Jersey coat of arms

Intellectual Property (Unregistered Rights) (Amendment – Disability and Rights in Performances) (Jersey) Regulations 2021

Made                                                                                                        21st April 2021

Coming into force                                                                               28th April 2021

THE STATES make these Regulations under Articles 44, 243, 274, 401 and 409(1) of the Intellectual Property (Unregistered Rights) (Jersey) Law 2011[1] –

1        Intellectual Property (Unregistered Rights) (Jersey) Law 2011 amended

These Regulations amend the Intellectual Property (Unregistered Rights) (Jersey) Law 2011[2].

2        Article 42 (meaning of “infringing copy”) amended

In Article 42(6) for “Articles 49(6) and (9), 50(9) and (10), 51(2),” there is substituted “Articles 49(4) and (5), 50(4),”.

3        Articles 49 (making single accessible copy for personal use by visually impaired person) to 54 (Articles 49 to 53: definitions and other supplementary provision) substituted

For the crossheading before Article 49 and for Articles 49 to 54 there is substituted –

“Disabled persons

49      Disabled persons: copies of works for personal use

(1)     This Article applies if –

(a)     a disabled person has lawful access to a copy of the whole or part of a work; and

(b)     that person’s disability prevents the person from enjoying the work to substantially the same degree as a person who does not have that disability.

(2)     The making of an accessible copy of the copy of the work referred to in paragraph (1)(a) does not infringe copyright if –

(a)     the copy is made by the disabled person or by a person acting on behalf of the disabled person; and

(b)     the copy is made for the disabled person’s personal use.

(3)     Except where the transfer is authorised by the copyright owner, copyright is infringed by the transfer of an accessible copy of a work made under this Article to any person other than –

(a)     a person by or for whom an accessible copy of the work may be made under this Article; or

(b)     a person who intends to transfer the copy to a person falling within sub-paragraph (a).

(4)     An accessible copy of a work made under this Article is to be treated for all purposes as an infringing copy if it is held by a person at a time when the person does not fall within paragraph (3)(a) or (b).

(5)     If an accessible copy made under this Article is subsequently dealt with –

(a)     it is to be treated as an infringing copy for the purposes of that dealing; and

(b)     if that dealing infringes copyright, it is to be treated as an infringing copy for all subsequent purposes.

(6)     In paragraph (5), “dealt with” means sold or let for hire or offered or exposed for sale or hire or communicated to the public.

50      Making, communicating, making available or distributing of accessible copies by authorised bodies

(1)     An authorised body may, without infringing copyright, on a non-profit basis for the personal use of disabled persons in Jersey or a Marrakesh Contracting State, make, communicate, make available or distribute accessible copies of a work which has been published or otherwise made available if the body –

(a)     has lawful access to the whole or part of the work; and

(b)     complies with paragraph (2).

(2)     An authorised body complies with this paragraph if it –

(a)     distributes, communicates or makes available accessible copies only to disabled persons or other authorised bodies;

(b)     takes appropriate steps to discourage the unauthorised reproduction, distribution, communication to the public or making available to the public of accessible copies;

(c)     demonstrates due care in, and maintains records of, its handling of works and accessible copies; and

(d)     publishes and updates, on its website if appropriate, or through other online or offline channels, information on how it complies with the obligations in sub-paragraphs (a), (b) and (c).

(3)     For the purposes of paragraph (1) communicating, making available, or distributing for the personal use of disabled persons includes communicating, making available or distributing to a person acting on behalf of a disabled person.

(4)     If an accessible copy made under this Article is subsequently dealt with –

(a)     it is to be treated as an infringing copy for the purposes of that dealing; and

(b)     if that dealing infringes copyright, it is to be treated as an infringing copy for all subsequent purposes.

(5)     In paragraph (4), “dealt with” means sold or let for hire or offered or exposed for sale or hire or communicated to the public.

