Digital Economy Bill [HL]—
Amendments to be debated in the House of Lordscontinued

House of Lords

back to previous amendments

 

Clause 42

 

VISCOUNT BRIDGEMAN

 

BARONESS BUSCOMBE

255BPage 46, leave out lines 4 to 42 and insert "30 insert—

"Extension and regulation of acts permitted in relation to copyright works

30AOrphan works
(1)  The Secretary of State may by regulations provide that acts in relation to an orphan work which would otherwise require the consent of the copyright owner may be done notwithstanding the subsistence of copyright.
(2)  A work shall become an orphan work when the copyright owner cannot be found.
(3)  The burden of proof that the copyright owner cannot be found shall be on the person who publishes the orphan work, and the burden shall be discharged by proof that a diligent search to identify and locate the copyright owner has been undertaken and has not been successful.
(4)  Fair dealing with an orphan work shall not infringe copyright.
(5)  The work shall cease to be an orphan work when the identity and location of the copyright owner becomes known.
(6)  The regulations may provide for determining the rights and obligations of any person if a work ceases to be an orphan work.
(7)  The copyright owner shall be compensated in an amount equal to the licence fee he would have received had he been identified at the time of publication and he shall be entitled to aggravated damages if the person who publishes the work is unable to discharge the burden of proof described in subsection (3).
(8)  The regulations may provide for the Secretary of State to determine whether any requirement of the regulations for a person's becoming or remaining authorised has been met or ceased to be met.
(9)  In this Part references to a work as, or as ceasing to be, an orphan work are to be read in accordance with regulations made by the Secretary of State.
(10)  Regulations under subsection (6) may operate by reference to guidance published from time to time by any person.""
 

LORD CLEMENT-JONES

 

LORD RAZZALL

256Page 46, line 8, leave out "or other person"
 

VISCOUNT BRIDGEMAN

256ZAPage 46, line 10, at end insert—
"(   )  Regulations under subsection (1) shall only provide for authorising a licensing body that represents a substantial number of authors or, as appropriate, performers of the type of works for which the licence is to be granted."
 

LORD CLEMENT-JONES

 

LORD RAZZALL

256APage 46, leave out lines 11 to 13 and insert—
"(   )  An authorisation under the regulations must not preclude any authorisation in favour of another authorised licensing body, and a licence under the regulations must not preclude any licence in favour of another person."
257[Withdrawn]
258[Withdrawn]
259Page 46, line 13, leave out "person"
 

VISCOUNT BRIDGEMAN

259APage 46, line 13, at end insert—
"(   )  The regulations shall provide that no such licence may be granted unless the would-be licensee demonstrates to the licensing body that they have undertaken a diligent search for authors, performers and other holders of rights in each work for which a licence is sought, including the making of detailed enquiries to relevant institutions and rights holders in the same or similar fields."
 

LORD CLEMENT-JONES

 

LORD RAZZALL

260Page 46, line 14, leave out "may" and insert "shall"
261Page 46, line 16, after "of" insert "reasonable"
262Page 46, line 17, after first "the" insert "minimum"
263Page 46, line 19, leave out "(as bona vacantia or otherwise)" and insert "in accordance with a scheme of distribution approved by the copyright owners represented by the licensing body"
264Page 46, line 21, leave out "may" and insert "shall"
265Page 46, line 21, leave out "determining the rights and obligations of any person" and insert "the licensing body to indemnify the licensee against any liability incurred by him by reason of his having infringed copyright by doing any act authorised by the licence"
266Page 46, line 22, at end insert "and for providing maxima in respect of the period during which any claim by a returning copyright owner of an orphan work may be brought and the damages or other remedies that may be sought for any infringement"
267Page 46, line 23, leave out "may" and insert "shall"
268Page 46, line 24, leave out "person's" and insert "licensing body"
269Page 46, line 26, leave out "a work as or as ceasing to be" and insert "—
(a)  a licensing body shall mean a body managing rights of the same category as the rights to be licensed and being a body owned or controlled by, and genuinely representative of, the copyright owners of the same type of works as the works being licensed; and
(b)  "
270Page 46, line 26, at end insert "shall mean a work in which copyright subsists and where the copyright owner (or, where there is more than one owner of a copyright in the work, at least one of those copyright owners) remains unidentified or untraceable following diligent searches in accordance with subsection (7) and a reference to a work ceasing to be an orphan work shall be construed accordingly"
271Page 46, leave out lines 27 and 28
272Page 46, line 29, leave out from "(6)" to end of line 30 and insert "shall require the person seeking a licence to have searched for the copyright owner with all due diligence and in accordance with best practice for the class of orphan work in question before applying for or being granted a licence (or both)"
 

