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The Copyright and Performances (Application to Other Countries) Order 2016

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Statutory Instruments

2016 No. 1219

Copyright

Rights In Performances

The Copyright and Performances (Application to Other Countries) Order 2016

Made

14th December 2016

Laid before Parliament

20th December 2016

Coming into force

6th April 2017

At the Court at Buckingham Palace, the 14th day of December 2016

Present,

The Queen's Most Excellent Majesty in Council

Her Majesty is satisfied, to the extent that this Order relates to a country that—

(a)

is not an EEA state, the Channel Islands, the Isle of Man or Gibraltar, and

(b)

is not—

(i)

in relation to copyright, a country party to the Berne Convention M1 or to the World Intellectual Property Organisation Performances and Phonograms Treaty M2 or a member of the World Trade Organisation, or

(ii)

in relation to copyright and performances, a country party to the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations M3 or otherwise a Convention country M4,

that provision has been or will be made under the law of that country giving adequate protection to the owners of copyright under Part 1 of the Copyright, Designs and Patents Act 1988 M5 and to the owners of rights in respect of British performances M6.

Accordingly, Her Majesty, by and with the advice of Her Privy Council, in exercise of the powers conferred upon Her by sections 159, 206(4) and 208 of the Copyright, Designs and Patents Act 1988 M7 and, in relation to article 1(3), by section 2(2) of the European Communities Act 1972 M8, makes the following Order:

Marginal Citations

M1Cm.1212; “Berne Convention” is defined in section 159(9) of the Copyright, Designs and Patents Act 1988 c.48; section 159 of that Act was substituted by section 22(4) of the Intellectual Property Act 2014 (c.18).

M2Cm.3728.

M3Cm.2425.

M4“Convention country” is defined in section 208(2) of the Copyright, Designs and Patents Act 1988.

M6“British performance” is defined in section 208(3) of the Copyright, Designs and Patents Act 1988.

M7Section 159 was substituted, section 206(4) was inserted and section 208 was amended by section 22 of the Intellectual Property Act 2014 (c.18).

M81972 c.68; section 2(2) was amended by section 27(1)(a) of the Legislative and Regulatory Reform Act 2006 (c.51) and section 3(3) of, and Part 1 of the Schedule to, the European Union (Amendment) Act 2008 (c.7).

PART 1 U.K.INTRODUCTORY

Citation, commencement, interpretation and revocationU.K.

1.—(1) This Order may be cited as the Copyright and Performances (Application to Other Countries) Order 2016 and comes into force on 6th April 2017.

(2) In this Order—

“the Act” means the Copyright, Designs and Patents Act 1988 and references to a numbered section are references to the section bearing that number in that Act;

“relevant country” means a country other than the United Kingdom, [F1an EEA state], the Channel Islands, the Isle of Man or Gibraltar;

“WPPT” means the World Intellectual Property Organisation Performances and Phonograms Treaty adopted in Geneva on 20th December 1996 M9; and

“WTO” means the World Trade Organisation.

(3) The Copyright and Performances (Application to Other Countries) Order 2013 M10 and the Copyright and Performances (Application to Other Countries) (Amendment) Order 2015 M11 are revoked.

Textual Amendments

Marginal Citations

M9Cm. 3728.

PART 2 U.K.LITERARY, DRAMATIC, MUSICAL AND ARTISTIC WORKS, FILMS AND TYPOGRAPHICAL ARRANGEMENTS OF PUBLISHED EDITIONS

Restrictions on the application of Part 1 of the Act by virtue of section 159(1) to certain works first published before 1st June 1957U.K.

2.—(1) The application of Part 1 of the Act by virtue of section 159(1) (countries that are parties to the Berne Convention or WTO members) is subject to the restriction specified in paragraph (2).

[F2(2) Paragraph 5(1) of Schedule 1 to the Act (copyright: transitional provisions and savings) does not apply in relation to a literary, dramatic, musical or artistic work first published before 1st June 1957 in so far as its application would otherwise prevent the work from qualifying for copyright protection under section 154 (qualification by reference to author).]

Textual Amendments

PART 3 U.K.SOUND RECORDINGS

Restricted application of section 159(3) in relation to certain sound recordingsU.K.

3.—(1) The application of Part 1 of the Act by virtue of section 159(3) (countries that are parties to the WPPT [F3: sound recordings]) is subject to the [F4restriction] set out in paragraph (2).

