INTELECTUAL PROPERTY
RIGHTS
NATIONAL LEGISLATION
- BARBADOS
Copyright and
Related Rights Laws and Treaties
Copyright Act, 1998
Application for grant of licence
in connection with licensing
scheme
-
- A person who, in a case covered by a licensing
scheme, claims 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 Tribunal.
- A person who, in a claim excluded from a
licensing scheme, claims that the operator of the scheme
- 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
- proposes terms for a licence that are
unreasonable,
may apply to the Tribunal.
- A case shall be regarded as excluded from a
licensing scheme for the purposes of subsection (1) if
- the scheme provides for the grant of
licences subject to terms excepting matters from the licence and
the case falls within such exception; or
- 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.
- If the Tribunal is satisfied that the claim
referred to in subsection (1) 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.
- The order referred to in subsection (1) may be
of indefinite duration or may endure for such period as the Tribunal
may determine.
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Application for
review of order as
to entitlement to licence
-
- Where the Tribunal has made an order under
section 90 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.
- An application shall not, except with the
special leave of the Tribunal, be made
- within twelve months from the date of the
order, or of the decision on a previous application under this
section; or
- if the order was made to be in force for
fifteen months or less or, as a result of the decision on a
previous application under this section, is due to expire within
fifteen months of that decision, until the last three months
before the expiry date.
- 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 circumstance of the
case.
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Effect of
order of Tribunal as
to licensing scheme
-
- A licensing scheme that has been confirmed or
varied by the Tribunal under section 87 or 88 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 is made, so long
as the order remains in force.
- While the order is in force, a person who is in
a case of a class to which the order applies,
- 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
- 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.
- The Tribunal may direct that the order referred
to in subsection (2), so far as it varies the amount of the charges
payable, shall have effect from a date before that on which it is
made, not being a date earlier than the date on which the reference
was made or, where the scheme came into operation after the
reference was made, not being a date earlier than the date on which
the scheme came into operation; but no such direction may be made
where subsection (5) applies.
- If a direction is made under subsection (3)
- any necessary repayments, or further
payments, shall be made in respect of charges already paid; and
- the reference in paragraph (a) of
subsection (2) to the charges payable under the scheme shall be
construed as a reference to the charges so payable by virtue of
the order.
- Any order of the Tribunal under section 87 or
88 made with respect to a scheme that is certified for any purpose
under section 100 has effect, so far as it varies the scheme by
reducing the charge payable for licences, from the date on which the
reference was made to the Tribunal.
- Where the Tribunal makes an order under section
90 and the order remains in force, the person in whose favour the
order is made shall, if he satisfies the conditions specified in
subsection (7), 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.
- The conditions referred to in subsection (6)
are that the person mentioned in that subsection shall
- pay to the operator of the scheme any
charges payable in accordance with the order or, if the amount
cannot be ascertained, give an undertaking to pay the charges
when ascertained; and
- comply with the other terms specified in
the order.
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Licenses to
which sections 94 to 97 apply
- Sections 94 to 97 apply to the following
descriptions of licence granted by a licensing body otherwise than in
pursuance of a licensing scheme:
- licences relating to the copyright in literary,
dramatic, musical or artistic works or films, or film sound track
when accompanying a film, which cover works of more than one author,
so far as they authorise
- copying the work;
- performing, playing or showing the work in
public; or
- broadcasting the work or including it in a
cable programme service;
- 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
- all licences in relation to the copyright in
sound recordings, films or computer programmes so far as they relate
to the rental of copies to the public.
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Reference
to Tribunal of proposed licence
-
- The terms on which a licensing body proposes to
grant a licence may be referred to the Tribunal by the prospective
licensee.
- The Tribunal shall first decide whether to
entertain the reference referred to in subsection (1), and may
decline to do so on the ground that the reference is premature.
- 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.
- The order may be made so as to be in force
indefinitely or for such period as the Tribunal may determine.
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Reference
to Tribunal of expiring licence
-
- 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 Tribunal on the grounds that it is
unreasonable in the circumstances that the licence should cease to
be in force.