LORD HOWARD OF RISING

 

LORD DE MAULEY

273Page 46, line 30, at end insert "representing both public and private interests"
 

LORD CLEMENT-JONES

 

LORD RAZZALL

274Page 46, line 34, at end insert "licensing"
275Page 46, line 35, after "the" insert "licensing"
 

VISCOUNT BRIDGEMAN

275APage 46, line 35, at end insert "provided that graphic works and photographic works as defined in section 4(2) shall be excluded from the regulations"
 

LORD HOWARD OF RISING

 

LORD DE MAULEY

276Page 46, line 35, at end insert—
"(   )  The Secretary of State may only authorise a licensing body under subsection (1) if the licensing body has adopted a code of practice under Schedule A1."
 

VISCOUNT BRIDGEMAN

276APage 46, line 35, at end insert—
"(   )  Regulation under subsection (1) shall only provide for authorising a licensing body that represents a substantial number of authors or, as appropriate, performers of the type of works for which the licence is to be granted."
 

LORD HOWARD OF RISING

 

LORD DE MAULEY

277Page 46, leave out line 37
278Page 46, leave out lines 38 and 39
 

LORD CLEMENT-JONES

 

LORD RAZZALL

279Page 46, line 38, after "rights" insert "specifically"
280Page 46, line 39, at end insert ", or
(   )  in respect of works other than orphan works, unless the Secretary of State has consulted, to the extent practicable, the copyright owners appearing to the Secretary of State to be likely to be affected"
 

VISCOUNT BRIDGEMAN

280APage 46, line 39, at end insert—
"(   )  The regulations may authorise the grant of a licence only to a public library as defined in section 178 (or its wholly owned subsidiary) and not for the benefit of any commercial partner of such a library."
 

LORD CLEMENT-JONES

 

LORD RAZZALL

281Page 46, line 41, leave out "and (c)"
 

LORD LUCAS

282Page 46, line 42, at end insert—
"(   )  The Secretary of State must, within one year of the day on which the Digital Economy Act 2010 is passed, bring forward proposals under this section in respect of music, film and broadcast works in electronic form."
 

VISCOUNT BRIDGEMAN

 

BARONESS BUSCOMBE

282ZAPage 46, line 42, at end insert—
"(   )  After section 116 insert—"
282ZBPage 47, line 4, leave out from "bodies" to end of line 5
282ZCPage 47, line 7, leave out "116B" and insert "30A"
282ZDPage 47, line 9, leave out "sections 116A and 116B" and insert "section 30A"
 

VISCOUNT BRIDGEMAN

282APage 47, line 12, at end insert "necessary to the implementation of the powers conferred by sections 116A and 116B and Schedule A1"
 

LORD CLEMENT-JONES

 

LORD RAZZALL

283Page 47, leave out line 13
 

VISCOUNT BRIDGEMAN

 

BARONESS BUSCOMBE

283APage 47, line 15, leave out "sections 116A and 116B" and insert "section 30A"
 

LORD LUCAS

284Page 47, line 23, at end insert—
"116ERegistry of copyright
(1)  OFCOM shall maintain on the web a registry of other websites where copyright material may be located.
(2)  OFCOM shall, at the request of the website owner, add a website to the registry if that website complies with OFCOM's rules for such additions as are then in force.
(3)  The rules under subsection (2) shall require—
(a)  that each copyright work on the site may be readily identified from information openly provided on that site,
(b)  that accurate and complete information on how to licence each copyright work is provided on that site,
(c)  that each copyright work on that site is available for licence, and that there are arrangements in place for binding arbitration of disputes relating to the extent or the cost of a licence,
(d)  that the architecture of the site allows the search facilities that OFCOM provides under subsection (4) full access.
(4)  OFCOM shall maintain, and may charge for the use of, facilities to enable a user to establish whether a copyright work of a given description exists in any of the websites listed on the registry maintained under this section, and to provide a certificate of what such works exist or that no such work is to be found.
(5)  No claim may be made under section 116A that a work is an orphan work if a certificate under subsection (4) has not beeen obtained.""
 

VISCOUNT BRIDGEMAN

 

BARONESS BUSCOMBE

284APage 47, line 29, leave out "116A(6)" and insert "30A"
 

LORD CLEMENT-JONES

 

LORD RAZZALL

 

VISCOUNT BRIDGEMAN

 

BARONESS BUSCOMBE

 The above-named Lords give notice of their intention to oppose the Question that Clause 42 stand part of the Bill.
 

