Intellectual Property (Unregistered Rights) (Jersey) Law 2011

Revised Edition

05.350

Showing the law as at 1 January 2017

This is a revised edition of the law



Intellectual Property (Unregistered Rights) (Jersey) Law 2011

Arrangement

Article

COPYRIGHT  17

CHAPTER 1 – INTRODUCTORY   17

1                 General interpretation. 17

2                 Expressions related to copyright 20

3                 “Author” and related expressions. 23

4                 “Broadcast” and related expressions. 23

5                 Copyright owner: construction of references. 24

6                 “Database”. 25

7                 “Educational establishment” and related expressions. 25

8                 “Information society service”. 25

9                 “Publication” and “commercial publication”. 27

10              “Rental”. 28

11              Satellite broadcasts: deemed broadcaster and place of broadcast 28

12              General provisions as to construction. 29

chapter 2 – subsistence, ownership and duration of copyright  29

13              Copyright 29

14              Rights subsisting in copyright works. 29

15              Literary, dramatic and musical works: restriction on copyright 30

16              Sound recordings: restriction on copyright 30

17              Films: restriction on copyright 30

18              Broadcasts: restriction on copyright 31

19              Published editions: restriction on copyright 31

20              Qualification for copyright protection. 31

21              Qualification by reference to author 31

22              Qualification by reference to country of first publication. 32

23              Qualification by reference to place of transmission. 32

24              Who is the first owner of copyright 32

25              Duration of copyright in literary, dramatic, musical or artistic works. 33

26              Duration of copyright in sound recordings. 34

27              Duration of copyright in films. 34

28              Duration of copyright in broadcasts. 35

29              Duration of copyright in typographical arrangement of published editions. 35

chapter 3 – rights of copyright owner   36

30              Acts restricted by copyright in a work. 36

31              Primary infringement: copying. 36

32              Primary infringement: issue of copies to the public. 37

33              Primary infringement: rental of work to the public. 37

34              Primary infringement: performance, showing or playing of work in public. 37

35              Primary infringement: communication to the public. 38

36              Primary infringement: making adaptation or act done in relation to adaptation. 38

37              Secondary infringement: importing infringing copy. 38

38              Secondary infringement: possessing or dealing with infringing copy. 39

39              Secondary infringement: providing means for making infringing copies. 39

40              Secondary infringement: liability of person permitting use of premises for infringing performance  39

41              Secondary infringement: liability of persons for supply etc. of apparatus for infringing performance, etc. 40

42              Meaning of “infringing copy”. 40

CHAPTER 4 – ACTS PERMITTED IN RELATION TO COPYRIGHT WORKS  41

43              Chapter 4: introductory. 41

44              Power to amend Chapter 4. 41

General 42

45              Making of temporary copies. 42

46              Research and private study. 42

47              Criticism, review and news reporting. 43

48              Incidental inclusion of copyright material 43

Visually impaired persons  43

49              Making single accessible copy for personal use by visually impaired person. 43

50              Multiple copies for visually impaired persons. 44

51              Intermediate copies and records created during production of accessible copy. 45

52              Licensing schemes to permit the making of accessible copies. 46

53              Orders limiting making of multiple accessible copies following infringement of copyright 47

54              Articles 49 to 53: definitions and other supplementary provision. 48

Education  49

55              Things done for purposes of instruction or examination. 49

56              Anthologies for educational use. 49

57              Performing, playing or showing work in course of activities of educational establishment 50

58              Recording by educational establishments of broadcasts. 50

59              Reprographic copying by educational establishments of passages from works. 51

Libraries and archives  51

60              Declarations as to use of works and liability for false declarations. 51

61              Copying by librarians: articles in periodicals. 52

62              Copying by librarians: parts of published works. 52

63              Restriction on production of multiple copies of the same material 53

64              Copying by librarians: supply of copies to other libraries. 53

65              Copying by librarians or archivists: replacement copies of works. 53

66              Copying by librarians or archivists: material not previously made available to public  54

67              Copy of work required to be made as condition of export 55

Public administration  55

68              States Assembly and judicial proceedings. 55

69              Committees of inquiry and public inquiries. 55

70              Copyright material open to public inspection or on official register 55

71              Copyright material communicated to the Crown or the States in the course of public business  56

72              Copyright material in public records. 57

73              Acts done under authority of enactment 57

Computer programs: lawful users  57

74              Computer programs: backup copies. 57

75              Computer programs: decompilation. 58

76              Computer programs: observing, studying and testing. 58

77              Computer programs: other acts permitted to lawful users. 59

Databases  59

78              Acts permitted in relation to databases. 59

Designs  59

79              Acts permitted in relation to design documents and models. 59

80              Effect of exploitation of design derived from artistic work. 60

81              Things done in reliance on registration of design. 60

Typefaces  61

82              Use of typeface in ordinary course of printing. 61

83              Articles for producing material in particular typeface. 61

Works in electronic form   62

84              Transfer of copies of works in electronic form.. 62

Miscellaneous: literary, dramatic, musical and artistic works  62

85              Anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author 62

86              Use of notes or recordings of spoken words in certain cases. 63

87              Public reading or recitation. 63

88              Abstracts of scientific or technical articles. 64

89              Recordings of folk-songs. 64

90              Representation of certain artistic works on public display. 64

91              Advertisement of sale of artistic work. 65

92              Making of subsequent works by same artist 65

93              Reconstruction of buildings. 65

Miscellaneous: films and sound recordings  65

94              Films: acts permitted on assumptions as to expiry of copyright, etc. 65

95              Playing of sound recordings for purposes of club, society, etc. 66

Miscellaneous: broadcasts  66

96              Incidental recording for purposes of broadcast 66

97              Recording for purposes of supervision and control of broadcasts and other services  67

98              Recording for purposes of time-shifting. 68

99              Photographs of broadcasts. 68

100            Free public showing or playing of broadcast 68

101            Reception of wireless broadcast and re-transmission by cable. 69

102            Provision of sub-titled copies of broadcast 70

103            Recording for archival purposes. 70

Adaptations  70

104            Adaptations. 70

cHAPTER 5 – MORAL RIGHTS  70

105            Right to be identified as author or director 70

106            Requirement that right conferred by Article 105 be asserted. 72

107            Exceptions to right conferred by Article 105. 73

108            Right to object to derogatory treatment of work. 73

109            Exceptions to right conferred by Article 108. 74

110            Qualification of right conferred by Article 108 in certain cases. 75

111            Infringement of right conferred by Article 108 by possessing or dealing with infringing article  76

112            False attribution of work. 76

113            Right to privacy of certain photographs and films. 77

114            Duration of moral rights. 78

115            Consent and waiver of moral rights. 78

116            Application of moral rights to joint works. 78

117            Application of moral rights to parts of works. 79

cHAPTER 6 – dEALINGS IN COPYRIGHT WORKS  79

118            Assignment and licences of copyright 79

119            Prospective ownership of copyright 80

120            Exclusive licences. 80

121            Copyright to pass under will with unpublished work. 80

122            Presumption of transfer of rental right in case of film production agreement 81

Right to equitable remuneration where rental right transferred  81

123            Right to equitable remuneration where rental right transferred. 81

124            Equitable remuneration: reference of amount to licensing authority. 82

Moral rights  82

125            Moral rights not assignable. 82

126            Transmission of moral rights on death. 83

chapter 7 – Remedies for infringement  84

Rights and remedies of copyright owner  84

127            Infringement actionable by copyright owner 84

128            Damages in action for infringement of copyright 84

129            Order for delivery up of infringing copies, etc. 84

130            Period after which remedy of delivery up not available under Article 129. 85

131            Right to seize infringing copies, etc. 85

Rights and remedies of exclusive licensee  86

132            Rights and remedies of exclusive licensee. 86

133            Certain infringements actionable by a non-exclusive licensee. 86

134            Exercise of concurrent rights. 87

Remedies for infringement of moral rights  87

135            Remedies for infringement of moral rights. 87

Presumptions in proceedings  88

136            Presumptions relevant to literary, dramatic, musical and artistic works. 88

137            Presumptions relevant to sound recordings, films and computer programs. 88

138            Presumptions relevant to works subject to Crown or States copyright 90

Offences  90

139            Offences of making or dealing with infringing articles, etc. 90

140            Order for delivery up of infringing copies, etc. in criminal proceedings. 91

Importation of infringing copies  92

141            Infringing copies may be treated as prohibited goods. 92

142            Orders supplementing Article 141. 93

Supplementary  93

143            Order as to disposal of infringing copy or other article. 93

144            Forfeiture of infringing copies, etc. 94

chapter 8 – copyright licensing   95

145            Copyright licensing schemes and licensing bodies. 95

146            Licensing schemes to which Articles 147 to 152 apply. 96

147            Reference of proposed licensing scheme to licensing authority. 96

148            Reference of licensing scheme to licensing authority. 96

149            Further reference of scheme to licensing authority. 97

150            Application for grant of licence in connection with licensing scheme. 98

151            Application for review of order as to entitlement to licence. 98

152            Effect of order of licensing authority as to licensing scheme. 99

References and applications with respect to licensing by licensing bodies  100

153            Licences to which Articles 154 to 157 apply. 100

154            Reference to licensing authority of proposed licence. 100

155            Reference to licensing authority of expiring licence. 100

156            Application for review of order as to licence. 101

157            Effect of order of licensing authority as to licence. 101

Factors to be taken into account in certain classes of case  102

158            General considerations: unreasonable discrimination. 102

159            Licences for reprographic copying. 102

160            Licences for educational establishments in respect of works included in broadcasts  102

161            Licences to reflect conditions imposed by promoters of events. 103

162            Licences to reflect payments in respect of underlying rights. 103

163            Licences in respect of works included in re-transmissions. 103

164            Mention of specific matters not to exclude other relevant considerations. 104

Use as of right of sound recordings in broadcasts  104

165            Interpretation of Articles 166 to 172. 104

166            Circumstances in which right of use of sound recordings in broadcast is available  104

167            Notice of intention to exercise right of use of sound recording in broadcast 105

168            Right of use of sound recording in broadcast 106

169            Applications to settle terms of payment for use of sound recording in broadcast 106

170            References, etc., about conditions, information and other terms. 106

171            Application for review of order under Article 169 or 170. 107

172            Factors to be taken into account on application, etc. under Articles 169 to 171. 107

173            Power to amend Articles 165 to 172. 107

Implied indemnity  108

174            Implied indemnity in certain schemes and licences for reprographic copying. 108

Copying by educational establishments  109

175            Power to extend coverage of scheme or licence authorizing copying by educational establishments  109

176            Variation or discharge of determination under Article 175. 110

177            Appeal against determination under Article 175 or 176. 110

178            Inquiry whether new scheme or general licence authorizing copying, etc., by educational establishments required. 111

179            Statutory licence where recommendation under Article 178 not implemented. 112

Miscellaneous  113

180            Notification of licensing schemes. 113

181            Collective exercise of certain rights in relation to cable re-transmission. 114

CHAPTER 9 – MISCELLANEOUS AND GENERAL  114

182            States Assembly copyright 114

183            States copyright 115

184            Crown copyright 117

185            Enforcement, etc. of States Assembly copyright 118

186            Copyright in enactments and revised edition. 118

187            Copyright in Acts and Measures. 119

188            Copyright in works first owned by prescribed international organizations. 119

189            Folklore, etc.: anonymous unpublished works. 119

190            Avoidance of terms of agreement relating to computer program.. 120

191            Avoidance of terms of agreement relating to database. 120

database right  120

CHAPTER 1 – SUBSISTENCE, OWNERSHIP AND DURATION OF DATABASE RIGHT  120

192            Interpretation of Part 2. 120

193            Database right 122

194            Who is maker of a database. 122

195            First ownership of database right 122

196            Acts infringing database right 123

197            Duration of database right 123

198            Qualification for database right 123

199            Avoidance of certain terms affecting lawful users. 124

CHAPTER 2 – ACTS PERMITTED IN RELATION TO DATABASE RIGHT  124

200            Chapter 2: introductory. 124

201            Power to amend Chapter 2. 125

202            Database in which copyright subsists. 125

203            Use of database content for teaching or research. 125

204            States Assembly and judicial proceedings. 125

205            Committee of inquiry or public inquiry. 125

206            Database contents open to public inspection or on official register 126

207            Database contents communicated to the Crown or the States in the course of public business  126

208            Contents of database in public records. 127

209            Acts done under authority of enactment 127

210            Acts permitted on assumption as to expiry of database right 127

CHAPTER 3 – DEALINGS IN AND INFRINGEMENTS OF DATABASE RIGHT  128

211            Dealings in database right 128

212            Infringement of database right and exclusive licensees. 128

213            Presumptions in proceedings relevant to database right 128

CHAPTER 4 – DATABASE RIGHT LICENSING   128

214            Database right licensing schemes and licensing bodies. 128

215            Referrals and applications in respect of licensing schemes. 129

216            Referrals and applications in respect of licences granted by licensing bodies. 129

217            General considerations on referral or application: unreasonable discrimination. 130

Publication right  130

218            Interpretation of Part 3. 130

219            Subsistence, ownership, qualification for and duration of publication right 131

220            Rights of person having publication right 131

221            Acts permitted in relation to publication right 131

222            Dealings in publication right 132

223            Remedies for infringement of publication right 132

224            Licensing of publication right 132

225            Application of other enactments relating to copyright 132

Circumvention of protection measures and electronic rights management  133

226            Interpretation of Part 4. 133

227            Rights and remedies in respect of circumvention of technical devices applied to computer programs  133

228            Exercise of concurrent rights under Article 227. 134

229            Further rights of persons in Article 227 as to delivery up, rights of seizure and disposal 134

230            Presumptions in proceedings under Article 227 or 229. 134

231            Rights and remedies in respect of circumvention of technological measures. 134

232            Exercise of concurrent rights under Article 231. 135

233            Presumptions in proceedings under Article 231. 135

234            Application of Articles 231 and 232 to database right, publication right and rights in performances  135

235            Offences: devices and services designed to circumvent technological measures  136

236            Forfeiture of devices, etc., in relation to which offence has been committed. 138

237            Civil rights and remedies in respect of devices and services promoted as or designed to circumvent technological measures. 138

238            Exercise of concurrent rights under Article 237. 139

239            Damages in proceedings under Article 237. 139

240            Further rights under Article 237 as to delivery up, rights of seizure and disposal 139

241            Presumptions in proceedings under Article 237 or 240. 140

242            Application of Articles 237 to 240 to database right, publication right and rights in performances  140

243            Remedy where effective technological measures prevent permitted acts. 140

244            Application of Article 243 to database right, publication right and rights in performances  142

245            Rights and remedies in respect of electronic rights management information. 143

246            Exercise of concurrent rights under Article 245. 144

247            Presumptions in proceedings under Article 245. 144

248            Application of Articles 245 and 246 to database right, publication right and rights in performances  144

Fraudulent reception of transmissions  145

249            Interpretation of Part 5. 145

250            Offence of fraudulently receiving programmes. 145

251            Offence relating to unauthorized decoders. 145

252            Forfeiture of unauthorized decoders. 147

253            Civil rights and remedies in respect of apparatus, etc. for unauthorized reception of transmissions  148

Performers’ protection   149

CHAPTER 1 – INTRODUCTORY   149

254            Interpretation of Part 6. 149

255            “Illicit recording”. 151

256            “Performer’s non-property rights”, “performer’s property rights” and “rights owner”  151

257            Qualifying performance. 152

258            “Rental”. 152

259            Performer’s rights to be independent of copyright, etc. 152

CHAPTER 2 – ECONOMIC RIGHTS  152

Performer’s property rights  152

260            Consent required for copying of recording: “reproduction right”. 152

261            Consent required for issue of copies to public: “distribution right”. 153

262            Consent required for rental of copies to public: “rental right”. 153

263            Consent required for making available to public: “making available right”. 154

Right to equitable remuneration  154

264            Right to equitable remuneration for exploitation of sound recording. 154

Performer’s non-property rights  155

265            Consent required for making recording or broadcast of live performance. 155

266            Consent required for showing in public, etc. of recording of performance made without consent 155

267            Consent required for importing, possessing or dealing with illicit recording. 156

Rights of person having recording rights  156

268            “Exclusive recording contract” and “person having recording rights”. 156

269            Recording rights: consent required for recording of performance subject to exclusive contract 157

270            Recording rights: consent required for use of recording made without consent 157

271            Recording rights: consent required for importing, possessing or dealing with illicit recording  157

272            Duration of rights. 158

CHAPTER 3 – ACTS PERMITTED IN RELATION TO ECONOMIC RIGHTS  158

273            Chapter 3: introductory. 158

274            Power to amend Chapter 3. 159

275            Making of temporary copies. 159

276            Criticism, reviews and news reporting. 159

277            Incidental inclusion of performance or recording. 159

278            Things done for purposes of instruction or examination. 160

279            Playing or showing sound recording, film or broadcast at educational establishment 160

280            Recording of broadcasts by educational establishments. 160

281            Copy of work required to be made as condition of export 161

282            States Assembly and judicial proceedings. 161

283            Committees of inquiry and public inquiries. 161

284            Public records. 161

285            Recording communicated to the Crown or the States in the course of public business  162

286            Acts done under authority of enactment 162

287            Transfer of copies of works in electronic form.. 163

288            Use of recordings of spoken works in certain cases. 163

289            Recordings of folk-songs for purposes of archive. 164

290            Playing of sound recordings for purposes of club, society, etc. 164

291            Incidental recording for purposes of broadcast 164

292            Recordings for purposes of supervision and control of broadcasts and other services  165

293            Recording for the purposes of time-shifting. 165

294            Photographs of broadcasts. 166

295            Free public showing or playing of broadcast 166

296            Reception of wireless broadcast and re-transmission by cable. 167

297            Provision of sub-titled copies of broadcast 167

298            Recording of broadcast for archival purposes. 167

CHAPTER 4 – DEALINGS IN PERFORMERS’ ECONOMIC RIGHTS  168

299            Assignment and licences of performer’s property rights. 168

300            Prospective ownership of a performer’s property rights. 168

301            Exclusive licences of performers’ property rights. 169

302            Performer’s property rights to pass under will with unpublished original recording  169

303            Presumption of transfer of rental right in case of film production agreement 169

304            Right to equitable remuneration where rental right transferred. 170

305            Equitable remuneration: reference of amount payable under Article 304 to licensing authority  170

306            Performers’ non-property rights: assignment or transmission. 171

307            Transmissibility of rights of person having recording rights. 171

308            Consent 171

309            Power of licensing authority to give consent on behalf of performer in certain cases  172

CHAPTER 5 – REMEDIES FOR INFRINGEMENT OF PERFORMER’S ECONOMIC RIGHTS  173

Performer’s property rights  173

310            Infringement actionable by owner of performer’s property rights. 173

311            Damages in action for infringement of performer’s property rights. 173

312            Rights and remedies for exclusive licensee: performer’s property rights. 173

313            Exercise of concurrent rights: performer’s property rights. 174

Performer’s non-property rights and recording rights  174

314            Performer’s non-property rights and recording rights: infringement actionable as breach of statutory duty  174