(2) Where a country is a party to the WPPT but not the Rome Convention M12, Part 1 of the Act applies except that—

(a)section 18A (infringement by rental or lending of work to the public) M13 does not apply in so far as it relates to lending;

F5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F6(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

M12Cm.2425; “Rome Convention” is defined in section 159(9) of the Copyright, Designs and Patents Act 1988.

M13Section 18A was inserted by regulation 10(2) of the Copyright and Related Rights Regulations 1996 (S.I. 1996/2967) and subsequently amended by paragraph 6(2) of Schedule 1 to the Copyright and Related Rights Regulations 2003 (S.I. 2003/2498).

Sound recordings – application of Part 1 of the Act – parties to the Berne Convention and WTO MembersU.K.

4.—(1) This article applies to a relevant country that—

(a)is not a party to the Rome Convention or the WPPT; and

(b)satisfies either or both of the following criteria—

(i)the country is a party to the Berne Convention M14; and

(ii)the country is a member of the WTO.

(2) Where this article applies to a country, Part 1 of the Act so far as it relates to sound recordings—

(a)applies in relation to a person who is a citizen or subject of that country or a person domiciled or resident there as it applies in relation to a person who is a British citizen or is domiciled or resident in the United Kingdom,

(b)applies in relation to a body incorporated under the law of that country as it applies in relation to a body incorporated under the law of a part of the United Kingdom, and

(c)applies in relation to a sound recording first published in that country as it applies in relation to a sound recording first published the United Kingdom,

(but see paragraph (3)).

(3) The application of Part 1 of the Act by virtue of paragraph (2) is subject to the following modifications—

(a)section 18A (infringement by rental or lending of work to the public) does not apply in so far as it relates to lending;

(b)the following provisions do not apply—

(i)section 19 (infringement by showing or playing of work in public) M15;

(ii)section 20 (infringement by communication to the public);

(iii)section 26 (secondary infringement: provision of apparatus for infringing performance, &c); and

(iv)section 107(2A) and (3) (criminal liability for communicating to the public or playing sound recording) M16.

Marginal Citations

M14Cm. 1212; “Berne Convention” is defined in section 159(9) of the Copyright, Designs and Patents Act 1988.

M15Section 19 was amended by paragraph 3(1) of Schedule 1 to the Copyright and Related Rights Regulations 2003.

M16Section 107(2A) was inserted by regulations 3 and 26(1)(a) of the Copyright and Related Rights Regulations 2003 and section 107(3) was amended by paragraph 9(2) of Schedule 1 to those Regulations.

Sound recordings – application of Part 1 of the Act – miscellaneous countriesU.K.

5.—(1) This article applies to the countries listed in Part 1 of the Schedule to this Order.

(2) Where this article applies to a country, Part 1 of the Act so far as it relates to sound recordings—

(a)applies in relation to a person who is a citizen or subject of that country or a person domiciled or resident there as it applies in relation to a person who is a British citizen or is domiciled or resident in the United Kingdom;

(b)applies in relation to a body incorporated under the law of that country as it applies in relation to a body incorporated under the law of a part of the United Kingdom; and

(c)applies in relation to a sound recording first published in that country as it applies in relation to a sound recording first published in the United Kingdom.

PART 4 U.K.BROADCASTS

Restrictions on the application of Part 1 of the Act to broadcastsU.K.

6.—(1) The application of Part 1 of the Act to broadcasts by virtue of section 159(2) is subject to the [F7restriction specified in paragraph (3)].

F8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Part 1 of the Act only applies by virtue of section 159(2) to a broadcast, which is not a wireless broadcast, where that broadcast is made from Switzerland.

Textual Amendments

Application of Part 1 of the Act under section 159(4) – WTO membersU.K.

7.—(1) This article applies to a relevant country that is a member of the WTO but not a party to the Rome Convention.

(2) Where this article applies to a relevant country, Part 1 of the Act applies to a wireless broadcast in relation to that country in the manner set out in paragraph (4) subject to paragraph (3).

(3) The application of Part 1 of the Act by virtue of paragraph (2) is subject to the following modifications—

(a)section 18A (infringement by rental of work to the public) does not apply;

(b)section 19 (infringement by showing or playing the work in public) only applies in relation to television broadcasts;

(c)section 20 (infringement by communication to the public) only applies in relation to broadcasting by wireless telegraphy;

(d)section 26 (secondary infringement: provision of apparatus for infringing performance, &c) [F9only applies in relation] to television broadcasts;

(e)section 107(2A) (criminal liability for communicating to the public) only applies in relation to broadcasting by wireless telegraphy; F10...