- Such an application may not be made until the
last three months before the licence is due to expire.
- 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.
- 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.
- 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.
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Application
for review
of order
as to licence
-
- Where the Tribunal has made an order under
section 94 or 95, the licensing body or the person entitled to the
benefit of the order may apply to the Tribunal to review its order.
- An application shall not, except with the
special leave of the Tribunal, be made
- within twelve months from the date of the
order referred to in subsection (1) or of the decision on a
previous application under this section; or
- if the order was made so as to be in force
for fifteen months or less or, as a result of the decision on a
previous application under this section, is due to expire within
fifteen months of that decision, until the last three months
before the expiry date.
- The Tribunal shall on an application for review
confirm or vary its order as the Tribunal may determine to be
reasonable in the circumstances.
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Effect of
order of Tribunal
-
- Where the Tribunal makes an order under section
94 or 95 and the order remains in force, the person entitled to the
benefit of the order shall, if he satisfies the conditions specified
in subsection (2), 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.
- The conditions referred to in subsection (1)
are that the person mentioned in that subsection shall
- pay to the licensing body any charges
payable in accordance with the order or, if the amount cannot be
ascertained, give an undertaking to pay the charges when
ascertained; and
- comply with the other terms specified in
the order.
- The benefit of the order may be assigned
- in the case of an order under section 94,
if assignment is not prohibited under the terms of the Tribunal
order; and
- in the case of an order under section 95,
if assignment was not prohibited under the terms of the original
licence.
- The Tribunal may direct that an order under
section 94 or 95, or an order under section 96 varying such an
order, so far as it varies the amount of charges payable, shall not
have effect from a date
- before that on which it was made, not being
a date earlier than the date on which the reference or
application was made; or
- where a licence was granted or was due to
expire after the reference was made, not being a date earlier
than the date on which the licence was granted or, as the case
may be, was due to expire.
- If a direction referred to in subsection (4) is
made
- any necessary repayments, or further
payments, shall be made in respect of charges already paid; and
- the reference in paragraph (a) of
subsection (1) 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.
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Supplementary
Matters to
be taken into account by
Tribunal
- Regulations made under section 148 may prescribe
the matters that the Tribunal shall take into account on a reference
or application under this Part in respect of any class or classes of
case.
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Royalty payable for
rental of
sound recording, film, etc.
-
- An application to settle the royalty or other
sum payable in pursuance of section 77 may be made to the Tribunal
by the copyright owner or the person claiming to be treated as
licensed by him.
- The Tribunal shall consider the matter and make
such order as it may determine to be reasonable in the
circumstances.
- Either party may subsequently apply to the
Tribunal to vary the order and the Tribunal shall consider the
matter and make such order confirming or varying the original order
as it may determine to be reasonable in the circumstances.
- An application under subsection (3) shall not,
except with the special leave of the Tribunal, be made within twelve
months from the date of the original order or of the order on a
previous application under that subsection.
- An order under subsection (3) has effect from
the date on which it is made or such later date as may be specified
by the Tribunal.
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Ministerial
order in relation to licensing scheme
-
- On the application of any person operating or
proposing to operate a licensing scheme for the purposes of sections
57, 77 and such other provisions as may be prescribed, the Minister
shall by order certify the scheme if he is satisfied that it
- enables the works to which it relates to be
identified with sufficient certainty by persons likely to
require licences; and
- sets out clearly the charges (if any)
payable and the other terms on which licences will be granted.
- The scheme shall be scheduled to the order and
the scheme shall come into operation for the purposes of sections
57, 77 or such other provisions as may be prescribed
- on such date, being not less than eight
weeks after the order is made, as may be specified in the order;
or
- if the scheme is the subject of a reference
under section 87, any later date on which the order of the
Tribunal under that section comes into force or the reference is
withdrawn.
- A variation of the scheme is not effective
unless the order is amended by the Minister; and the Minister shall
make the amendment in the case of a variation ordered by the
Tribunal on a reference under section 87, 88 or 89 and may do so in
any other case if he thinks fit.
