The Copyright and Related Rights Regulations 1996

Made: 26th November 1996

Coming into force: 1st December 1996

Whereas a draft of the following Regulations has been approved by resolution of each House of Parliament:

Now, therefore, the Secretary of State, being a Minister designated[^f00001] for the purposes of section 2(2) of the European Communities Act 1972[^f00002] in relation to measures relating to the protection of copyright and rights in performances, in exercise of powers conferred by section 2(2) and (4) of the said Act of 1972, hereby makes the following Regulations:—

PART I — INTRODUCTORY PROVISIONS

Citation, commencement and extent.

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• (1) These Regulations may be cited as the Copyright and Related Rights Regulations 1996.

• (2) These Regulations come into force on 1st December 1996.

• (3) These Regulations extend to the whole of the United Kingdom.

Interpretation

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In these Regulations—

• “EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2nd May 1992[^f00003], as adjusted by the Protocol signed at Brussels on 17th March 1993[^f00004]; and

• “EEA state” means a member State, Iceland, Liechtenstein or Norway.

• “national of the United Kingdom” has the meaning given by section 178 of the Copyright, Designs and Patents Act 1988;

Implementation of Directives, &c.

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These Regulations make provision for the purpose of implementing—

• (a) Council Directive No. 92/100/EEC of 19 November 1992[^f00005] on rental right and lending right and on certain rights related to copyright in the field of intellectual property;

• (b) Council Directive No. 93/83/EEC of 27 September 1993[^f00006] on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission;

• (c) the provisions of Council Directive No. 93/98/EEC of 29 October 1993[^f00007] harmonizing the term of protection of copyright and certain related rights, so far as not implemented by the Duration of Copyright and Rights in Performances Regulations 1995[^f00008]; and

• (d) certain obligations of the United Kingdom created by or arising under the EEA Agreement so far as relevant to the implementation of those Directives.

Scheme of the regulations

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The Copyright, Designs, and Patents Act 1988[^f00009] is amended in accordance with the provisions of Part II of these Regulations, subject to the savings and transitional provisions in Part III of these Regulations.

PART II — AMENDMENTS OF THE COPYRIGHT, DESIGNS AND PATENTS ACT 1988

Satellite broadcasts and cable re-transmission

Place where broadcast treated as made

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For section 6(4) (broadcasts: place where regarded as made) substitute—

(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).

Safeguards in relation to certain satellite broadcasts

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• (1) In section 6 (broadcasts), after subsection (4) insert—

(4A) Subsections (3) and (4) have effect subject to section 6A (safeguards in case of certain satellite broadcasts).

• (2) After that section insert—

(6A) (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 an EEA State and the law of that country fails to provide at least the following level of protection— (a) exclusive rights in relation to broadcasting equivalent to those conferred by section 20 (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 182(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 an EEA State— (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 an EEA State but a person who is established in an EEA State 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 the European Economic Area shall be treated as the place from which the broadcast is made.

Exercise of rights in relation to cable re-transmission

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In Chapter VII of Part I (provisions as to copyright licensing), after section 144 insert—

(144A) (1) This section applies to the right of the owner of copyright in a literary, dramatic, musical or artistic work, sound recording or film to grant or refuse authorisation for cable re-transmission of a broadcast from another EEA member state in which the work is included. That right is referred to below as “cable re-transmission right”. (2) Cable re-transmission right may be exercised against a cable operator only through a licensing body. (3) Where a copyright owner has not transferred management of his cable re-transmission right to a licensing body, the licensing body which manages rights of the same category shall be deemed to be mandated to manage his right. Where more than one licensing body manages rights of that category, he may choose which of them is deemed to be mandated to manage his right. (4) A copyright owner to whom subsection (3) applies has the same rights and obligations resulting from any relevant agreement between the cable operator and the licensing body as have copyright owners who have transferred management of their cable re-transmission right to that licensing body. (5) Any rights to which a copyright owner may be entitled by virtue of subsection (4) must be claimed within the period of three years beginning with the date of the cable re-transmission concerned. (6) This section does not affect any rights exercisable by the maker of the broadcast, whether in relation to the broadcast or a work included in it. (7) In this section— “cable operator” means a person providing a cable programme service; and “cable re-transmission” means the reception and immediate re-transmission by way of a cable programme service of a broadcast.

Meaning of wireless telegraphy.

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In section 178 (minor definitions), in the definition of “wireless telegraphy” at the end insert “, but does not include the transmission of microwave energy between terrestrial fixed points”.

Distribution right

Issue of copies of work to the public: extension of right

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• (1) Section 18 (infringement of copyright by issue of copies of work to public) is amended as follows.

