Chapter 7

Licensing Schemes: Performers' Property Rights Licensing

265. —(1) In this Part—

“licences” means licences to undertake or authorise the undertaking of any of the acts restricted by a performer's property rights;

“licensing body” means a society or other organisation which has as its main object, or one of its main objects, the negotiating or granting, either as owner or prospective owner of a performer's property rights, or as exclusive licensee or as agent for him or her, of performers' property rights licences, and whose objects include the granting of licences relating to the performances of more than one performer;

“licensing scheme” means a scheme specifying—

(a) the classes of case in which the operator of the scheme, or the person on whose behalf that operator acts, is willing to grant performers' property rights 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) References in this Part to licences or licensing schemes relating to the performances of more than one performer shall not include licences or schemes relating to—

(a) performances recorded in a single recording, or

(b) performances recorded in more than one recording where—

(i) the performers giving the performances are the same, or

(ii) the recordings are made by, or by employees of or commissioned by, a single individual, firm, company or group of companies, including holding companies and their subsidiaries.

References and Applications Relating to Licensing Schemes

266. —Sections 267 to 272 apply to licensing schemes which are operated by licensing bodies in relation to the performer's property rights of more than one performer, in so far as they relate to licences for any of the acts restricted by a performer's property rights under section 204 and 205.

267. —(1) The terms of a licensing scheme proposed to be operated by a licensing body may be referred to the Controller by an organisation which claims to be representative of persons claiming that they require licences in cases of a description to which the scheme would apply.

(2) The Controller shall not consider a reference by an organisation under subsection (1) unless the Controller is satisfied that the organisation is representative of the class of persons that it claims to represent.

(3) The Controller may refuse to consider a reference under subsection (1) on the ground that the reference is premature.

(4) Where the Controller decides to consider a reference under subsection (1) he or she shall consider the subject matter of the reference and make an order, either confirming or varying the proposed scheme, as the Controller may determine to be reasonable in the circumstances.

(5) An order under subsection (4) may be made for such period as the Controller may determine.

268. —(1) Where a licensing scheme is in operation and a dispute arises with respect to the scheme between the operator of the scheme and—

(a) a person claiming that he or she 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 operator, person or organisation may refer the scheme to the Controller in so far as it relates to cases of that description.

(2) The Controller shall not consider a reference by an organisation under subsection (1) unless the Controller is satisfied that the organisation is representative of the class of persons that it claims to represent.

(3) A scheme which has been referred to the Controller under subsection (1) shall remain in operation until proceedings in relation to the reference are concluded.

(4) The Controller shall consider the matter referred to him or her and shall make an order, confirming or varying the scheme, as the Controller may determine to be reasonable in the circumstances.

(5) An order under subsection (4) may be made for such period as the Controller may determine.

269. —(1) Where the Controller has, in respect of a licensing scheme under section 267 or 268 or under this section, made an order in respect of a scheme, and the order remains in force, the persons to whom this section applies may refer the scheme to the Controller in so far as it relates to cases of that description.

(2) This section applies to—

(a) the operator of the scheme,

(b) a person claiming that he or she requires a licence in a case of the description to which the order applies, and

(c) an organisation claiming to be representative of persons referred to in paragraph (b).

(3) Where an order under section 267 or 268 or this section is in force the licensing scheme in respect of which the order is made shall not, except with the special leave of the Controller, be referred to the Controller in respect of the same description of cases—

(a) within 12 months from the date of the order in respect of the previous reference, or

(b) where the order was made so as to be in force for 15 months or less, until the last 3 months before the expiration of the order.

(4) A scheme which has been referred to the Controller under subsection (1) shall remain in operation until proceedings in relation to the reference are concluded.

(5) The Controller shall consider the matter referred to him or her and shall make an order, confirming, varying or further varying the scheme, as the Controller may determine to be reasonable in the circumstances.

(6) An order under subsection (5) may be made for such period as the Controller may determine.

270. —(1) A person who claims, in a case to which a licensing scheme relates, that the operator of the scheme has refused to grant or to procure the grant to him or her of a licence in accordance with the scheme, or has failed to do so within a reasonable period, may apply to the Controller for an order under subsection (4).

(2) A person who claims, in a case excluded from a licensing scheme, that the operator of the scheme—

(a) has refused to grant or to procure the grant to him or her of a licence, or has failed to do so within a reasonable period and that in the circumstances it is unreasonable that a licence should not be granted, or

(b) proposes terms for a licence that are unreasonable,

may apply to the Controller for an order under subsection (4).

(3) A case shall be regarded as being excluded from a licensing scheme for the purposes of subsection (2) where—

(a) the scheme provides for the grant of licences, subject to terms excepting matters from the licence and the case is 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) Where the Controller is satisfied that a claim under this section is well-founded, he or she 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 Controller may determine to be applicable in accordance with the scheme, or, as the case may be, to be reasonable in the circumstances.

(5) An order under subsection (4) may be made for such period as the Controller may determine.

271. —(1) Where the Controller has made an order under section 270 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 Controller for a review of that order.

(2) An application under subsection (1) shall not be made except with the special leave of the Controller—

(a) within 12 months from the date of the order or of the decision on a previous application under this section, or

(b) where—

(i) the order was made so as to be in force for 15 months or less, or

(ii) as a result of the decision on a previous application under this section the order is due to expire within 15 months of that decision,

until the last 3 months before the expiration date.

(3) The Controller shall, on an application for review, confirm or vary his or her order as the Controller 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.