- The Minister may, by order revoke an order made
under subsection (1) if it appears to him that the scheme to which
the order relates is no longer being operated according to its
terms, and shall revoke the order if the scheme ceases to be
operated.
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PART VII : THE COPYRIGHT
TRIBUNAL
Establishment of the Copyright Tribunal
-
- The Copyright Tribunal, in this Act referred to
as the "Tribunal" is hereby established for the purposes
of this Act.
- The Tribunal shall comprise three persons, one
of whom shall be an attorney-at-law of at least ten years standing.
- The members of the Tribunal shall be appointed
by the Minister for a period of not more than three years, and are
eligible for re-appointment.
- Subject to this section, the provisions of the
Administrative Appeals Tribunal Act (Cap. 109A) apply for the
purpose of giving effect to this section notwithstanding that that
Act is not in force.
- The members of the Tribunal shall receive such
remuneration as the Minister determines.
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Jurisdiction
of Tribunal
-
- The functions of the Tribunal are
- to hear and determine
- any matter referred to it pursuant to
any provision of Part VI relating to a licensing scheme;
- an application under section 99 to
settle the royalty or other sum payable for rental of a
sound recording, film or computer programme;
- to keep under review the prescribed rate of
royalty payable to a performer in connection with an adaptation
of an original recording of his performance; and
- to make recommendations to the Minister on
the rate of royalties or other payments payable in respect of
the use or presentation in such national cultural event as he
may by order designate, of any works or performance in which
copyright or other rights subsist.
- In relation to its functions under subsection
(1)(b), the Tribunal may on its own initiative and shall, on a
request made in writing by the Minister, enquire into the
appropriateness of such rate and make such recommendations to the
Minister with respect thereto as the Tribunal thinks fit.
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Regulations
respecting proceedings of
Tribunal
-
- The Minister may make regulations respecting
the proceedings before the Tribunal.
- Without affecting subsection (1), regulations
made under this section shall
- prohibit the Tribunal from entertaining a
reference under section 87, 88 or 89 by a representative
organisation unless the Tribunal is satisfied that the
organisation is reasonably representative of the class of the
persons it claims to represent;
- specify the parties to any proceedings and
enable the Tribunal to join as a party to the proceedings any
person or organisation that the Tribunal is satisfied has a
substantial interest in the matter; and
- require the Tribunal to give the parties to
proceedings an opportunity to state their cases, in writing or
orally as the regulations may provide.
- The regulations may prescribe any matter
incidental to or consequential upon any appeal from the Tribunal
under section 104.
- Regulations made under this section are subject
to negative resolution.
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Appeal on point
of law
-
- An appeal lies on any point of law arising from
a decision of the Tribunal to the High Court.
- The Tribunal may, by way of case stated, refer
a question of law to the High Court for its opinion.
- The decision of the High Court, whether on an
appeal or on a case stated, shall be final.
- Regulations made under section 103 may limit
the time within which an appeal may be brought.
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PART VIII : RIGHTS
IN PERFORMANCE
Conferment of rights in performance
-
- Subject to this Part,
- a performer has the exclusive right to
prevent any person, without the consent of the performer, from
exploiting his performance and
- a person who has recording rights in
relation to a performance, has the exclusive right to prevent
any person, without his consent, from making a recording of that
performance.
- The rights conferred by this Part are
independent of
- any copyright in or moral rights relating
to any work used or performed in the performance; and
- any other right or obligation arising
otherwise than under this Part.
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Performers'
Rights
Consent required for recording
or live transmission of
performance
-
- A performer's rights are infringed by a person
who without his consent,
- makes a recording of the whole or any
substantial part of a qualifying performance; or
- broadcasts live, or includes live in a
cable programme service, the whole or any substantial part of a
qualifying performance.
- In an action for infringement of a performer's
rights brought by virtue of this section, damages shall not be
awarded against a defendant who shows that at the time of the
infringement he believed on reasonable grounds that consent had been
given.
