Intellectual
Property (Unregistered Rights) (Application, Transitional Provisions and
Savings) (Jersey) Regulations 2012
THE STATES, in pursuance of Article 408
of the Intellectual Property (Unregistered Rights) (Jersey) Law 2011[1], have made the following
Regulations –
Commencement
[see endnotes]
part 1
general
1 Interpretation
(1) In
these Regulations –
“Berne Convention”
means the Convention for the Protection of Literary and Artistic Works, signed
at Berne on 9th September 1886;
“Berne Convention country”
means a country which is a party to any Act of the Berne Convention;
“commencement” means
the day the Law comes into force;
“Law” means the Intellectual
Property (Unregistered Rights) (Jersey) Law 2011[2];
“Rome Convention”
means the Convention for the Protection of Performers, Producers of Phonograms
and Broadcasting Organisations, adopted in Rome on 26th October 1961;
“Rome Convention country”
means a country that is a party to the Rome Convention;
“WIPO” means the
World Intellectual Property Organisation;
“WPPT” means the
WIPO Performances and Phonograms Treaty adopted at Geneva on 20th
December 1996;
“WPPT country” means
a country that is a party to the WPPT.
(2) In
these Regulations, a reference to an Article or other sub-division of a Law by
number only is a reference to the Article or other sub-division of that number
in the Law.
part 2
COPYRIGHT
2 Interpretation
of this Part
(1) In
this Part –
“1911 Act” means the Copyright Act 1911 of the
United Kingdom as it had effect in Jersey by virtue of the Loi (1913) au sujet
des droits d’auteur[3] and includes the offences in
Article 1 of that Loi;
“existing copyright work” means an existing work in which
copyright subsisted, in accordance with the 1911 Act and any Order in
Council made under it, immediately before commencement;
“existing work” means a work made before commencement
and, for this purpose, a work of which the making extended over a period shall
be taken to have been made when its making was completed;
“Part 1” means Part 1 of the Law and includes
any provision of Part 8 or 9 of the Law to the extent that it has
effect in relation to or for the purposes of Part 1 of the Law.
(2) Except
where the context otherwise requires, other expressions used in this Part have
the same meaning as in Part 1.
(3) In
this Part –
(a) a
reference to copyright subsisting in accordance with the 1911 Act
includes the right conferred by section 24 of that Act in substitution for
the right subsisting immediately before 8th March 1913;
(b) a
reference to copyright in an existing work that is a sound recording is a
reference to copyright under the 1911 Act in records embodying the
recording;
(c) a
reference to copyright in an existing work that is a film is a reference to any
copyright under the 1911 Act in –
(i) the film, so far
as it constituted a dramatic work for the purposes of the 1911 Act,
or
(ii) the photographs
forming part of the film.
(4) In
this Part a reference to a section or other sub-division of an Act by number
only is a reference to the section or other sub-division of that number in
the 1911 Act.
3 Continuity
of law relating to copyright – construction of enactments,
instruments, etc.
(1) Article 17(2)
of the Interpretation (Jersey) Law 1954[4] shall apply in relation to
the repeal of the 1911 Act and the enactment of Part 1 as it
would apply in relation to the repeal and re-enactment, with or without
modification, of an enactment.
(2) A
reference in an enactment, instrument or other document to copyright or to a
work or other subject-matter in which copyright subsists which, apart from the
repeal of the 1911 Act and enactment of Part 1, would be
construed as a reference to copyright under the 1911 Act shall be
construed, so far as may be required for continuing its effect, as being or, as
the case requires, including, a reference to copyright under Part 1 or to
works in which copyright subsists under Part 1.
(3) Anything
done, or having effect as done, under or for the purposes of a provision of
the 1911 Act shall have effect as if done under or for the purposes
of the corresponding provision of Part 1.
(4) A
reference, express or implied, in the Law or any other enactment or instrument
or document, to a provision of the Law relating to copyright shall, so far as
the context permits, be construed as including, in relation to times,
circumstances and purposes before commencement, a reference to corresponding
earlier provisions.
(5) A
reference, express or implied, in an enactment, instrument or other document,
to a provision of the 1911 Act shall be construed, so far as may be
required for continuing its effect, as a reference to the corresponding
provision of the Law.
(6) This
Regulation is subject to any enactment, including a provision of these
Regulations, to the contrary.
4 Application
of Part 1 to things in existence at commencement
(1) Part 1
shall apply in relation to things in existence at commencement as it applies in
relation to things coming into existence following commencement.
(2) Paragraph (1)
is subject to any enactment, including a provision of these Regulations, to the
contrary.
5 Subsistence
of copyright in existing works
(1) Following
commencement, copyright shall subsist in an existing work in accordance with
Part 1 only if it is an existing copyright work.
(2) However,
an existing work that is not an existing copyright work may qualify for
copyright protection following commencement –
(a) subject
to paragraphs (3) to (5), under Article 21, by virtue of the author
being a qualifying person prescribed for the purposes of paragraph (2)(d)
of that Article; or
(b) subject
to paragraphs (3) and (4), under Article 22, by virtue of the work
being first published in a qualifying country.
(3) Where
copyright subsisted in an existing work in accordance with
the 1911 Act but expired before commencement, copyright in the work
cannot be revived or acquired following commencement.
(4) An
existing work cannot qualify for copyright protection following commencement
if –
(a) the
work did not qualify for copyright protection in accordance with
the 1911 Act, by reason that it did not satisfy the requirements of
section 1(1)(a) or (b); and
(b) had
the work qualified for such copyright protection by reason that it satisfied
the requirements of section 1(1)(a) or (b), copyright would have
expired before commencement.
(5) An
existing work that was first published before commencement cannot, by virtue of
the author being a qualifying person prescribed for the purposes of
Article 21(2)(d), qualify for copyright protection following commencement.
(6) The
subsistence, following commencement, of copyright in an existing copyright work
or in any other existing work that qualifies for copyright in accordance with
paragraph (2) is subject to the exceptions, deeming provisions and
modifications in the following provisions of this Part.