• (2) For subsections (2) and (3) (meaning of issue of copies to the public) substitute—

(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 the EEA copies not previously put into circulation in the EEA by or with the consent of the copyright owner, or (b) the act of putting into circulation outside the EEA copies not previously put into circulation in the EEA 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 (but see section 18A: infringement by rental or lending), or (b) any subsequent importation of such copies into the United Kingdom or another EEA state, except so far as paragraph (a) of subsection (2) applies to putting into circulation in the EEA copies previously put into circulation outside the EEA.

• (3) After subsection (3) add—

(4) References in this Part to the issue of copies of a work include the issue of the original.

• (4) In consequence of the above amendments, in section 27 (meaning of “infringing copy”) omit subsection (3A) and the words “Subject to subsection (3A),” in subsection (3).

• (5) In section 172A (meaning of EEA national and EEA state), for the sidenote and subsection (1) substitute—

(172A) (1) In this Part— - “the EEA” means the European Economic Area; - “EEA national” means a national of an EEA state; and - “EEA state” means a state which is a contracting party to the EEA Agreement.

• (6) In section 179 (index of defined expressions)—

• (a) in the first column of the entry relating to the expressions “EEA national” and “EEA state”, at the beginning insert “EEA,”, and

• (b) in the second column of the entry relating to the expression “issue of copies to the public” for “section 18(2)” substitute “section 18”.

Rental and lending right

Rental or lending of copyright work

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• (1) In section 16 (the acts restricted by copyright in a work), in subsection (1), after paragraph (b) insert—

(ba) to rent or lend the work to the public (see section 18A);

• (2) After section 18 (infringement of copyright by issue of copies of work), insert—

(18A) (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 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.

• (3) In section 178 (minor definitions), at the appropriate place insert—

• “rental right” means the right of a copyright owner to authorise or prohibit the rental of copies of the work (see section 18A);

and omit the definition of “rental”.

• (4) In section 179 (index of defined expressions), in the entry relating to the expression “rental” for “section 178” substitute “section 18A(2) to (6)”; and at the appropriate places insert—

• lending section 18A(2) to (6)

• rental right section 178

Permitted lending of copyright works

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• (1) In Chapter III of Part I (acts permitted in relation to copyright works), in the sections relating to education, after section 36 insert—

(36A) Copyright in a work is not infringed by the lending of copies of the work by an educational establishment.

• (2) In the same Chapter, in the sections relating to libraries and archives, after section 40 insert—

(40A) (1) Copyright in a work of any description is not infringed by the lending of a book by a public library if the book is within the public lending right scheme. For this purpose— (a) “the public lending right scheme” means the scheme in force under section 1 of the Public Lending Right Act 1979, and (b) a book is within the public lending right scheme if it is a book within the meaning of the provisions of the scheme relating to eligibility, whether or not it is in fact eligible. (2) Copyright in a work is not infringed by the lending of copies of the work by a prescribed library or archive (other than a public library) which is not conducted for profit.

• (3) In the same Chapter for section 66 (rental of sound recordings, films and computer programs), and the heading preceding it, substitute—

(66) (1) The Secretary of State 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. (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 143 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 shall be made by statutory instrument; and no order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament. (5) Nothing in this section affects any liability under section 23 (secondary infringement: possessing or dealing with infringing copy) in respect of the lending of infringing copies.

• (4) In section 143(1) (certification of licensing schemes: relevant provisions), for paragraph (c) substitute—

(c) section 66 (lending to public of copies of certain works),

• (5) In section 178 (minor definitions), insert at the appropriate place—

• “public library” means a library administered by or on behalf of— in England and Wales, a library authority within the meaning of the Public Libraries and Museums Act 1964; in Scotland, a statutory library authority within the meaning of the Public Libraries (Scotland) Act 1955; in Northern Ireland, an Education and Library Board within the meaning of the Education and Libraries (Northern Ireland) Order 1986;

• (6) In section 179 (index of defined expressions), at the appropriate place insert—

• public library section 178

• (7) The following provisions (which relate to lending by public libraries) are repealed—

• section 4(2) of the Public Libraries (Scotland) Act 1955[^f00010],

• section 8(6) of the Public Libraries and Museums Act 1964[^f00011],

• Article 77(3) of the Education and Libraries (Northern Ireland) Order 1986[^f00012],

• paragraphs 6, 8 and 34 of Schedule 7 to the Copyright, Designs and Patents Act 1988[^f00013] (which insert the above provisions).

Presumption of transfer of rental right in case of film production agreement

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In Chapter V of Part I (dealings with rights in copyright works), after section 93 insert—

(93A) (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 signature by or on behalf of the author does not exclude the operation of section 91(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 93B (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.

Rental and lending: applications to Copyright Tribunal

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• (1) In section 133 (licences to reflect payments in respect of underlying rights), for subsection (1) (considerations relevant to rental of certain works) substitute—

(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 142 (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.