Office of Public Sector Information
PART I continued CHAPTER VI continued
(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,
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 not exceeding six months or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment to a fine or imprisonment for a term not exceeding two years, or both.
(5) A person guilty of any other offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale, or both.
(6) Sections 104 to 106 (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 108 below.
(1) The court before which proceedings are brought against a person for an offence under section 107 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—
(a) in England, Wales and Northern Ireland, when he is orally charged or is served with a summons or indictment;
(b) in Scotland, when he is cautioned, charged or served with a complaint or indictment.
(3) An order may be made by the court of its own motion or on the application of the prosecutor (or, in Scotland, the Lord Advocate or procurator-fiscal), 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 113 (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 114 (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—
(a) in England and Wales, to the Crown Court, and
(b) in Northern Ireland, to the county court;
and in Scotland, where an order has been made under this section, the person from whose possession, custody or control the infringing copy or article has been removed may, without prejudice to any other form of appeal under any rule of law, appeal against that order in the same manner as against sentence.
(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 114.
(6) Nothing in this section affects the powers of the court under section 43 of the [1973 c. 62.] Powers of Criminal Courts Act 1973, section 223 or 436 of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975 or Article 7 of the [S.I. 1980/704(N.I. 6).] Criminal Justice (Northern Ireland) Order 1980 (general provisions as to forfeiture in criminal proceedings).
(1) Where a justice of the peace (in Scotland, a sheriff or justice of the peace) is satisfied by information on oath given by a constable (in Scotland, by evidence on oath) that there are reasonable grounds for believing—
(a) that an offence under section 107(1)(a), (b), (d)(iv) or (e) 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 constable to enter and search the premises, using such reasonable force as is necessary.
(2) The power conferred by subsection (1) does not, in England and Wales, extend to authorising a search for material of the kinds mentioned in section 9(2) of the [1984 c. 60.] Police and Criminal Evidence Act 1984 (certain classes of personal or confidential material).
(3) A warrant under this section—
(a) may authorise persons to accompany any constable executing the warrant, and
(b) remains in force for 28 days from the date of its issue.
(4) In executing a warrant issued under this section a constable may seize an article if he reasonably believes that it is evidence that any offence under section 107(1) has been or is about to be committed.
(5) In this section “premises” includes land, buildings, moveable structures, vehicles, vessels, aircraft and hovercraft.
(1) Where an offence under section 107 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.
(1) The owner of the copyright in a published literary, dramatic or musical work may give notice in writing to the Commissioners of Customs and Excise—
(a) that he is the owner of the copyright in the work, and
(b) that he requests the Commissioners, 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 Commissioners of Customs and Excise—
(a) that he is the owner of the copyright in the work,
(b) that infringing copies of the work are expected to arrive in the United Kingdom at a time and a place specified in the notice, and
(c) that he requests the Commissioners to treat the copies as prohibited goods.
(4) 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.
(1) The Commissioners of Customs and Excise may make regulations prescribing the form in which notice is to be given under section 111 and requiring a person giving notice—
(a) to furnish the Commissioners 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 Commissioners 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 Commissioners 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 Commissioners consider expedient.
(4) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(5) Section 17 of the [1979 c. 2.] Customs and Excise Management Act 1979 (general provisions as to Commissioners' receipts) applies to fees paid in pursuance of regulations under this section as to receipts under the enactments relating to customs and excise.
(1) An application for an order under section 99 (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, 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) In subsection (2) “disability”—
(a) in England and Wales, has the same meaning as in the [1980 c. 58.] Limitation Act 1980;
(b) in Scotland, means legal disability within the meaning of the [1973 c. 52.] Prescription and Limitation (Scotland) Act 1973;
(c) in Northern Ireland, has the same meaning as in the [1958 c. 10 (N.I.).] Statute of Limitations (Northern Ireland) 1958.
(4) An order under section 108 (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.
(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 99 or 108, or seized and detained in pursuance of the right conferred by section 100, 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
(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 204 or 231 of this Act or section 58C of the [1938 c. 22.] Trade Marks Act 1938 (which make similar provision in relation to infringement of rights in performances, design right and trade marks).
(1) In England, Wales and Northern Ireland a county court may entertain proceedings under—
section 99 (order for delivery up of infringing copy or other article),
section 102(5) (order as to exercise of rights by copyright owner where exclusive licensee has concurrent rights), or
section 114 (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 county court limit for actions in tort.
(2) In Scotland proceedings for an order under any of those provisions may be brought in the sheriff court.
(3) Nothing in this section shall be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.
(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.
For this purpose a group of companies means a holding company and its subsidiaries, within the meaning of section 736 of the [1985 c. 6.] Companies Act 1985.
Sections 118 to 123 (references and applications with respect to licensing schemes) apply to—
(a) licensing schemes operated by licensing bodies in relation to the copyright in literary, dramatic, musical or artistic works or films (or film sound-tracks when accompanying a film) which cover works of more than one author, so far as they relate to licences for—
(i) copying the work,
(ii) performing, playing or showing the work in public, or
(iii) broadcasting the work or including it in a cable programme service;
(b) all licensing schemes in relation to the copyright in sound recordings (other than film sound-tracks when accompanying a film), broadcasts or cable programmes, or the typographical arrangement of published editions; and
(c) all licensing schemes in relation to the copyright in sound recordings, films or computer programs so far as they relate to licences for the rental of copies to the public;
and in those sections “licensing scheme” means a licensing scheme of any of those descriptions.
(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.
(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.
(4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.
(1) Where the Copyright Tribunal has on a previous reference of a licensing scheme under section 118 or 119, 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.
(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 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.
(1) Where the Copyright Tribunal has made an order under section 121 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 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 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.
(1) A licensing scheme which has been confirmed or varied by the Copyright Tribunal—
(a) under section 118 (reference of terms of proposed scheme), or
(b) under section 119 or 120 (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 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.
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.
No such direction may be made where subsection (4) below applies.
(4) An order of the Tribunal under section 119 or 120 made with respect to a scheme which is certified for any purpose under section 143 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.
(5) Where the Tribunal has made an order under section 121 (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 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.
Sections 125 to 128 (references and applications with respect to licensing by licensing bodies) apply to the following descriptions of licence granted by a licensing body otherwise than in pursuance of a licensing scheme—
(a) licences relating to the copyright in literary, dramatic, musical or artistic works or films (or film sound-tracks when accompanying a film) which cover works of more than one author, so far as they authorise—
(i) copying the work,
(ii) performing, playing or showing the work in public, or
(iii) broadcasting the work or including it in a cable programme service;
(b) any licence relating to the copyright in a sound recording (other than a film sound-track when accompanying a film), broadcast or cable programme, or the typographical arrangement of a published edition; and
(c) all licences in relation to the copyright in sound recordings, films or computer programs so far as they relate to the rental of copies to the public;
and in those sections a “licence” means a licence of any of those descriptions.
(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.
(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.
(1) Where the Copyright Tribunal has made an order under section 125 or 126, 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 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 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.
(1) Where the Copyright Tribunal has made an order under section 125 or 126 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 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 125, if assignment is not prohibited under the terms of the Tribunal’s order; and
(b) in the case of an order under section 126, if assignment was not prohibited under the terms of the original licence.
(3) The Tribunal may direct that an order under section 125 or 126, or an order under section 127 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.
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.
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.
Copyright, Designs and Patents Act 1988