272. —(1) A licensing scheme which has been confirmed or varied by the Controller under section 267 , 268 or 269 shall be in operation or, as the case may be, remain in operation, in so far as it relates to the description of case in respect of which the order was made, for such period as the order remains in force.

(2) Where an order made by the Controller under section 267 , 268 or 269 confirming or varying a licensing scheme is in force (in this section referred to as “an order to which this section applies”), 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 applying to the case concerned or, where the amount cannot be ascertained, gives an undertaking to the operator to pay the charges when ascertained, and

(b) complies with the other terms applicable to the licence under the scheme,

is in the same position as regards infringement of a performer's property rights as if he or she had at all material times been the holder of a licence granted by the rightsowner concerned in accordance with the scheme.

(3) The Controller may direct that an order to which this section applies, in so far as it varies the amount of charges payable, has effect from a date before that on which it was made, but not earlier than the date on which the reference was made, or where later, the date on which the scheme came into operation.

(4) Where a direction is made under subsection (3)—

(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.

(5) Where the Controller has made an order under section 270 and the order remains in force, the person in whose favour the order is made, where he or she—

(a) pays to the operator of the scheme any charges payable in accordance with the order or, where the amount cannot be ascertained, gives an undertaking to the operator to pay the charges when ascertained, and

(b) complies with the other terms specified in the order,

is in the same position as regards infringement of a performer's property rights as if he or she had at all material times been the holder of a licence granted by the rightsowner concerned on the terms specified in the order.

References and Applications Relating to Licensing by Licensing Bodies

273. —Sections 274 to 277 apply to licences in relation to the performer's property rights of more than one performer, granted by a licensing body otherwise than pursuant to a licensing scheme, in so far as the licences relate to any of the acts restricted by a performer's property rights under sections 204 and 205.

274. —(1) The terms on which a licensing body proposes to grant a licence may be referred to the Controller by the prospective licensee for an order under subsection (3).

(2) The Controller may refuse to consider a reference under subsection (1) on the ground that the reference is premature.

(3) Where the Controller decides to consider a reference under subsection (1), he or she shall consider the terms of the proposed licence and make an order, confirming or varying the terms, as the Controller may determine to be reasonable in the circumstances.

(4) An order under subsection (3) may be made for such period as the Controller may determine.

275. —(1) A licensee under a licence which is due to expire with the passage of time or as a result of notice given by the licensing body may apply to the Controller on the ground that it is unreasonable in the circumstances that the licence should cease to be in force.

(2) An application under subsection (1) may be made at any time during the last 3 months before the expiration of the licence.

(3) A licence in respect of which a reference has been made to the Controller under subsection (1) shall remain in force until proceedings in relation to the reference are concluded.

(4) Where the Controller is satisfied that an application made under subsection (1) is well-founded, he or she shall make an order declaring that the licensee shall continue to be entitled to the benefit of the licence on such terms as the Controller may determine to be reasonable in the circumstances.

(5) An order under subsection (4) may be made for such period as the Controller may determine.

276. —(1) Where the Controller has made an order under section 274 or 275, the licensing body or the person entitled to the benefit of the order may apply to the Controller for a review of that order.

(2) An application under subsection (1) shall not be made except with the special leave of the Controller—

(a) within 12 months from the date of the order or of the decision on a previous application under this section, or

(b) where—

(i) the order was made so as to be in force for 15 months or less, or

(ii) as a result of the decision on a previous application under this section the order is due to expire within 15 months of that decision,

until the last 3 months before the expiration date.

(3) The Controller shall, on an application for review, confirm or vary his or her order as the Controller may determine to be reasonable in the circumstances.

277. —(1) Where the Controller has made an order under section 274 or 275, and the order remains in force, the person entitled to the benefit of the order, where he or she—

(a) pays to the licensing body any charges payable in accordance with the order or, where the amount cannot be ascertained, gives an undertaking to the operator to pay the charges when ascertained, and

(b) complies with the other terms specified in the order,

is in the same position as regards infringement of a performer's property rights as if he or she had at all material times been the holder of a licence granted by the rightsowner concerned on the terms specified in the order.

(2) The benefit of an order made under section 274 or 275 may be assigned—

(a) in the case of an order made under section 274 , where assignment is not prohibited under the terms of the order of the Controller, and

(b) in the case of an order made under section 275 , where assignment was not prohibited under the terms of the original licence.

(3) The Controller may direct that an order made under section 274 or 275 or an order made under section 276 varying such an order, in so far as it varies the amount of charges payable, has effect from a date before that on which it was made, but not earlier than the date on which the reference or application was made or, where later, the date on which the licence was granted or, as the case may be, was due to expire.

(4) Where a direction is given under subsection (3)—

(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 further order, as a reference to the charges so payable by virtue of that further order.

Licensing: Miscellaneous

278. —(1) In determining what is reasonable, on a reference or application under this Chapter relating to a licensing scheme or licence, the Controller 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 his or her powers so as to ensure 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.

(2) Subsection (1) shall not affect the obligation of the Controller in any case to have regard to all relevant circumstances.

279. —Where a reference or application is made under this Chapter in relation to licensing in respect of the performer's property rights in a recording, the Controller shall take into account, in considering what charges are to be paid for a licence, any payments which the owner of the performer's property right is liable to make pursuant to the granting of the licence, or pursuant to the acts authorised by the licence—

(a) to owners of the copyright in works included in the recording, or

(b) in respect of any performance included in the recording.