After Clause 42

 

LORD LUCAS

285Insert the following new Clause—
"Format shifting
(1)  The Copyright, Designs and Patents Act 1988 is amended as follows.
(2)  In section 17, at the end insert—
"(7)  Where a person acquires the right to use a copyright work in electronic form for his personal use, he also acquires the right to copy that work into other electronic formats for his personal use.
(8)  Regulations may specify a sum upon payment of which the Registrar of Public Lending Right or a Licensing Scheme may grant a person the rights in subsection (7) in respect of works acquired by him before the coming into force of this section.""
286Insert the following new Clause—
"Artists' right to re-market
(1)  The Copyright, Designs and Patents Act 1988 is amended as follows.
(2)  After section 18A insert—
"18BArtists' right to re-market (1)
(1)  The orginal creator of copyright work may compel the copyright owner to licence him to market the work in electronic form if—
(a)  two years after the first publication of the work, it is not available in all common current electronic formats in all geographical regions, or
(b)  five years after its creation, it has not been published.
(2)  A licence under this section shall be on the terms that the copyright owner receives 50 per cent of the gross proceeds of any sale, while the copyright creator receives the balance and pays all associated costs.
(3)  A licence under this section shall require the creator to sell the work at a price not less than could be obtained by the copyright owner if he sold the work in the market and in the format specified.
(4)  Any dispute as to the price described in subsection (3) shall be settled by binding arbitration, with neither party being required to pay costs in excess of £1,000.""
287Insert the following new Clause—
"Artists' right to re-market (2)
(1)  The Copyright, Designs and Patents Act 1988 is amended as follows.
(2)  After section 18A insert—
"18BArtists' right to re-market (2)
(1)  The orginal creator of copyright work may compel the copyright owner to licence him to market the work in electronic form if five years have passed since its creation.
(2)  A license under this section shall be on the terms that the copyright owner receives 50 per cent of the gross proceeds of any sale, while the copyright creator receives the balance and pays all associated costs.
(3)  A licence under this section shall require the creator to sell the work at a price not less than could be obtained by the copyright owner if he sold the work in the market and in the format specified.
(4)  Any dispute as to the price described in subsection (3) shall be settled by binding arbitration, with neither party being required to pay costs in excess of £1,000.""
288Insert the following new Clause—
"Fees for retransmission and delayed transmission of copyright material
(1)  In the Copyright, Designs and Patents Act 1988, after section 75 insert—
"75ARetransmission fees
(1)  Where a person provides a service which in part consists of material which is simultaneously, or approximately simultaneously, available as a free-to-air broadcast, that person shall pay to the copyright owner a prescribed rental.
(2)  OFCOM shall prescribe the rental from time to time.
(3)  The initial rental shall be £0.001 per customer per hour of material transmitted.
75BDelayed transmission fees
(1)  Where copyright material that has been transmitted over a free-to-air broadcast more than seven days previously is made available in another format, the copyright owner shall be entitled to a prescribed fee.
(2)  OFCOM shall prescribe the fee from time to time.
(3)  The initial fee shall be £0.10 per customer per hour of material made available.""
289Insert the following new Clause—
"Implied licence to copy
  In the Copyright, Designs and Patents Act 1988, after section 17 insert—
"17AImplied licence to copy
(1)  A person who—
(a)  copies or otherwise acquires a copy of a copyright work in electronic form under circumstances where it would be reasonable for him to assume that no payment was to be made to the copyright owner,
(b)  notifies a Licensing Scheme that he has done so in the manner provided for by that Licensing Scheme, and
(c)  makes the payments to the Licensing Scheme that are required by this section,
 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)  A Licensing Scheme may provide for a scale of charges to apply.
(3)  The charges made under subsection (2) shall be no greater than the sums which the copyright owner might expect to receive had he granted such a licence himself, or as he actually receives from the sale of such licences in the ordinary course of his trade.
(4)  The approval of the Copyright Tribunal shall be required for any scale of charges established unde subsection (2).""
290Insert the following new Clause—
"Transfer of rights
  In the Copyright, Designs and Patents Act 1988, after section 90 insert—
"90ATransfer of rights in exchange for equity or other rights in a business
  Where a copyright owner of a work in electronic form sells or licenses all or part of that copyright in exchange for equity or any other interest in another company or business, the original artist or any person who would have been entitled to share in the cash proceeds from the sale or licensing of the copyright, shall equally be entitled to share in any security or business for which the copyright interest is exchanged or licensed.""
291Insert the following new Clause—
"Compulsory licensing of recorded music to be made available via the internet
(1)  The Copyright, Designs and Patents Act 1988 is amended as follows.
(2)  After section 116E insert—
"116FCompulsory licensing of recorded music to be made available via the internet
(1)  The making available of any sound recording, or any literary or musical work embodied in a sound recording, by use of the internet 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)  Subsection (1) shall not apply if, or to the extent that, there is a licensing scheme certified for the purposes of this section under section 143 of this Act providing for the grant of licences.""
292Insert the following new Clause—
"Protection of search engines from liability for copyright infringement
(1)  The Copyright, Designs and Patents Act 1988 is amended as follows.
(2)  After section 116F (as inserted by section (Compulsory licensing of recorded music to be made available via the internet)) insert—
"116GProtection of search engines from liability for copyright infringement
(1)  Every provider of a publicly accessible website shall be presumed to give a standing and non-exclusive license to providers of search engine services to make a copy of some or all of the content of that website, for the purpose only of providing said search engine services.
(2)  The presumption referred to in subsection (1) may be rebutted by explicit evidence that such a licence was not granted.
(3)  Such explicit evidence shall be found only in the form of statements in a machine-readable file to be placed on the website and accessible to providers of search engine services.
(4)  A provider of search engine services who acts in accordance with this section shall not be liable for any breach of copyright in respect of the actions described in subsection (1).""
 