F10(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Part 1 of the Act applies in relation to—

(a)a person who is a citizen or subject of a relevant country or a person domiciled or resident there as it applies in relation to a person who is a British citizen or is domiciled or resident in the United Kingdom;

(b)a body incorporated under the law of a relevant country as it applies in relation to a body incorporated under the law of a part of the United Kingdom; and

(c)a wireless broadcast made from that country as it applies in relation to a wireless broadcast made from the United Kingdom.

Textual Amendments

Application of Part 1 of the Act under section 159(4) – miscellaneous countriesU.K.

8.—[F11(1) This paragraph applies to a member State, Indonesia, Singapore, South Korea, Ukraine, Norway, Iceland, Liechtenstein, Australia and New Zealand.]

[F12(2) This paragraph applies to [F13Malta], Hong Kong, Indonesia, Malawi, Malaysia, Singapore and New Zealand.]

(3) Where paragraph (1) applies to a country, Part 1 of the Act applies to a broadcast which is not a wireless broadcast in relation to that country in the manner set out in paragraph (5)(a), (b) and (d).

(4) Where paragraph (2) applies to a country, Part 1 of the Act applies to a wireless broadcast in relation to that country in the manner set out in paragraph (5)(a), (b) and (c) subject to paragraph (6).

(5) Part 1 of the Act applies in relation to—

(a)a person who is a citizen or subject of that country or a person domiciled or resident there as it applies in relation to a person who is a British citizen or is domiciled or resident in the United Kingdom;

(b)a body incorporated under the law of that country as it applies in relation to a body incorporated under the law of a part of the United Kingdom;

(c)a wireless broadcast made from that country as it applies in relation to a wireless broadcast made from the United Kingdom; and

(d)a broadcast which is not a wireless broadcast made from that country as it applies in relation to a broadcast which is not a wireless broadcast made from the United Kingdom.

(6) Part 1 of the Act only applies to a wireless broadcast made on or after 1st June 1957 or, in the case of Malawi, on or after 22nd June 1989.

Textual Amendments

PART 5U.K.PERFORMANCES

[F14Restriction on the application of Part 2 of the Act to the United Kingdom, the Channel Islands, the Isle of Man, Gibraltar and countries which are party to the Rome ConventionU.K.

9.—(1) This article applies to—

(a)the United Kingdom;

(b)the Channel Islands, the Isle of Man and Gibraltar; and

(c)a country which is a party to the Rome Convention.

(2) Where this article applies, Part 2 of the Act applies subject to the modification set out in paragraph (3).

(3) In section 182D(1) (right to equitable remuneration for exploitation of sound recording), the reference to a qualifying performance shall be construed as a reference only to a performance which is a qualifying performance because it meets—

(a)Condition A or Condition B in section 181, or

(b)Condition C in that section by virtue of paragraph (a) of that Condition.]

Textual Amendments

Application of Part 2 of the Act to WPPT countries which have made a declaration under Article 15(3) of the WPPT and which are party to the Rome ConventionU.K.

F1510.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Application of Part 2 of the Act to WPPT countries not party to the Rome ConventionU.K.

11.—(1) This article applies to the countries listed in Part 2 of the Schedule where this article is specified in the entry relating to that country (countries party to the WPPT but not the Rome Convention).

(2) A country to which this article applies is, subject to paragraphs (3) and (4), designated as enjoying reciprocal protection under Part 2 of the Act.

(3) Part 2 of the Act applies subject to the following modifications—

(a)the definition of recording in section 180(2) (rights conferred on performers and persons having recording rights), shall be construed as applying only to sound recordings (and not to films);

[F16(aa)in section 182D(1) (right to equitable remuneration for exploitation of sound recording), the reference to a qualifying performance shall be construed as a reference only to a performance which is a qualifying performance because it meets Condition A or Condition B in section 181;]

(b)the following provisions do not apply—

(i)section 182C (consent required for rental or lending of copies to public), in so far as it relates to lending;

F17(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii)sections 185 to 188 (rights of persons having recording rights); and

(iv)section 198(2) (criminal liability for making available to the public) [F18, in so far as it relates to an infringement under section 187].

(4) Where a country to which this article applies [F19, other than New Zealand and Singapore,] has made a declaration under Article 15(3) of the WPPT that—

(a)it will apply the provisions of Article 15(1) of the WPPT (which confers on performers and producers of phonograms a right to remuneration for broadcasting and communication to the public) only in respect of certain uses,

(b)it will limit the application of the provisions of Article 15(1) of the WPPT in some other way, or

(c)it will not apply the provisions of Article 15(1) of the WPPT at all,

the provisions of Part 2 of the Act shall not apply to protect the right provided for in Article 15(1) of the WPPT to the extent that the declaration is in force in the law of that country in relation to British performances.