6 Definition
“unauthorized” – Article 2
Part 1 shall have effect in relation to things done before
commencement with the substitution for the definition
“unauthorized” in Article 2(1) of the following
definition –
“ ‘unauthorized’,
as regards anything done in relation to a work, means done otherwise
than –
(a) by or with the consent or acquiescence of
the copyright owner; or
(b) if copyright does not subsist in the work,
by or with the licence of the author or any person lawfully claiming under
him;”.
7 Definition
“author” – Article 3
(1) Subject
to paragraphs (2) and (3), who is the author, in relation to an existing
work, shall be determined in accordance with the law in force at the time the
work was made.
(2) For
the purposes of the moral rights conferred by Chapter 5 of Part 1,
who is the author, in relation to an existing work, shall be determined in
accordance with Part 1.
(3) For
the purposes of determining the duration of copyright in an existing work that
is a photograph, who is the author, in relation to the work, shall be
determined in accordance with Part 1.
8 Databases
Part 1 shall have effect in relation to an existing copyright
work that is a database as if it were an original literary work.
9 Sound
recordings
Part 1 shall have effect in relation to an existing copyright
work that is a sound recording as if it were a sound recording within the
meaning of Part 1.
10 Films
(1) Part 1
shall not have effect in relation to an existing work that is a film, as a
film.
(2) Instead,
Part 1 shall have effect –
(a) in
relation to an existing work that is a film that was an original dramatic work
within the meaning of the 1911 Act, as if it were an original
dramatic work within the meaning of Part 1; and
(b) in
relation to photographs that form part of a film that is an existing work, as
if the photographs were not part of a film.
(3) Notwithstanding
Article 17(2), an existing work that is a sound track to a film shall not
be treated as part of the film.
11 Broadcasts
(1) Copyright
cannot subsist in a broadcast made before commencement.
(2) Paragraph (1)
shall not prevent an existing work that is a sound recording or film recording
that is a recording of a broadcast qualifying for copyright protection as a
sound recording or film.
(3) Part 1
shall have effect, in relation to an existing sound recording of a broadcast
that qualifies for copyright protection, as if it were a sound recording within
the meaning of Part 1.
(4) Regulation 10
applies to an existing film recording of a broadcast as it applies to other
existing works that are films.
12 Published
editions
Copyright cannot subsist in a typographical arrangement of a
published edition made before commencement.
13 Computer-generated
works
Copyright can only subsist, following commencement, in an existing
work which is computer-generated if and to the extent that the work has an
author.
14 Design capable of
registration
Copyright shall not subsist, following commencement, in an existing
work which is a design to which the 1911 Act could not apply by
virtue of section 22.
15 Treatment of
construction of building as publication of work – Article 9(3)
Article 9(3) shall apply only where construction of the
building begins following commencement.
16 Qualification for
copyright protection – Articles 20 to 23
An existing copyright work shall be deemed to satisfy the
qualification requirements described in Articles 20 to 23 including, as
the case requires, the requirements prescribed for the purposes of
Articles 21(2)(d) and 22(2)(b).
17 Existing
photographs and sound recordings – Article 21
Article 21(2) is modified in its application to an existing
work that is a photograph or sound recording so as to substitute for
sub-paragraph (c) the following sub-paragraph –
“(c) a body corporate with an
established place of business in Jersey;”.
18 Ownership of
copyright
(1) Who
is the first owner of copyright in an existing work shall be determined in
accordance with the law in force at the time the work was made.
(2) In
the case of a plate or other original ordered by a person before commencement
in the circumstances described in paragraph (a) of the proviso to
section 5(1), who is the first owner of copyright shall be determined in
accordance with the law in force at the time the plate or other original was
ordered.
(3) Subject
to paragraph (4), where, by virtue of these Regulations, copyright in an
existing copyright work is extended, the person who is the owner of the
copyright in the work immediately before commencement is, at commencement, the
owner of the extended copyright.
(4) If
the person described in paragraph (3) is entitled to copyright for a
period less than the whole of the copyright period that applies (disregarding
the extended period of copyright), the extended period of copyright is part of
the reversionary interest expectant on the termination of that period.
19 Duration of
copyright: general rule
(1) This
Regulation has effect with respect to the duration of copyright in existing works.
(2) The
duration of copyright in an existing work shall be determined in accordance
with Part 1.
(3) This
Regulation is subject to Regulations 20 to 23.
20 Regulations 21
to 23: interpretation
(1) In
Regulations 21 to 23 and this Regulation, a reference to an EEA State
shall be construed as if Jersey, Guernsey and the Isle of Man were also EEA
States.
(2) In
Regulations 21 to 23 –
(a) a
reference to a national of an EEA State includes a reference to a body incorporated
under the law of an EEA State; and
(b) a
reference to a national of a country includes a reference to a body
incorporated under the law of a country.
21 Duration of
copyright in foreign literary, dramatic, musical or artistic works –
Article 25
(1) Where
the country of origin of an existing work that is a literary, dramatic, musical
or artistic work is not an EEA State and the author of the work is not a
national of an EEA State, the duration of copyright in the work shall be
whichever is the lesser of –
(a) the
term to which the work is entitled in the country of origin; and
(b) the
term determined in accordance with Part 1.
(2) If
the work is of joint authorship, the reference in paragraph (1) to the
author not being a national of an EEA State shall be construed as a reference
to none of the authors being such a person.
(3) The
country of origin of a work shall be determined in accordance with the
following provisions of this Regulation.
(4) If
the work is first published in an EEA State, and is not simultaneously
published elsewhere, the country of origin is an EEA State.
(5) If
the work is first published simultaneously in 2 or more countries, one or more
of which is an EEA State, the country of origin is an EEA State.
(6) Paragraphs (7)
to (9) apply to a work to which neither paragraph (4) or (5) applies.
(7) If
the work is first published in a Berne Convention country and is not
simultaneously published elsewhere, the country of origin is that country.