Delivery up or seizure of illicit recordings  175

315            Order for delivery up of illicit recording. 175

316            Period after which remedy of delivery up not available under Article 315. 175

317            Right to seize illicit recordings. 175

Offences  176

318            Offences: making, dealing with or using illicit recordings. 176

319            Order for delivery up in proceedings for offence against Article 318. 177

320            Offence: false representation of authority to give consent 178

Disposal or forfeiture of illicit recordings  179

321            Order as to disposal of illicit recording delivered up or seized under Article 315, 317 or 319  179

322            Forfeiture of illicit recordings in connection with offence. 180

General 180

323            Presumptions relevant to recordings of performances. 180

CHAPTER 6 – LICENSING OF PERFORMER’S PROPERTY RIGHTS  181

324            “Licensing scheme” and “licensing body” etc. 181

325            Referrals and applications in respect of licensing schemes. 181

326            Referrals and applications in respect of licences granted by licensing bodies. 182

327            General considerations on referrals and applications: unreasonable discrimination  182

328            Notification of licensing schemes. 183

CHAPTER 7 – MORAL RIGHTS IN PERFORMANCES  183

329            Right to be identified as performer 183

330            Requirement that right conferred by Article 329 be asserted. 184

331            Exceptions to right conferred by Article 329. 185

332            Right to object to derogatory treatment of performance. 185

333            Exceptions to right conferred by Article 332. 186

334            Infringement of right conferred by Article 332 by possessing or dealing with infringing article  186

335            Duration of moral rights in performances. 187

336            Consent and waiver of moral rights in performances. 187

337            Application of Articles 329 to 332 to parts of performances. 187

338            Moral rights in performances not assignable. 187

339            Transmission of moral rights in performances on death. 187

340            Remedies for infringement of moral rights in performances. 188

design right  189

CHAPTER 1 – INTRODUCTORY   189

341            Interpretation of Part 7. 189

342            “Crown use”, “States use” and related expressions. 191

343            Design right owner: construction of references. 192

344            “Infringing article”. 193

345            Application to articles in kit form.. 193

CHAPTER 2 – SUBSISTENCE, OWNERSHIP AND DURATION OF DESIGN RIGHT  193

346            Subsistence of design right 193

347            Who is first owner of design right 194

348            Duration of design right 194

Qualification for design right protection  195

349            Qualification for design right protection by reference to designer 195

350            Qualification for design right protection by reference to person commissioning it or employer 195

351            Qualification for design right protection by reference to first marketing. 196

352            Confidential information concerning semiconductor topography. 197

Infringement of design right 197

353            Primary infringement of design right 197

354            Secondary infringement: importing or dealing with infringing article. 198

355            Infringement in relation to part of semiconductor topography. 198

CHAPTER 3 – EXCEPTIONS TO RIGHTS OF DESIGN RIGHT OWNERS  198

356            Chapter 3: introductory. 198

357            Power to amend Chapter 3. 199

358            Exceptions relating to semiconductor topographies. 199

359            Infringement of copyright 199

360            Licences of right available in last 5 years of design right 199

361            Licensee under licence of right not to claim connection with design right owner 199

362            Application to settle terms of licence of right available under Article 360. 200

363            Settlement of terms of licence under Article 362 where design right owner unknown  200

364            Undertaking to take licence of right in infringement proceedings. 200

365            Crown use or States use of designs. 201

366            Settlement of terms for Crown or States use. 201

367            Rights of third parties in case of Crown use or States use. 202

368            Crown use or States use: compensation for loss of profit 203

369            References of disputes relating to Crown or States use. 204

CHAPTER 4 – DEALINGS WITH DESIGN RIGHT  205

370            Assignment and licences. 205

371            Prospective ownership of design right 205

372            Assignment of right in registered design presumed to carry with it design right 206

373            Exclusive licences. 206

CHAPTER 5 – REMEDIES FOR INFRINGEMENT OF DESIGN RIGHT  206

374            Rights and remedies of design right owner 206

375            Restriction of damages for innocent infringement 206

376            Order for delivery up of infringing article, etc. 207

377            Order as to disposal of infringing articles. 208

378            Rights and remedies of exclusive licensee. 209

379            Exercise of concurrent rights. 209

LICENSING AUTHORITY   210

380            Interpretation of Part 8. 210

381            Licensing authority. 210

382            Limitation of liability of licensing authority. 211

383            Applications or references to licensing authority. 211

384            Orders regulating proceedings before the licensing authority. 212

385            Costs, proof of orders, etc. 212

386            Awards of interest by licensing authority. 213

387            Reference of matter by licensing authority to the Court 213

388            Appeal to Court from decision of licensing authority. 214

389            Rules of court 214

General and closing   214

390            Interpretation of Part 9. 214

391            Rights and privileges under other enactments or the customary law.. 214

392            Civil and criminal liability of service providers in respect of infringements of rights  215

393            Territorial extent, Jersey ships. 215

394            Ministers’ powers of delegation. 216

395            Limitation of liability of Minister 216

396            Requirement of signature: application to body corporate. 216

397            Investigations by inspectors. 217

398            Search warrants. 217

399            Orders: extension of protection to qualifying individuals, etc. 218

400            Orders: general provisions. 218

401            Regulations: international conventions and EU Treaties. 219

402            Regulations: unidentified and lost rights owners. 219

403            Regulations: extension of application of licensing arrangements. 220

404            Regulations: codes of practice for licensing bodies. 220

405            Regulations: notification or advertisement of licensing schemes. 222

406            Regulations and Orders: power to amend the Schedule. 222

407            Regulations: power to amend enactments. 222

408            Regulations: application, transitional provisions and savings. 222

409            Regulations and Orders: general provisions. 223

410            Citation. 223

LIABILITY OF AND REMEDIES AGAINST SERVICE PROVIDERS  224

1                 Interpretation of Schedule. 224

2                 Rights to which this Schedule applies. 224

3                 Mere conduit 225

4                 Hosting. 225

5                 Caching. 226

6                 Links. 227

7                 Service provider not obliged to monitor material 228

8                 Defence in criminal proceedings: burden of proof 228

9                 Duty of service provider to provide means of contact, etc. 228

10              Notice of alleged infringement 229

11              Actions by service provider following service of notice of alleged infringement 229

12              Service of counter notice by owner 231

13              Actions by service provider following service of counter notice. 231

14              Notices that are not notices of alleged infringement 232

15              Liability for false or misleading notice, etc. 233

16              Injunctions against service providers. 234

17              Electronic communications. 234

18              Agents. 234

 

Supporting Documents

Table of Legislation History. 235

Table of Renumbered Provisions. 235

Table of Endnote References. 235

 


Intellectual Property (Unregistered Rights) (Jersey) Law 2011

A LAW to restate and amend the law relating to copyright; to establish rights equivalent to copyright; to establish the rights of persons in relation to designs and performances and remedies for infringement of those rights; to establish rights in respect of the fraudulent reception or decoding of transmissions; to make provision for criminal liability in respect of copyright and other rights established by this Law; to provide for the civil and criminal liability of information society service providers in respect of rights conferred by this Law and by the Patents (Jersey) Law 1957, the Registered Designs (Jersey) Law 1957 and the Trade Marks (Jersey) Law 2000; and for connected purposes.

Commencement [see endnotes]

PART 1

COPYRIGHT

CHAPTER 1 – INTRODUCTORY

1        General interpretation

(1)     In this Part, unless the context otherwise requires –

Agent of the Impôts” shall be construed in accordance with Article 4 of the Customs and Excise (Jersey) Law 1999[1];

archivist” includes a person acting on behalf of an archivist;

British citizen” means a British citizen, a British overseas territories citizen, a British National (Overseas), a British Overseas Citizen, a British subject or a British protected person within the meaning of the British Nationality Act 1981 of the United Kingdom;

broadcast” shall be construed in accordance with Article 4;

Broadcasting Act 1990” means the Broadcasting Act 1990 of the United Kingdom as extended to Jersey by the Broadcasting Act 1990 (Jersey) Order 1991[2] and the Broadcasting Act 1990 (Jersey) (No. 2) Order 1991[3] and amended by the Communications Act 2003;

Broadcasting Act 1996” means the Broadcasting Act 1996 of the United Kingdom as extended to Jersey by the Broadcasting (Jersey) Order 2003[4] and amended by the Communications Act 2003;

building” includes any fixed structure and part of a building or fixed structure;

business” includes a trade or profession;

committee of inquiry” means a committee of inquiry established by standing orders made under the States of Jersey Law 2005[5];

Communications Act 2003” means the Communications Act 2003 of the United Kingdom as extended to Jersey by the Communications (Jersey) Order 2003[6];

country” includes any territory, whether an overseas territory of the United Kingdom or a territory of another country, or any part of the British Islands;

Court” means the Royal Court;

EEA” means the European Economic Area;

EEA State” means a State that is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992, as adjusted by the Protocol signed at Brussels on 17th August 1993;

electronic” means actuated by electric, magnetic, electro-magnetic, electro-chemical or electro-mechanical energy;

employed”, “employee”, “employer” and “employment” refer to employment under a contract of service or of apprenticeship;

“EU Treaties” has the same meaning as in the European Union (Jersey) Law 1973[7];

facsimile copy” includes a copy which is reduced or enlarged in scale;

hovercraft” means a vehicle which is designed to be supported when in motion wholly or partly by air expelled from the vehicle to form a cushion of which the boundaries include the ground, water or other surface beneath the vehicle;

in electronic form” means in a form usable only by electronic means;

information society service” shall be construed in accordance with Article 8;

international organization” means an organization the members of which include one or more states;

judicial proceedings” includes proceedings before any court, committee or person having authority to decide any matter affecting a person’s legal rights or liabilities;

librarian” includes a person acting on behalf of a librarian;

licensing authority” shall be construed in accordance with Article 381;

the Minister” means the Chief Minister;

prescribed” means prescribed by Order made by the Minister for the purposes of the provision in which the expression appears;

protected area” means the British Islands and the EEA;

“public inquiry” means such an inquiry held pursuant to an enactment (other than an inquiry by a committee of inquiry);

reprographic copy” and “reprographic copying” refer to copying by means of a reprographic process;

reprographic process” means a process –

(a)     for making facsimile copies; or

(b)     involving the use of an appliance for making multiple copies,

and includes, in relation to a work held in electronic form, any copying by electronic means, but does not include the making of a film or sound recording;

States’ employee” has the meaning given in the Employment of States of Jersey Employees (Jersey) Law 2005[8];

telecommunications system” means a system for conveying visual images, sounds or other information by electronic means;

wireless broadcast” means a broadcast by means of wireless telegraphy;

wireless telegraphy” means the sending of electro-magnetic energy over paths not provided by a material substance constructed or arranged for that purpose but does not include the transmission of microwave energy between terrestrial fixed points.[9]

(2)     In this Law –

(a)     a reference to a body corporate includes any partnership or other body which has a legal personality separate from, as the case requires, its partners or members, and a reference to incorporation of a body shall, accordingly, be construed as including a reference to the establishment of such a body;

(b)     a reference to an unincorporated body shall not include any partnership or other body which has a legal personality separate from, as the case requires, its partners or members.

(3)     A reference to a Minister or any Minister is a reference to a Minister of the States of Jersey.

(4)     Unless the context otherwise requires, a reference in this Law to an Act of Parliament or subordinate legislation of the United Kingdom is a reference to that Act or subordinate legislation as amended from time to time and includes a reference to that Act or subordinate legislation as extended or applied by or under a provision of this Law or another enactment, whether of the United Kingdom or of Jersey.

(5)     References in a Part of this Law to a Chapter are to the Chapter of that number in that Part.

(6)     The Minister may, by Order, amend the definition “protected area” in paragraph (1).

(7)     An Order under paragraph (6) may, in amending the definition “protected area”, provide that it has different meanings in different provisions of this Law.

2        Expressions related to copyright

(1)     In this Part, unless the context otherwise requires –

“acts restricted by copyright” shall be construed in accordance with Article 30(1);

“adaptation” shall be construed in accordance with Article 36(3);

“article”, in the context of an article in a periodical, includes an item of any description;

“artistic work” means –

(a)     a graphic work, photograph, sculpture or collage, irrespective of artistic quality;

(b)     a work of architecture being a building or a model for a building; or

(c)     a work of artistic craftsmanship;

“author”, in relation to a work, shall be construed in accordance with Article 3;

“collective work” means –

(a)     a work of joint authorship; or

(b)     a work in which there are distinct contributions by different authors or in which works or parts of works of different authors are incorporated;

“commercial publication” shall be construed in accordance with Article 9;

“communication to the public” shall be construed in accordance with paragraph (2);

“computer-generated”, in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work;

“copyright work” means a work of any of those descriptions in which copyright subsists under Article 13;

“database” has the meaning given in Article 6;

“dramatic work” includes a work of dance or mime;

“exclusive licence” means a licence in writing signed by or on behalf of a copyright owner authorizing the licensee to the exclusion of all other persons, including the person granting the licence, to exercise a right which would otherwise be exercisable exclusively by the copyright owner;

“film” shall be construed in accordance with Article 17;

“future copyright” shall be construed in accordance with Article 119(2);

“graphic work” includes –

(a)     any painting, drawing, diagram, map, chart or plan; and

(b)     any engraving, etching, lithograph, woodcut or similar work;

“infringing copy” shall be construed in accordance with Article 42;

“licensing body” shall be construed in accordance with Article 145(2);

“licensing scheme” shall be construed in accordance with Article 145(1);

“literary work” means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes –

(a)     a table or compilation, other than a database;

(b)     a computer program;

(c)     preparatory design material for a computer program; and

(d)     a database;

“musical work” means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music;

“performance”, in relation to a work –

(a)     includes delivery in the case of lectures, addresses, speeches and sermons; and

(b)     in general, includes any mode of visual or acoustic presentation, including presentation by means of a sound recording, film or broadcast;

“photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film;

“producer”, in relation to a sound recording or a film, means the person by whom the arrangements necessary for the making of the sound recording or film are undertaken;

“prospective owner” shall be construed in accordance with Article 119(2);

“publication” shall be construed in accordance with Article 9;

“published edition”, in the context of copyright in the typographical arrangement of a published edition, means a published edition of the whole or any part of one or more literary, dramatic or musical works;

“qualifying country” shall be construed in accordance with Article 22(2);

“qualifying person” shall be construed in accordance with Article 21(2);

“rental” shall be construed in accordance with Article 10;

“rental right” means the right of a copyright owner to authorize or prohibit the rental of copies of the work;

“sculpture” includes a cast or model made for purposes of sculpture;

“sound recording” means –

(a)     a recording of sounds, from which the sounds may be reproduced; or

(b)     a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced,

regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced;

“sufficient acknowledgement” means an acknowledgement identifying the work in question by its title or other description, and identifying the author unless –

(a)     in the case of a work that has been made available to the public, the work has been made available anonymously;

(b)     in the case of a work that has not been made available to the public, it is not possible for a person to ascertain the identity of the author by reasonable inquiry;

“typeface” includes an ornamental motif used in printing;

“unauthorized”, as regards anything done in relation to a work, means done otherwise than –

(a)     by or with the licence of the copyright owner;

(b)     if copyright does not subsist in the work, by or with the licence of the author or, in a case where Article 24(2) would have applied, the author’s employer or, in either case, persons lawfully claiming under him or her; or

(c)     in pursuance of Article 71;

“unknown authorship” shall be construed in accordance with Article 3;

“work of joint authorship” shall be construed in accordance with Article 3;

“writing” includes any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded, and “written” shall be construed accordingly.

(2)     References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include –

(a)     the broadcasting of the work; and

(b)     the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.

(3)     In this Part, references to the making of a literary, dramatic or musical work shall be construed in accordance with Article 15(2).

(4)     In this Part, references to copying a work shall be construed in accordance with Article 31, and references to issuing a copy of the work to the public shall be construed in accordance with Article 32.

3        “Author” and related expressions

(1)     In this Part “author” in relation to a work, means the person who creates it.

(2)     That person shall be taken to be –

(a)     in the case of a sound recording, the producer;

(b)     in the case of a film, the producer and the principal director;

(c)     in the case of a broadcast, the person making the broadcast or, in the case of a broadcast which relays another broadcast by reception and immediate re-transmission, the person making that other broadcast; and

(d)     in the case of the typographical arrangement of a published edition, the publisher.

(3)     In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

(4)     For the purposes of this Part a work is of “unknown authorship” if the identity of the author is unknown, or in the case of a work of joint authorship, if the identity of none of the authors is known.

(5)     For the purposes of this Part the identity of an author shall be regarded as unknown if it is not possible for a person to ascertain his or her identity by reasonable inquiry, but if his or her identity is once known it shall not subsequently be regarded as unknown.

(6)     In this Part a “work of joint authorship” means a work produced by the collaboration of 2 or more authors in which the contribution of each author is not distinct from that of the other author or authors.

(7)     A film shall be treated as a work of joint authorship unless the producer and the principal director are the same person.

(8)     A broadcast shall be treated as a work of joint authorship in any case where more than one person is to be taken as making the broadcast.

(9)     References in this Part to the author of a work shall, except as otherwise provided, be construed in relation to a work of joint authorship as references to all the authors of the work.

4        “Broadcast” and related expressions

(1)     In this Part a “broadcast” means an electronic transmission of visual images, sounds or other information which –

(a)     is transmitted for simultaneous reception by members of the public and is capable of being lawfully received by them; or

(b)     is transmitted at a time determined solely by the person making the transmission for presentation to members of the public,

and which is not excepted by paragraph (2); and references to broadcasting shall be construed accordingly.

(2)     Excepted from the definition of “broadcast” is any internet transmission unless it is –

(a)     a transmission taking place simultaneously on the internet and by other means;

(b)     a concurrent transmission of a live event; or

(c)     a transmission of recorded moving images or sounds forming part of a programme service offered by the person responsible for making the transmission, being a service in which programmes are transmitted at scheduled times determined by that person.

(3)     An encrypted transmission shall be regarded as capable of being lawfully received by members of the public only if decoding equipment has been made available to members of the public by or with the authority of the person making the transmission or the person providing the contents of the transmission.

(4)     References in this Part to the person making a broadcast or a transmission which is a broadcast are –

(a)     to the person transmitting the programme, if he or she has responsibility to any extent for its contents; and

(b)     to any person providing the programme who makes with the person transmitting it the arrangements necessary for its transmission,

and references in this Part to a programme, in the context of broadcasting, are to any item included in a broadcast.

(5)     For the purposes of this Part, the place from which a wireless broadcast is made is the place where, under the control and responsibility of the person making the broadcast, the programme-carrying signals are introduced into an uninterrupted chain of communication, including in the case of a satellite transmission, the chain leading to the satellite and down towards the earth.

(6)     The relaying of a broadcast by reception and immediate re-transmission shall be regarded for the purposes of this Part as a separate act of broadcasting from the making of the broadcast which is so re-transmitted.

(7)     Paragraphs (4) and (5) have effect subject to Article 11.

(8)     References in this Part to the reception of a broadcast include reception of a broadcast relayed by the means of a telecommunications system.

5        Copyright owner: construction of references

(1)     Where different persons are (whether in consequence of a partial assignment or otherwise) entitled to different aspects of copyright in a work, the copyright owner for any purpose of this Part shall be the person who is entitled to the aspect of copyright relevant for that purpose.

(2)     Where copyright (or any aspect of copyright) is owned by more than one person jointly, references in this Part to the copyright owner shall be to all the owners, so that, in particular, any requirement of the licence of the copyright owner requires the licence of all of them.

6        “Database”

(1)     In this Part “database” means a collection of independent works, data or other materials which –

(a)     are arranged in a systematic or methodical way; and

(b)     are individually accessible by electronic or other means.

(2)     For the purposes of this Part, a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database, the database constitutes the author’s own intellectual creation.

7        “Educational establishment” and related expressions

(1)     In this Part “educational establishment” means –

(a)     a school, within the meaning of the Education (Jersey) Law 1999[10]; and

(b)     any other description of establishment (to the extent that it provides instruction) as may be prescribed.

(2)     The Minister may by Order provide that the provisions of this Part relating to educational establishments shall apply, with any modifications and adaptations as may be specified in the Order, in relation to teachers who are employed on behalf of the States to give instruction elsewhere to pupils who are unable to attend an educational establishment.

(3)     In relation to an educational establishment the expressions “teacher” and “pupil” in this Part include, respectively, any person who gives and any person who receives instruction.

(4)     References in this Part to anything being done “on behalf of” an educational establishment are to its being done for the purposes of that establishment by any person.

8        “Information society service”

(1)     In this Part “information society service” means any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.

(2)     For the purposes of paragraph (1) –

“at a distance” means that the service is provided without the parties being simultaneously present;

“by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electro-magnetic means;

“at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request.

(3)     The following table contains matter indicative of the services not covered by the definition “information society service” –

 

1.       Services not provided ‘at a distance’

Services provided in the physical presence of the provider and the recipient, even if they involve the use of electronic devices:

(a)     medical examinations or treatment at a doctor's surgery using electronic equipment where the patient is physically present;

(b)     consultation of an electronic catalogue in a shop with the customer on site;

(c)     plane ticket reservation at a travel agency in the physical presence of the customer by means of a network of computers;

(d)     electronic games made available in a video-arcade where the customer is physically present.

2.       Services not provided ‘by electronic means’

Services having material content even though provided via electronic devices:

(a)     automatic cash or ticket dispensing machines (banknotes, rail tickets);

(b)     access to road networks, car parks, etc., charging for use, even if there are electronic devices at the entrance/exit controlling access and/or ensuring correct payment is made;

Off-line services: distribution of CD roms or software on diskettes;

Services which are not provided via electronic processing/inventory systems:

(a)     voice telephony services;

(b)     telefax/telex services;

(c)     services provided via voice telephony or fax;

(d)     telephone/telefax consultation of a doctor;

(e)     telephone/telefax consultation of a lawyer;

(f)      telephone/telefax direct marketing.

3.       Services not supplied ‘at the individual request of a recipient of services’

Services provided by transmitting data without individual demand for simultaneous reception by an unlimited number of individual receivers (point to multipoint transmission):

(a)     television broadcasting services (including near-video on-demand services) and, for this purpose “television broadcasting” –

 

(i)      means the initial transmission by wire or over the air, including that by satellite, in unencoded or encoded form, of television programmes intended for reception by the public,

 

(ii)      includes the communication of programmes between undertakings with a view to their being relayed to the public, and

 

(iii)     does not include communication services providing items of information or other messages on individual demand such as telecopying, electronic data banks and other similar services;

(b)     radio broadcasting services;

(c)(televised) teletext.

 

(4)     The Minister may, by Order, amend the definition “information society service”, associated definitions in paragraph (2) and any matter indicative of the services covered, or not covered, by the definition.

9        “Publication” and “commercial publication”

(1)     In this Part “publication”, in relation to a work –

(a)     means the issue of copies to the public; and

(b)     includes, in the case of a literary, dramatic, musical or artistic work, making it available to the public by means of an electronic retrieval system,

and related expressions shall be construed accordingly.

(2)     In this Part “commercial publication”, in relation to a literary, dramatic, musical or artistic work means –

(a)     issuing copies of the work to the public at a time when copies made in advance of the receipt of orders are generally available to the public; or

(b)     making the work available to the public by means of an electronic retrieval system,

and related expressions shall be construed accordingly.

(3)     In the case of a work of architecture in the form of a building, or an artistic work incorporated in a building, construction of the building shall be treated as equivalent to publication of the work.

(4)     The following do not constitute publication for the purposes of this Part and references to commercial publication shall be construed accordingly –

(a)     in the case of a literary, dramatic or musical work –

(i)      the performance of the work, or

(ii)      the communication to the public of the work (otherwise than for the purposes of an electronic retrieval system);

(b)     in the case of an artistic work –

(i)      the exhibition of the work,

(ii)      the issue to the public of copies of a graphic work representing, or of photographs of, a work of architecture in the form of a building or a model for a building, a sculpture or a work of artistic craftsmanship,

(iii)     the issue to the public of copies of a film including the work, or

(iv)     the communication to the public of the work (otherwise than for the purposes of an electronic retrieval system);

(c)     in the case of a sound recording or film –

(i)      the work being played or shown in public, or

(ii)      the communication to the public of the work.

(5)     References in this Part to publication or commercial publication do not include publication which is merely colourable and not intended to satisfy the reasonable requirements of the public.

(6)     No account shall be taken for the purposes of this Article of any unauthorized act.

10      “Rental”

(1)     In this Part, subject to paragraph (3), “rental” means making a copy of a work available for use, on terms that it will or may be returned, for direct or indirect economic or commercial advantage.

(2)     The expression “rental” does not include –

(a)     making available for the purpose of public performance, playing or showing in public or communication to the public;

(b)     making available for the purpose of exhibition in public; or

(c)     making available for on-the-spot reference use.