Textual Amendments

Application of Part 2 of the Act to WTO countriesU.K.

12.—(1) This article applies to a country listed in Part 2 of the Schedule to this Order where this article is specified in the entry relating to that country (WTO members not party to the Rome Convention or the WPPT).

(2) A country to which this article applies is, subject to paragraph (3), designated as enjoying reciprocal protection under Part 2 of the Act.

(3) Part 2 of the Act applies subject to the following modifications—

(a)the definition of recording in section 180(2) (rights conferred on performers and persons having recording rights), shall be construed as applying only to sound recordings (and not to films); and

(b)the following provisions do not apply—

(i)section 182C (consent required for rental or lending of copies to public), in so far as it relates to lending;

(ii)section 182CA (consent required for making available to the public) M17;

(iii)section 182D (right to equitable remuneration for exploitation of sound recording) M18;

(iv)section 183 (infringement of performer's rights by use of recording made without consent);

(v)sections 185 to 188 (rights of persons having recording rights); and

(vi)section 198(1A) and (2) (criminal liability for making available to the public) M19.

Marginal Citations

M17Section 182CA was inserted by regulation 7(1) of the Copyright and Related Rights Regulations 2003 (S.I. 2003/2498).

M18Section 182D was inserted by regulation 20(2) of the Copyright and Related Rights Regulations 1996 (S.I. 1996/2967) and was amended by regulation 7(2) of the Copyright and Related Rights Regulations 2003, by paragraphs 1 and 3(1) and (3) of the Schedule to the Performances (Moral Rights, etc.) Regulations 2006 (S.I. 2006/18) and by regulation 7 of the Copyright and Duration of Rights in Performances Regulation 2013 (S.I. 2013/1782).

M19Section 198(1A) was inserted by regulations 3 and 26(3)(a) of the Copyright and Related Rights Regulations 2003.

[F20Application of Part 2 of the Act to MaltaU.K.

12A.— [F21(1)] Malta is [F22, subject to paragraphs (2) and (3),] designated as enjoying reciprocal protection under Part 2 of the Act.

[F23(2) Part 2 of the Act applies to Malta subject to the modification set out in paragraph (3).

(3) In section 182D(1) (right to equitable remuneration for exploitation of sound recording), the reference to a qualifying performance shall be construed as a reference only to a performance which is a qualifying performance because it meets—

(a)Condition A or Condition B in section 181, or

(b)Condition C in that section by virtue of paragraph (a) of that Condition.]]

Textual Amendments

SavingU.K.

13.—(1) For the purposes of this article an act is an “excluded act” where—

(a)a person (A) has incurred any expenditure or liability in connection with the act; and

(b)A—

(i)began in good faith to do the act, or

(ii)made in good faith effective and serious preparations to do the act,

at a time when the act neither infringed nor was restricted by the relevant rights in the work or performance.

(2) Where another person (B) acquires those relevant rights as a consequence of the provisions of this Order on or after its coming into force, [F24or as a consequence of the amendments made to this Order by the Copyright and Performances (Application to Other Countries) (Amendment) Order 2024 on or after those amendments coming into force,] A has the right—

(a)to continue to do the excluded act, or

(b)to do the excluded act,

notwithstanding that the excluded act infringes or is restricted by those relevant rights.

(3) Where B or, as the case may be, B's exclusive licensee in respect of the relevant rights pays reasonable compensation to A, paragraph (2) no longer applies.

(4) Where—

(a)B or, as the case may be, B's exclusive licensee offers to pay compensation to A under paragraph (3), but

(b)A and B or, as the case may be, B's exclusive licensee cannot agree on what compensation is reasonable,

either person may refer the matter to arbitration.

(5) In this article—

(a)“exclusive licensee” means a licensee under an exclusive licence (as defined in section 92(1) or 191D(1) M20); and

(b)“relevant rights” means copyright, the rights conferred by Chapter 4 of Part 1 of the Act (moral rights) and the rights conferred by Part 2 of the Act.

Textual Amendments

Marginal Citations

M20Section 191D was inserted by regulations 4 and 21(1) of the Copyright and Related Rights Regulations 1996 (S.I. 1996/2967).

Ceri King

Deputy Clerk of the Privy Council

Articles 5, 11 and 12

SCHEDULEU.K.

