scheme); or
(b) under paragraph 4 or 5 (reference of existing scheme to
Tribunal);
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243
shall be in force or, as the case may be, remain in operation, so far as it
relates to the description of case in respect of which the order was made,
so long as the order remains in force.
(2) While the order is in force a person who in a case of a class
to which the order applies—
(a) pays to the operator of the scheme any charges payable
under the scheme in respect of a licence covering the
case in question or, if the amount cannot be ascertained,
gives an undertaking to the operator to pay them when
ascertained; and
(b) complies with the other terms applicable to such a
licence under the scheme;
shall be in the same position as regards infringement of database right
as if he had at all material times been the holder of a licence granted by
the owner of the database right in question in accordance with the
scheme.
(3) The Tribunal may direct that the order, so far as it varies
the amount of charges payable, has effect from a date before that on
which it is made, but not earlier than the date on which the reference
was made or, if later, on which the scheme came into operation.
(4) If such a direction is made—
(a) any necessary repayments, or further payments, shall be
made in respect of charges already paid; and
(b) the reference in subparagraph (2)(a) to the charges
payable under the scheme shall be construed as a
reference to the charges so payable by virtue of the
order.
(5) No such direction may be made where subparagraph (6)
applies.
(6) Where the Tribunal has made an order under paragraph 6
(order as to entitlement to licence under licensing scheme) and the order
remains in force, the person in whose favour the order is made shall if
he—
(a) pays to the operator of the scheme any charges payable
in accordance with the order or, if the amount cannot be
ascertained, gives an undertaking to pay the charges
when ascertained; and
(b) complies with the other terms specified in the order;
be in the same position as regards infringement of database right as if he
had at all material times been the holder of a licence granted by the
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owner of the database right in question on the terms specified in the
order.
References and applications with respect to licences by licensing bodies
9 Paragraphs 10 to 13 (references and applications with respect to
licensing by licensing bodies) apply to licences relating to database right
which cover databases of more than one maker granted by a licensing
body otherwise than in pursuance of a licensing scheme, so far as the
licences authorise extracting or re-utilising all or a substantial part of
the contents of a database; and references in those paragraphs to a
licence shall be construed accordingly.
Reference to tribunal of proposed licence
10 (1) The terms on which a licensing body proposes to grant a
licence may be referred to the Copyright Tribunal by the prospective
licensee.
(2) The Tribunal shall first decide whether to entertain the
reference, and may decline to do so on the ground that the reference is
premature.
(3) If the Tribunal decides to entertain the reference it shall
consider the terms of the proposed licence and make such order, either
confirming or varying the terms, as it may determine to be reasonable in
the circumstances.
(4) The order may be made so as to be in force indefinitely or
for such period as the Tribunal may determine.
Reference to tribunal of expiring licence
11 (1) A licensee under a licence which is due to expire, by
effluxion of time or as a result of notice given by the licensing body, may
apply to the Copyright Tribunal on the ground that it is unreasonable in
the circumstances that the licence should cease to be in force.
(2) Such an application may not be made until the last 3
months before the licence is due to expire.
(3) A licence in respect of which a reference has been made to
the Tribunal shall remain in operation until proceedings on the reference
are concluded.
(4) If the Tribunal finds the application well-founded, it shall
make an order declaring that the licensee shall continue to be entitled to
the benefit of the licence on such terms as the Tribunal may determine
to be reasonable in the circumstances.
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(5) An order of the Tribunal under this section may be made so
as to be in force indefinitely or for such period as the Tribunal may
determine.
Application for review of order as to licence
12 (1) Where the Copyright Tribunal has made an order under
paragraph 10 or 11, the licensing body or the person entitled to the
benefit of the order may apply to the Tribunal to review its order.
(2) An application shall not be made, except with the special
leave of the Tribunal—
(a) within 12 months from the date of the order or of the
decision on a previous application under this paragraph;
or
(b) if the order was made so as to be in force for 15 months
or less, or as a result of the decision on a previous
application under this section is due to expire within 15
months of that decision, until the last 3 months before
the expiry date.
(3) The Tribunal shall on an application for review confirm or
vary its order as the Tribunal may determine to be reasonable in the
circumstances.
Effect of order of tribunal as to licence
13 (1) Where the Copyright Tribunal has made an order under
paragraph 10 or 11 and the order remains in force, the person entitled to
the benefit of the order shall if he—
(a) pays to the licensing body any charges payable in
accordance with the order or, if the amount cannot be
ascertained, gives an undertaking to pay the charges
when ascertained; and
(b) complies with the other terms specified in the order;
be in the same position as regards infringement of database right as if he
had at all material times been the holder of a licence granted by the
owner of the database right in question on the terms specified in the
order.
(2) The benefit of the order may be assigned—
(a) in the case of an order under paragraph 10, if
assignment is not prohibited under the terms of the
Tribunal's order; and
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(b) in the case of an order under paragraph 11, if
assignment was not prohibited under the terms of the
original licence.
(3) The Tribunal may direct that an order under paragraph 10
or 11, or an order under paragraph 12 varying such an order, so far as it
varies the amount of charges payable, has effect from a date before that
on which it is made, but not earlier than the date on which the reference
or application was made or, if later, on which the licence was granted or,
as the case may be, was due to expire.
(4) If such a direction is made—
(a) any necessary repayments, or further payments, shall be
made in respect of charges already paid; and
(b) the reference in subparagraph (1)(a) to the charges
payable in accordance with the order shall be construed,
where the order is varied by a later order, as a reference
to the charges so payable by virtue of the later order.
General considerations: unreasonable discrimination
14 In determining what is reasonable on a reference or application
under this Schedule relating to a licensing scheme or licence, the
Copyright Tribunal shall have regard to—
(a) the availability of other schemes, or the granting of other
licences, to other persons in similar circumstances; and
(b) the terms of those schemes or licences;
and shall exercise its powers so as to secure that there is no
unreasonable discrimination between licensees, or prospective licensees,
under the scheme or licence to which the reference or application relates
and licensees under other schemes operated by, or other licences
granted by, the same person.