(8) If
the work is first published simultaneously in 2 or more countries, only one of
which is a Berne Convention country, the country of origin is that country.
(9) If
the work is first published simultaneously in 2 or more countries of which 2 or
more are Berne Convention countries, the country of origin is the Berne
Convention country which grants the shorter or shortest period of copyright
protection.
(10) If the
work is unpublished or is a published work to which none of paragraphs (4)
to (9) apply, the country of origin is –
(a) if
the work is a film and the maker of the film has his or her headquarters in, or
is domiciled or resident in an EEA State or Berne Convention
country – that State or country;
(b) if
the work is a work of architecture constructed in an EEA State or Berne Convention
country – that State or country;
(c) if
the work is an artistic work incorporated in a building or other structure
situated in an EEA State or Berne Convention country – that State or
country; or
(d) in
the case of any other work, the EEA State or country of which the author of the
work is a national.
(11) In this
Regulation, references to simultaneous publication are to publication within
30 days of the first publication.
22 Duration of
copyright in foreign sound recordings – Article 26
Where the author of an existing work that is a sound recording is
not a national of an EEA State, the duration of copyright in the sound
recording shall be whichever is the lesser of –
(a) the
term to which the sound recording is entitled in the country of which the author
is a national; and
(b) the
term determined in accordance with Part 1.
23 Duration of
copyright in repeat broadcasts – Article 28
(1) Subject
to paragraph (2), copyright in a repeat broadcast following commencement
of a broadcast originally made before commencement shall expire at the end of
the period of 50 years from the end of the calendar year in which the
original broadcast was made.
(2) If
the author of the repeat broadcast is not a national of an EEA State, the
duration of copyright in the repeat broadcast shall be whichever is the lesser
of –
(a) the
term to which the work is entitled in the country of which the author is a
national; and
(b) the
term determined in accordance with paragraph (1).
(3) No
copyright shall arise in a repeat broadcast that is broadcast after the end of
the period of copyright that would otherwise apply in its case in accordance
with paragraph (1) or (2).
24 Saving for right
to restrain publication of article
Notwithstanding the repeal of the 1911 Act, the author of
an existing copyright work that is an article or other contribution to a
newspaper, magazine, or similar periodical shall continue, following
commencement, to have the right, conferred by paragraph (b) of the proviso
to section 5(1) in the absence of any agreement to the contrary, to
restrain publication of the work otherwise than as part of a newspaper,
magazine, or similar periodical.
25 Limitation of
right in respect of essay, etc. made before commencement of 1911 Act
Where an existing copyright work made before
8th March 1913 consists of an essay, article or portion forming part
of, and first published in, a review, magazine or other periodical or work of a
like nature, the copyright shall be subject to any right of publishing the
essay, article or portion in a separate form to which the author was entitled
on that date or would, if the 1911 Act had not been passed, have
become entitled under section 18 of the Copyright Act 1842 of the
United Kingdom.
26 Whether
activities infringe copyright in existing work
(1) The 1911 Act
shall continue to apply for the purpose of determining whether anything done
before commencement constitutes an infringement of copyright.
(2) Part 1
shall apply for the purpose of determining whether anything done following
commencement constitutes an infringement of copyright.
(3) Anything
done following commencement pursuant to an agreement made before commencement
shall not infringe any copyright in a work if, had it been done before
commencement, it would not have infringed copyright in the work.
(4) Anything
done following commencement pursuant to arrangements made before commencement
for the exploitation of an existing work shall not infringe copyright in the
work if –
(a) had
it been done before commencement, it would not have infringed copyright in the
work; or
(b) there
was no copyright in the work before commencement.
27 Pre-1911 Act
works – acts restricted by copyright
(1) Where,
in the case of a dramatic or musical work made before 8th March 1913, the
right conferred by the 1911 Act did not include the sole right to
perform the work in public, the acts restricted by the copyright shall be
treated as not including –
(a) performing
the work in public;
(b) communicating
the work to the public; or
(c) doing
any of the above in relation to an adaptation of the work.
(2) Where,
in the case of a dramatic or musical work made before 8th March 1913, the
right conferred by the 1911 Act consisted only of the sole right to
perform the work in public, the acts restricted by the copyright shall be
treated as consisting only of those acts.
28 Rights of
copyright owner in foreign sound recording – Articles 34, 35
and 41
(1) This
Regulation applies to a sound recording that is –
(a) an
existing copyright work –
(i) in which,
immediately before commencement, copyright subsisted under
the 1911 Act by virtue of the extension of the protection of that Act
by Order in Council under section 29, and
(ii) which is not
first published in Jersey following commencement; or
(b) an
existing work which –
(i) is not an
existing copyright work, and
(ii) qualifies for
copyright only by virtue of its author being a person prescribed for the
purposes of Article 21(2)(d) or its country of first publication being a
country prescribed for the purposes of Article 22(2)(b).
(2) Articles 34,
35 and 41 shall not apply in the work’s case if –
(a) the
author is not a national of, or domiciled or resident in, or a body
incorporated under the law of, Guernsey, the Isle of Man, a WPPT country or a
Rome Convention country; and
(b) the
country of first publication (if any) is not Guernsey, the Isle of Man, a WPPT
country or a Rome Convention country.
(3) Articles 34,
35 (to the extent that it would otherwise apply to a broadcast of a sound
recording) and 41 shall not apply in the work’s case if –
(a) the
author is not a national of, or domiciled or resident in, or a body
incorporated under the law of Guernsey, the Isle of Man or a Rome Convention
country;
(b) the
country of first publication (if any) is not Guernsey, the Isle of Man or a
Rome Convention country; and
(c) the
work satisfies either or both of the conditions in paragraph (4).
(4) The
conditions are that –
(a) the
author of the work is a national of, or domiciled or resident in, or a body
incorporated under, the law of a WPPT country; or
(b) the
country of first publication (if any) of the work is a WPPT country.