VISCOUNT BRIDGEMAN

 

LORD CLEMENT-JONES

292AInsert the following new Clause—
"Metadata
(1)  The Copyright, Designs and Patents Act 1988 is amended as follows.
(2)  In section 296ZG (electronic rights management information)—
(a)  after subsection (3) insert—
"(3A)  This section also applies where a person (F), knowingly and without authority, distributes, imports for distribution or communicates to the public or makes available to the public any device, product or component, or provides services which are designed or promoted to remove or alter electronic rights management information."
(b)  after subsection (4) insert—
"(4A)  A person D or E or F shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.""
 

LORD CLEMENT-JONES

 

VISCOUNT BRIDGEMAN

292BInsert the following new Clause—
"Effect of electronic rights management information material gathered by an automated process
(1)  The Copyright, Designs and Patents Act 1988 (the "1988 Act") is amended as follows.
(2)  After section 296ZG (electronic rights management information) insert—
"296ZHEffect of electronic rights management information material                         gathered by an automated process
(1)  This section applies where electronic rights management information is associated with a copy of a copyright work, or appears in connection with the communication to the public of a copyright work, and a person (G) in the course of a business makes a copy of, or performs, any other restricted act in relation to that work by an automated process.
(2)  If the conditions in subsection (3) are satisfied, G is deemed to have notice of the contents of that electronic rights management information ("the information") for all purposes relating to his further use of, or access to, the copyright work.
(3)  Those conditions are that—
(a)  it is reasonably practicable for G to instruct the equipment or software which conducts the automated process to recognise, read and interpret the information;
(b)  the meaning of the information may be ascertained from published standards which G knows about or ought to know about; and
(c)  the meaning of the information is sufficiently clear that it is reasonably practicable to instruct G's equipment or software to comply with any restrictions contained in the information regarding the further use of, or access to, the copyright work.
(4)  Where, apart from this section, G would be regarded in law as having notice of any of the information, nothing in this section prevents F from having such notice.
(5)  Subsections (1) to (4), and any other provisions of this Act as it has effect for the purposes of those subsections, apply, with any necessary adaptations, to rights in performances, publication rights and database right.
(6)  Section 296ZG(7) (definition of certain expressions) extends to this section.""
 

VISCOUNT BRIDGEMAN

292CInsert the following new Clause—
"Moral rights
(1)  The Copyright, Designs and Patents Act 1988 (the "1988 Act") is amended as follows.
(2)  For section 78 (requirement that right be asserted) substitute—
"78Moral rights
(1)  The rights conferred by this Chapter (moral rights) are—
(a)  exercisable without formality in unpublished works,
(b)  exercisable without formality in works made available to the public after this section comes into force.
(2)  There shall be no cause of action for omission of attribution in re-publication of a work that was legitimately made available before the commencement of this section, unless the rights conferred by this Chapter were asserted at the time."
(3)  In section 79 (exceptions to right)—
(a)  at the end of subsection (3) insert "except in the case of works created after section (Moral rights) of the Digital Economy Act 2010 comes into force",
(b)  omit subsection (5), and
(c)  omit subsection (6)(a).
(4)  In section 81 (exceptions to right)—
(a)  omit subsection (3), and
(b)  omit subsection (4)(b).
(5)  For section 205D (requirement that right be asserted) substitute—
"205DRequirement that right be asserted
(1)  The right conferred by section 205C shall be exercisable without formality.
(2)  There shall be no cause of action for omission of attribution in re-publication of a work that was legitimately made available before the commencement date of this section, unless the rights conferred by Chapter IV (moral rights) were asserted at the time."
(6)  In section 205G (exceptions to right) omit subsection (2).

 
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25 January 2010