(3)     References in this Part to the rental of copies of a work include the rental of the original.

11      Satellite broadcasts: deemed broadcaster and place of broadcast

(1)     This Article applies where the place from which a broadcast by way of satellite transmission is made is located in a country outside Jersey and the law of that country fails to provide at least the following level of protection –

(a)     exclusive rights in relation to wireless broadcasting equivalent to those conferred by Article 35 on the authors of literary, dramatic, musical and artistic works, films and broadcasts;

(b)     a right in relation to live wireless broadcasting equivalent to that conferred on a performer by Article 265(1)(b); and

(c)     a right for authors of sound recordings and performers to share in a single equitable remuneration in respect of the wireless broadcasting of sound recordings.

(2)     Where the place from which the programme-carrying signals are transmitted to the satellite (“the uplink station”) is located in Jersey –

(a)     the person operating the uplink station shall be treated as the person making the broadcast; and

(b)     that place shall be treated as the place from which the broadcast is made.

(3)     Where the uplink station is not located in Jersey but a person who is established in Jersey has commissioned the making of the broadcast –

(a)     that person shall be treated as the person making the broadcast; and

(b)     the place in which he or she has his or her principal establishment in Jersey shall be treated as the place from which the broadcast is made.

12      General provisions as to construction

(1)     This Part restates and amends the law of copyright, that is, the provisions of the Copyright Act 1911 of the United Kingdom, and the Musical Copyright Act 1906 of the United Kingdom, as extended to and having effect in Jersey.

(2)     A provision of this Part which corresponds to a provision of the previous law shall not be construed as departing from the previous law merely because of a change of expression.

(3)     Decisions under the previous law may be referred to for the purpose of establishing whether a provision of this Part departs from the previous law, or otherwise for establishing the true construction of this Part.

(4)     In this Article a reference to this Part includes the provisions of Part 9 as they apply for the purpose of this Part.

chapter 2 – subsistence, ownership and duration of copyright

13      Copyright

(1)     Copyright is a property right which subsists in accordance with this Part in the following descriptions of work –

(a)     original literary, dramatic, musical or artistic works;

(b)     sound recordings, films or broadcasts;

(c)     the typographical arrangement of published editions.

(2)     Copyright does not subsist in a work unless the requirements of this Part with respect to qualification for copyright protection are met.

14      Rights subsisting in copyright works

(1)     The owner of the copyright in a work of any description has the exclusive right to do the acts specified in Chapter 3 as the acts restricted by the copyright in a work of that description.

(2)     In relation to certain descriptions of copyright work the following rights conferred by Chapter 5 subsist in favour of the author, director or commissioner of the work, whether or not he or she is the owner of the copyright –

(a)     the right to be identified as author or director under Article 105;

(b)     the right to object to derogatory treatment of work under Article 108;

(c)     the right to privacy of certain photographs and films under Article 113.

15      Literary, dramatic and musical works: restriction on copyright

(1)     Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise.

(2)     References in this Part to the time at which a literary, dramatic or musical work is made are to the time at which it is so recorded.

(3)     It is immaterial for the purposes of paragraph (1) whether the work is recorded by or with the permission of the author.

(4)     Where the work is not recorded by the author, nothing in paragraph (1) affects the question whether copyright subsists in the record as distinct from the work recorded.

16      Sound recordings: restriction on copyright

Copyright does not subsist in a sound recording which is, or to the extent that it is, a copy taken from a previous sound recording.

17      Films: restriction on copyright

(1)     In this Part “film” means a recording on any medium from which a moving image may by any means be produced.

(2)     The sound track accompanying a film shall be treated as part of the film for the purposes of this Part.

(3)     Without prejudice to the generality of paragraph (2), where that paragraph applies –

(a)     references in this Part to showing a film include playing the film sound track to accompany the film;

(b)     references in this Part to playing a sound recording, or to communicating a sound recording to the public, do not include playing or communicating the film sound track to accompany the film;

(c)     references in this Part to copying a work, so far as they apply to a sound recording, do not include copying the film sound track to accompany the film; and

(d)     references in this Part to the issuing or rental of copies of a work, so far as they apply to a sound recording, do not include the issuing or rental of copies of the sound track to accompany the film.

(4)     Copyright does not subsist in a film which is, or to the extent that it is, a copy taken from a previous film.

(5)     Nothing in this Article affects any copyright subsisting in a film sound track as a sound recording.

18      Broadcasts: restriction on copyright

Copyright does not subsist in a broadcast which infringes, or to the extent that it infringes, the copyright in another broadcast.

19      Published editions: restriction on copyright

Copyright does not subsist in the typographical arrangement of a published edition if, or to the extent that, it reproduces the typographical arrangement of a previous edition.

20      Qualification for copyright protection

(1)     Copyright does not subsist in a work unless the qualification requirements of Articles 21 to 23 are satisfied as regards –

(a)     the author;

(b)     the country in which the work was first published; or

(c)     in the case of a broadcast, the country from which the broadcast was made.

(2)     Paragraph (1) does not apply in relation to States Assembly copyright, States copyright or Crown copyright, or to copyright which subsists by virtue of Article 188.

(3)     If the qualification requirements of Articles 21 to 23 or Article 182, 183, 184 or 188 are once satisfied in respect of a work, copyright does not cease to subsist by reason of any subsequent event.

21      Qualification by reference to author

(1)     A work qualifies for copyright protection if the author was at the material time a qualifying person.

(2)     In this Part “qualifying person” means –

(a)     a British citizen;

(b)     an individual domiciled or resident in Jersey;

(c)     a body incorporated under the law of Jersey; or

(d)     so far as provision is made by Order under Article 399, a person prescribed by the Order for the purpose of extending the application of a right conferred by this Part.

(3)     A work of joint authorship qualifies for copyright protection if at the material time any of the authors is a qualifying person, but where a work qualifies for copyright protection only under this Article, only those authors who satisfy that requirement shall be taken into account for the purposes of –

(a)     Article 24(1) and (2);

(b)     Article 25, and Article 3(4), so far as it applies for the purposes of Article 25;

(c)     Article 85; or

(d)     Article 94.

(4)     The material time in relation to a literary, dramatic, musical or artistic work is –

(a)     in the case of an unpublished work, when the work was made or, if the making of the work extended over a period, a substantial part of that period; or

(b)     in the case of a published work, when the work was first published or, if the author had died before that time, immediately before his or her death.

(5)     The material time in relation to descriptions of work other than those specified in paragraph (4) is as follows –

(a)     in the case of a sound recording or film, when it was made;

(b)     in the case of a broadcast, when the broadcast was made;

(c)     in the case of the typographical arrangement of a published edition, when the edition was first published.

22      Qualification by reference to country of first publication

(1)     A literary, dramatic, musical or artistic work, a sound recording or film, or the typographical arrangement of a published edition, qualifies for copyright protection if it is first published in a qualifying country.

(2)     In this Part “qualifying country” means –

(a)     Jersey; or

(b)     so far as provision is made by Order under Article 399, a country prescribed by the Order for the purpose of extending the application of a right conferred by this Part.

(3)     For the purposes of this Article, publication in one country shall not be regarded as other than the first publication by reason of simultaneous publication elsewhere, and for this purpose publication elsewhere within the previous 30 days shall be treated as simultaneous.

23      Qualification by reference to place of transmission

A broadcast qualifies for copyright protection if it is made from a place in a qualifying country.

24      Who is the first owner of copyright

(1)     The author of a work is the first owner of any copyright in it, subject to the following provisions of this Article.

(2)     Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his or her employment, his or her employer is the first owner of any copyright in the work subject to any agreement to the contrary.

(3)     This Article does not apply to States Assembly copyright, States copyright or Crown copyright, or to copyright which subsists by virtue of Article 188.

25      Duration of copyright in literary, dramatic, musical or artistic works

(1)     This Article has effect with respect to the duration of copyright in a literary, dramatic, musical or artistic work.

(2)     Copyright expires at the end of the period of 70 years from the end of the calendar year in which the author dies, subject as follows.

(3)     If the work is of unknown authorship, copyright expires –

(a)     at the end of the period of 70 years from the end of the calendar year in which the work was made; or

(b)     if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available,

subject as follows.

(4)     Paragraph (2) applies if the identity of the author becomes known before the end of the period specified in paragraph (3)(a) or (b).

(5)     For the purposes of paragraph (3) making available to the public includes –

(a)     in the case of a literary, dramatic or musical work –

(i)      performance in public, or

(ii)      communication to the public;

(b)     in the case of an artistic work –

(i)      exhibition in public,

(ii)      a film including the work being shown in public, or

(iii)     communication to the public,

but in determining generally for the purposes of that paragraph whether a work has been made available to the public no account shall be taken of any unauthorized act.

(6)     If the work is computer-generated paragraphs (1) to (5) do not apply and copyright expires at the end of the period of 50 years from the end of the calendar year in which the work was made.

(7)     This Article is adapted as follows in relation to a work of joint authorship –

(a)     the reference in paragraph (2) to the death of the author shall be construed –

(i)      if the identity of all the authors is known, as a reference to the death of the last of them to die, and

(ii)      if the identity of one or more of the authors is known and the identity of one or more others is not, as a reference to the death of the last whose identity is known;

(b)     the reference in paragraph (4) to the identity of the author becoming known shall be construed as a reference to the identity of any of the authors becoming known.

(8)     This Article does not apply to States Assembly copyright, States copyright or Crown copyright, or to copyright which subsists by virtue of Article 188.

26      Duration of copyright in sound recordings

(1)     This Article has effect with respect to the duration of copyright in a sound recording.

(2)     Copyright expires –

(a)     at the end of the period of 50 years from the end of the calendar year in which the recording is made;

(b)     if during that period the recording is published, 50 years from the end of the calendar year in which it is first published; or

(c)     if during that period the recording is not published but is made available to the public by being played in public or communicated to the public, 50 years from the end of the calendar year in which it is first so made available,

but in determining whether a sound recording has been published, played in public or communicated to the public, no account shall be taken of any unauthorized act.

27      Duration of copyright in films

(1)     This Article has effect with respect to the duration of copyright in a film.

(2)     Copyright expires at the end of the period of 70 years from the end of the calendar year in which the death occurs of the last to die of the following persons –

(a)     the principal director;

(b)     the author of the screenplay;

(c)     the author of the dialogue;

(d)     the composer of music specially created for and used in the film,

subject as follows.

(3)     If the identity of one or more of the persons referred to in paragraph (2)(a) to (d) is known and the identity of one or more others is not, the reference in that paragraph to the death of the last of them to die shall be construed as a reference to the death of the last whose identity is known.

(4)     If the identity of the persons referred to in paragraph (2)(a) to (d) is unknown, copyright expires –

(a)     at the end of the period of 70 years from the end of the calendar year in which the film was made; or

(b)     if during that period the film is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available.

(5)     Paragraphs (2) and (3) apply if the identity of any of those persons becomes known before the end of the period specified in paragraph (4)(a) or (b).

(6)     For the purposes of paragraph (4) making available to the public includes –

(a)     showing in public; or

(b)     communicating to the public,

but in determining generally for the purposes of paragraph (4) whether a film has been made available to the public no account shall be taken of any unauthorized act.

(7)     If in any case there is no person falling within paragraph (2)(a) to (d), the above provisions do not apply and copyright expires at the end of the period of 50 years from the end of the calendar year in which the film was made.

(8)     For the purposes of this Article the identity of any of the persons referred to in paragraph (2)(a) to (d) shall be regarded as unknown if it is not possible for a person to ascertain his or her identity by reasonable inquiry, but if the identity of any such person is once known it shall not subsequently be regarded as unknown.

(9)     This Article does not apply to States Assembly copyright, States copyright or Crown copyright.

28      Duration of copyright in broadcasts

(1)     This Article has effect with respect to the duration of copyright in a broadcast.

(2)     Subject to paragraph (3), copyright in a broadcast expires at the end of the period of 50 years from the end of the calendar year in which the broadcast was made.

(3)     Copyright in a repeat broadcast expires at the same time as the copyright in the original broadcast and, accordingly, no copyright arises in respect of a repeat broadcast which is broadcast after the expiry of the copyright in the original broadcast.

(4)     In this Article, “repeat broadcast” means one which is a repeat of a broadcast previously made.

29      Duration of copyright in typographical arrangement of published editions

Copyright in the typographical arrangement of a published edition shall expire at the end of the period of 25 years from the end of the calendar year in which the edition was first published.

chapter 3 – rights of copyright owner

30      Acts restricted by copyright in a work

(1)     The owner of the copyright in a work has, in accordance with this Chapter, the exclusive right to do the following acts in Jersey –

(a)     to copy the work;

(b)     to issue copies of the work to the public;

(c)     to rent the work to the public;

(d)     to perform, show or play the work in public;

(e)     to communicate the work to the public;

(f)      to make an adaptation of the work or do any of the above in relation to an adaptation.

(2)     Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorizes another to do, any of the acts restricted by the copyright.

(3)     References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it –

(a)     in relation to the work as a whole or any substantial part of it; and

(b)     either directly or indirectly,

and it is immaterial whether any intervening acts themselves infringe the copyright.

(4)     This Chapter has effect subject to Chapters 4 and 8.

31      Primary infringement: copying

(1)     The copying of work is an act restricted by the copyright in every description of copyright work, and references in this Part to copying and copies shall be construed as follows.

(2)     Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form and includes storing the work in any medium by electronic means.

(3)     In relation to an artistic work, copying includes the making of a copy in 3 dimensions of a 2-dimensional work and the making of a copy in 2 dimensions of a 3-dimensional work.

(4)     Copying in relation to a film or broadcast includes making a photograph of the whole or any substantial part of any image forming part of the film or broadcast.

(5)     Copying in relation to the typographical arrangement of a published edition means making a facsimile copy of the arrangement.

(6)     Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.

32      Primary infringement: issue of copies to the public

(1)     The issue to the public of copies of the work is an act restricted by the copyright in every description of copyright work.

(2)     References in this Part to the issue to the public of copies of a work are to –

(a)     the act of putting into circulation in the protected area copies not previously put into circulation in the protected area by or with the consent of the copyright owner; or

(b)     the act of putting into circulation outside the protected area copies not previously put into circulation in the protected area or elsewhere.

(3)     References in this Part to the issue to the public of copies of a work do not include –

(a)     any subsequent distribution, sale, hiring or loan of copies previously put into circulation; or

(b)     any subsequent importation of those copies into the protected area,

except so far as paragraph (2)(a) applies to putting into circulation in the protected area copies previously put into circulation outside the protected area.

(4)     References in this Part to the issue of copies of a work include the issue of the original.

33      Primary infringement: rental of work to the public

The rental of copies of the work to the public is an act restricted by the copyright in –

(a)     a literary, dramatic or musical work;

(b)     an artistic work, other than –

(i)      a work of architecture in the form of a building or a model for a building, or

(ii)      a work of applied art; or

(c)     a film or a sound recording.

34      Primary infringement: performance, showing or playing of work in public

(1)     The performance of the work in public is an act restricted by the copyright in a literary, dramatic or musical work.

(2)     The playing or showing of the work in public is an act restricted by the copyright in a sound recording, film or broadcast.

(3)     Where copyright in a work is infringed by its being performed, played or shown in public by means of apparatus for receiving visual images or sounds conveyed by electronic means, the person by whom the visual images or sounds are sent, and in the case of a performance, the performers, shall not be regarded as responsible for the infringement.

35      Primary infringement: communication to the public

The communication to the public of the work is an act restricted by the copyright in –

(a)     a literary, dramatic, musical or artistic work;

(b)     a sound recording or film; or

(c)     a broadcast.

36      Primary infringement: making adaptation or act done in relation to adaptation

(1)     The making of an adaptation of the work is an act restricted by the copyright in a literary, dramatic or musical work and for this purpose an adaptation is made when it is recorded, in writing or otherwise.

(2)     The doing of any of the acts specified in Articles 31 to 35, or paragraph (1), in relation to an adaptation of a work is also an act restricted by the copyright in a literary, dramatic or musical work and for this purpose it is immaterial whether the adaptation has been recorded, in writing or otherwise, at the time the act is done.

(3)     In this Part “adaptation” –

(a)     in relation to a literary work, other than a computer program or a database or in relation to a dramatic work, means –

(i)      a translation of the work,

(ii)      a version of a dramatic work in which it is converted into a non-dramatic work or, as the case may be, of a non-dramatic work in which it is converted into a dramatic work, and

(iii)     a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical;

(b)     in relation to a computer program, means an arrangement or altered version of the program or a translation of it;

(c)     in relation to a database, means an arrangement or altered version of the database or a translation of it; and

(d)     in relation to a musical work, means an arrangement or transcription of the work.

(4)     In this Part, in relation to a computer program, a “translation” includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code.

(5)     No inference shall be drawn from this Article as to what does or does not amount to copying a work.

37      Secondary infringement: importing infringing copy

The copyright in a work is infringed by a person who, without the licence of the copyright owner, imports into Jersey, otherwise than for his or her private and domestic use, an article which is, and which he or she knows or has reason to believe is, an infringing copy of the work.

38      Secondary infringement: possessing or dealing with infringing copy

The copyright in a work is infringed by a person who, without the licence of the copyright owner –

(a)     possesses in the course of a business;

(b)     sells or lets for hire, or offers or exposes for sale or hire;

(c)     in the course of a business exhibits in public or distributes; or

(d)     distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

an article which is, and which he or she knows or has reason to believe is, an infringing copy of the work.

39      Secondary infringement: providing means for making infringing copies

(1)     Copyright in a work is infringed by a person who, without the licence of the copyright owner –

(a)     makes;

(b)     imports into Jersey;

(c)     possesses in the course of a business; or

(d)     sells or lets for hire, or offers or exposes for sale or hire,

an article specifically designed or adapted for making copies of that work, knowing or having reason to believe that it is to be used to make infringing copies.

(2)     Copyright in a work is infringed by a person who without the licence of the copyright owner transmits the work by means of a telecommunications system (otherwise than by communication to the public), knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission in Jersey or elsewhere.

40      Secondary infringement: liability of person permitting use of premises for infringing performance

(1)     Where the copyright in a literary, dramatic or musical work is infringed by a performance at a place of public entertainment, any person who gave permission for that place to be used for the performance is also liable for the infringement unless when he or she gave permission he or she believed on reasonable grounds that the performance would not infringe copyright.

(2)     In this Article “place of public entertainment” includes premises which are occupied mainly for other purposes but are from time to time made available for hire for the purposes of public entertainment.

41      Secondary infringement: liability of persons for supply etc. of apparatus for infringing performance, etc.

(1)     Where copyright in a work is infringed by a public performance of the work, or by the playing or showing of the work in public, by means of apparatus for –

(a)     playing sound recordings;

(b)     showing films; or

(c)     receiving visual images or sounds conveyed by electronic means,

the following persons are also liable for the infringement.

(2)     A person who supplied the apparatus, or any substantial part of it, is liable for the infringement if when he or she supplied the apparatus or part –

(a)     he or she knew or had reason to believe that the apparatus was likely to be so used as to infringe copyright; or

(b)     in the case of apparatus whose normal use involves a public performance, playing or showing, he or she did not believe on reasonable grounds that it would not be so used as to infringe copyright.

(3)     An occupier of premises who gave permission for the apparatus to be brought onto the premises is liable for the infringement if when he or she gave permission he or she knew or had reason to believe that the apparatus was likely to be so used as to infringe copyright.

(4)     A person who supplied a copy of a sound recording or film used to infringe copyright is liable for the infringement if when he or she supplied it he or she knew or had reason to believe that what he or she supplied, or a copy made directly or indirectly from it, was likely to be so used as to infringe copyright.

42      Meaning of “infringing copy”

(1)     In this Part “infringing copy”, in relation to a copyright work, shall be construed in accordance with this Article.

(2)     An article is an infringing copy if its making constituted an infringement of the copyright in the work in question.

(3)     An article is also an infringing copy if –

(a)     it has been or is proposed to be imported into Jersey; and

(b)     its making in Jersey would have constituted an infringement of the copyright in the work in question, or a breach of an exclusive licence agreement relating to that work.

(4)     Where in any proceedings the question arises whether an article is an infringing copy and it is shown –

(a)     that the article is a copy of the work; and

(b)     that copyright subsists in the work or has subsisted at any time,

it shall be presumed until the contrary is proved that the article was made at a time when copyright subsisted in the work.

(5)     Nothing in paragraph (3) shall be construed as applying to an article which may lawfully be imported into Jersey pursuant to any right available by virtue of Article 2(1) of the European Union (Jersey) Law 1973.[11]

(6)     In this Part “infringing copy” includes a copy falling to be treated as an infringing copy by virtue of any of Articles 49(6) and (9), 50(9) and (10), 51(2), 55(5), 58(4), 59(5), 60(2)(b), 84(2), 91(2), 96(4), 98(2) and 99(2), or any provision of an Order under Article 179(1) and (5).

CHAPTER 4 – ACTS PERMITTED IN RELATION TO COPYRIGHT WORKS

43      Chapter 4: introductory

(1)     This Chapter specifies acts which may be done in relation to copyright works notwithstanding the subsistence of copyright.

(2)     This Chapter relates only to the question of infringement of copyright and, except as expressly provided by this Law, does not affect any other right or obligation restricting the doing of any of the specified acts.

(3)     Where it is provided by this Chapter that an act does not infringe copyright, or may be done without infringing copyright, and no particular description of copyright work is mentioned, the act in question does not infringe copyright in a work of any description.

(4)     No inference shall be drawn from the description of any act which may by virtue of this Chapter be done without infringing copyright as to the scope of the acts restricted by the copyright in any description of work.

(5)     The provisions of this Chapter are to be construed independently of each other, so that the fact that an act does not fall within one provision does not mean that it is not covered by another provision.

44      Power to amend Chapter 4

(1)     The States may, by Regulations, amend in this Chapter the acts which may be done in relation to copyright works, notwithstanding the subsistence of copyright.