29 Infringing
copies – Article 42
(1) Whether
or not an article that was made before commencement is an infringing copy, or
would have been an infringing copy if it had been made in Jersey, shall be
determined in accordance with the law in force at the time the article was
made.
(2) Notwithstanding
paragraph (1), an article made before commencement that was an infringing
copy by virtue of the 1911 Act but which, if made following
commencement, would not be an infringing copy by virtue of Chapter 4 of
Part 1, is not an infringing copy.
(3) A
librarian or archivist who, before commencement, made a copy of a work and
supplied it to a person, reasonably believing the person required the copy for
the purposes of research or private study, shall not, following commencement,
incur any liability for infringement of copyright by reason of the act.
30 Permitted
acts – Chapter 4
(1) Subject
to paragraphs (3) and (4), a provision of Chapter 4 of Part 1
that, following commencement, would permit anything done in relation to an
existing work or a copy, made before commencement, of an existing work, shall
be taken to have been in force at all material times.
(2) For
the purposes of the application of Chapter 4 of Part 1 to existing
works, a reference to the copyright owner shall be construed in accordance with
the law in force at the material time.
(3) Paragraph (4)
applies to a design first recorded or embodied in a design document or model
less than 10 years before commencement.
(4) Article 79
shall not apply in relation to the design until the expiry of 10 years
following the date the design was first recorded or embodied in the design
document or model.
(5) Paragraph (4)
does not affect any rule of law preventing or restricting the enforcement of
copyright in relation to a design.
31 Assignment,
licence, etc., by first owner after commencement of 1911 Act
(1) Where
the author of an existing copyright work that is a literary, dramatic, musical
or artistic work was the first owner of the copyright in it, no assignment of
the copyright and no grant of any interest in it, made by him or her (otherwise
than by will) after 8th March 1913 and before commencement shall be
operative to vest in the assignee or grantee any rights with respect to the
copyright in the work beyond the expiration of 25 years from the death of
the author.
(2) The
reversionary interest in the copyright expectant on the termination of the
period referred to in paragraph (1) may, following commencement, be
assigned by the author during his or her life but in the absence of any
assignment shall, on his or her death, devolve as part of his or her estate.
(3) Nothing
in this Regulation affects –
(a) an
assignment of the reversionary interest by a person to whom it has been
assigned;
(b) an
assignment of the reversionary interest, after the death of the author, by any
person becoming entitled to it; or
(c) an
assignment of the copyright after the reversionary interest has fallen in.
(4) Nothing
in this Regulation applies to the assignment of the copyright in a collective
work or a licence to publish a work or part of a work as part of a collective
work.
(5) In
paragraph (4) “collective work” means –
(a) an
encyclopaedia, dictionary, yearbook or similar work;
(b) a
newspaper, review, magazine or similar periodical; or
(c) a
work written in distinct parts by different authors, or in which works or parts
of works of different authors are incorporated.
32 Assignment or
grant by author before commencement of 1911 Act
(1) Without
prejudice to the generality of Regulation 3, this Regulation applies
where –
(a) the
author of a work made before 8th March 1913 had, before that date
made such an assignment or grant as is mentioned in paragraph (a) of the
proviso to section 24(1); and
(b) copyright
subsists in the work by virtue of these Regulations and Part 1.
(2) If,
before commencement, any event occurred or notice was given which, in
accordance with paragraph (a) of the said proviso had any
operation –
(a) affecting
the ownership of the right conferred by the 1911 Act in relation to
the work; or
(b) creating,
transferring or terminating an interest, right or licence in respect of that
right,
that event or notice shall have the corresponding operation in
relation to the copyright in the work under Part 1.
(3) Any
right which, at a time after commencement would, by virtue of
paragraph (a) of the said proviso, have been exercisable in relation to
the work, or to the right conferred by the 1911 Act, if the Act had
not been repealed, shall be exercisable in relation to the work or to the
copyright in it under Part 1, as the case may be.
(4) If,
in accordance with paragraph (a) of the said proviso, the right conferred
by the 1911 Act would have reverted to the author or his or her
personal representative on the date referred to in that paragraph, and that
date falls after commencement then, on that date –
(a) the
copyright in the work under Part 1 shall revert to the author or his or her
personal representatives, as the case may be; and
(b) any
interest of any other person in that copyright which subsists on that date by
virtue of any document made before the commencement of the 1911 Act
shall determine.
33 Statutory
licences under 1911 Act
(1) Section 19(2)
to (8), and regulations made under that section, shall continue to apply, for
one year following commencement, in a case where, before commencement, a person
was entitled, by virtue of section 19(2), to make records without infringing
copyright in the work.
(2) The
number of records that a person may make pursuant to the right described in
paragraph (1) shall not exceed the number intended to be sold, as stated
by the person in his or her notice given, before commencement, pursuant to section 19(2)(b).
(3) In
a case where, before commencement, a person has, in the case of a work,
complied with the requirements of the proviso to section 3 and regulations
made under it, those provisions shall continue to apply, following
commencement, as respects reproduction by that person of that work.
34 Moral
rights – Chapter 5
(1) No
right of action shall arise under Chapter 5 of Part 1 in respect of
anything done before commencement.
(2) The
rights conferred by Articles 105 and 108 shall only apply in relation to
an existing work if the author of the work has not died before commencement.
(3) The
rights conferred by Articles 105 and 108 shall not apply in relation to an
existing work –
(a) where
the copyright first vested in the author, to anything which, by virtue of an
assignment of copyright or a licence granted before commencement, may be done
without infringing copyright; or
(b) where
copyright first vested in a person other than the author, to anything done by
or with the licence of the copyright owner.
(4) The
right conferred by Article 112 only applies in relation to an existing
work where the person who would have the right has not died before
commencement.
(5) Where
the right conferred by Article 112 applies in relation to an existing
work, the right arises where anything described in any of paragraphs (2)
to (6) of that Article is done following commencement, notwithstanding
that the false attribution was inserted in or affixed to the work or copy
before commencement.