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Infringement
of performer's rights by
use of recording made without consent
- A performer's rights are infringed by a person
who, without the performer's consent,
- shows or plays in public the whole or any
substantial part of a qualifying performance; or
- broadcasts or includes in a cable programme
service the whole or any substantial part of a qualifying
performance,
by means of a recording which was made without the
performer's consent and which the person knows or has reason to
believe was so made.
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Consent
and royalty required for
adaptation of recording
-
- A performer's rights are infringed by a person
who, without his consent and payment of royalty at the prescribed
rate, uses an original recording of a qualifying performance,
whether authorised or not, for the purpose of making an adaptation
of the recording.
- In subsection (1) "an adaptation of the
recording" means a recording in which the performance is
accompanied by lyrics or music not contained in the original
recording.
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Infringement
of performer's rights by
importing, possessing, etc., illicit
recording
-
- A performer's rights are infringed by a person
who, without his consent,
- imports into Barbados otherwise than for
his private and domestic use; or
- in the course of business possesses, sells
or lets for hire, offers or exposes for sale or hire, or
distributes,
a recording of a qualifying performance which is,
and which that person knows or has reason to believe is an illicit
recording.
- Where in an action for infringement of a
performer's rights brought by virtue of this section a defendant
shows that the illicit recording was innocently acquired by him or
his predecessor in title the court may award to the performer such
amount by way of damages that is reasonable compensation for the act
complained of.
- In subsection (2) "innocently
acquired" means that the person acquiring the recording did not
know and had no reason to believe that it was an illicit recording.
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Remuneration
-
- Where any phonogram the original sound
recording of which was lawfully made in Barbados is used
- by way of being made available for
commercial purposes to the public;
- by way of a broadcast; or
- by way of any other communication to the
public,
the user of the phonograms shall pay to the
producer of the phonogram remuneration for the producer and any
performer whose performance constitutes any of the aural effects of
the phonogram.
- When more than one performer is entitled to
share the remuneration paid to the producer under subsection (1) for
the performer, the amount paid by the producer shall be divided
equally among those performers or in the manner and shares agreed
among the performers.
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Person Having
Recording Rights
Consent required for recording of performance
subject to exclusive contract
-
- A person infringes the rights of a person
having recording rights in relation to a performance who, without
his consent, makes a recording of the whole or any substantial part
of the performance otherwise than for his private and domestic use.
- In an action for infringement of those rights
referred to in subsection (1), damages shall not be awarded against
a defendant who shows that at the time of the infringement he
believed on reasonable grounds that consent had been given.
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Infringement
of recording rights
by use
of recording made without consent
-
- A person infringes the rights of a person
having recording rights in relation to a performance who, without
his consent,
- shows or plays in public the whole or any
substantial part of the performance, or
- broadcasts or includes in a cable programme
service the whole or any substantial part of the performance,
by means of a recording which was, and which that
person knows or has reason to believe was, made without the
appropriate consent.
- The reference in subsection (1) to the
"appropriate consent" is to the consent of the person who
at the time the consent was given had recording rights in relation
to the performance, or, if there was more than one such person, of
all of them.
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Infringement
of recording rights
by importing,
possessing illicit recording
-
- A person infringes the rights of a person
having recording rights in relation to a performance who, without
his consent,
- imports into Barbados otherwise than for
his private and domestic use; or
- in the course of a business, possesses,
sells or lets for hire, offers or exposes for sale or hire, or
distributes,
a recording of the performance which is, and
which that person knows or has reason to believe is, an illicit
recording.
- Where in an action for infringement of those
rights referred to in subsection (1), a defendant shows that the
illicit recording was innocently acquired by him or his predecessor
in title, the Court may award to the person whose rights were
infringed such amount by way of damages that is reasonable
compensation for the act complained of.
- In subsection (2) "innocently
acquired" means that the person acquiring the recording did not
know and had no reason to believe that it was an illicit recording.
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Exceptions to Infringement
Permitted acts in relation to
performances
- Notwithstanding the rights in performances
conferred by this Part,
- any act done in relation to a performance or
recording in the circumstances specified in sections 115 to 126
does not constitute an infringement of the rights; and
- the Tribunal may give consent on behalf of a
performer in the circumstances specified in section 126.
