PART III

Rights in Performances

Chapter 1

Performers' Rights

202. —(1) In Parts III and IV, “performance” means a performance of any actors, singers, musicians, dancers or other persons who act, sing, deliver, declaim, play in, interpret or otherwise perform literary, dramatic, musical or artistic works or expressions of works of folklore, which is a live performance given by one or more individuals, and shall include a performance of a variety act or any similar presentation.

(2) A performance of a literary work includes a reading or recitation.

(3) A performance of a dramatic work includes a choreographic work or a work of mime.

(4) In Parts III and IV, “recording”, in relation to a performance, means any fixation—

(a) made directly or indirectly from the live performance,

(b) made from a broadcast of, or cable programme including, the performance, or

(c) made directly or indirectly from another recording of the performance.

(5) The rights conferred by Parts III and IV are independent of—

(a) the copyright in, or the rights conferred by Chapter 7 of Part II relating to, any work performed or any fixation of, or broadcast or cable programme including, the performance, and

(b) other rights or obligations arising otherwise than under Parts III and IV.

203. —(1) A performer has the exclusive right to authorise or prohibit—

(a) the making of a recording of the whole or any substantial part of a qualifying performance directly from the live performance,

(b) the broadcasting live, or including live in a cable programme service, of the whole or any substantial part of a qualifying performance, or

(c) the making of a recording of the whole or any substantial part of a qualifying performance directly from a broadcast of, or cable programme including, the live performance.

(2) The rights of a performer conferred by this section are infringed by a person who, without the consent of the performer, undertakes or authorises another to undertake any of the acts referred to in subsection (1).

(3) The rights of a performer conferred by this section are not infringed by the making of a recording referred to in subsection (1) (c) by a person for his or her private and domestic use.

(4) Where a recording, which would otherwise be an illicit recording, is made under this section but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an illicit recording for those purposes and for all subsequent purposes.

(5) In an action for infringement of the rights of a performer brought under this section, damages shall not be awarded against a defendant who shows that at the time of the infringement he or she did not know and had no reason to believe that consent had not been given.

204. —(1) A performer has the exclusive right to authorise or prohibit the making of a copy of a recording of the whole or any substantial part of a qualifying performance and it is immaterial whether the copy is made directly or indirectly.

(2) There shall be a right of a performer conferred by this section which shall be known and in this Part referred to as the “reproduction right”.

(3) The reproduction right is infringed by a person who, without the consent of the performer, undertakes or authorises another to undertake the act referred to in subsection (1).

(4) The reproduction right is not infringed by the making of a copy referred to in subsection (3) by a person for his or her private and domestic use.

(5) Where a copy, which would otherwise be an illicit recording is made under this section but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an illicit recording for those purposes and for all subsequent purposes.

(6) For the purposes of Parts III and IV, references to the making of a copy of a recording or to copying shall include the making of a temporary or permanent copy of a recording and the storing of a recording in any medium.

205. —(1) Subject to subsection (2), a performer has the exclusive right to authorise or prohibit the making available to the public of copies of a recording of the whole or any substantial part of a qualifying performance and it is immaterial whether the copy is made directly or indirectly.

(2) Where a copy of a sound recording is—

(a) played in public, or

(b) included in a broadcast or cable programme service,

the right conferred by this section shall be deemed to be satisfied by the payment of equitable remuneration as specified in section 208 .

(3) A reference in Parts III and IV to the making available to the public of copies of a recording shall include the making available to the public of the original recording of the live performance.

(4) There shall be a right conferred by this section which shall be known and in Parts III and IV referred to as the “making available right”.

(5) A reference in Parts III and IV to the making available to the public of copies of a recording of a qualifying performance shall include—

(a) making available to the public of copies of a recording, by wire or wireless means, in such a way that members of the public may access the recording from a place and at a time individually chosen by them, including the making available of copies of recordings through the Internet,

(b) showing or playing a copy of the recording in public,

(c) broadcasting a copy of the recording,

(d) including a copy of the recording in a cable programme service,

(e) issuing copies of the recording to the public,

(f) renting copies of the recording, or

(g) lending copies of the recording without the payment of remuneration to the rightsowner.

(6) The making available right is infringed by a person who, without the consent of the performer, undertakes or authorises another to undertake any of the acts referred to in subsection (5).

(7) Subject to subsection (8), the provision of facilities for enabling the making available to the public of copies of a recording of a performance shall not of itself constitute an act of making available to the public of copies of the recording.

(8) Without prejudice to subsection (7), where a person who provides facilities referred to in that subsection is notified by the rightsowner that those facilities are being used to infringe any of the rights conferred by Parts III and IV and that person fails to remove that infringing material as soon as is practicable thereafter, that person shall also be liable for the infringement.

(9) Without prejudice to subsection (8), the Minister may prescribe the form of the notice to be given under that subsection and the form shall specify—

(a) the name and address of the person claiming to be the owner of the rights in the recording concerned,

(b) the grounds that the person requesting the removal of material has for such removal, and

(c) a list of the material which is to be removed.