35 Right to privacy
of certain photographs and films – Article 113
The right conferred by Article 113 shall not apply to
photographs taken or films made before commencement.
36 Dealings in
copyright works – Chapter 6
(1) Without
prejudice to the generality of Regulation 3, any document made or event
occurring before commencement which had any operation –
(a) affecting
the ownership of the copyright in an existing work; or
(b) creating,
transferring or terminating an interest, right or licence in respect of the
copyright in an existing work,
shall have the corresponding operation in relation to copyright in
the work under Part 1.
(2) Expressions
used in a document described in paragraph (1) shall be construed in
accordance with their effect immediately before commencement.
(3) This
Regulation is subject to any express provision to the contrary in these
Regulations.
37 Prospective
ownership of copyright – Article 119
Article 119 shall not apply in relation to an agreement made
before commencement.
38 Exclusive
licences – Article 120
Article 120 shall not apply in relation to an exclusive licence
granted before commencement.
39 Bequest of
unpublished work construed as including copyright – Article 121
(1) Article 121
shall not apply where the testator making the bequest died before commencement.
(2) Section 17(2)
shall continue to apply where an author making a bequest of a manuscript which
has not been published or performed or delivered in public died before
commencement.
40 Film production
agreements – Article 122
(1) Article 122
shall apply in relation to an agreement made before commencement.
(2) In
its application pursuant to paragraph (1), Article 122 is modified so
as to omit paragraph (3).
41 Right to
equitable remuneration – Article 123
(1) No
right to equitable remuneration shall arise under Article 123 in respect
of anything done before commencement.
(2) No
rights shall arise under Article 123 in respect of the rental, following
commencement, of a sound recording or film made (whether before or following
commencement) pursuant to an agreement made before commencement with a person
who is, in relation to the work, the author to whom Article 123 applies.
42 Extended
copyright and existing licences and agreements
Any copyright licence and any term or condition of an agreement
relating to the exploitation of a copyright work which –
(a) subsists
immediately before commencement in relation to an existing copyright work; and
(b) is
not to expire before the end of the copyright period under
the 1911 Act,
shall continue to have effect during the period of any extended
copyright, subject to any agreement to the contrary.
43 Compulsory
licences granted pursuant to 1911 Act
(1) A
licence granted in relation to an existing copyright work in compliance with an
order made under section 4 and which subsists immediately before
commencement shall continue to subsist following commencement, subject to
paragraph (2) and the terms and conditions specified in the order.
(2) A
licence described in paragraph (1) shall expire upon whichever is the
earlier of –
(a) the
date it would expire in accordance with its terms;
(b) the
expiry of one year following commencement.
44 Civil remedies
for infringement – Chapter 7
(1) Articles 127
and 128 shall apply only in relation to an infringement of copyright committed
following commencement.
(2) Sections 6
and 8 shall continue to have effect in relation to an infringement of copyright
committed before commencement.
(3) Articles 129
and 131 shall apply in relation to infringing copies and other articles,
whether made before or following commencement.
(4) Section 7
shall continue to have effect following commencement, for the purposes only of
proceedings commenced, pursuant to that section, before commencement.
(5) Articles 132,
133 and 134 shall apply only in relation to a licence granted following
commencement.
(6) Articles 136
to 138 shall apply only in relation to proceedings brought under Part 1.
45 Offences –
Article 139
(1) Article 139
shall apply only in relation to acts done following commencement.
(2) Section 11
and Article 1 of the Loi (1913) au sujet des droits d’auteur[5] shall continue to have
effect in relation to acts done before commencement.
46 Offences: foreign
sound recordings – Article 139
(1) This
Regulation applies to a sound recording that is –
(a) an
existing copyright work –
(i) in which,
immediately before commencement, copyright subsisted under
the 1911 Act by virtue of the extension of the protection of that Act
by Order in Council under section 29, and
(ii) which is not
first published in Jersey following commencement; or
(b) an
existing work which –
(i) is not an
existing copyright work, and
(ii) qualifies for
copyright only by virtue of its author being a person prescribed for the
purposes of Article 21(2)(d) or its country of first publication being a
country prescribed for the purposes of Article 22(2)(b).
(2) Article 139(3)
and (4) shall not apply in the work’s case if –
(a) the
author is not a national of, or domiciled or resident in, or a body
incorporated under the law of, Guernsey, the Isle of Man, a WPPT country or a
Rome Convention country; and
(b) the
country of first publication (if any) is not Guernsey, the Isle of Man, a WPPT
country or a Rome Convention country.
(3) Article 139(3)
(to the extent that it would otherwise apply to a broadcast of a sound
recording) and Article 139(4) shall not apply in the work’s case
if –
(a) the
author is not a national of, or domiciled or resident in, or a body
incorporated under the law of, Guernsey, the Isle of Man or a Rome Convention
country;
(b) the
country of first publication (if any) is not Guernsey, the Isle of Man or a
Rome Convention country; and
(c) the
work satisfies either or both of the conditions in paragraph (4).
(4) The
conditions are that –
(a) the
author is a national of, or domiciled or resident in, or a body incorporated
under, the law of a WPPT country; or
(b) the
country of first publication (if any) is a WPPT country.
47 Copyright
licensing – Chapter 8
(1) Subject
to paragraphs (2) to (10), Chapter 8 of Part 1 shall apply
to –
(a) an
existing licensing scheme;
(b) an
existing licence under an existing licensing scheme;
(c) an
existing licence granted by a licensing body otherwise than in pursuance of a
licensing scheme,
as it applies to a licensing scheme that comes into operation
following commencement and to a licence that is granted following commencement.
(2) An
existing licensing scheme under which licences may be granted permitting the
making and supply of accessible copies, as described in Article 52, shall,
until the transition date, be taken to have been notified for the purposes of
Article 52, in accordance with Article 180.