(6)     An authorised body which has made an accessible copy of a work under this Article may communicate, make available or distribute it to another authorised body established in Jersey or a Marrakesh Contracting State for the purposes of enabling that other body to make accessible copies of the work.

51      Making, communicating, making available, distributing or lending of intermediate copies by authorised bodies

(1)     An authorised body which is entitled to make an accessible copy of a work under Article 50 may, without infringing copyright, make a copy of the work (“an intermediate copy”) if this is necessary in order to make the accessible copy.

(2)     An authorised body which has made an intermediate copy of a work under this Article may communicate, make available, distribute or lend it on a non-profit basis to another authorised body established in Jersey or a Marrakesh Contracting State for the purposes of enabling that other body to make accessible copies of the work.

(3)     Copyright is infringed by the transfer of an intermediate copy made under this Article to a person other than another authorised body as permitted by paragraph (2), except where the transfer is authorised by the copyright owner.

52      Accessible and intermediate copies: records and notification

(1)     A person listed in paragraph (3) may, on payment of such fee as may be prescribed, request an authorised body to provide the person with the information in paragraph (4) if the authorised body –

(a)     makes accessible copies under Article 50; or

(b)     makes intermediate copies under Article 51.

(2)     On receipt of a request under paragraph (1), an authorised body must provide the information to the person in an accessible way within a reasonable time.

(3)     The persons who may make a request under paragraph (1) are –

(a)     any disabled person;

(b)     another authorised body;

(c)     any person holding rights in the work.

(4)     The information that must be provided by the authorised body is –

(a)     the list of works for which it has accessible copies and the available formats; and

(b)     the name and contact details of any authorised body established in a Marrakesh Contracting State from which it has accessed or imported, or to which it has exported, an accessible copy.

53      Articles 49 to 52: definitions and other supplementary provisions

(1)     This Article supplements Articles 49 to 52 and includes definitions for the purposes of those Articles.

(2)     An “accessible copy” of a copyright work means a version of the work which enables disabled persons to access the work, including accessing it as feasibly and comfortably as a person who is not a disabled person.

(3)     An accessible copy –

(a)     may include facilities for navigating around the version of the work; but

(b)     must not include any changes to the work which are not necessary to overcome the problems suffered by the disabled persons for whom the accessible copy is intended.

(4)     “Authorised body” means –

(a)     an educational establishment; or

(b)     a body that is not conducted for profit.

(5)     “Disabled person” means a person who has a physical or mental impairment which prevents the person from enjoying a copyright work to substantially the same degree as a person who does not have that impairment, and “disability” is to be construed accordingly.

(6)     But a person is not to be regarded as disabled by reason only of an impairment of visual function which can be improved, for example by the use of corrective lenses, to a level that is normally acceptable for reading without a special level or kind of light.

(7)     “Marrakesh Contracting State” means a country or territory that is party to, or subject to, the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled signed in Marrakesh on 27th June 2013.

(8)     To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of Articles 42, 49, 50 or 51, would not infringe copyright, that term is unenforceable.

(9)     A copy of a work does not infringe any intellectual property right for the purpose of the Community Provisions (Goods Suspected of Infringing Intellectual Property Rights) (Jersey) Regulations 2014 if it is –

(a)     made under Article 49, 50 or 51 and is not an infringing copy;

(b)     an accessible copy created in a Marrakesh Contracting State for personal use by a disabled person; or

(c)     an accessible copy or intermediate copy created by an authorised body in a Marrakesh Contracting State.”.

4        Article 102 (provision of sub-titled copies of broadcast) deleted

Article 102 is deleted.

5        Article 180 (notification of licensing schemes) amended

In Article 180(1) for “Article 52, 58, 59, 88, 102 or 179,” there is substituted “Article 58, 59, 88 or 179”.