(10) Where the making available right is infringed by a copy of a recording being played or shown in public, by means of apparatus for receiving sounds, images or data or any combination of sounds, images or data, or the representations thereof, conveyed by any means, the person by whom sounds, images or data or any combination of sounds, images or data, or the representation thereof, are sent shall not be regarded as liable for the infringement.

206. —(1) References in Parts III and IV to the issue of copies of a recording to the public shall be construed as including—

(a) the act of putting into circulation in a Member State of the EEA copies of a recording not previously put into circulation in a Member State of the EEA by or with the consent of the performer, or

(b) the act of putting into circulation outside the Member States of the EEA copies of a recording not previously put into circulation in a Member State of the EEA or elsewhere.

(2) Without prejudice to the rental right or the lending right, references in this Part to the issue of copies of a recording to the public shall not include—

(a) any subsequent circulation of copies of a recording previously put into circulation, or

(b) any subsequent importation of such copies of a recording into the State of any other Member State of the EEA,

except in so far as subsection (1) (a) applies to putting into circulation in the Member States of the EEA copies of a recording previously put into circulation outside the Member States of the EEA.

(3) A reference in this section to circulation shall include sale, rental or loan.

(4) A performer has the exclusive right to authorise or prohibit the issue of copies of a recording to the public of the whole or any substantial part of a qualifying performance.

(5) There shall be a right conferred by this section which shall be known and in this Part referred to as the “distribution right”.

(6) The distribution right is infringed by a person who, without the consent of the performer, undertakes or authorises another to undertake the acts referred to in subsection (4).

207. —(1) References in Parts III and IV to “rental” or “lending” Rental and lending shall not be construed as including the making available to the public of copies of a recording for the purposes of—

(a) playing or showing in public, broadcasting or inclusion in a cable programme service,

(b) exhibiting in public, or

(c) on the spot reference use.

(2) A performer has the exclusive right to authorise or prohibit the rental or lending of copies of a recording of the whole or any substantial part of his or her qualifying performance.

(3)  (a)  There shall be right of the performer to authorise or prohibit the rental of copies of a recording which shall be known and in Parts III and IV referred to as the “rental right”.

(b) There shall be a right of the performer to authorise or prohibit the lending of copies of a recording which shall be known and in Parts III and IV referred to as the “lending right”.

(4) The rental right is infringed by a person who, without the consent of the performer, rents or authorises another to rent copies of a recording of the whole or any substantial part of a qualifying performance.

(5) The lending right is infringed by a person who, without the consent of the performer, lends or authorises another to lend copies of a recording of the whole or any substantial part of a qualifying performance.

(6) In Parts III and IV, and subject to subsections (7) and (8)—

(a) “rental” means making a copy of a recording available for use on terms that it will or may be returned after a limited period of time, for direct or indirect economic or commercial advantage;

(b) “lending” means making a copy of a recording available for use on terms that it will or may be returned after a limited period of time, otherwise than for direct or indirect economic or commercial advantage, through an establishment to which members of the public have access.

(7) The making of a copy of a recording available between establishments to which members of the public have access shall not infringe any of the rights conferred by Parts III and IV.

(8) Where lending by an establishment to which members of the public have access gives rise to a payment, the amount of which does not exceed what is necessary to cover the operating costs of the establishment, there is no direct or indirect economic or commercial advantage for the purposes of this section.

208. —(1) A performer has a right to equitable remuneration from the owner of the copyright in a sound recording where the sound recording of the whole or any substantial part of a qualifying performance which has been made available to the public for commercial purposes is—

(a) played in public, or

(b) included in a broadcast or cable programme service.

(2) A performer shall not assign the right to equitable remuneration under this section except to a collecting society for the purpose of enabling the collecting society to exercise that right on his or her behalf.

(3) The right to equitable remuneration is transmissible by testamentary disposition or by operation of law, as personal or moveable property, and it may be assigned or further transmitted, including by assignment, by any person who legally acquires the right.

(4) Subject to subsections (5) to (9), the amount of equitable remuneration payable under this section is that which has been agreed by or on behalf of the persons by and to whom it is payable.

(5) In default of agreement as to the amount of equitable remuneration payable, the person by or to whom it is payable may apply to the Controller for an order under subsection (8).

(6) Subject to subsection (7), a person to or by whom equitable remuneration is payable may also apply to the Controller—

(a) to vary any agreement as to the amount payable, or

(b) to vary any previous determination of the Controller as to the amount payable.

(7) An application may not be made under subsection (6) within 12 months from the date of the previous determination except with the special leave of the Controller.

(8) On an application being made under this section, the Controller shall consider the matter and make such order as to the method of calculating and paying equitable remuneration as he or she may determine to be reasonable in the circumstances, having regard to the importance of the contribution of the performer to the sound recording.

(9) An order made under this section shall have effect from the date on which it is made or such later date as may be specified by the Controller.

(10) An agreement as to the amount of equitable remuneration payable shall be void in so far as it purports—

(a) to exclude or restrict the right to equitable remuneration conferred by this section,

(b) to prevent a person questioning the amount of equitable remuneration, or

(c) to restrict the powers of the Controller conferred by this section.