(3) An
existing licensing scheme under which licences may be granted permitting the
making of recordings of broadcasts or copies of such recordings as described in
Article 58(1) or the communication to the public of recordings of
broadcasts or copies of such recordings as described in Article 58(2)
shall, until the transition date, be taken to have been notified for the
purposes of Article 58, in accordance with Article 180.
(4) An
existing licensing scheme under which licences may be granted permitting the
making of reprographic copies, as described in Article 59(1), shall, until
the transition date, be taken to have been notified for the purposes of Article 59,
in accordance with Article 180.
(5) An
existing licensing scheme under which licences may be granted permitting the
copying of an abstract or the issue of copies of an abstract to the public, as
described in Article 88(1), shall, until the transition date, be taken to
have been notified for the purposes of Article 88, in accordance with
Article 180.
(6) An
existing licensing scheme under which licences may be granted permitting the
making of copies of broadcast and the issue of such copies to the public, as
described in Article 102(1), shall, until the transition date, be taken to
have been notified for the purposes of Article 102, in accordance with
Article 180.
(7) For
the purposes of paragraph (2), (3), (4), (5) or (6), the “transition
date” is whichever is the earliest of –
(a) the
first date on which, following commencement, the existing licensing scheme is
modified;
(b) the
first date on which, following commencement, a licence is granted permitting
the act described in that paragraph;
(c) the
first date on which, following commencement, any term of existing licences
permitting the act described in that paragraph is modified (including any term
as to the amount of any fee or charge); and
(d) the
expiry of the period of one year following commencement.
(8) A
right of referral shall not arise under Article 147 in respect of terms of
a licensing scheme that are proposed before commencement.
(9) A
right to apply to the licensing authority shall not arise under
Article 150 –
(a) in
respect of a refusal, by an operator of a licensing scheme, that occurs before
commencement; or
(b) where
a licence was granted in accordance with a licensing scheme but expired or
otherwise ceased to have effect before commencement.
(10) A right
of referral shall not arise under Article 154 in respect of the terms of a
licence that are proposed before commencement.
(11) For the
purposes of paragraph (7)(b), the grant of a licence does not include the
renewal of an existing licence.
(12) In this
Regulation –
“existing licensing scheme” means a licensing scheme
that is in operation immediately before commencement;
“existing licence” means a licence that is in operation
immediately before commencement.
48 States Assembly
copyright – Article 182
(1) Subject
to the following paragraphs of this Regulation, Article 182 shall apply to
an existing work if –
(a) copyright
subsisted in the work immediately before commencement and such copyright was
not owned by the Crown; and
(b) had
the work been made following commencement, copyright in it would be States
Assembly copyright.
(2) The
person or entity who, immediately before commencement, was the owner of
copyright in a work to which Article 182 applies by virtue of
paragraph (1) shall be the owner immediately following commencement.
(3) Where
the States Assembly is not, immediately following commencement, the owner of
copyright in a work to which Article 182 applies by virtue of
paragraph (1) or by, virtue of Regulation 24, the author reserves the
right conferred by paragraph (b) of the proviso to
section 5(1) –
(a) any
right to exploit the work to which the States Assembly was entitled immediately
before commencement shall continue, following commencement, upon the same
terms; and
(b) if
or to the extent that the States was not entitled, immediately before
commencement, to the right to exploit the work, paragraph (4) shall apply.
(4) The
States Assembly shall, following commencement, be in the same position as
regards infringement of copyright in a work to which Article 182 applies
by virtue of paragraph (1) as if it were the holder of a licence granted
by, as the case requires, the owner of the copyright in the work or the author.
(5) Where
the States Assembly exploits a work in reliance on a deemed licence under
paragraph (4), the owner of the copyright in the work or author, as the
case requires, may, by notice in writing given to the Greffier of the States,
require payment of a royalty by the States Assembly for such use.
(6) Where
notice has been given under paragraph (5), either the owner of the
copyright or author, as the case requires, or the Greffier of the States may
apply to the licensing authority for the licensing authority to settle the
terms of payment.
(7) Where
an application is made under paragraph (6), the licensing authority shall
consider the matter and make such order as the licensing authority may
determine to be reasonable in the circumstances.
(8) The
following provisions shall apply, with the necessary modifications, to an order
made pursuant to paragraph (7) as they apply to an order made under
Article 169(1), as if any reference in them to the right conferred by
Article 168 was a reference to the right conferred by paragraph (4)
of this Regulation –
(a) Article 169(2);
(b) Articles 171
and 172.
(9) Where
a work was made, before 9th December 2005, by –
(a) a
person in the course of his or her employment, under a contract of service or
apprenticeship, by the States or a Committee of the States; or
(b) a
person who, at the time the work was made, was a délégué
appointed under the Loi (1937) sur l’attenuation des peines et sur la
mise en liberté surveillée[6] and had signed a contract of
employment with the Probation Board of the Royal Court,
the person shall, for the purposes of determining ownership of the
work pursuant to section 5, be deemed to have been, at the time the work
was made, a States employee.
49 States
copyright – Article 183
(1) Subject
to the following paragraphs of this Regulation, Article 183 shall apply to
an existing work if –
(a) copyright
subsisted in the work immediately before commencement and such copyright was
not owned by the Crown; and
(b) had
the work been made following commencement, copyright in it would be States
copyright.
(2) The
person or entity who, immediately before commencement, was the owner of
copyright in a work to which Article 183 applies by virtue of
paragraph (1) shall be the owner immediately following commencement.
(3) Where
the States are not, immediately following commencement, the owner of copyright
in a work to which Article 183 applies by virtue of paragraph (1) or,
by virtue of Regulation 24, the author reserves the right conferred by
paragraph (b) of the proviso to section 5(1) –
(a) any
right to exploit the work to which the States were entitled immediately before
commencement shall continue, following commencement, upon the same terms; and
(b) if
or to the extent that the States were not entitled, immediately before
commencement, to the right to exploit the work, paragraph (4) shall apply.