PART 1U.K.SOUND RECORDINGS – APPLICATION OF PART 1 OF THE ACT – MISCELLANEOUS COUNTRIES

Bangladesh

Ghana

Hong Kong

India

Indonesia

Malawi

Malaysia

[F25Malta]

Textual Amendments

New Zealand

Pakistan

[F26Singapore]

Textual Amendments

Taiwan

Thailand

PART 2U.K.COUNTRIES WHICH ARE NOT PARTIES TO THE ROME CONVENTION – APPLICATION OF PART 2 OF THE ACT UNDER ARTICLES 11 AND 12

CountryApplicable article
AfghanistanArticle [F2711]
AngolaArticle 12
Antigua and BarbudaArticle 12
BangladeshArticle 12
F28. . .F28. . .
BeninArticle 11
BotswanaArticle 11
Brunei DarussalamArticle [F2911]
BurundiArticle 12
CambodiaArticle 12
CameroonArticle 12
F28. . .F28. . .
Central African RepublicArticle 12
ChadArticle 12
ChinaArticle 11
[F30Cook Islands][F30Article 11]
[F30Comoros][F30Article 11]
Côte d'IvoireArticle 12
CubaArticle 12
Democratic Republic of CongoArticle 12
DjiboutiArticle 12
EgyptArticle 12
GabonArticle 11
GambiaArticle 12
GhanaArticle 11
GrenadaArticle 12
GuineaArticle 11
Guinea-BissauArticle 12
GuyanaArticle 12
HaitiArticle 12
Hong KongArticle 11
IndiaArticle [F3111]
IndonesiaArticle 11
JordanArticle 11
KenyaArticle 12
[F32Kiribati][F32Article 11]
KuwaitArticle 12
Lao People's Democratic RepublicArticle 12
MacaoArticle 11
MadagascarArticle 11
MalawiArticle 12
MalaysiaArticle 11
MaldivesArticle 12
MaliArticle 11
MauretaniaArticle 12
MauritiusArticle 12
MongoliaArticle 11
MoroccoArticle 11
MozambiqueArticle 12
MyanmarArticle 12
NamibiaArticle 12
NepalArticle 12
Netherlands Antilles, Curaçao, Sint Maarten and ArubaArticle 11
New ZealandArticle [F3311]
OmanArticle 11
PakistanArticle 12
Papua New GuineaArticle 12
F28. . .F28. . .
RwandaArticle 12
Saint Kitts and NevisArticle 12
Saint Vincent and the GrenadinesArticle 11
SamoaArticle 12
[F34San Marino][F34Article 11]
[F34Sao Tome and Principe, Democratic Republic of][F34Article 11]
Saudi ArabiaArticle 12
SenegalArticle 11
SeychellesArticle 12
Sierra LeoneArticle 12
SingaporeArticle 11
Solomon IslandsArticle 12
South AfricaArticle 12
Sri LankaArticle 12
SurinameArticle 12
SwazilandArticle 12
TaiwanArticle 12
Tanzania, United Republic ofArticle 12
ThailandArticle 12
TongaArticle 12
Trinidad and TobagoArticle 11
F28. . .F28. . .
UgandaArticle [F3511]
United States of America (including Puerto Rico and all territories and possessions)Article 11
[F36Uzbekistan][F36Article 11]
VanuatuArticle [F3711]
YemenArticle 12
ZambiaArticle 12
ZimbabweArticle 12

Textual Amendments

Explanatory Note

(This note is not part of the Order)

Part 1 of the Copyright, Designs and Patents Act 1988 (“the Act”) confers copyright on the creators of certain works. Part 2 of the Act confers rights on performers and persons having recording rights in relation to a performance. Under section 159 of the Act, Part 1 of the Act applies to works originating from certain countries and may be applied to works originating from other countries. Under section 206 of the Act, Part 2 applies to performances connected with certain countries. Under section 208, Part 2 protection may be conferred in relation to performances connected with certain additional countries. The purpose of this Order is to—

a)

restrict the application of Part 1 of the Act under section 159(1) in relation to certain countries;

b)

apply Part 1 to works originating from certain additional countries;

c)

restrict the application of Part 2 of the Act to performances connected with certain counties; and

d)

apply, with certain limitations, the protection of Part 2 to performances connected with certain countries.

No impact assessment has been produced for this instrument as no impact on the private or voluntary sector is foreseen. An explanatory memorandum is available alongside this instrument on the Legislation UK website at www.legislation.gov.uk.

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