6        Article 243 (remedy where effective technological measures prevent permitted acts) amended

In Article 243 –

(a)     in paragraph (1) before the definition “permitted act” there is inserted –

“Marrakesh beneficiary” means a person who –

(a)     is blind;

(b)     has a visual impairment which cannot be improved so as to give the person visual function substantially equivalent to that of a person who has no such impairment, and who is, as a result, unable to read printed works to substantially the same degree as a person without such an impairment;

(c)     has a perceptual or reading disability and is, as a result, unable to read printed works to substantially the same degree as a person without such disability; or

(d)     is otherwise unable, due to a physical disability, to hold or manipulate a book or to focus or move their eyes to the extent that would normally be acceptable for reading;

“Marrakesh work” means a work –

(a)     in the form of a book, journal, newspaper, magazine or other kind of writing, notation, including sheet music, and related illustrations; and

(b)     in any media, including in audio form, such as audiobooks, and in digital format,

which is protected by copyright, related rights or database rights and which is published or otherwise lawfully made publicly available;”;

(b)     in the definition “permitted acts” sub-paragraph (y) is deleted;

(c)     in paragraph (13) before “This Article” there is inserted “Except where paragraph (13A) applies,”;

(d)     after paragraph (13) there is inserted –

“(13A)       This paragraph applies where the application of any effective technological measure to a Marrakesh work prevents the making of an accessible copy of that work under Articles 49, 50, 51, 297, 297A and 297B for the benefit of a Marrakesh beneficiary.”.

7        Article 244 (application of Article 243 to database right, publication right and rights in performances) amended

In Article 244(4) after sub-paragraph (n) there is inserted –

“(na)  Article 297A;

(nb)    Article 297B;”.

8        Article 255 (illicit recording) amended

In Article 255(5) for “or 294(2)” there is substituted “, 294(2), 297(4) and (5) or 297A(4)”.

9        Articles 297 (provision of sub-titled copies of broadcast) substituted

For Article 297 there is substituted –

“297  Disabled persons: copies of recordings for personal use

(1)     This Article applies if –

(a)     a disabled person has lawful access to a copy of the whole or part of a recording of a performance; and

(b)     the person’s disability prevents the person from enjoying the recording to substantially the same degree as a person who does not have that disability.

(2)     The making of an accessible copy of the copy of the recording referred to in paragraph (1)(a) does not infringe the relevant rights if –

(a)     the copy is made by the disabled person or by a person acting on behalf of the disabled person; and

(b)     the copy is made for the disabled person’s personal use.

(3)     Except where the transfer is authorised by the rights owner, the relevant rights are infringed by the transfer of an accessible copy of a recording made under this Article to any person other than –

(a)     a person by or for whom an accessible copy of the recording may be made under this Article; or

(b)     a person who intends to transfer the copy to a person falling within sub-paragraph (a).

(4)     An accessible copy of a recording made under this Article is to be treated for all purposes as an illicit recording if it is held by a person at a time when the person does not fall within paragraph (3)(a) or (b).

(5)     If an accessible copy of a recording made under this Article is subsequently dealt with –

(a)     it is to be treated as an illicit recording for the purposes of that dealing; and

(b)     if that dealing infringes any relevant right, it is to be treated as an illicit recording for all subsequent purposes.

(6)     In paragraph (5), “dealt with” means sold or let for hire or offered or exposed for sale or hire or communicated to the public.

297A Making, communicating, making available or distributing of accessible copies by authorised bodies

(1)     An authorised body may without infringing the relevant rights, on a non-profit basis for the personal use of disabled persons in Jersey, make, communicate, make available or distribute accessible copies of a recording of a performance if the body –

(a)     has lawful access to the whole or part of the recording; and

(b)     complies with paragraph (2).

(2)     An authorised body complies with this paragraph if it –

(a)     distributes, communicates, makes available or lends accessible copies only to disabled persons or other authorised bodies;

(b)     takes appropriate steps to discourage the unauthorised reproduction, distribution, communication to the public or making available to the public of accessible copies;

(c)     demonstrates due care in, and maintains records of, its handling of works and accessible copies; and

(d)     publishes and updates, on its website if appropriate, or through other online or offline channels, information on how it complies with the obligations in sub-paragraphs (a), (b) and (c).