(4) The
States shall, following commencement, be in the same position as regards
infringement of copyright in a work to which Article 183 applies by virtue
of paragraph (1) as if they were the holder of a licence granted by, as
the case requires, the owner of the copyright in the work or the author.
(5) Where
the States exploit a work in reliance on a deemed licence under
paragraph (4), the owner of the copyright in the work or author, as the
case requires, may, by notice in writing given to the Greffier of the States,
require payment of a royalty by the States for such use.
(6) Where
notice has been given under paragraph (5), either the owner of the
copyright or author, as the case requires, or the Greffier of the States may
apply to the licensing authority for the licensing authority to settle the
terms of payment.
(7) Where
an application is made under paragraph (6), the licensing authority shall
consider the matter and make such order as the licensing authority may
determine to be reasonable in the circumstances.
(8) The
following provisions shall apply, with the necessary modifications, to an order
made pursuant to paragraph (7) as they apply to an order made under
Article 169(1), as if any reference in them to the right conferred by
Article 168 was a reference to the right conferred by paragraph (4)
of this Regulation –
(a) Article 169(2);
(b) Articles 171
and 172.
(9) Where
a work was made, before 9th December 2005, by –
(a) a
person in the course of his or her employment, under a contract of service or
apprenticeship, by the States or a Committee of the States; or
(b) a
person who, at the time the work was made, was a délégué
appointed under the Loi (1937) sur l’attenuation des peines et sur la
mise en liberté surveillée[7] and had signed a contract of
employment with the Probation Board of the Royal Court,
the person shall, for the purposes of determining ownership of the
work pursuant to section 5, be deemed to have been, at the time the work
was made, a States employee.
(10) In this
Regulation “States” means –
(a) the
Chief Minister, in relation to a work of which the Chief Minister would have
been the first owner of copyright by virtue of Article 183(2), if the work
had been made following commencement;
(b) the
Bailiff, in relation to a work of which the Bailiff would have been the first
owner of copyright, by virtue of Article 183(3), if the work has been made
following commencement;
(c) the
Attorney General, in relation to a work of which the Attorney General would
have been the first owner of copyright, by virtue of Article 183(4), if
the work had been made following commencement.
50 Crown
copyright – Article 184
(1) Article 184
shall apply to an existing work only if, immediately before commencement,
copyright subsisted in the work and was vested in the Crown.
(2) Article 184
shall apply to a work described in paragraph (1) with the following
modifications –
(a) the
omission of paragraph (1);
(b) in
paragraph (2), the substitution for the words “Subject to
paragraph (1)” of the words “Subject to any agreement made before
commencement with the author regarding ownership”.
(3) This
Regulation does not apply to a work to which Regulation 52 applies.
51 Copyright in
enactments and revised edition – Article 186
(1) Article 186(1)
shall apply to existing enactments and existing revised editions.
(2) In
this Regulation, “revised edition” has the same meaning as in
Article 186.
52 Copyright in Acts
and Measures – Article 187
(1) Article 187
shall apply to existing Acts of Parliament, Orders in Council and Measures of
the General Synod of the Church of England.
(2) For
the purposes of the application of Article 187 to existing works pursuant
to paragraph (1), references in that Article to Measures of the General
Synod of the Church of England includes references to Church Assembly Measures.
53 International
organizations – Article 188
Article 188 shall apply to an existing work only if it is first
published following commencement.
54 University
copyright previously saved under 1911 Act
(1) Copyright
that subsisted immediately before commencement by virtue of the saving in
section 33 shall continue to subsist until the end of 2039 and shall
then expire.
(2) The
following provisions of Part 1 shall apply in relation to the rights
described in paragraph (1) as they apply to copyright under
Part 1 –
(a) Chapter 4;
(b) Chapter 7;
(c) Chapter 8,
and Parts 8 and 9 shall also apply, to the extent
necessary for the operation of those provisions of Part 1.
part 3
database right
55 Interpretation of
this Part
(1) In
this Part –
“existing database” means a database completed before
commencement;
“Part 2” means Part 2 of the Law and includes
any provision of Part 8 or 9 of the Law to the extent that it has
effect in relation to or for the purposes of Part 2 of the Law.
(2) Other
expressions used in this Part have the same meaning as in Part 2.
56 Database right in
existing databases
Database right shall, from commencement, subsist in an existing
database if, had Part 2 been in force at all material times, database
right would have subsisted in the database immediately before commencement.
57 Duration of
database right – Article 197
Article 197(1) and (2) shall have effect in relation to an
existing database in which database right subsists by virtue of
Regulation 56 as if they had been in force at all material times.
58 Permitted
acts – Chapter 2
(1) A
provision of Chapter 2 of Part 2 that, following commencement, would
permit anything done in relation to an existing database shall be taken to have
been in force at all material times.
(2) For
the purposes of the application of Chapter 2 of Part 2 to existing
databases, the reference in Article 202(2) to Chapter 4 of
Part 1 shall be construed as a reference to that Chapter as it has effect
by virtue of Regulation 30.
59 Whether
agreements, activities and arrangements infringe database right
(1) Nothing
in Part 2 shall affect any agreement made before commencement.
(2) Anything
done –
(a) before
commencement; or
(b) following
commencement, in pursuance of an agreement made before commencement,
shall not infringe database right.
(3) Anything
done following commencement pursuant to arrangements made before commencement
for the exploitation of an existing database shall not infringe database right
in the database.
60 States, States
Assembly and Crown
(1) Notwithstanding
Article 194(3) to (5) –
(a) where,
by virtue of these Regulations, States Assembly copyright subsists in an
existing database and the States Assembly is the owner of the copyright, the
States Assembly shall be regarded as the maker of the database;
(b) where,
by virtue of these Regulations, States copyright subsists in an existing
database and the States are the owner of the copyright, the States shall be
regarded as the maker of the database.
(c) where,
by virtue of these Regulations, Crown copyright subsists in an existing
database, the Crown shall be regarded as the maker of the database.