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Fair dealing
for criticism, etc.
- Fair dealing with a performance or recording
- for the purpose of criticism or review of
that or another performance or recording, or of a work; or
- for the purpose of reporting current events,
does not infringe any of the rights conferred by
this Part, and the provisions of section 53 shall, with the necessary
modifications, apply in determining whether or not an act constitutes
fair dealing.
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Incidental
inclusion of performance or recording
-
- The rights conferred by this Part are not
infringed
- by the incidental inclusion in a sound
recording, film, broadcast or cable programme of a performance
or recording;
- by anything done in relation to copies of,
or the playing, showing, broadcasting or inclusion in a cable
programme service of, anything whose making was not an
infringement of those rights, by virtue of paragraph (a).
- For the purposes of this section, a performance
or recording so far as it consists of music, or words spoken or sung
with music, shall not be regarded as incidentally included in a
sound recording, broadcast or cable programme if it is deliberately
included.
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Acts done to
recording or performance for
purposes of instruction, etc.
-
- The rights conferred by this Part are not
infringed
- by the copying of a recording of a
performance in the course of instruction, or of preparation for
instruction, in the making of films or film sound tracks, if the
person by whom the copying is done is the person giving or
receiving instruction;
- by the copying of a recording of a
performance for the purposes of setting or answering the
questions in an examination; or
- by anything done for the purposes of an
examination by way of communicating the questions to the
candidates.
- Where a recording that would otherwise be an
illicit recording is made in accordance with this section or section
118 but is subsequently dealt with, it shall be treated as an
illicit recording for the purposes of that dealing, and if that
dealing infringes any right conferred by this Part, it shall be
treated as an illicit recording for all subsequent purposes.
- For the purposes of subsection (3), "dealt
with" means sold or let for hire, or offered or exposed for
sale or hire.
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Recording of
broadcasts and cable programmes by
educational establishments
- A recording of a broadcast or cable programme or
a copy of such recording, may be made by or on behalf of an
educational establishment for the educational purposes of that
establishment without thereby infringing any of the rights conferred
by this Part in relation to any performance or recording included in
it.
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Acts done to
performance or recording for
parliamentary proceedings, etc.
- The rights conferred by this Part are not
infringed by anything done for the purposes of
- parliamentary or judicial proceedings or the
reporting of such proceedings; or
- the proceedings of a statutory inquiry or the
reporting of such proceedings.
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Transfer of
recording of performance in
electronic form
-
- Where a recording of a performance in
electronic form has been purchased on terms that, expressly or
impliedly or by virtue of any rule of law, allow the purchaser to
make further recordings in connection with his use of the recording,
then, in the absence of any express terms
- prohibiting the transfer of the recording
by the purchaser;
- imposing obligations that continue after a
transfer;
- prohibiting the assignment of any consent;
- terminating any consent on a transfer; or
- providing for the terms on which a
transferee may do the things that the purchaser was permitted to
do,
anything that the purchaser was allowed to do may
also be done by a transferee without infringement of the rights
conferred by this Part, but any recording made by the purchaser that
is not also transferred shall be treated as an illicit recording for
all purposes after the transfer.
- Subsection (1) applies where the original
purchased recording is no longer usable and what is transferred is a
further copy used in its place.
- This section also applies on a subsequent
transfer, with the substitution for references in subsection (1) to
the purchaser of references to the subsequent transferor.
- This section does not apply in relation to a
recording purchased before the commencement of this Act.
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Use of recordings
of spoken words
-
- Where a recording of the reading or recitation
of a literary work is made for the purpose of
- reporting current events; or
- broadcasting or including in a cable
programme service the whole or part of the reading or
recitation,
it is not an infringement of the rights conferred
by this Part to use the recording or to copy the recording and use
the copy, for that purpose, if the conditions specified in
subsection (2) are met.