(2)     Regulations under paragraph (1) may also amend this Chapter so as to provide that an agreement is void to the extent that it purports to prohibit or restrict an act which would, but for a provision of this Chapter, infringe copyright.

(3)     Regulations under paragraph (1) may also amend –

(a)     any other provision of this Law which applies or otherwise refers to any provision of this Chapter;

(b)     any other provision of this Law, consequentially upon any amendment of this Chapter.

General

45      Making of temporary copies

Copyright in a literary, dramatic, musical or artistic work, the typographical arrangement of a published edition, a sound recording or a film, is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable –

(a)     a transmission of the work in a network between third parties by an intermediary; or

(b)     a lawful use of the work,

and which has no independent economic significance.

46      Research and private study

(1)     Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research or private study does not infringe any copyright in the work or, in the case of a published edition, in the typographical arrangement.

(2)     Fair dealing with the typographical arrangement of a published edition for the purposes of research or private study does not infringe any copyright in the arrangement.

(3)     Copying by a person other than the researcher or student himself or herself is not fair dealing if –

(a)     in the case of a librarian, or a person acting on behalf of a librarian, he or she does anything which an Order under Article 63 would not permit to be done under Article 61 or 62; or

(b)     in any other case, the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose.

(4)     It is not fair dealing –

(a)     to convert a computer program expressed in a low level language into a version expressed in a higher level language; or

(b)     incidentally in the course of so converting the program, to copy it,

(these acts being permitted if done in accordance with Article 75).

(5)     It is not fair dealing to observe, study or test the functioning of a computer program in order to determine the ideas and principles which underlie any element of the program (these acts being permitted if done in accordance with Article 76).

47      Criticism, review and news reporting

(1)     Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe copyright in the work if it is accompanied by a sufficient acknowledgement.

(2)     Subject to paragraph (3), fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work if it is accompanied by a sufficient acknowledgement.

(3)     No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film or broadcast.

(4)     An agreement is void to the extent that it purports to prohibit or restrict an act which would, apart from this Article, infringe copyright.

48      Incidental inclusion of copyright material

(1)     Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film or broadcast.

(2)     Nor is the copyright infringed by anything done in relation to copies of, or the playing, showing or communication to the public of, anything whose making was, by virtue of paragraph (1), not an infringement of the copyright.

(3)     A musical work, words spoken or sung with music, or so much of a sound recording or broadcast as includes a musical work or such words, shall not be regarded as incidentally included in another work if it is deliberately included.

Visually impaired persons

49      Making single accessible copy for personal use by visually impaired person

(1)     If a visually impaired person has lawful possession or lawful use of a copy (the “master copy”) of the whole or part of –

(a)     a literary, dramatic, musical or artistic work; or

(b)     a published edition,

which is not accessible to him or her because of the impairment, it shall not be an infringement of copyright in the work, or in the typographical arrangement of the published edition, for an accessible copy of the master copy to be made for his or her personal use.

(2)     Paragraph (1) shall not apply if the master copy is of a musical work, or part of a musical work, and the making of an accessible copy would involve recording a performance of the work or part of it.

(3)     Paragraph (1) shall not apply in relation to the making of an accessible copy for a particular visually impaired person if, or to the extent that, copies of the copyright work are commercially available, by or with the authority of the copyright owner, in a form that is accessible to that person.

(4)     An accessible copy made under this Article must be accompanied by –

(a)     a statement that it is made under this Article; and

(b)     a sufficient acknowledgement.

(5)     If a person makes an accessible copy on behalf of a visually impaired person under this Article and charges for it, the sum charged must not exceed the cost of making and supplying the copy.

(6)     If a person holds an accessible copy made under paragraph (1) when he or she is not entitled to have it made under that paragraph, the copy shall be treated as an infringing copy, unless he or she is a person falling within paragraph (7)(b).

(7)     A person who holds an accessible copy made under paragraph (1) may transfer it to –

(a)     a visually impaired person entitled to have the accessible copy made under paragraph (1); or

(b)     a person who has lawful possession of the master copy and intends to transfer the accessible copy to a person falling within sub-paragraph (a).

(8)     The transfer by a person (“V”) of an accessible copy made under paragraph (1) to another person (“T”) shall be an infringement of copyright by V unless V has reasonable grounds for believing that T is a person falling within paragraph (7)(a) or (b).

(9)     If an accessible copy which would be an infringing copy but for this Article is subsequently dealt with –

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

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

(10)    In paragraph (9), “dealt with” means sold or let for hire or offered or exposed for sale or hire or communicated to the public.

50      Multiple copies for visually impaired persons

(1)     If an approved body has lawful possession of a copy (the “master copy”) of the whole or part of –

(a)     a published literary, dramatic, musical or artistic work; or

(b)     a published edition,

it shall not be an infringement of copyright in the work, or in the typographical arrangement of the published edition, for the body to make, or supply, accessible copies for the personal use of visually impaired persons to whom the master copy is not accessible because of their impairment.

(2)     Paragraph (1) shall not apply if the master copy is of a musical work, or part of a musical work, and the making of an accessible copy would involve recording a performance of the work or part of it.

(3)     Paragraph (1) shall not apply in relation to the making of an accessible copy if, or to the extent that, copies of the copyright work are commercially available, by or with the authority of the copyright owner, in a form that is accessible to the same or substantially the same degree.

(4)     Paragraph (1) shall not apply in relation to the supply of an accessible copy to a particular visually impaired person if, or to the extent that, copies of the copyright work are commercially available, by or with the authority of the copyright owner, in a form that is accessible to that person.

(5)     An accessible copy made under this Article shall be accompanied by –

(a)     a statement that it is made under this Article; and

(b)     a sufficient acknowledgement.

(6)     If an approved body charges for supplying a copy made under this Article, the sum charged shall not exceed the cost of making and supplying the copy.

(7)     An approved body making copies under this Article must, if it is an educational establishment conducted for profit, ensure that the copies will be used only for its educational purposes.

(8)     If the master copy is in copy-protected electronic form, any accessible copy made of it under this Article must, so far as it is reasonably practicable to do so, incorporate the same, or equally effective, copy protection (unless the copyright owner agrees otherwise).

(9)     If an approved body continues to hold an accessible copy made under paragraph (1) when it would no longer be entitled to make or supply such a copy under that paragraph, the copy shall be treated as an infringing copy.

(10)    If an accessible copy which would be an infringing copy but for this Article is subsequently dealt with –

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

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

(11)    In paragraph (10), “dealt with” means sold or let for hire or offered or exposed for sale or hire or communicated to the public.

51      Intermediate copies and records created during production of accessible copy

(1)     An approved body entitled to make accessible copies under Article 50 may hold an intermediate copy of the master copy which is necessarily created during the production of the accessible copies, but only –

(a)     if and so long as the approved body continues to be entitled to make accessible copies of that master copy; and

(b)     for the purposes of the production of further accessible copies.

(2)     An intermediate copy which is held in breach of paragraph (1) shall be treated as an infringing copy.

(3)     An approved body may lend or transfer the intermediate copy to another approved body which is entitled to make accessible copies of the work or published edition under Article 50.

(4)     The loan or transfer by an approved body (“A”) of an intermediate copy to another person (“B”) shall be an infringement of copyright by A unless A has reasonable grounds for believing that B –

(a)     is another approved body which is entitled to make accessible copies of the work or published edition under Article 50; and

(b)     will only use the intermediate copy for the purposes of the production of further accessible copies.

(5)     If an approved body charges for lending or transferring the intermediate copy, the sum charged must not exceed the cost of the loan or transfer.

(6)     An approved body must –

(a)     keep records of accessible copies made under Article 50 and of the persons to whom they are supplied;

(b)     keep records of any intermediate copy lent or transferred under this Article and of the persons to whom it is lent or transferred; and

(c)     allow the copyright owner or a person acting for him or her, on giving reasonable notice, to inspect the records at any reasonable time.

(7)     Within a reasonable time of making an accessible copy under Article 50, or lending or transferring an intermediate copy under this Article, the approved body must –

(a)     notify each relevant representative body; or

(b)     if there is no such body, notify the copyright owner.

(8)     For the purposes of paragraph (7)(a), a relevant representative body is a body which –

(a)     represents particular copyright owners, or owners of copyright in the type of copyright work concerned; and

(b)     has given notice to the Minister of the copyright owners, or the classes of copyright owner, represented by it.

(9)     A notice under paragraph (8)(b) shall be accompanied by the prescribed fee, if any.

(10)    The requirement to notify the copyright owner under paragraph (7)(b) shall not apply if it is not reasonably possible for the approved body to ascertain the name and address of the copyright owner.

52      Licensing schemes to permit the making of accessible copies

(1)     Article 50 shall not apply to the making of an accessible copy in a particular form if –

(a)     a licensing scheme operated by a licensing body is in operation under which licences may be granted by the licensing body permitting the making and supply of copies of the copyright work in that form;

(b)     the scheme is not unreasonably restrictive; and

(c)     the scheme and any modification made to it have been notified in accordance with Article 180.

(2)     A scheme shall be unreasonably restrictive if it includes a term or condition which –

(a)     purports to prevent or limit the steps that may be taken under Article 50 or 51; or

(b)     has that effect.

(3)     Paragraph (2) shall not apply if –

(a)     the copyright work is no longer published by or with the authority of the copyright owner; and

(b)     there are reasonable grounds for preventing or restricting the making of accessible copies of the work.

(4)     If Article 50 or 51 is displaced by a licensing scheme, Articles 148 to 151 shall apply in relation to the scheme as if it were one to which those Articles applied as a result of Article 146.

53      Orders limiting making of multiple accessible copies following infringement of copyright

(1)     The Minister may make an Order under this Article if it appears to him or her that the making of copies –

(a)     under Article 50; or

(b)     under a licence granted under a licensing scheme that has been notified under Article 52,

has led to infringement of copyright on a scale which, in the Minister’s opinion, would not have occurred if Article 50 had not been in force, or the licence had not been granted.

(2)     The Order may prohibit one or more named approved bodies, or one or more specified categories of approved body, from –

(a)     acting under Article 50; or

(b)     acting under a licence of a description specified in the Order.

(3)     The Order may disapply –

(a)     the provisions of Article 50; or

(b)     the provisions of a licence, or a licensing scheme, of a description specified in the Order,

in respect of the making of copies of a description so specified.

(4)     If the Minister proposes to make an Order he or she must, before making it, consult –

(a)     such bodies representing copyright owners as the Minister thinks fit; and

(b)     such bodies representing visually impaired persons as the Minister thinks fit.

(5)     If the Minister proposes to make an Order which includes a prohibition he or she must, before making it, consult –

(a)     if the proposed Order is to apply to one or more named approved bodies, that body or those bodies;

(b)     if it is to apply to one or more specified categories of approved body, to such bodies representing approved bodies of that category or those categories as the Minister thinks fit.

(6)     An approved body which is prohibited by an Order from acting under a licence may not apply to the licensing authority under Article 150(1) in respect of a refusal or failure by a licensing body to grant such a licence.

54      Articles 49 to 53: definitions and other supplementary provision

(1)     This Article supplements Articles 49 to 53 and includes definitions for the purposes of those Articles.

(2)     A copy of a copyright work (other than an accessible copy made under Article 49 or 50) shall be taken to be accessible to a visually impaired person only if it is as accessible to him or her as it would be if he or she were not visually impaired.

(3)     An “accessible copy”, in relation to a copyright work, means a version which provides for a visually impaired person’s improved access to the work.

(4)     An accessible copy may include facilities for navigating around the version of the copyright work but may not include –

(a)     changes that are not necessary to overcome problems caused by visual impairment; or

(b)     changes which infringe the right (provided by Article 108) not to have the work subjected to derogatory treatment.

(5)     “Approved body” means an educational establishment or a body that is not conducted for profit.

(6)     “Visually impaired person” means a person –

(a)     who is blind;

(b)     who has an impairment of visual function which cannot be improved, by the use of corrective lenses, to a level that would normally be acceptable for reading without a special level or kind of light;

(c)     who is unable, through physical disability, to hold or manipulate a book;

(d)     who is unable, through physical disability, to focus or move his or her eyes to the extent that would normally be acceptable for reading; or

(e)     who has a learning disability that mainly affects reading.

(7)     The form in which or the procedure in accordance with which, any notice required under Article 51(7) or (8) must be given, may be prescribed.

Education

55      Things done for purposes of instruction or examination

(1)     Copyright in a literary, dramatic, musical or artistic work is not infringed by its being copied in the course of instruction or of preparation for instruction, provided the copying –

(a)     is done by a person giving or receiving instruction; and

(b)     is not done by means of a reprographic process.

(2)     Copyright in a sound recording, film or broadcast is not infringed by its being copied by making a film or film sound track in the course of instruction, or of preparation for instruction, in the making of films or film sound tracks, provided the copying is done by a person giving or receiving instruction.

(3)     Copyright is not infringed by anything done for the purposes of an examination by way of setting the questions, communicating the questions to the candidates or answering the questions.

(4)     Paragraph (3) does not extend to the making of a reprographic copy of a musical work for use by an examination candidate in performing the work.

(5)     Where a copy which would otherwise be an infringing copy is made in accordance with this Article but is subsequently dealt with, it shall be treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright, for all subsequent purposes.

(6)     For the purposes of paragraph (5) “dealt with” means sold or let for hire or offered or exposed for sale or hire.

56      Anthologies for educational use

(1)     The inclusion of a short passage from a published literary or dramatic work in a collection which is –

(a)     intended for use in educational establishments and is so described in its title, and in any advertisements issued by or on behalf of the publisher; and

(b)     consists mainly of material in which no copyright subsists,

does not infringe the copyright in the work if the work itself is not intended for use in such establishments and the inclusion is accompanied by a sufficient acknowledgement.

(2)     Paragraph (1) does not authorize the inclusion of more than 2 excerpts from copyright works by the same author in collections published by the same publisher over any period of 5 years.

(3)     In relation to any given passage the reference in paragraph (2) to excerpts from works by the same author –

(a)     shall be taken to include excerpts from works by him or her in collaboration with another; and

(b)     if the passage in question is from one of those works, shall be taken to include excerpts from works by any of the authors, whether alone or in collaboration with another.

(4)     References in this Article to the use of a work in an educational establishment are to any use for the educational purposes of that establishment.

57      Performing, playing or showing work in course of activities of educational establishment

(1)     The performance of a literary, dramatic or musical work before an audience consisting of teachers and pupils at an educational establishment and other persons directly connected with the activities of the establishment –

(a)     by a teacher or pupil in the course of the activities of the establishment; or

(b)     at the establishment by any person for the purposes of instruction,

is not a public performance for the purposes of infringement of copyright.

(2)     The playing or showing of a sound recording, film or broadcast before such an audience at an educational establishment for the purposes of instruction is not a playing or showing of the work in public for the purposes of infringement of copyright.

(3)     A person is not for this purpose directly connected with the activities of the educational establishment simply because he or she is the parent of a pupil at the establishment.

58      Recording by educational establishments of broadcasts

(1)     A recording of a broadcast, or a copy of such a recording, may be made by or on behalf of an educational establishment for the educational purposes of that establishment without thereby infringing the copyright in the broadcast or in any work included in it.

(2)     Copyright is not infringed where a recording of a broadcast or a copy of such a recording, whose making was by virtue of paragraph (1) not an infringement of copyright, is communicated to the public by a person situated within the premises of an educational establishment provided that the communication cannot be received by any person situated outside the premises of that establishment.

(3)     This Article does not apply if or to the extent that there is a licensing scheme notified for the purposes of this Article in accordance with Article 180.

(4)     Where a copy which would otherwise be an infringing copy is made in accordance with this Article but is subsequently dealt with, it shall be treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright, for all subsequent purposes.

(5)     For the purposes of paragraph (4) “dealt with” means sold or let for hire or offered or exposed for sale or hire, or communicated from within the premises of an educational establishment to any person situated outside those premises.

59      Reprographic copying by educational establishments of passages from works

(1)     Reprographic copies of passages from literary, dramatic or musical works may, to the extent permitted by this Article, be made by or on behalf of an educational establishment for the purposes of instruction without infringing any copyright in the work, in any illustrations accompanying the work or in the typographical arrangement.

(2)     Not more than one per cent of any work may be copied by or on behalf of an establishment by virtue of this Article in any quarter, that is, in any period 1st January to 31st March, 1st April to 30th June, 1st July to 30th September or 1st October to 31st December.

(3)     The terms of a licence granted to an educational establishment authorizing the reprographic copying for the purposes of instruction of passages from works shall be of no effect so far as they purport to restrict the proportion of a work which may be copied (whether on payment or free of charge) to less than that which would be permitted under this Article.

(4)     This Article does not apply if or to the extent that there is a licensing scheme notified for the purposes of this Article in accordance with Article 180.

(5)     Where a copy which would otherwise be an infringing copy is made in accordance with this Article but is subsequently dealt with, it shall be treated as an infringing copy for the purposes of that dealing and if that dealing infringes copyright, for all subsequent purposes.

(6)     For the purposes of paragraph (5) “dealt with” means sold or let for hire or offered or exposed for sale or hire.

Libraries and archives

60      Declarations as to use of works and liability for false declarations

(1)     The Minister may by Order provide that, where a librarian or archivist is required to be satisfied as to any matter before making or supplying a copy of a work –

(a)     he or she may rely on a signed declaration as to that matter by the person requesting the copy, unless he or she is aware that it is false in a material particular; and

(b)     in any prescribed case, he or she shall not make or supply a copy in the absence of a signed declaration in the form that is prescribed.

(2)     Where a person requesting a copy makes a declaration which is false in a material particular and is supplied with a copy which would have been an infringing copy if made by him or her –

(a)     he or she shall be liable for infringement of copyright as if he or she had made the copy himself or herself; and

(b)     the copy shall be treated as an infringing copy.

61      Copying by librarians: articles in periodicals

(1)     The librarian of a prescribed library may, if the prescribed conditions are complied with, make and supply a copy of an article in a periodical without infringing any copyright in the text, in any illustrations accompanying the text or in the typographical arrangement.

(2)     The prescribed conditions shall include the following –

(a)     that copies are supplied only to persons satisfying the librarian that they require them for the purposes of research or private study and will not use them for any other purpose;

(b)     that no person shall be furnished with more than one copy of the same article or with copies of more than one article contained in the same issue of a periodical;

(c)     that persons to whom copies are supplied –

(i)      where a fee is prescribed, are required to pay that fee,

(ii)      where a minimum fee is prescribed, are required to pay a fee that is not less than that fee, or

(iii)     where a maximum fee is prescribed, may be required to pay a fee not exceeding that fee.

(3)     The fact that no fee is prescribed for the purposes of paragraph (2)(c) shall not prevent a person to whom copies are supplied being charged for them.

62      Copying by librarians: parts of published works

(1)     The librarian of a prescribed library may, if the prescribed conditions are complied with, make and supply from a published edition a copy of a literary, dramatic, or musical work (other than an article in a periodical) without infringing any copyright in the work, in any illustrations accompanying the work or in the typographical arrangement.

(2)     The prescribed conditions shall include the following –

(a)     that copies are supplied only to persons satisfying the librarian that they require them for the purposes of research or private study, and will not use them for any other purpose;

(b)     that no person is furnished with more than one copy of the same material or with a copy of more than a reasonable proportion of any work;

(c)     that persons to whom copies are supplied –

(i)      where a fee is prescribed, are required to pay that fee,

(ii)      where a minimum fee is prescribed, are required to pay a fee that is not less than that fee, or

(iii)     where a maximum fee is prescribed, may be required to pay a fee not exceeding that fee.

(3)     The fact that no fee is prescribed for the purposes of paragraph (2)(c) shall not prevent a person to whom copies are supplied being charged for them.

63      Restriction on production of multiple copies of the same material

(1)     Orders for the purposes of Articles 61 and 62 shall contain provision to the effect that a copy shall be supplied only to a person satisfying the librarian that his or her requirement is not related to any similar requirement of another person.

(2)     The Orders may provide –

(a)     that requirements shall be regarded as similar if the requirements are for copies of substantially the same material at substantially the same time and for substantially the same purpose; and

(b)     that requirements of persons shall be regarded as related if those persons receive instruction to which the material is relevant at the same time and place.

64      Copying by librarians: supply of copies to other libraries

(1)     The librarian of a prescribed library may, if the prescribed conditions are complied with, make and supply to another prescribed library a copy of –

(a)     an article in a periodical; or

(b)     the whole or part of a published edition of a literary, dramatic or musical work,

without infringing any copyright in the text of the article or, as the case may be, in the work, in any illustrations accompanying it or in the typographical arrangement.

(2)     Paragraph (1) does not apply if at the time the copy is made the librarian making it knows, or could by reasonable inquiry ascertain, the name and address of a person entitled to authorize the making of the copy.

65      Copying by librarians or archivists: replacement copies of works

(1)     The librarian or archivist of a prescribed library or archive may, if the prescribed conditions are complied with, make a copy from any item in the permanent collection of the library or archive –

(a)     in order to preserve or replace that item by placing the copy in its permanent collection in addition to or in place of it; or

(b)     in order to replace in the permanent collection of another prescribed library or archive an item which has been lost, destroyed or damaged,

without infringing the copyright in any literary, dramatic or musical work, in any illustrations accompanying that work or, in the case of a published edition, in the typographical arrangement.

(2)     The prescribed conditions shall include provision for restricting the making of copies to cases where it is not reasonably practicable to purchase a copy of the item in question to fulfil that purpose.

66      Copying by librarians or archivists: material not previously made available to public

(1)     The librarian or archivist of a prescribed library or archive may, if the prescribed conditions are complied with, make and supply a copy of the whole or part of any document, film, sound recording or other matter in the library or archive without infringing any copyright in any work recorded or comprised in it.

(2)     This Article does not apply if –

(a)     the document, film, sound recording or other matter was published before it was deposited in the library or archive; or

(b)     an owner of a copyright work recorded or comprised in it has prohibited copying of the work,

and at the time the copy is made the librarian or archivist making it is, or ought to be, aware of that fact.