(2) Where
by virtue of Regulation 48(3)(a), the States Assembly has a right to
exploit an existing database in which copyright subsists, the States Assembly
shall also have a right to exploit, on the same terms, any database right that
subsists in the database.
(3) Where,
by virtue of Regulation 48(3)(b) and (4), the States Assembly is deemed to
be the holder of a licence to exploit an existing database in which copyright
subsists, Regulation 48(4) to (8) shall apply, with the necessary
modifications, for the purpose of deeming the States Assembly to be the holder
of a licence to exploit any database right that subsists in the database.
(4) Where,
by virtue of Regulation 49(3)(a), the States have a right to exploit an
existing database in which copyright subsists, the States shall also have a
right to exploit, on the same terms, any database right that subsists in the
database.
(5) Where,
by virtue of Regulation 49(3)(b) and (4), the States are deemed to be the
holder of a licence to exploit an existing database in which copyright
subsists, Regulation 49(4) to (8) shall apply, with the necessary
modifications, for the purpose of deeming the States to be the holder of a
licence to exploit any database right that subsists in the database.
(6) In
paragraphs (1)(b), (4) and (5), “States” has the same meaning
as in Regulation 49(10).
part 4
circumvention of protection measures and electronic rights
management
61 Application of
Part 4 of Law
(1) Part 4
shall not apply to anything done before commencement.
(2) In
paragraph (1) “Part 4” means Part 4 of the Law and
includes any provision of Part 8 or 9 of the Law to the extent that
it has effect in relation to or for the purposes of Part 4.
part 5
fraudulent reception of transmissions
62 Application of
Part 5 of Law
(1) Part 5
shall not apply to anything done before commencement.
(2) In
paragraph (1) “Part 5” means Part 5 of the Law and
includes any provision of Part 8 or 9 of the Law to the extent that
it has effect in relation to or for the purposes of Part 5 of the Law.
part 6
performers’ protection
63 Interpretation of
this Part
(1) In
this Part –
“moral rights” means the rights conferred by
Chapter 7 of Part 6;
“Part 6” means Part 6 of the Law and includes
any provision of Part 8 or 9 of the Law to the extent that it has
effect in relation to or for the purposes of Part 6 of the Law.
(2) Other
expressions used in this Part of these Regulations have the same meaning as in
Part 6.
64 Application of
rights conferred by Part 6 of Law to performances taking place before
commencement
(1) The
rights conferred by Part 6 (other than moral rights) shall apply in
relation to performances taking place before commencement.
(2) Paragraph (1)
is subject to the following provisions of this Part of these Regulations.
(3) Moral
rights shall not arise in a performance taking place before commencement.
65 Whether
agreements, activities and arrangements infringe rights conferred by Part 6
of Law
(1) Nothing
in Part 6 shall affect any agreement made before commencement.
(2) Anything
done –
(a) before
commencement; or
(b) following
commencement, in pursuance of an agreement made before commencement,
shall not infringe any rights conferred by Part 6.
(3) Anything
done following commencement pursuant to arrangements made before commencement
for the exploitation of a performance that took place before commencement shall
not infringe any rights conferred by Part 6.
66 Permitted
acts – Chapter 3
(1) A
provision of Chapter 3 of Part 6 that, following commencement, would
permit anything done in relation to a performance taking place before
commencement, a recording of such a performance or a copy of such a recording,
shall be taken to have been in force at all material times.
(2) For
the purposes of the application of Chapter 3 of Part 6 to a
performance taking place before commencement, a reference to the owner of the
rights conferred by Chapter 2 of Part 6 shall be construed as if
Chapter 2 had been in force at the material time.
67 Recordings made
before commencement
A recording of a performance made before commencement is
not –
(a) an
illicit recording; or
(b) made
without the consent of the performer or a person having recording rights.
68 Remuneration
rights – Article 264
No right to equitable remuneration shall arise under
Article 264 in respect of anything done before commencement.
69 Film production
agreements – Article 303
Article 303 shall apply in relation to an agreement made before
commencement.
70 Right to
equitable remuneration – Article 304
No rights shall arise under Article 304 in respect of the
rental, following commencement, of a sound recording or film made (whether
before or following commencement) pursuant to an agreement made before
commencement with a performer of whose performance a recording is included in
the sound recording or film.
71 Offences –
Articles 318 and 320
Articles 318 and 320 shall apply only in relation to things
done following commencement.
part 7
design right
72 Interpretation of
this Part
(1) In
this Part “Part 7” means Part 7 of the Law and includes
any provision of Part 8 or 9 of the Law to the extent that it has
effect in relation to or for the purposes of Part 7 of the Law.
(2) Other
expressions used in this Part of these Regulations have the same meaning as in
Part 7.
73 Application of
design right
Design right shall not subsist in a design –
(a) recorded
in a design document before commencement; or
(b) to
which an article has been made before commencement.
74 Whether
agreements, activities and arrangements infringe design right
(1) Nothing
in Part 7 shall affect any agreement made before commencement.
(2) Anything
done –
(a) before
commencement; or
(b) following
commencement, in pursuance of an agreement made before commencement,
shall not infringe design right.
(3) Anything
done following commencement pursuant to arrangements made before commencement
for the exploitation of a design shall not infringe design right.
75 Infringing
article – Article 344
An article made before commencement is not an infringing article.
part 8
liability of and remedies against service providers
76 Application and
construction of Schedule 1 to the Law
(1) Schedule 1
to the Law shall not affect the liability of a service provider for anything
done before commencement.
(2) The
reference in paragraph 2(1) of Schedule 1 to the Law to any right
conferred by Part 1 of the Law shall be construed as including a reference
to any right conferred by Part 1 of the Law as applied by Part 2 of
these Regulations.
(3) In
paragraph (1), “service provider” has the same meaning as in
Schedule 1 to the Law.
part 9
closing
77 Citation
These Regulations may be cited as the Intellectual Property
(Unregistered Rights) (Application, Transitional Provisions and Savings)
(Jersey) Regulations 2012.