(3)     For the purposes of paragraph (1) communicating, making available or distributing for the personal use of disabled persons includes communicating, making available or distributing to a person acting on behalf of a disabled person.

(4)     If an accessible copy of a recording made under this Article is subsequently dealt with –

(a)     it is to be treated as an illicit recording for the purposes of that dealing; and

(b)     if that dealing infringes any relevant right, it is to be treated as an illicit recording for all subsequent purposes.

(5)     In paragraph (4) “dealt with” means sold or let for hire or offered or exposed for sale or hire or communicated to the public.

(6)     An authorised body which has made an accessible copy of a recording under this Article may communicate, make available or distribute it to another authorised body established in Jersey for the purposes of enabling that other body to make accessible copies of the recording.

297B Making, communicating, making available, distributing or lending of intermediate copies by authorised bodies

(1)     An authorised body which is entitled to make an accessible copy of a recording of a performance under Article 297A may, without infringing the relevant rights, make a copy of the recording (“an intermediate copy”) if this is necessary in order to make the accessible copy.

(2)     An authorised body which has made an intermediate copy of a recording under this Article may communicate, make available, distribute or lend it on a non-profit basis to another authorised body established in Jersey for the purposes of enabling that other body to make accessible copies of the recording.

(3)     The relevant rights are infringed if an intermediate copy of the recording made under this Article is transferred to a person other than another authorised body as permitted by paragraph (2), except where the transfer is authorised by the rights owner.

297C  Accessible and intermediate copies: records

(1)     A person listed in paragraph (3) may, on payment of such fee as may be prescribed, request an authorised body to provide the person with the information in paragraph (4) if the authorised body makes –

(a)     accessible copies under Article 297A; or

(b)     intermediate copies under Article 297B.

(2)     On receipt of a request under paragraph (1), an authorised body must provide the information to the person in an accessible way within in a reasonable time.

(3)     The persons who may make a request under paragraph (1) are –

(a)     any disabled person;

(b)     another authorised body;

(c)     any person holding rights in the recording.

(4)     The information that must be provided by the authorised body is –

(a)     the list of recordings for which it has accessible copies and the available formats; and

(b)     the name and contact details of any authorised body established in Jersey from which it has accessed or to which it has supplied an accessible copy.

297D Articles 297 to 297C: interpretation and general

(1)     This Article supplements Articles 297 to 297C and includes definitions for the purpose of those Articles.

(2)     An “accessible copy” of a recording of a performance means a version of the recording which enables disabled persons to access that version, including accessing it as feasibly and comfortably as a person who is not a disabled person.

(3)     An accessible copy –

(a)     may include facilities for navigating around the version of the recording; but

(b)     must not include any changes to the recording which are not necessary to overcome the problems suffered by the disabled persons for whom the accessible copy is intended.

(4)     “Authorised body” means –

(a)     an educational establishment; or

(b)     a body that is not conducted for profit.

(5)     “Disabled person” means a person who has a physical or mental impairment which prevents the person from enjoying a recording of a performance to substantially the same degree as a person who does not have that impairment, and “disability” is to be construed accordingly.

(6)     But a person is not to be regarded as disabled by reason only of an impairment of visual function which can be improved, for example by the use of corrective lenses, to a level that is normally acceptable for reading without a special level or kind of light.

(7)     “Relevant right” means a right conferred by Chapters 1 to 6.

(8)     To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of Articles 297, 297A or 297B would not infringe a relevant right, that term is unenforceable.”.

10      Article 328 (notification of licensing schemes) amended

In Article 328(1) for “Article 280 or 297” there is substituted “Article 280”.

11      Citation and commencement

These Regulations may be cited as the Intellectual Property (Unregistered Rights) (Amendment – Disability and Rights in Performances) (Jersey) Regulations 2021 and come into force 7 days after they are made.

 

 




[1]                                     chapter 05.350

[2]                                     chapter 05.350


Page Last Updated: 21 Apr 2021