(3)     The prescribed conditions shall include the following –

(a)     that copies are supplied only to persons satisfying the librarian or archivist that they require them for the purposes of research or private study and will not use them for any other purpose;

(b)     that no person is furnished with more than one copy of the same material; and

(c)     that persons to whom copies are supplied –

(i)      where a fee is prescribed, are required to pay that fee,

(ii)      where a minimum fee is prescribed, are required to pay a fee that is not less than that fee, or

(iii)     where a maximum fee is prescribed, may be required to pay a fee not exceeding that fee.

(4)     The fact that no fee is prescribed for the purposes of paragraph (3)(c) shall not prevent a person to whom copies are supplied being charged for them.

(5)     For the purposes of this Article, a document, film, sound recording or other matter is published if –

(a)     copies of it are issued to the public; or

(b)     it is made available to the public by way of an electronic retrieval system.

67      Copy of work required to be made as condition of export

If an article of cultural or historical importance or interest cannot lawfully be exported from Jersey unless a copy of it is made and deposited in an appropriate library or archive, it is not an infringement of copyright to make that copy.

Public administration

68      States Assembly and judicial proceedings

(1)     Copyright is not infringed by anything done for the purposes of proceedings of the States Assembly or judicial proceedings.

(2)     Copyright is not infringed by anything done for the purposes of reporting those proceedings.

(3)     Paragraph (2) shall not be construed as authorizing the copying of a work which is itself a report of the proceedings that has been made available to the public.

69      Committees of inquiry and public inquiries

(1)     Copyright is not infringed by anything done for the purposes of the proceedings of a committee of inquiry or a public inquiry.

(2)     Copyright is not infringed by anything done for the purpose of reporting those proceedings held in public.

(3)     Paragraph (2) shall not be construed as authorizing the copying of a work which is itself a report of the proceedings that has been made available to the public.

(4)     Copyright in a work is not infringed by the issue or communication to the public of copies of the report of a committee of inquiry or a public inquiry containing the work or material from it.

70      Copyright material open to public inspection or on official register

(1)     Where material is open to public inspection pursuant to a statutory requirement, or is on a statutory register, any copyright in the material as a literary work is not infringed by the copying of so much of the material as contains factual information of any description, by or with the authority of the appropriate person, for a purpose which does not involve the issuing of copies to the public.

(2)     Where material is open to public inspection pursuant to a statutory requirement, copyright is not infringed by the copying or issuing to the public of copies of the material or the communication of the material to the public, by or with the authority of the appropriate person, for the purpose of enabling the material to be inspected at a more convenient time or place or otherwise facilitating the exercise of any right for the purpose of which the requirement is imposed.

(3)     Where material which is open to public inspection pursuant to a statutory requirement, or which is on a statutory register, contains information about matters of general scientific, technical, commercial or economic interest, copyright is not infringed by the copying or issuing to the public of copies of the material or the communication of the material to the public, by or with the authority of the appropriate person, for the purposes of disseminating that information.

(4)     The Minister may by Order provide that paragraphs (1) to (3) shall, in the cases specified in the Order, apply only to copies marked in such manner as may be so specified.

(5)     The Minister may by Order provide that paragraphs (1) to (3) shall apply, to such extent and with such modifications as may be specified in the Order –

(a)     to material made open to public inspection by –

(i)      an international organization specified in the Order, or

(ii)      a person so specified who has functions in Jersey under an international agreement to which the United Kingdom is party and which extends to Jersey; or

(b)     to a register maintained by an international organization specified in the Order,

as they apply in relation to material open to public inspection pursuant to a statutory requirement or to a statutory register.

(6)     In this Article –

“appropriate person” means the person required to make the material open to public inspection or, as the case may be, the person maintaining the register;

“enactment” includes an enactment of the United Kingdom, to the extent that it applies to and has effect in Jersey;

“statutory register” means a register maintained in pursuance of a requirement imposed by an enactment;

“statutory requirement” means a requirement imposed by or under an enactment.

71      Copyright material communicated to the Crown or the States in the course of public business

(1)     This Article applies where any copyright work has in the course of public business been communicated to the Crown or the States for any purpose by or with the licence of the copyright owner and a document or other material thing recording or embodying the work is owned by or in the custody or control of the Crown or the States.

(2)     The Crown or the States may, for the purpose for which the work was communicated to it or them, or any related purpose which could reasonably have been anticipated by the copyright owner, copy the work, issue copies of the work and communicate the work to the public, without infringing any copyright in the work.

(3)     The Crown or the States may not copy a work, issue copies of a work to the public or communicate a work to the public by virtue of this Article, if the work has previously been made available to the public otherwise than by virtue of this Article.

(4)     Paragraph (3) shall not apply to a work that has previously been made available to the public if it is reasonably believed that copies of the work are no longer available to the public.

(5)     In paragraph (1) “public business” includes any activity carried on by the Crown or the States.

(6)     In this Article “States” means –

(a)     the States Assembly;

(b)     any Minister;

(c)     any committee established by or under Standing Orders of the States of Jersey[12] (other than a committee of inquiry).

(7)     This Article has effect subject to any agreement to the contrary between the Crown or the States and the copyright owner.

72      Copyright material in public records

Without prejudice to the generality of Article 70, material which is comprised in a public record, within the meaning of Article 3 of the Public Records (Jersey) Law 2002[13], which is open to public inspection in pursuance of that Law, may be copied, and a copy may be supplied to any person, by or with the authority of any officer appointed under that Law, without infringing copyright.

73      Acts done under authority of enactment

(1)     Where the doing of a particular act is specifically authorized by an enactment, whenever made, unless the enactment provides otherwise, the doing of that act does not infringe copyright.

(2)     Nothing in this Article shall be construed as excluding any defence of statutory authority otherwise available under or by virtue of any enactment.

(3)     In this Article “enactment” includes any enactment of the United Kingdom, to the extent that it applies to and has effect in Jersey.

Computer programs: lawful users

74      Computer programs: backup copies

(1)     It is not an infringement of copyright for a lawful user of a copy of a computer program to make any backup copy of it which it is necessary for him or her to have for the purposes of his or her lawful use.

(2)     For the purposes of this Article and Articles 75, 76 and 77 a person shall be a lawful user of a computer program if (whether under a licence to do any acts restricted by the copyright in the program or otherwise) he or she has a right to use the program.

(3)     Where an act is permitted under this Article, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (those terms being, by virtue of Article 190, void).

75      Computer programs: decompilation

(1)     It is not an infringement of copyright for a lawful user of a copy of a computer program expressed in a low level language –

(a)     to convert it into a version expressed in a higher level language; or

(b)     incidentally in the course of so converting the program, to copy it,

(that is, to “decompile” it), provided that the conditions in paragraph (2) are met.

(2)     The conditions referred to in paragraph (1) are that –

(a)     it is necessary to decompile the program to obtain the information necessary to create an independent program which can be operated with the program decompiled or with another program (“the permitted objective”); and

(b)     the information so obtained is not used for any purpose other than the permitted objective.

(3)     In particular, the conditions in paragraph (2) are not met if the lawful user –

(a)     has readily available to him or her the information necessary to achieve the permitted objective;

(b)     does not confine the decompiling to such acts as are necessary to achieve the permitted objective;

(c)     supplies the information obtained by the decompiling to any person to whom it is not necessary to supply it in order to achieve the permitted objective; or

(d)     uses the information to create a program which is substantially similar in its expression to the program decompiled or to do any act restricted by copyright.

(4)     Where an act is permitted under this Article, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of Article 190, void).

76      Computer programs: observing, studying and testing

(1)     It is not an infringement of copyright for a lawful user of a copy of a computer program to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he or she does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he or she is entitled to do.

(2)     Where an act is permitted under this Article, it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict the act (such terms being, by virtue of Article 190, void).

77      Computer programs: other acts permitted to lawful users

(1)     It is not an infringement of copyright for a lawful user of a copy of a computer program to copy or adapt it, provided that the copying or adapting –

(a)     is necessary for his or her lawful use; and

(b)     is not prohibited under any term or condition of an agreement regulating the circumstances in which his or her use is lawful.

(2)     It may, in particular, be necessary for the lawful use of a computer program to copy it or adapt it for the purpose of correcting errors in it.

(3)     This Article does not apply to any copying or adapting permitted under Article 74, 75 or 76.

Databases

78      Acts permitted in relation to databases

(1)     It is not an infringement of copyright in a database for a person who has a right to use the database or any part of the database (whether under a licence to do any of the acts restricted by the copyright in the database or otherwise) to do, in the exercise of that right, anything which is necessary for the purposes of access to and use of the contents of the database or of that part of the database.

(2)     Where an act which would otherwise infringe copyright in a database is permitted under this Article, it is irrelevant whether or not there exists any term or condition in any agreement which purports to prohibit or restrict the act (those terms being, by virtue of Article 191, void).

Designs

79      Acts permitted in relation to design documents and models

(1)     It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.

(2)     Nor is it an infringement of the copyright to issue to the public, or include in a film or communicate to the public, anything the making of which was, by virtue of paragraph (1), not an infringement of that copyright.

(3)     In this Article –

“design” means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article, other than surface decoration;

“design document” means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise.

80      Effect of exploitation of design derived from artistic work

(1)     This Article applies where an artistic work has been exploited, by or with the licence of the copyright owner, by –

(a)     making by an industrial process articles falling to be treated for the purposes of this Part as copies of the work; and

(b)     marketing those articles, in Jersey or elsewhere.

(2)     After the end of the period of 25 years from the end of the calendar year in which such articles are first marketed, the work may be copied by making articles of any description, or doing anything for the purpose of making articles of any description, and anything may be done in relation to articles so made, without infringing copyright in the work.

(3)     Where only part of an artistic work is exploited as described in paragraph (1), paragraph (2) applies only in relation to that part.

(4)     The Minister may by Order make provision –

(a)     as to the circumstances in which an article, or any description of article, is to be regarded for the purposes of this Article as made by an industrial process; and

(b)     excluding from the operation of this Article any articles of a primarily literary or artistic character as the Minister thinks fit.

(5)     In this Article –

(a)     references to articles do not include films; and

(b)     references to the marketing of an article are to its being sold or let for hire or offered or exposed for sale or hire.

81      Things done in reliance on registration of design

(1)     The copyright in an artistic work is not infringed by anything done –

(a)     in pursuance of an assignment or licence made or granted by a person registered under the Registered Designs (Jersey) Law 1957[14] as the proprietor of a corresponding design; and

(b)     in good faith in reliance on the registration and without notice of any proceedings for the cancellation or invalidation of the registration or for rectifying the relevant entry in the register of designs,

and this is so notwithstanding that the person registered as the proprietor was not the proprietor of the design for the purposes of the Registered Designs (Jersey) Law 1957.

(2)     In paragraph (1) a “corresponding design”, in relation to an artistic work, means a design within the meaning of the Registered Designs (Jersey) Law 1957 which if applied to an article would produce something which would be treated for the purposes of this Part as a copy of the artistic work.

Typefaces

82      Use of typeface in ordinary course of printing

(1)     It is not an infringement of copyright in an artistic work consisting of the design of a typeface –

(a)     to use the typeface in the ordinary course of typing, composing text, typesetting or printing;

(b)     to possess an article for the purpose of such use; or

(c)     to do anything in relation to material produced by such use,

and this is so notwithstanding that an article is used which is an infringing copy of the work.

(2)     However, the following provisions of this Part apply in relation to persons making, importing or dealing with articles specifically designed or adapted for producing material in a particular typeface, or possessing those articles for the purpose of dealing with them, as if the production of material as mentioned in paragraph (1) did infringe copyright in the artistic work consisting of the design of the typeface –

(a)     Article 39;

(b)     Article 129;

(c)     Article 131;

(d)     Article 139(2);

(e)     Article 140.

(3)     The references in paragraph (2) to “dealing with” an article are to selling, letting for hire, or offering or exposing for sale or hire, exhibiting in public, or distributing.

83      Articles for producing material in particular typeface

(1)     This Article applies to the copyright in an artistic work consisting of the design of a typeface where articles specifically designed or adapted for producing material in that typeface have been marketed by or with the licence of the copyright owner.

(2)     After the period of 25 years from the end of the calendar year in which the first such articles are marketed, the work may be copied by making further such articles, or doing anything for the purpose of making such articles, and anything may be done in relation to articles so made, without infringing copyright in the work.

(3)     In paragraph (1) “marketed” means sold, let for hire or offered or exposed for sale or hire, in Jersey or elsewhere.

Works in electronic form

84      Transfer of copies of works in electronic form

(1)     This Article applies where a copy of a work in electronic form has been purchased on terms which, expressly or impliedly or by virtue of any rule of law, allow the purchaser to copy the work, or to adapt it or make copies of an adaptation, in connection with his or her use of it.

(2)     If there are no express terms –

(a)     prohibiting the transfer of the copy by the purchaser, imposing obligations which continue after a transfer, prohibiting the assignment of any licence or terminating any licence on a transfer; or

(b)     providing for the terms on which a transferee may do the things which the purchaser was permitted to do,

anything which the purchaser was allowed to do may also be done without infringement of copyright by a transferee, but any copy, adaptation or copy of an adaptation made by the purchaser which is not also transferred shall be treated as an infringing copy for all purposes after the transfer.

(3)     The same applies where the original purchased copy is no longer usable and what is transferred is a further copy used in its place.

(4)     This Article also applies on a subsequent transfer, with the substitution for references in paragraph (2) to the purchaser of references to the subsequent transferor.

Miscellaneous: literary, dramatic, musical and artistic works

85      Anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author

(1)     Copyright in a literary, dramatic, musical or artistic work is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when –

(a)     it is not possible by reasonable inquiry to ascertain the identity of the author; and

(b)     it is reasonable to assume –

(i)      that copyright has expired, or

(ii)      that the author died 70 years or more before the beginning of the calendar year in which the act is done or the arrangements are made.

(2)     Paragraph (1)(b)(ii) does not apply in relation to –

(a)     a work in which States Assembly copyright, States copyright or Crown copyright subsists; or

(b)     a work in which copyright originally vested by virtue of Article 188 and in respect of which an Order under that Article specifies a copyright period longer than 70 years.

(3)     In relation to a work of joint authorship –

(a)     the reference in paragraph (1) to its being possible to ascertain the identity of the author shall be construed as a reference to its being possible to ascertain the identity of any of the authors; and

(b)     the reference in paragraph (1)(b)(ii) to the author having died shall be construed as a reference to all the authors having died.

86      Use of notes or recordings of spoken words in certain cases

(1)     Where a record of spoken words is made, in writing or otherwise, for the purpose of –

(a)     reporting current events; or

(b)     communicating to the public the whole or part of the work,

it is not an infringement of any copyright in the words as a literary work to use the record or material taken from it (or to copy the record, or any of the material, and use the copy) for that purpose, if the conditions in paragraph (2) are met.

(2)     The conditions referred to in paragraph (1) are that –

(a)     the record is a direct record of the spoken words and is not taken from a previous record or from a broadcast;

(b)     the making of the record was not prohibited by the speaker and, where copyright already subsisted in the work, did not infringe copyright;

(c)     the use made of the record or material taken from it is not of a kind prohibited by or on behalf of the speaker or copyright owner before the record was made; and

(d)     the use is by or with the authority of a person who is lawfully in possession of the record.

87      Public reading or recitation

(1)     The reading or recitation in public by one person of a reasonable extract from a published literary or dramatic work does not infringe any copyright in the work if it is accompanied by a sufficient acknowledgement.

(2)     Copyright in a work is not infringed by the making of a sound recording, or the communication to the public of a reading or recitation which by virtue of paragraph (1) does not infringe copyright in the work, provided that the recording or communication consists mainly of material in relation to which it is not necessary to rely on that paragraph.

88      Abstracts of scientific or technical articles

(1)     Where an article on a scientific or technical subject is published in a periodical accompanied by an abstract indicating the contents of the article, it is not an infringement of copyright in the abstract, or in the article, to copy the abstract or issue copies of it to the public.

(2)     This Article does not apply if or to the extent that there is a licensing scheme notified for the purposes of this Article in accordance with Article 180.

89      Recordings of folk-songs

(1)     A sound recording of a performance of a song may be made for the purpose of including it in an archive maintained by a designated body without infringing any copyright in the words as a literary work or in the accompanying musical work, provided the conditions in paragraph (2) are met.

(2)     The conditions referred to in paragraph (1) are that –

(a)     the words are unpublished and of unknown authorship at the time the recording is made;

(b)     the making of the recording does not infringe any other copyright; and

(c)     its making is not prohibited by any performer.

(3)     Copies of a sound recording made in reliance on paragraph (1) and included in an archive maintained by a designated body may, if the prescribed conditions are met, be made and supplied by the archivist without infringing copyright in the recording or the works included in it.

(4)     The prescribed conditions shall include the following –

(a)     that copies are only supplied to persons satisfying the archivist that they require them for the purposes of research or private study and will not use them for any other purpose; and

(b)     that no person is furnished with more than one copy of the same recording.

(5)     In this Article “designated” means designated for the purposes of this Article by Order of the Minister, who shall not designate a body unless satisfied that it is not established or conducted for profit.

90      Representation of certain artistic works on public display

(1)     This Article applies to –

(a)     buildings; and

(b)     sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public.

(2)     The copyright in such a work is not infringed by –

(a)     making a graphic work representing it;

(b)     making a photograph or film of it; or

(c)     making a broadcast of a visual image of it.

(3)     Nor is the copyright infringed by anything done in relation to copies of, or the communication to the public of, anything whose making was, by virtue of this Article, not an infringement of the copyright.

91      Advertisement of sale of artistic work

(1)     It is not an infringement of copyright in an artistic work to copy it, to issue copies of it to the public or to communicate it to the public, for the purpose of advertising the sale of the work.

(2)     Where a copy which would otherwise be an infringing copy is made in accordance with this Article but is subsequently dealt with for any other purpose, it shall be treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright, for all subsequent purposes.

(3)     In paragraph (2), “dealt with” means sold or let for hire, offered or exposed for sale or hire, exhibited in public, distributed or communicated to the public.

92      Making of subsequent works by same artist

Where the author of an artistic work is not the copyright owner, he or she does not infringe the copyright by copying the work in making another artistic work provided he or she does not repeat or imitate the main design of the earlier work.

93      Reconstruction of buildings

Anything done for the purposes of reconstructing a building does not infringe any copyright –

(a)     in the building; or

(b)     in any drawings or plans in accordance with which the building was, by or with the licence of the copyright owner, constructed.

Miscellaneous: films and sound recordings

94      Films: acts permitted on assumptions as to expiry of copyright, etc.

(1)     Subject to paragraph (2), copyright in a film is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when –

(a)     it is not possible by reasonable inquiry to ascertain the identity of any of the persons referred to in Article 27(2)(a) to (d); and

(b)     it is reasonable to assume –

(i)      that copyright has expired, or

(ii)      that the last to die of those persons died 70 years or more before the beginning of the calendar year in which the act is done or the arrangements are made.

(2)     Paragraph (1)(b)(ii) does not apply in relation to a film in which States Assembly copyright, States copyright or Crown copyright subsists.

95      Playing of sound recordings for purposes of club, society, etc.

(1)     It is not an infringement of the copyright in a sound recording to play it as part of the activities of, or for the benefit of, a club, society or other organization if the conditions in paragraph (2) are met.

(2)     The conditions referred to in paragraph (1) are –

(a)     that the organization is not established or conducted for profit and its main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare; and

(b)     that the proceeds of any charge for admission to the place where the recording is to be heard are applied solely for the purposes of the organization.

Miscellaneous: broadcasts

96      Incidental recording for purposes of broadcast

(1)     This Article applies where by virtue of a licence or assignment of copyright a person is authorized to broadcast –

(a)     a literary, dramatic or musical work, or an adaptation of such a work;

(b)     an artistic work; or

(c)     a sound recording or film.

(2)     The person shall by virtue of this Article be treated as licensed by the owner of the copyright in the work to do or authorize any of the following for the purposes of the broadcast –

(a)     in the case of a literary, dramatic or musical work, or an adaptation of that work, to make a sound recording or film of the work or adaptation;

(b)     in the case of an artistic work, to take a photograph or make a film of the work;

(c)     in the case of a sound recording or film, to make a copy of it.

(3)     That licence is subject to the condition that the recording, film, photograph or copy in question –

(a)     shall not be used for any other purpose; and

(b)     shall be destroyed within 28 days of being first used for broadcasting the work.

(4)     A recording, film, photograph or copy made in accordance with this Article shall be treated as an infringing copy –

(a)     for the purposes of any use in breach of the condition mentioned in paragraph (3)(a); and

(b)     for all purposes after that condition or the condition mentioned in paragraph (3)(b) is broken.

97      Recording for purposes of supervision and control of broadcasts and other services

(1)     Copyright is not infringed by the making or use by the British Broadcasting Corporation, for the purpose of maintaining supervision and control over programmes broadcast by them, of recordings of those programmes.

(2)     Copyright is not infringed by anything done in pursuance of –

(a)     section 167(1) of the Broadcasting Act 1990 or section 115(4) or (6) or 117 of the Broadcasting Act 1996;

(b)     a condition which, by virtue of section 334(1) of the Communications Act 2003, is included in a licence granted under Part I or III of that Act or Part I or II of the Broadcasting Act 1996;

(c)     a direction given under section 109(2) of the Broadcasting Act 1990; or

(d)     section 334(3) of the Communications Act 2003.

(3)     The rights conferred by this Part are not infringed by the use by OFCOM in connection with the performance of any of their functions under –

(a)     the Broadcasting Act 1990;

(b)     the Broadcasting Act 1996; or

(c)     the Communications Act 2003,

of –

(i)      any recording, script or transcript which is provided to them under or by virtue of any provision of those Acts; or

(ii)      any existing material which is transferred to them by a scheme made under section 30 of the Communications Act 2003.