- The conditions referred to in subsection (1)
are that
- the recording is a direct recording of the
reading or recitation and is not taken from a previous recording
or from a broadcast or cable programme;
- the making of the recording was not
prohibited by or on behalf of the person giving the reading or
recitation;
- the use made of the recording is not of a
kind prohibited by or on behalf of that person before the
recording was made; and
- the use is by or with the authority of a
person who is lawfully in possession of the recording.
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Playing sound
recording as part of activities of
charitable organisation, etc.
- It is not an infringement of any right conferred
by this Part to play a sound recording as part of the activities of,
or for the benefit of, a club, society or other organisation if
- the organisation is not established or
conducted for profit and its main objects are charitable or are
otherwise concerned with the advancement of religion, education or
social welfare; and
- the proceeds of any charge for admission to
the place where the recording is to be heard are applied solely
for the purposes of the organisation.
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Incidental
recording for purposes of broadcast or
cable programme
-
- Subject to subsection (2), a person who
proposes to broadcast a recording of a performance, or to include a
recording of a performance in a cable programme service, in
circumstances that do not infringe the rights conferred by this
Part, shall be treated as having consented for the purposes of this
Part to the making of a further recording for the purposes of the
broadcast or cable programme.
- The consent given under subsection (1) is
subject to the following conditions:
- the further recording shall not be used for
any other purpose; and
- such recording shall be destroyed within
twenty-eight days of being first used for broadcasting the
performance or including it in a cable programme service.
- A recording made in accordance with this
section shall be treated as an illicit recording
- if it is used for any purpose contrary to
the condition mentioned in paragraph (a) of subsection (2);
- for all purposes after that condition or
the condition mentioned in paragraph (b) of subsection (2) is
breached.
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Recordings
for supervision and control
of programmes
- The rights conferred by this Part are not
infringed
- by the making or use by a prescribed
broadcasting organisation for the purpose of maintaining
supervision and control over programmes broadcast by that
organisation, of recordings of those programmes; or
- by the making or use of recordings by the
Broadcasting Authority in connection with and for the purpose of
carrying out its functions under the Broadcasting Act.
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Recording of
broadcast or cable programme for
archival purposes
-
- A recording of a broadcast or cable programme
of a designated class, or copy of such recording, may be made for
the purpose of being placed in the Archives Department or an archive
maintained by a designated body without thereby infringing any right
conferred by this Part in relation to a performance or recording
included in the broadcast or cable programme.
- In this section "designated" has the
meaning assigned to that expression in section 81.
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Tribunal may
consent on behalf of performer
-
- Subject to this section, the Tribunal may, on
the application of a person who wishes to make a recording from a
previous recording of a performance, give consent in a case where
- the identity or whereabouts of a performer
cannot be ascertained by reasonable inquiry; or
- a performer unreasonably withholds his
consent.
- Consent given by the Tribunal has effect as
consent of the performer for the purposes of
- the provisions of this Part relating to
performers' rights; and
- paragraph (a) of subsection (3) of section
132,
and such consent may be given subject to such
conditions as the Tribunal may specify in the order.
- The Tribunal shall not give consent
- under paragraph (a) of subsection (1)
except after the service or publication of such notices as may
be required by regulations made under section 103 or as the
Tribunal may in any particular case direct; or
- under paragraph (b) of subsection (1)
unless it is satisfied that the performer's reasons for
withholding consent do not include the protection of any
legitimate interest of his; but it shall be for the performer to
show what his reasons are for withholding consent, and in
default of evidence as to his reasons the Tribunal may draw such
inferences as it thinks fit.
- In any case the Tribunal shall take into
account the following factors:
- whether the original recording was made
with the performer's consent and is lawfully in the possession
or control of the person proposing to make the further
recording; and
- whether the making of the further recording
is consistent with the obligations of the parties to the
arrangements under which, or is otherwise consistent with the
purposes for which, the original recording was made.
- Where the Tribunal gives consent under this
section it shall, in default of agreement between the applicant and
the performer, make such order as it thinks fit as to the payment to
be made to the performer in consideration of consent being given.
Continuation: Duration and
Transmission of Rights in Performances: Consent
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