(4)     In paragraph (3) –

“existing material” means –

(a)     any recording, script or transcript which was provided to the Independent Television Commission or the Radio Authority under or by virtue of any provision of the Broadcasting Act 1990 or the Broadcasting Act 1996;

(b)     any recording or transcript which was provided to the Broadcasting Standards Commission under section 115(4) or (6) or 116(5) of the Broadcasting Act 1996;

“OFCOM” means the Office of Communications established under the Communications Act 2003 as it has effect in the United Kingdom.

98      Recording for purposes of time-shifting

(1)     The making in domestic premises for private and domestic use of a recording of a broadcast solely for the purpose of enabling it to be viewed or listened to at a more convenient time does not infringe any copyright in the broadcast or in any work included in it.

(2)     Where a copy which would otherwise be an infringing copy is made in accordance with this Article but is subsequently dealt with –

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

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

(3)     In paragraph (2), “dealt with” means sold or let for hire, offered or exposed for sale or hire or communicated to the public.

99      Photographs of broadcasts

(1)     The making in domestic premises for private and domestic use of a photograph of the whole or any part of an image forming part of a broadcast, or a copy of such a photograph, does not infringe any copyright in the broadcast or in any film included in it.

(2)     Where a copy which would otherwise be an infringing copy is made in accordance with this Article but is subsequently dealt with –

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

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

(3)     In paragraph (2), “dealt with” means sold or let for hire, offered or exposed for sale or hire or communicated to the public.

100    Free public showing or playing of broadcast

(1)     The showing or playing in public of a broadcast to an audience who have not paid for admission to the place where the broadcast is to be seen or heard does not infringe any copyright in –

(a)     the broadcast; or

(b)     any sound recording or film included in it.

(2)     The audience shall be treated as having paid for admission to a place –

(a)     if they have paid for admission to a place of which that place forms part; or

(b)     if goods or services are supplied at that place (or a place of which it forms part) –

(i)      at prices which are substantially attributable to the facilities afforded for seeing or hearing the broadcast, or

(ii)      at prices exceeding those usually charged there and which are partly attributable to those facilities.

(3)     The following shall not be regarded as having paid for admission to a place –

(a)     persons admitted as residents or inmates of the place;

(b)     persons admitted as members of a club or society where the payment is only for membership of the club or society and the provision of facilities for seeing or hearing broadcasts is only incidental to the main purposes of the club or society.

(4)     Where the making of the broadcast was an infringement of the copyright in a sound recording or film, the fact that it was heard or seen in public by the reception of the broadcast shall be taken into account in assessing the damages for that infringement.

101    Reception of wireless broadcast and re-transmission by cable

(1)     This Article applies where a wireless broadcast made from a place in Jersey is received and immediately re-transmitted by cable.

(2)     The copyright in the broadcast is not infringed if and to the extent that the broadcast is made for reception in the area in which it is re-transmitted by cable and forms part of a qualifying service.

(3)     The copyright in any work included in the broadcast is not infringed if and to the extent that the broadcast is made for reception in the area in which it is transmitted by cable, but where the making of the broadcast was an infringement of the copyright in the work, the fact that the broadcast was re-transmitted by cable shall be taken into account in assessing the damages for that infringement.

(4)     In this Article “qualifying service” means, subject to paragraph (5), any of the following services –

(a)     a regional or national Channel 3 service;

(b)     Channel 4;

(c)     the teletext service referred to in section 49(2) of the Broadcasting Act 1990;

(d)     the television broadcasting services and teletext service of the British Broadcasting Corporation,

and expressions used in this paragraph have the same meaning as in Part I of the Broadcasting Act 1990.

(5)     The Minister may by Order amend paragraph (4) so as to add any service to, or remove any service from, the definition of “qualifying service”.

(6)     The Minister may also by Order –

(a)     provide that in specified cases paragraph (3) is to apply in relation to broadcasts of a specified description which are not made as mentioned in that paragraph; or

(b)     exclude the application of that paragraph in relation to broadcasts of a specified description made as mentioned in that paragraph.

(7)     In this Article references to re-transmission by cable include the transmission of microwave energy between terrestrial fixed points.

102    Provision of sub-titled copies of broadcast

(1)     A designated body may, for the purpose of providing people who are deaf or hard of hearing, or physically or mentally handicapped in other ways, with copies which are sub-titled or otherwise modified for their special needs, make copies of broadcasts and issue copies to the public, without infringing any copyright in the broadcasts or cable programmes or works included in them.

(2)     In paragraph (1) “designated body” means a body designated for the purposes of this Article by Order of the Minister, who shall not designate a body unless he or she is satisfied that it is not established or conducted for profit.

(3)     This Article does not apply if, or to the extent that, there is a licensing scheme notified, for the purposes of this Article, in accordance with Article 180.

103    Recording for archival purposes

(1)     A recording of a broadcast of a designated class, or a copy of such a recording, may be made for the purpose of being placed in an archive maintained by a designated body without thereby infringing any copyright in the broadcast or in any work included in it.

(2)     In paragraph (1) “designated” means designated for the purposes of this Article by Order of the Minister, who shall not designate a body unless he or she is satisfied that it is not established or conducted for profit.

Adaptations

104    Adaptations

An act which by virtue of this Part may be done without infringing copyright in a literary, dramatic or musical work does not, where that work is an adaptation, infringe any copyright in the work from which the adaptation was made.

cHAPTER 5 – MORAL RIGHTS

105    Right to be identified as author or director

(1)     The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right to be identified as the author or director of the work in the circumstances mentioned in this Article, but the right is not infringed unless it has been asserted in accordance with Article 106.

(2)     The author of a literary work (other than words intended to be sung or spoken with music) or a dramatic work has the right to be identified whenever –

(a)     the work is published commercially, performed in public or communicated to the public; or

(b)     copies of a film or sound recording including the work are issued to the public,

and that right includes the right to be identified whenever any of those events occur in relation to an adaptation of the work as the author of the work from which the adaptation was made.

(3)     The author of a musical work, or a literary work consisting of words intended to be sung or spoken with music, has the right to be identified whenever –

(a)     the work is published commercially;

(b)     copies of a sound recording of the work are issued to the public; or

(c)     a film of which the sound track includes the work is shown in public or copies of that film are issued to the public,

and that right includes the right to be identified whenever any of those events occur in relation to an adaptation of the work as the author of the work from which the adaptation was made.

(4)     The author of an artistic work shall have the right to be identified whenever –

(a)     the work is published commercially or exhibited in public, or a visual image of it is communicated to the public;

(b)     a film including a visual image of the work is shown in public or copies of such a film are issued to the public; or

(c)     in the case of a work of architecture in the form of a building or a model for a building, a sculpture or a work of artistic craftsmanship, copies of a graphic work representing it, or of a photograph of it, are issued to the public.

(5)     The author of a work of architecture in the form of a building also has the right to be identified on the building as constructed or, where more than one building is constructed to the design, on the first to be constructed.

(6)     The director of a film has the right to be identified whenever the film is shown in public or communicated to the public or copies of the film are issued to the public.

(7)     The right of the author or director under this Article is –

(a)     in the case of commercial publication or the issue to the public of copies of a film or sound recording, to be identified, in or on each copy or, if that is not appropriate, in some other manner likely to bring his or her identity to the notice of a person acquiring a copy;

(b)     in the case of identification on a building, to be identified by appropriate means visible to persons entering or approaching the building; and

(c)     in any other case, to be identified in a manner likely to bring his or her identity to the attention of a person seeing or hearing the performance, exhibition, showing or communication to the public in question,

and the identification must in each case be clear and reasonably prominent.

(8)     If the author or director in asserting his or her right to be identified specifies a pseudonym, initials or some other particular form of identification, that form shall be used; otherwise any reasonable form of identification may be used.

(9)     This Article has effect subject to Article 107.

106    Requirement that right conferred by Article 105 be asserted

(1)     A person does not infringe the right conferred by Article 105 by doing any of the acts mentioned in that Article unless the right has been asserted in accordance with this Article so as to bind him or her in relation to that act.

(2)     The right may be asserted generally, or in relation to any specified act or description of acts –

(a)     on an assignment of copyright in the work, by including in the instrument effecting the assignment a statement that the author or director asserts in relation to that work his or her right to be identified; or

(b)     by instrument in writing signed by the author or director.

(3)     The right may also be asserted in relation to the public exhibition of an artistic work –

(a)     by securing that when the author or other first owner of copyright parts with possession of the original, or of a copy made by him or her or under his or her direction or control, the author is identified on the original or copy, or on a frame, mount or other thing to which it is attached; or

(b)     by including in a licence by which the author or other first owner of copyright authorizes the making of copies of the work a statement signed by or on behalf of the person granting the licence that the author asserts his or her right to be identified in the event of the public exhibition of a copy made in pursuance of the licence.

(4)     The persons bound by an assertion of the right under paragraph (2) or (3) are –

(a)     in the case of an assertion under paragraph (2)(a), the assignee and anyone claiming through him or her, whether or not he or she has notice of the assertion;

(b)     in the case of an assertion under paragraph (2)(b), anyone to whose notice the assertion is brought;

(c)     in the case of an assertion under paragraph (3)(a), anyone into whose hands that original or copy comes, whether or not the identification is still present or visible; and

(d)     in the case of an assertion under paragraph (3)(b), the licensee and anyone into whose hands a copy made in pursuance of the licence comes, whether or not he or she has notice of the assertion.

(5)     In an action for infringement of the right the Court shall, in considering remedies, take into account any delay in asserting the right.

107    Exceptions to right conferred by Article 105

(1)     The right conferred by Article 105 is subject to the following exceptions.

(2)     The right does not apply in relation to the following descriptions of work –

(a)     a computer program;

(b)     the design of a typeface;

(c)     any computer-generated work.

(3)     The right does not apply to anything done by or with the authority of the copyright owner where copyright in the work originally vested in the author’s or director’s employer by virtue of Article 24(2).

(4)     The right is not infringed by an act which by virtue of any of the following provisions would not infringe copyright –

(a)     Article 47, so far as it relates to the reporting of current events by means of a sound recording, film or broadcast;

(b)     Article 48, 55(3), 68, 69(1) or (2), 79, 80, 85 or 94.

(5)     The right does not apply in relation to any work made for the purpose of reporting current events.

(6)     The right does not apply in relation to the publication in –

(a)     a newspaper, magazine or similar periodical; or

(b)     an encyclopaedia, dictionary, yearbook or other collective work of reference,

of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.

(7)     The right does not apply in relation to –

(a)     a work in which States Assembly copyright, States copyright or Crown copyright subsists; or

(b)     a work in which copyright originally subsisted by virtue of Article 188,

unless the author or director has previously been so identified in or on published copies of the work.

108    Right to object to derogatory treatment of work

(1)     The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right in the circumstances mentioned in this Article not to have his or her work subjected to derogatory treatment.

(2)     For the purposes of this Article –

(a)     “treatment” of a work means any addition to, deletion from or alteration to or adaptation of the work, other than –

(i)      a translation of a literary or dramatic work, or

(ii)      an arrangement or transcription of a musical work involving no more than a change of key or register; and

(b)     the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director,

and in the following provision of this Article references to a derogatory treatment of a work shall be construed accordingly.

(3)     In the case of a literary, dramatic or musical work the right is infringed by a person who –

(a)     publishes commercially, performs in public or communicates to the public a derogatory treatment of the work; or

(b)     issues to the public copies of a film or sound recording of, or including, a derogatory treatment of the work.

(4)     In the case of an artistic work the right is infringed by a person who –

(a)     publishes commercially or exhibits in public a derogatory treatment of the work, or communicates to the public a visual image of a derogatory treatment of the work;

(b)     shows in public a film including a visual image of a derogatory treatment of the work or issues to the public copies of such a film; or

(c)     in the case of –

(i)      a work of architecture in the form of a model for a building,

(ii)      a sculpture, or

(iii)     a work of artistic craftsmanship,

issues to the public copies of a graphic work representing, or of a photograph of, a derogatory treatment of the work.

(5)     Paragraph (4) does not apply to a work of architecture in the form of a building, but where the author of such a work is identified on the building and it is the subject of derogatory treatment, he or she has the right to require the identification to be removed.

(6)     In the case of a film, the right is infringed by a person who –

(a)     shows in public or communicates to the public a derogatory treatment of the film; or

(b)     issues to the public copies of a derogatory treatment of the film.

(7)     The right conferred by this Article extends to the treatment of parts of a work resulting from a previous treatment by a person other than the author or director, if those parts are attributed to, or are likely to be regarded as the work of, the author or director.

(8)     This Article has effect subject to Articles 109 and 110.

109    Exceptions to right conferred by Article 108

(1)     The right conferred by Article 108 is subject to the exceptions referred to in paragraphs (2) to (6).

(2)     The right does not apply to a computer program or to any computer-generated work.

(3)     The right does not apply in relation to any work made for the purpose of reporting current events.

(4)     The right does not apply in relation to the publication in –

(a)     a newspaper, magazine or similar periodical; or

(b)     an encyclopaedia, dictionary, yearbook or other collective work of reference,

of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication; nor does the right apply in relation to any subsequent exploitation elsewhere of such a work without any modification of the published version.

(5)     The right is not infringed by an act which by virtue of Article 85 or 94 would not infringe copyright.

(6)     The right is not infringed by anything done for the purpose of –

(a)     avoiding the commission of an offence;

(b)     complying with a duty imposed by or under an enactment; or

(c)     in the case of the British Broadcasting Corporation, avoiding the inclusion in a programme broadcast by them of anything which offends against good taste or decency or which is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling,

provided, where the author or director is identified at the time of the relevant act or has previously been identified in or on published copies of the work, that there is a sufficient disclaimer.

(7)     For the purposes of paragraph (6), “sufficient disclaimer”, in relation to an act capable of infringing the right conferred by Article 108, means a clear and reasonably prominent indication –

(a)     given at the time of the act; and

(b)     if the author or director is then identified, appearing along with the identification,

that the work has been subjected to treatment to which the author or director has not consented.

110    Qualification of right conferred by Article 108 in certain cases

(1)     This Article applies to –

(a)     works in which copyright originally vested in the author’s or director’s employer by virtue of Article 24(2);

(b)     works in which States Assembly copyright, States copyright or Crown copyright subsists; and

(c)     works in which copyright originally subsisted by virtue of Article 188.

(2)     The right conferred by Article 108 does not apply to anything done in relation to such a work by or with the authority of the copyright owner unless the author or director –

(a)     is identified at the time of the relevant act; or

(b)     has previously been identified in or on published copies of the work,

and where in such a case the right does apply, it is not infringed if there is a sufficient disclaimer.

(3)     For the purposes of paragraph (2), “sufficient disclaimer” has the same meaning as in Article 109(7).

111    Infringement of right conferred by Article 108 by possessing or dealing with infringing article

(1)     The right conferred by Article 108 is also infringed by a person who –

(a)     possesses in the course of a business;

(b)     sells or lets for hire, or offers or exposes for sale or hire;

(c)     in the course of a business exhibits in public or distributes; or

(d)     distributes otherwise than in the course of a business so as to affect prejudicially the honour or reputation of the author or director,

an article which is, and which he or she knows or has reason to believe is, an infringing article.

(2)     An “infringing article” means a work or a copy of a work which –

(a)     has been subjected to derogatory treatment within the meaning of Article 108; and

(b)     has been or is likely to be the subject of any of the acts mentioned in that Article in circumstances infringing that right.

112    False attribution of work

(1)     A person has the right in the circumstances mentioned in this Article –

(a)     not to have a literary, dramatic, musical or artistic work falsely attributed to him or her as author; and

(b)     not to have a film falsely attributed to him or her as director,

and in this Article, an “attribution”, in relation to such a work, means a statement (express or implied) as to who is the author or director.

(2)     The right is infringed by a person who –

(a)     issues to the public copies of a work of any of those descriptions in or on which there is a false attribution; or

(b)     exhibits in public an artistic work, or a copy of an artistic work, in or on which there is a false attribution.

(3)     The right is also infringed by a person who –

(a)     in the case of a literary, dramatic, or musical work, performs the work in public or communicates it to the public as being the work of a person; or

(b)     in the case of a film, shows it in public or communicates it to the public as being directed by a person,

knowing or having reason to believe that the attribution is false.

(4)     The right is also infringed by the issue to the public or public display of material containing a false attribution in connection with any of the acts mentioned in paragraph (2) or (3).

(5)     The right is also infringed by a person who in the course of a business –

(a)     possesses or deals with a copy of a work of any of the descriptions mentioned in paragraph (1) in or on which there is a false attribution; or

(b)     in the case of an artistic work, possesses or deals with the work itself when there is a false attribution in or on it,

knowing or having reason to believe that there is such an attribution and that it is false.

(6)     In the case of an artistic work the right is infringed by a person who in the course of a business –

(a)     deals with a work which has been altered after the author parted with possession of it as being the unaltered work of the author; or

(b)     deals with a copy of such a work as being a copy of the unaltered work of the author,

knowing or having reason to believe that that is not the case.

(7)     References in this Article to dealing are to selling or letting for hire, offering or exposing for sale or hire, exhibiting in public, or distributing.

(8)     This Article applies where, contrary to the fact –

(a)     a literary, dramatic or musical work is falsely represented as being an adaptation of the work of a person; or

(b)     a copy of an artistic work is falsely represented as being a copy made by the author of the artistic work,

as it applies where the work is falsely attributed to a person as author.

113    Right to privacy of certain photographs and films

(1)     A person who for private and domestic purposes commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting work, the right not to have –

(a)     copies of the work issued to the public;

(b)     the work exhibited or shown in public; or

(c)     the work communicated to the public,

and, except as mentioned in paragraph (2), a person who does or authorizes the doing of any of those acts infringes that right.

(2)     The right is not infringed by an act which by virtue of Article 48, 68, 69, 73, 85 or 94 would not infringe copyright in the work.

114    Duration of moral rights

(1)     The rights conferred by Articles 105, 108 and 113 continue to subsist so long as copyright subsists in the work.

(2)     The right conferred by Article 112 continues to subsist until 20 years after a person’s death.

115    Consent and waiver of moral rights

(1)     It is not an infringement of any of the rights conferred by this Chapter to do any act to which the person entitled to the right has consented.

(2)     Any of the rights conferred by this Chapter may be waived by instrument in writing signed by the person giving up the right.

(3)     A waiver –

(a)     may relate to a specific work, to works of a specified description or to works generally, and may relate to existing or future works; and

(b)     may be conditional or unconditional and may be expressed to be subject to revocation,

and if made in favour of the owner or prospective owner of the copyright in the work or works to which it relates, it shall be presumed to extend to his or her licensees and successors in title unless a contrary intention is expressed.

(4)     Nothing in this Chapter shall be construed as excluding the operation of the general law of contract or estoppel in relation to an informal waiver or other transaction in relation to any of the rights mentioned in paragraph (1).

116    Application of moral rights to joint works

(1)     The right conferred by Article 105 is, in the case of a work of joint authorship, a right of each joint author to be identified as a joint author and must be asserted in accordance with Article 106 by each joint author in relation to himself or herself.

(2)     The right conferred by Article 108 is, in the case of a work of joint authorship, a right of each joint author and his or her right is satisfied if he or she consents to the treatment in question.

(3)     A waiver under Article 115 of those rights by one joint author does not affect the rights of the other joint authors.

(4)     The right conferred by Article 112 is infringed, in the circumstances mentioned in that Article –

(a)     by any false statement as to the authorship of a work of joint authorship; and

(b)     by the false attribution of joint authorship in relation to a work of sole authorship,

and such a false attribution infringes the right of every person to whom authorship of any description is, whether rightly or wrongly, attributed.

(5)     Paragraphs (1) to (4) also apply (with any necessary adaptations) in relation to a film which was, or is alleged to have been, jointly directed, as they apply to a work which is, or is alleged to be, a work of joint authorship.

(6)     For the purposes of paragraph (5), a film is “jointly directed” if it is made by the collaboration of 2 or more directors and the contribution of each director is not distinct from that of the other director or directors.

(7)     The right conferred by Article 113 is, in the case of a work made in pursuance of a joint commission, a right of each person who commissioned the making of the work, so that –

(a)     the right of each is satisfied if he or she consents to the act in question; and

(b)     a waiver under Article 115 by one of them does not affect the rights of the others.

117    Application of moral rights to parts of works

(1)     The rights conferred by Articles 105 and 113 apply in relation to the whole or any substantial part of a work.

(2)     The right conferred by Articles 108 and 112 apply in relation to the whole or any part of a work.

cHAPTER 6 – dEALINGS IN COPYRIGHT WORKS

118    Assignment and licences of copyright

(1)     Copyright is transmissible by assignment, by testamentary disposition or by operation of law, as moveable property.

(2)     An assignment or other transmission of copyright may be partial, that is, limited so as to apply –

(a)     to one or more, but not all, of the things the copyright owner has the exclusive right to do;

(b)     to part, but not the whole, of the period for which the copyright is to subsist.

(3)     An assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor.

(4)     A licence granted by a copyright owner is binding on every successor in title to his or her interest in the copyright, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence, or a person deriving title from such a purchaser and references in this Part to doing anything with, or without, the licence of the copyright owner shall be construed accordingly.

119    Prospective ownership of copyright

(1)     Where by an agreement made in relation to future copyright, and signed by or on behalf of the prospective owner of the copyright, the prospective owner purports to assign the future copyright (wholly or partially) to another person, then if, on the copyright coming into existence, the assignee or another person claiming under him or her would be entitled as against all other persons to require the copyright to be vested in him or her, the copyright shall vest in the assignee or his or her successor in the title by virtue of this paragraph.

(2)     In this Part –

“future copyright” means copyright which will or may come into existence in respect of a future work or class of works or on the occurrence of a future event;

“prospective owner” shall be construed accordingly and includes a person who is prospectively entitled to copyright by virtue of such an agreement as is mentioned in paragraph (1).

(3)     A licence granted by a prospective owner of copyright is binding on every successor in title to his or her interest (or prospective interest) in the right, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from that purchaser, and references in this Part to doing anything with, or without, the licence of the copyright owner shall be construed accordingly.

120    Exclusive licences

The licensee under an exclusive licence has the same rights against a successor in title who is bound by the licence as he or she has against the person granting the licence.

121    Copyright to pass under will with unpublished work

Where under a bequest (whether specific or general) a person is entitled, beneficially or otherwise, to –

(a)     an original document or other material thing recording or embodying a literary, dramatic, musical or artistic work which was not published before the death of the testator; or

(b)     an original material thing containing a sound recording or film which was not published before the death of the testator,

the bequest shall, unless a contrary intention is indicated in the testator’s will or a codicil to it, be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his or her death.

122    Presumption of transfer of rental right in case of film production agreement

(1)     Where an agreement concerning film production is concluded between an author and a film producer, the author shall be presumed, unless the agreement provides to the contrary, to have transferred to the film producer any rental right in relation to the film arising by virtue of the inclusion of a copy of the author’s work in the film.

(2)     In this Article “author” means an author, or prospective author, of a literary, dramatic, musical or artistic work.

(3)     Paragraph (1) does not apply to any rental right in relation to the film arising by virtue of the inclusion in the film of the screenplay, the dialogue or music specifically created for and used in the film.

(4)     Where this Article applies, the absence of signature by or on behalf of the author does not exclude the operation of Article 119(1).

(5)     The reference in paragraph (1) to an agreement concluded between an author and a film producer includes any agreement having effect between those persons, whether made by them directly or through intermediaries.

(6)     Article 123 applies where there is a presumed transfer by virtue of this Article as in the case of an actual transfer.

Right to equitable remuneration where rental right transferred

123    Right to equitable remuneration where rental right transferred

(1)     Where an author to whom this Article applies has transferred his or her rental right concerning a sound recording or a film to the producer of the sound recording or film, he or she retains the right to equitable remuneration for the rental.

(2)     The authors to whom this Article applies are –

(a)     the author of a literary, dramatic, musical or artistic work; and

(b)     the principal director of a film.

(3)     The right to equitable remuneration under this Article may not be assigned by the author except to a collecting society for the purpose of enabling it to enforce the right on his or her behalf.

(4)     Notwithstanding paragraph (3), the right to equitable remuneration is transmissible by testamentary disposition or by operation of law as moveable property and may be assigned or further transmitted by any person into whose hands it passes.

(5)     Equitable remuneration under this Article is payable by the person for the time being entitled to the rental right, that is, the person to whom the right was transferred or any successor in title of his or hers.

(6)     The amount payable by way of equitable remuneration is as agreed by or on behalf of the persons by and to whom it is payable, subject to Article 124.

(7)     An agreement is of no effect in so far as it purports to exclude or restrict the right to equitable remuneration under this Article.

(8)     References in this Article to the transfer of a rental right by one person to another include any arrangement having that effect, whether made by them directly or through intermediaries.

(9)     In this Article a “collecting society” means a society or other organization which has as its main object, or one of its main objects, the exercise of the right to equitable remuneration under this Article on behalf of more than one author.

124    Equitable remuneration: reference of amount to licensing authority

(1)     In default of agreement as to the amount payable by way of equitable remuneration under Article 123, the person by or to whom it is payable may apply to the licensing authority to determine the amount payable.

(2)     A person by or to whom equitable remuneration is payable under that Article may also apply to the licensing authority –

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

(b)     to vary any previous determination of the licensing authority as to that matter,

but except with the permission of the licensing authority no such application may be made within 12 months from the date of a previous determination.

(3)     An order made on an application under paragraph (2) has effect from the date on which it is made or such later date as may be specified by the licensing authority.

(4)     On an application under this Article the licensing authority shall consider the matter and make any order as to the method of calculating and paying equitable remuneration as the licensing authority may determine to be reasonable in the circumstances, taking into account the importance of the contribution of the author to the film or sound recording.

(5)     Remuneration shall not be considered inequitable merely because it was paid by way of a single payment or at the time of the transfer of the rental right.

(6)     An agreement is of no effect in so far as it purports to prevent a person questioning the amount of equitable remuneration or to restrict the powers of the licensing authority under this Article.

Moral rights

125    Moral rights not assignable

The rights conferred by Chapter 5 are not assignable.

126    Transmission of moral rights on death

(1)     On the death of a person entitled to the right conferred by Article 105, 108 or 113 –

(a)     the right passes to such person as he or she may, by testamentary disposition, specifically direct;

(b)     if there is no such direction but the copyright in the work in question forms part of his or her estate, the right passes to the person to whom the copyright passes; and

(c)     if, or to the extent that, the right does not pass under sub-paragraph (a) or (b) it is exercisable by –

(i)      his or her executors, if he or she dies testate as to his or her moveable estate, or

(ii)      his or her administrators, if he or she dies intestate as to his or her moveable estate.

(2)     Where copyright forming part of a person’s estate passes in part to one person and in part to another, as for example where a bequest is limited so as to apply –

(a)     to one or more, but not all, of the things the copyright owner has the exclusive right to do or authorize; or

(b)     to part, but not the whole, of the period for which the copyright is to subsist,

any right which passes with the copyright by virtue of paragraph (1) shall be correspondingly divided.

(3)     Where by virtue of paragraph (1)(a) or (b) a right becomes exercisable by more than one person –

(a)     it may, in the case of the right conferred by Article 105, be asserted by any of them;

(b)     it is, in the case of the right conferred by Article 108 or 113, a right exercisable by each of them and is satisfied in relation to any of them if he or she consents to the treatment or act in question; and

(c)     any waiver of the right in accordance with Article 115 by one of them does not affect the rights of the others.

(4)     A consent or waiver previously given or made binds any person to whom a right passes by virtue of paragraph (1).

(5)     Any infringement after a person’s death of the right conferred by Article 112 is actionable by –

(a)     his or her executors, if he or she dies testate as to his or her moveable estate; or

(b)     his or her administrators, if he or she dies intestate as to his or her moveable estate.

(6)     Any damages recovered by executors or administrators by virtue of this Article in respect of an infringement after a person’s death shall devolve as part of that person’s estate as if the right of action had subsisted and been vested in him or her immediately before his or her death.

chapter 7 – Remedies for infringement

Rights and remedies of copyright owner

127    Infringement actionable by copyright owner

(1)     An infringement of copyright is actionable by the copyright owner.

(2)     In an action for infringement of copyright all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.

(3)     This Article has effect subject to the provisions of this Chapter.

128    Damages in action for infringement of copyright

(1)     Where, in an action for infringement of copyright, it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that the copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him or her, but without prejudice to any other remedy.

(2)     The Court may, in an action for infringement of copyright, having regard to all the circumstances, and in particular to –

(a)     the flagrancy of the infringement; and

(b)     any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require.

129    Order for delivery up of infringing copies, etc.

(1)     Where a person –

(a)     has an infringing copy of a work in his or her possession, custody or control in the course of a business; or

(b)     has in his or her possession, custody or control an article specifically designed or adapted for making copies of a particular copyright work, knowing or having reason to believe that it has been or is to be used to make infringing copies,

the owner of the copyright in the work may apply to the Court for an order that the infringing copy or article be delivered up to him or her or to any other person the Court may direct.

(2)     An application shall not be made after the end of the period specified in Article 130.

(3)     An Order shall not be made unless the Court makes, or it appears to the Court that there are grounds for making, an order under Article 143.

(4)     A person to whom an infringing copy or other article is delivered up in pursuance of an order under this Article shall, if an order under Article 143 is not made, retain it pending the making of an order, or the decision not to make an order, under that Article.

(5)     Nothing in this Article affects any other power of the Court.

130    Period after which remedy of delivery up not available under Article 129

(1)     Subject to paragraphs (2) and (3), an application for an order under Article 129 may not be made after the end of the period of 10 years from the date on which the infringing copy or article in question was made.

(2)     If during the whole or part of the period specified in paragraph (1) the copyright owner is –

(a)     under a disability; or

(b)     prevented by fraud or concealment from discovering the facts entitling him or her to apply for an order,

an application may be made at any time before the end of the period of 10 years from the date on which he or she ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts.

(3)     For the purposes of paragraph (2) a person shall be treated as under a disability while he or she is under the age of 18 years or is of unsound mind.

131    Right to seize infringing copies, etc.

(1)     An infringing copy of a work which is found exposed or otherwise immediately available for sale or hire, and in respect of which the copyright owner would be entitled to apply for an order under Article 129, may be seized and detained by him or her or a person authorized by him or her.

(2)     The right to seize and detain conferred by paragraph (1) is exercisable subject to the following conditions and is subject to any decision of the Court under Article 143.

(3)     Before anything is seized under this Article notice of the time and place of the proposed seizure must be given to the Connétable of the parish in which the proposed seizure is to take place.

(4)     A person may for the purpose of exercising the right conferred by this Article enter premises to which the public have access but may not seize anything in the possession, custody or control of a person at his or her permanent or regular place of business, and may not use any force.

(5)     At the time when anything is seized under this Article there shall be left at the place where it was seized a notice in the prescribed form containing the prescribed particulars as to the person by whom or on whose authority the seizure is made and the grounds on which it is made.

(6)     In this Article “premises” includes land, buildings, moveable structures, vehicles, vessels, aircraft and hovercraft.

Rights and remedies of exclusive licensee

132    Rights and remedies of exclusive licensee

(1)     An exclusive licensee has, except against the copyright owner, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment.

(2)     The exclusive licensee’s rights and remedies are concurrent with those of the copyright owner, and references in the relevant provisions of this Part to the copyright owner shall be construed accordingly.

(3)     In an action brought by an exclusive licensee by virtue of this Article a defendant may avail himself or herself of any defence which would have been available to him or her if the action had been brought by the copyright owner.

133    Certain infringements actionable by a non-exclusive licensee

(1)     A non-exclusive licensee may bring an action for infringement of copyright if –

(a)     the infringing act was directly connected to a prior licensed act of the licensee; and

(b)     the licence –

(i)      is in writing and is signed by or on behalf of the copyright owner, and

(ii)      expressly grants the non-exclusive licensee a right of action under this Article.

(2)     In an action brought under this Article, the non-exclusive licensee shall have the same rights and remedies available to him or her as the copyright owner would have had if he or she had brought the action.

(3)     The rights granted under this Article are concurrent with those of the copyright owner and references in the relevant provisions of this Part to the copyright owner shall be construed accordingly.

(4)     In an action brought by a non-exclusive licensee by virtue of this Article a defendant may avail himself or herself of any defence which would have been available to him or her if the action had been brought by the copyright owner.

(5)     Paragraphs (1) to (4) of Article 134 shall apply to a non-exclusive licensee who has a right of action by virtue of this Article as they apply to an exclusive licensee.

(6)     In this Article a “non-exclusive licensee” means the holder of a licence authorizing the licensee to exercise a right which remains exercisable by the copyright owner.

134    Exercise of concurrent rights

(1)     Where an action for infringement of copyright brought by the copyright owner or, as the case may be, an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the copyright owner or the exclusive licensee may not, without the leave of the Court, proceed with the action unless the other is either joined as a plaintiff or added as a defendant.

(2)     A copyright owner or exclusive licensee who is added as a defendant in pursuance of paragraph (1) is not liable for any costs in the action unless he or she takes part in the proceedings.

(3)     Paragraphs (1) and (2) do not affect the granting of the interlocutory relief on an application by a copyright owner or exclusive licensee alone.

(4)     Where an action for infringement of copyright is brought which relates (wholly or partly) to an infringement in respect of which the copyright owner and an exclusive licensee have or had concurrent rights of action –

(a)     the Court shall in assessing damages take into account –

(i)      the terms of the licence, and

(ii)      any pecuniary remedy already awarded or available to either of them in respect of the infringement;

(b)     no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement; and

(c)     the Court shall, if an account of profits is directed, apportion the profits between them as the Court considers just, subject to any agreement between them,

and these provisions apply whether or not the copyright owner and the exclusive licensee are both parties to the action.

(5)     The copyright owner shall notify any exclusive licensee having concurrent rights before applying for an order under Article 129 or exercising the right conferred by Article 131, and the Court may on the application of the licensee make such order under Article 129 or, as the case may be, prohibiting or permitting the exercise by the copyright owner of the right conferred by Article 131, as it thinks fit having regard to the terms of the licence.

Remedies for infringement of moral rights

135    Remedies for infringement of moral rights

(1)     An infringement of a right conferred by Chapter 5 is actionable as a breach of statutory duty owed to the person entitled to the right.

(2)     In proceedings for infringement of the right conferred by Article 108 the Court may, if it thinks it is an adequate remedy in the circumstances, grant an injunction on terms prohibiting the doing of any act unless a disclaimer is made, in such terms and in such manner as may be approved by the Court, dissociating the author or director from the treatment of the work.

Presumptions in proceedings

136    Presumptions relevant to literary, dramatic, musical and artistic works

(1)     The following presumptions apply in proceedings brought by virtue of this Chapter with respect to a literary, dramatic, musical or artistic work.

(2)     Where a name purporting to be that of the author appeared on copies of the work as published or on the work when it was made, the person whose name appeared shall be presumed, until the contrary is proved –

(a)     to be the author of the work; and

(b)     to have made it in circumstances not falling within Article 24(2), 182, 183, 184 or 188.

(3)     In the case of a work alleged to be a work of joint authorship, paragraph (2) applies in relation to each person alleged to be one of the authors.

(4)     Where no name purporting to be that of the author appeared as mentioned in paragraph (2) but –

(a)     the work qualifies for copyright protection by virtue of Article 22; and

(b)     a name purporting to be that of the publisher appeared on copies of the work as first published,

the person whose name appeared shall be presumed, until the contrary is proved, to have been the owner of the copyright at the time of publication.

(5)     If the author of the work is dead or the identity of the author cannot be ascertained by reasonable inquiry, it shall be presumed, in the absence of evidence to the contrary –

(a)     that the work is an original work; and

(b)     that the plaintiff’s allegations as to what was the first publication of the work and as to the country of first publication are correct.

137    Presumptions relevant to sound recordings, films and computer programs

(1)     In proceedings brought by virtue of this Chapter with respect to a sound recording, where copies of the recording as issued to the public bear a label or other mark stating –

(a)     that a named person was the owner of copyright in the recording at the date of issue of the copies; or

(b)     that the recording was first published in a specified year or in a specified country,

the label or mark shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(2)     In proceedings brought by virtue of this Chapter with respect to a film, where copies of the film as issued to the public bear a statement –

(a)     that a named person was the director or producer of the film;

(b)     that a named person was the principal director, the author of the screenplay, the author of the dialogue or the composer of music specifically created for and used in the film;

(c)     that a named person was the owner of the copyright in the film at the date of issue of the copies; or

(d)     that the film was first published in a specified year or in a specified country,

the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(3)     In proceedings brought by virtue of this Chapter with respect to a computer program, where copies of the program are issued to the public in electronic form bearing a statement –

(a)     that a named person was the owner of copyright in the program at the date of issue of the copies; or

(b)     that the program was first published in a specified country or that copies of it were first issued to the public in electronic form in a specified year,

the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(4)     The presumptions in paragraphs (1), (2) and (3) apply equally in proceedings relating to an infringement alleged to have occurred before the date on which the copies were issued to the public.

(5)     In proceedings brought by virtue of this Chapter with respect to a film, where the film as shown in public or communicated to the public bears a statement –

(a)     that a named person was the director or producer of the film;

(b)     that a named person was the principal director of the film, the author of the screenplay, the author of the dialogue or the composer of music specifically created for and used in the film; or

(c)     that a named person was the owner of copyright in the film immediately after it was made,

the statement shall be admissible as evidence of the facts stated and shall be presumed to be correct until the contrary is proved.

(6)     The presumption in paragraph (5) applies equally in proceedings relating to an infringement alleged to have occurred before the date on which the film was shown in public or communicated to the public.

(7)     For the purposes of this Article, a statement that a person was the director of a film shall be taken, unless a contrary indication appears, as meaning that he or she was the principal director of the film.

138    Presumptions relevant to works subject to Crown or States copyright

In proceedings brought by virtue of this Chapter with respect to a literary, dramatic or musical work in which States Assembly copyright, States copyright or Crown copyright subsists, where there appears on printed copies of the work a statement of the year in which the work was first published commercially, that statement shall be admissible as evidence of the fact stated and shall be presumed to be correct in the absence of evidence to the contrary.

Offences

139    Offences of making or dealing with infringing articles, etc.

(1)     A person shall be guilty of an offence who, without the licence of the copyright owner –

(a)     makes for sale or hire;

(b)     imports into Jersey otherwise than for his or her private and domestic use;

(c)     possesses in the course of a business with a view to committing any act infringing the copyright;

(d)     in the course of a business –

(i)      sells or lets for hire,

(ii)      offers or exposes for sale or hire,

(iii)     exhibits in public, or

(iv)     distributes; or

(e)     distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

an article which is, and which he or she knows or has reason to believe is, an infringing copy of a copyright work.

(2)     A person shall be guilty of an offence who –

(a)     makes an article specifically designed or adapted for making copies of a particular copyright work; or

(b)     has such an article in his or her possession,

knowing or having reason to believe that it is to be used to make infringing copies for sale or hire or for use in the course of a business.

(3)     A person who infringes copyright in a work by communicating the work to the public –

(a)     in the course of a business; or

(b)     otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

shall be guilty of an offence if he or she knows or has reason to believe that, by doing so, he or she is infringing copyright in that work.

(4)     Where copyright is infringed (otherwise than by reception of a communication to the public) by –

(a)     the public performance of a literary, dramatic or musical work; or

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

any person who caused the work to be so performed, played or shown shall be guilty of an offence if he or she knew or had reason to believe that copyright would be infringed.

(5)     A person guilty of an offence against paragraph (1)(a), (b), (d)(iv) or (e) or paragraph (3) shall be liable to imprisonment for a term of 10 years and to a fine.

(6)     A person guilty of any other offence against this Article shall be liable to imprisonment for a term of 6 months and to a fine of level 3 on the standard scale.[15]

(7)     Articles 136 to 138 do not apply to proceedings for an offence against this Article, but without prejudice to their application in proceedings for an order under Article 140.

(8)     Where an offence against this Article committed by a limited liability partnership or body corporate is proved to have been committed with the consent or connivance of –

(a)     a person who is a partner of the partnership, or director, manager, secretary or other similar officer of the body corporate; or

(b)     any person purporting to act in any such capacity,

the person shall also be guilty of the offence and liable in the same manner as the partnership or body corporate to the penalty provided for that offence.

(9)     Where the affairs of a body corporate are managed by its members, paragraph (8) shall apply in relation to acts and defaults of a member in connection with the member’s functions of management as if the member were a director of the body corporate.

140    Order for delivery up of infringing copies, etc. in criminal proceedings

(1)     The court before which proceedings are brought against a person for an offence against Article 139 may, if satisfied that at the time of his or her arrest or charge –

(a)     the person had in his or her possession, custody or control in the course of a business an infringing copy of a copyright work; or

(b)     the person had in his or her possession, custody or control an article specifically designed or adapted for making copies of a particular copyright work, knowing or having reason to believe that the article had been or was to be used to make infringing copies,

order that the infringing copy or article be delivered up to the copyright owner or to such other person as the court directs.

(2)     For this purpose a person shall be treated as charged with an offence when he or she is orally charged or is served with a summons.

(3)     An order may be made by the court of its own motion or on an application by or on behalf of the Attorney General or by the person presenting the case, and may be made whether or not the person is convicted of the offence, but shall not be made –

(a)     after the end of the period of 10 years from the date on which the infringing copy or article in question was made; or

(b)     if it appears to the court unlikely that any order will be made under Article 143.

(4)     An appeal lies to the Court from an order made under this Article by the Magistrate’s Court.

(5)     A person to whom an infringing copy or other article is delivered up in pursuance of an order under this Article shall retain it pending the making of an order, or the decision not to make an order, under Article 143.

(6)     Nothing in this Article affects the powers of a court as to forfeiture in criminal proceedings under any other enactment.

Importation of infringing copies

141    Infringing copies may be treated as prohibited goods

(1)     The owner of the copyright in a published literary, dramatic or musical work may give notice in writing to the Agent of the Impôts –

(a)     that he or she is the owner of the copyright in the work; and

(b)     that he or she requests the Agent of the Impôts, for a period specified in the notice, to treat as prohibited goods printed copies of the work which are infringing copies.

(2)     The period specified in a notice under paragraph (1) shall not exceed 5 years and shall not extend beyond the period for which copyright is to subsist.

(3)     The owner of the copyright in a sound recording or film may give notice in writing to the Agent of the Impôts –

(a)     that he or she is the owner of the copyright in the work;

(b)     that infringing copies of the work are expected to arrive in Jersey at a time and place specified in the notice; and

(c)     that he or she requests the Agent of the Impôts to treat the copies as prohibited goods.

(4)     When a notice is in force under this Article the importation of goods to which the notice relates, otherwise than by a person for his or her private and domestic use, shall, subject to paragraphs (5) and (6), be prohibited.

(5)     The Agent of the Impôts may treat as prohibited goods only infringing copies of works which arrive in Jersey –

(a)     from outside the protected area; or

(b)     from within the protected area but not having been entered for free circulation.

(6)     This Article does not apply to goods placed in, or expected to be placed in, one of the situations referred to in Article 1(1) of Council Regulation (EC) No. 1383/2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights, in respect of which an application may be made under Article 5(1) of that Regulation.

(7)     A person shall not, by reason of the prohibition under this Article of the importation of goods, be liable to any penalty other than forfeiture of the goods.

142    Orders supplementing Article 141

(1)     The Minister for Home Affairs may by Order prescribe the form in which notice is to be given under Article 141 and require a person giving notice –

(a)     to furnish the Agent of the Impôts with the evidence specified in the Order, either on giving notice or when the goods are imported, or at both those times; and

(b)     to comply with such other conditions as may be specified in the Order.

(2)     The Order may, in particular, require a person giving such a notice –

(a)     to pay the prescribed fee, if any;

(b)     to give such security as may be specified in respect of any liability or expense which the Agent of the Impôts may incur in consequence of the notice by reason of the detention of any article or anything done to an article detained; and

(c)     to indemnify the Agent of the Impôts against that liability or expense, whether security has been given or not.

Supplementary

143    Order as to disposal of infringing copy or other article

(1)     An application may be made to the Court for an order that an infringing copy or other article, delivered up in pursuance of an order under Article 129 or 140 or seized and detained in pursuance of the right conferred by Article 131, shall be –

(a)     forfeited to the copyright owner; or

(b)     destroyed or otherwise dealt with as the Court may think fit,

or for a decision that no such order should be made.

(2)     In considering what order (if any) should be made, the Court shall consider whether other remedies available in an action for infringement of copyright would be adequate to compensate the copyright owner and to protect his or her interests.

(3)     Provision shall be made by rules of court as to the service of the notice on a person having an interest in the copy or other article, and any such person is entitled –

(a)     to appear in proceedings for an order under this Article, whether or not he or she was served with notice; and

(b)     to appeal against any order made, whether or not he or she appeared.

(4)     An order under this Article shall not take effect until the end of the period specified by rules of court within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the appeal.

(5)     Where there is more than one person interested in a copy or other article, the Court shall make such order as it thinks just and may (in particular) direct that the copy or article be sold, or otherwise dealt with, and the proceeds divided.

(6)     If the Court decides that no order should be made under this Article, the person in whose possession, custody or control the copy or other article was before being delivered up or seized is entitled to its return.

(7)     References in this Article to a person having an interest in a copy or other article, include any person in whose favour an order could be made in respect of it under –

(a)     this Article;

(b)     Article 321;

(c)     Article 377; or

(d)     Article 29(3) of the Trade Marks (Jersey) Law 2000[16].

(8)     The power in the Royal Court (Jersey) Law 1948[17] to make rules of court shall include the power to make rules for the purposes of this Article.

144    Forfeiture of infringing copies, etc.

(1)     Where there have come into the possession of any person in connection with the investigation or prosecution of a relevant offence –

(a)     infringing copies of a copyright work; or

(b)     articles specifically designed or adapted for making copies of a particular copyright work,

that person may apply under this Article for an order for the forfeiture of the infringing copies or articles.

(2)     For the purposes of this Article “relevant offence” means –

(a)     an offence against Article 139; or

(b)     an offence involving dishonesty or deception.

(3)     An application under this Article may be made –

(a)     where proceedings have been brought in any court for a relevant offence relating to some or all of the infringing copies or articles, to that court; or

(b)     where no application for the forfeiture of the infringing copies or articles has been made under sub-paragraph (a), to the Magistrate’s Court.

(4)     On an application under this Article, the court shall make an order for the forfeiture of any infringing copies or articles only if it is satisfied that a relevant offence has been committed in relation to the infringing copies or articles.

(5)     A court may infer for the purposes of this Article that such an offence has been committed in relation to any infringing copies or articles if it is satisfied that such an offence has been committed in relation to infringing copies or articles which are representative of the infringing copies or articles in question (whether by reason of being of the same design or part of the same consignment or batch or otherwise).

(6)     Any person aggrieved by an order made under this Article by the Magistrate’s Court, or by a decision by that court not to make such an order, may appeal against that order or decision to the Royal Court.

(7)     An order under this Article may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal or application to state a case.

(8)     Subject to paragraph (9), where any infringing copies or articles are forfeited under this Article they shall be destroyed in accordance with such directions as the court may give.

(9)     On making an order under this Article the court may direct that the infringing copies or articles to which the order relates shall (instead of being destroyed) be forfeited to the owner of the copyright in question or dealt with in such other way as the court considers appropriate.

chapter 8 – copyright licensing

145    Copyright licensing schemes and licensing bodies

(1)     In this Part a “licensing scheme” means a scheme setting out –

(a)     the classes of case in which the operator of the scheme, or the person on whose behalf he or she acts, is willing to grant copyright 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)     In this Part “licensing body” means a society or other organization which has as its main object, or one of its main objects, the negotiation or granting, either as owner or prospective owner of copyright or as agent for him or her, of copyright licences, and whose objects include the granting of licences covering works of more than one author.

(3)     In this Article “copyright licences” means licences to do, or authorize the doing of, any of the acts restricted by copyright.

(4)     References in this Chapter to licences or licensing schemes covering works of more than one author do not include licences or schemes covering only –

(a)     a single collective work or collective works of which the authors are the same; or

(b)     works made by, or by employees of, or commissioned by, a single individual, firm, company or group of companies.

(5)     For the purpose of paragraph (4)(b), a group of companies means a holding company and its subsidiaries, within the meaning of Article 2 of the Companies (Jersey) Law 1991[18].

146    Licensing schemes to which Articles 147 to 152 apply

Articles 147 to 152 apply to licensing schemes which are operated by licensing bodies and cover works of more than one author, so far as they relate to licences for –

(a)     copying the work;

(b)     rental of copies of the work to the public;

(c)     performing, showing or playing the work in public; or

(d)     communicating the work to the public,

and references in those Articles to a licensing scheme shall be construed accordingly.

147    Reference of proposed licensing scheme to licensing authority

(1)     The terms of a licensing scheme proposed to be operated by a licensing body may be referred to the licensing authority by an organization which claims to be representative of persons claiming that they require licences in cases of a description to which the scheme would apply, either generally or in relation to any description of case.

(2)     The licensing authority shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature.

(3)     If the licensing authority decides to entertain the reference the licensing authority shall consider the matter referred and make such order, either confirming or varying the proposed scheme, either generally or so far as it relates to cases of the description to which the reference relates, as the licensing authority may determine to be reasonable in the circumstances.

(4)     The order may be made so as to be in force indefinitely or for such period as the licensing authority may determine.

148    Reference of licensing scheme to licensing authority

(1)     If while a licensing scheme is in operation a dispute arises 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 organization claiming to be representative of such persons,

that person or organization may refer the scheme to the licensing authority in so far as it relates to cases of that description.

(2)     A scheme which has been referred to the licensing authority under this Article shall remain in operation until proceedings on the reference are concluded.

(3)     The licensing authority shall consider the matter in dispute and make such order, either confirming or varying the scheme so far as it relates to cases of the description to which the reference relates, as the licensing authority may determine to be reasonable in the circumstances.

(4)     The order may be made so as to be in force indefinitely or for any period the licensing authority determines.

149    Further reference of scheme to licensing authority

(1)     Where the licensing authority has on a previous reference of a licensing scheme under Article 147 or 148 or under this Article, made an order with respect to the scheme, then, while the order remains in force –

(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; or

(c)     an organization claiming to be representative of such persons,

may refer the scheme again to the licensing authority so far as it relates to cases of that description.

(2)     A licensing scheme shall not, except with the permission of the licensing authority, be referred again to the licensing authority in respect of the same description of cases –

(a)     within 12 months from the date of the order on the previous reference; or

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

(3)     A scheme which has been referred to the licensing authority under this Article shall remain in operation until proceedings on the reference are concluded.

(4)     The licensing authority shall consider the matter in dispute and make such order, either confirming, varying or further varying the scheme so far as it relates to cases of the description to which the reference relates, as the licensing authority may determine to be reasonable in the circumstances.

(5)     The order may be made so as to be in force indefinitely or for such period as the licensing authority may determine.

150    Application for grant of licence in connection with licensing scheme

(1)     A person who claims, in a case covered by a licensing scheme, that the operator of the scheme has refused to grant him or her or procure the grant to him or her of a licence in accordance with the scheme, or has failed to do so within a reasonable time after being asked, may apply to the licensing authority.

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

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

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

may apply to the licensing authority.

(3)     A case shall be regarded as excluded from a licensing scheme for the purposes of paragraph (2) if –

(a)     the scheme provides for the grant of licences subject to terms excepting matters from the licence and the case falls within such an exception; or

(b)     the case is so similar to those in which the licences are granted under the scheme that it is unreasonable that it should not be dealt with in the same way.

(4)     If the licensing authority is satisfied that the claim is well-founded, the licensing authority 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 licensing authority may determine to be applicable in accordance with the scheme or, as the case may be, to be reasonable in the circumstances.

(5)     The order may be made so as to be in force indefinitely or for such period as the licensing authority may determine.

151    Application for review of order as to entitlement to licence

(1)     Where the licensing authority has made an order under Article 150 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 licensing authority to review the order.

(2)     An application shall not be made under paragraph (1), except with the permission of the licensing authority –

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

(b)     if the order was made so as to be in force for 15 months or less, or, as a result of the decision on a previous application under this Article, is due to expire within 15 months of that decision, until the last 3 months before the expiry date.

(3)     The licensing authority shall on an application for review confirm or vary the authority’s order as the licensing authority 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.

152    Effect of order of licensing authority as to licensing scheme

(1)     A licensing scheme which has been confirmed or varied by the licensing authority –

(a)     under Article 147; or

(b)     under Article 148 or 149,

shall be in force or, as the case may be, remain in operation, so far as it relates to the description of case in respect of which the order was made, so long as the order remains in force.

(2)     While the order is in force 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 covering the case in question or, if the amount cannot be ascertained, gives an undertaking to the operator to pay them when ascertained; and

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

shall be in the same position, as regards infringement of copyright, as if he or she had at all material times been the holder of a licence granted by the owner of the copyright in question in accordance with the scheme.

(3)     The licensing authority may direct that the order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than the date on which the reference was made, or if later, on which the scheme came into operation.

(4)     If a direction under paragraph (3) is made –

(a)     any necessary repayments, or further payments, shall be made in respect of charges already paid; and

(b)     the reference in paragraph (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)     A direction under paragraph (3) may not be made where paragraph (6) applies.

(6)     An order of the licensing authority under Article 148 or 149 made with respect to a scheme which is notified for any purpose in accordance with Article 180 has effect, so far as it varies the scheme by reducing the charges payable for licences, from the date on which the reference was made to the licensing authority.

(7)     Where the licensing authority has made an order under Article 150 and the order remains in force, the person in whose favour the order is made shall if he or she –

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

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

be in the same position as regards infringement of copyright as if he or she had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.

References and applications with respect to licensing by licensing bodies

153    Licences to which Articles 154 to 157 apply

Articles 154 to 157 apply to licences which are granted by a licensing body otherwise than in pursuance of a licensing scheme and cover works of more than one author, so far as they authorize –

(a)     copying the work;

(b)     rental of copies of the work to the public;

(c)     performing, showing or playing the work in public; or

(d)     communicating the work to the public,

and references in those Articles to a licence shall be construed accordingly.

154    Reference to licensing authority of proposed licence

(1)     The terms on which a licensing body proposes to grant a licence may be referred to the licensing authority by the prospective licensee.

(2)     The licensing authority shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature.

(3)     If the licensing authority decides to entertain the reference the licensing authority shall consider the terms of the proposed licence and make such order, either confirming or varying the terms, as he or she may determine to be reasonable in the circumstances.

(4)     The order may be made so as to be in force indefinitely or for such period as the licensing authority may determine.

155    Reference to licensing authority of expiring licence

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

(2)     Such an application may not be made until the last 3 months before the licence is due to expire.

(3)     A licence in respect of which an application under paragraph (1) has been made to the licensing authority shall remain in operation until proceedings on the application are concluded.

(4)     If the licensing authority finds the application well-founded, the licensing authority shall make an order declaring that the licensee shall continue to be entitled to the benefit of the licence on such terms as the licensing authority may determine to be reasonable in the circumstances.

(5)     An order of the licensing authority under this Article may be made so as to be in force indefinitely or for such period as the licensing authority may determine.

156    Application for review of order as to licence

(1)     Where an order has been made under Article 154 or 155, the licensing body or the person entitled to the benefit of the order may apply to the licensing authority to review the order.

(2)     An application shall not be made, except with the permission of the licensing authority –

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

(b)     if the order was made so as to be in force for 15 months or less, or, as a result of the decision on a previous application under this Article, is due to expire within 15 months of that decision, until the last 3 months before the expiry date.

(3)     The licensing authority shall, on an application for review, confirm or vary the order to which the application relates as the licensing authority may determine to be reasonable in the circumstances.

157    Effect of order of licensing authority as to licence

(1)     Where the licensing authority has made an order under Article 154 or 155 and the order remains in force, the person entitled to the benefit of the order shall if he or she –

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

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

be in the same position as regards infringement of copyright, as if he or she had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.

(2)     The benefit of the order may be assigned –

(a)     in the case of an order under Article 154, if assignment is not prohibited under the terms of the licensing authority’s order; and

(b)     in the case of an order under Article 155, if assignment was not prohibited under the terms of the original licence.

(3)     The licensing authority may direct that an order under Article 154 or 155, or an order under Article 156 varying such an order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than the date on which the reference or application was made or, if later, on which the licence was granted or, as the case may be, was due to expire.

(4)     If a direction is made under paragraph (3) –

(a)     any necessary repayments, or further payments, shall be made in respect of charges already paid; and

(b)     the reference in paragraph (1)(a) to the charges payable in accordance with the order shall be construed, where the order is varied by a later order, as a reference to the charges so payable by virtue of the later order.

Factors to be taken into account in certain classes of case

158    General considerations: unreasonable discrimination

In determining what is reasonable on a reference or application under this Chapter relating to a licensing scheme or licence, the licensing authority 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 its powers so as to secure 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.

159    Licences for reprographic copying

Where a reference or application is made to the licensing authority under this Chapter relating to the licensing of reprographic copying of published literary, dramatic, musical or artistic works, or the typographical arrangement of published editions, the licensing authority shall have regard to –

(a)     the extent to which published editions of the work in question are otherwise available;

(b)     the proportion of the work to be copied; and

(c)     the nature of the use to which the copies are likely to be put.

160    Licences for educational establishments in respect of works included in broadcasts

(1)     This Article applies to references or applications under this Chapter relating to licences for the recording by or on behalf of educational establishments of broadcasts which include copyright works, or the making of copies of such recordings, for educational purposes.

(2)     The licensing authority shall, in considering what charges (if any) should be paid for a licence, have regard to the extent to which the owners of copyright in the works included in the broadcast have already received, or are entitled to receive, payment in respect of their inclusion.

161    Licences to reflect conditions imposed by promoters of events

(1)     This Article applies to references or applications under this Chapter in respect of licences relating to sound recordings, films or broadcasts which include, or are to include, any entertainment or other event.

(2)     The licensing authority shall have regard to any conditions imposed by the promoters of the entertainment or other event and, in particular, the licensing authority shall not hold a refusal or failure to grant a licence to be unreasonable if it could not have been granted consistently with those conditions.

(3)     Nothing in this Article shall require the licensing authority to have regard to any of the conditions referred to in paragraph (2) in so far as they –

(a)     purport to regulate the charges to be imposed in respect of the grant of licences; or

(b)     relate to payments to be made to the promoters of any event in consideration of the grant of facilities for making the recording, film or broadcast.

162    Licences to reflect payments in respect of underlying rights

(1)     In considering what charges should be paid for a licence on a reference or application under this Chapter relating to licences for the rental of copies of a work, the licensing authority shall take into account any reasonable payments which the owner of the copyright in the work is liable to make in consequence of either the granting of the licence, or of the acts authorized by the licence, to owners of copyright in works included in that work.

(2)     On any reference or application under this Chapter relating to licensing in respect of the copyright in sound recordings, films or broadcasts, the licensing authority shall take into account, in considering what charges should be paid for a licence, any reasonable payments which the copyright owner is liable to make in consequence of the granting of the licence, or of the acts authorized by the licence, in respect of any performance included in the recording, film or broadcast.

163    Licences in respect of works included in re-transmissions

(1)     This Article applies to references or applications under this Chapter relating to licences to include in a broadcast –

(a)     literary, dramatic, musical or artistic works; or

(b)     sound recordings of films,

where one broadcast (the “first transmission”) is, by reception and immediate re-transmission, to be further broadcast (the “further transmission”).

(2)     So far as the further transmission is to the same area as the first transmission, the licensing authority shall, in considering what charges, if any, should be paid for licences for either transmission, have regard to the extent to which the copyright owner has already received, or is entitled to receive, payment for the other transmission which adequately remunerates him or her in respect of transmissions to that area.

(3)     So far as the further transmission is to an area outside that to which the first transmission was made, the licensing authority shall leave the further transmission out of account in considering what charges, if any, should be paid for licences for the first transmission.

164    Mention of specific matters not to exclude other relevant considerations

The mention in Articles 158 to 163 of specific matters to which the licensing authority is to have regard in certain classes of case does not affect the licensing authority’s general obligation in any case to have regard to all relevant considerations.

Use as of right of sound recordings in broadcasts

165    Interpretation of Articles 166 to 172

(1)     In Articles 166 to 172 –

“broadcast” does not include any broadcast which is a transmission of the kind specified in Article 4(2)(b) or (c);

“needletime” means the time in any period (whether determined as a number of hours in the period or a proportion of the period, or otherwise) in which any recordings may be included in a broadcast;

“sound recording” does not include a film sound track when accompanying a film.

(2)     In Articles 167 to 172, “terms of payment” means terms as to payment for including sound recordings in a broadcast.

166    Circumstances in which right of use of sound recordings in broadcast is available

(1)     Article 168 applies to the inclusion in a broadcast of any sound recordings if –

(a)     a licence to include those recordings in the broadcast could be granted by a licensing body or such a body could procure the grant of a licence to do so;

(b)     the condition in paragraph (2) or (3) applies; and

(c)     the person including those recordings in the broadcast has complied with Article 167.

(2)     Where the person including the recordings in the broadcast does not hold a licence to do so, the condition referred to in paragraph (1)(b) is that the licensing body refuses to grant, or procure the grant of, such a licence, being a licence –

(a)     whose terms as to payment for including the recordings in the broadcast would be acceptable to him or her or comply with an order of the licensing authority under Article 169 relating to such a licence or any scheme under which it would be granted; and

(b)     allowing unlimited needletime or such needletime as he or she has demanded.

(3)     Where the person including the recording in the broadcast holds a licence to do so, the condition referred to in paragraph (1)(b) is that –

(a)     the terms of the licence limit needletime; and

(b)     the licensing body refuses to substitute or procure the substitution of terms allowing unlimited needletime or such needletime as he or she has demanded, or refuses to do so on terms that fall within paragraph (2)(a).

(4)     The references in paragraph (2) to refusing to grant, or procure the grant of, a licence, and in paragraph (3) to refusing to substitute or procure the substitution of terms, include failing to do so within a reasonable time of being asked.

167    Notice of intention to exercise right of use of sound recording in broadcast

(1)     A person intending to avail himself or herself of the right conferred by Article 168 must –

(a)     give notice to the licensing body of his or her intention to exercise the right, requesting the body to propose terms of payment; and

(b)     after receiving the proposal or the expiry of a reasonable period, give reasonable notice to the licensing body of the date on which he or she proposes to begin exercising that right, and the terms of payment in accordance with which he or she intends to do so.

(2)     Where the person has a licence to include the recordings in a broadcast, the date specified in a notice under paragraph (1)(b) must not be sooner than the date of expiry of that licence except in a case falling within Article 166(3).

(3)     Before a person intending to avail himself or herself of the right begins to exercise it, he or she must –

(a)     give reasonable notice to the licensing authority of his or her intention to exercise the right, and of the date on which he or she proposes to begin to do so; and

(b)     apply to the licensing authority under Article 169 to settle the terms of payment.

168    Right of use of sound recording in broadcast

(1)     A person who, on or after the date specified in a notice under Article 167(1)(b), includes in a broadcast any sound recordings in circumstances in which this Article applies, and who –

(a)     complies with any reasonable condition, notice of which has been given to him or her by the licensing body, as to inclusion in the broadcast of those recordings;

(b)     provides that body with such information about their inclusion in the broadcast as it may reasonably require; and

(c)     makes the payments to the licensing body that are required by this Article,

shall be in the same position as regards infringement of copyright as if he or she had at all material times been the holder of a licence granted by the owner of the copyright in question.

(2)     Payments are to be made at not less than quarterly intervals in arrears.

(3)     The amount of any payment is that determined in accordance with any order of the licensing authority under Article 169 or, if no such order has been made –

(a)     in accordance with any proposal for terms of payment made by the licensing body pursuant to a request under Article 167; or

(b)     where no proposal has been so made or the amount determined in accordance with the proposal so made is unreasonably high, in accordance with the terms of payment notified to the licensing body under Article 167(1)(b).

(4)     Where this Article applies to the inclusion in a broadcast of any sound recordings, it does so in place of any licence.

169    Applications to settle terms of payment for use of sound recording in broadcast

(1)     On an application to settle the terms of payment, the licensing authority shall consider the matter and make such order as the licensing authority may determine to be reasonable in the circumstances.

(2)     An order under paragraph (1) has effect from the date the applicant begins to exercise the right conferred by Article 168 and any necessary repayments, or further payments, shall be made in respect of amounts that have fallen due.

170    References, etc., about conditions, information and other terms

(1)     A person exercising the right conferred by Article 168, or who has given notice to the licensing authority of his or her intention to do so, may refer to the licensing authority –

(a)     any question as to whether any condition as to the inclusion in a broadcast of sound recordings, notice of which has been given to him or her by the licensing body in question, is a reasonable condition; or

(b)     any question as to whether any information is information which the licensing body can reasonably require him or her to provide.

(2)     On a reference under this Article, the licensing authority shall consider the matter and make such order as the licensing authority may determine to be reasonable in the circumstances.

171    Application for review of order under Article 169 or 170

(1)     A person exercising the right conferred by Article 168 or the licensing body may apply to the licensing authority to review any order made under Article 169 or 170.

(2)     An application shall not be made, except with the permission of the licensing authority –

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

(b)     if the order was made so as to be in force for 15 months or less, or as a result of a decision on a previous application is due to expire within 15 months of that decision, until the last 3 months before the expiry date.

(3)     On the application the licensing authority shall consider the matter and make such order confirming or varying the original order as the licensing authority may determine to be reasonable in the circumstances.

(4)     An order under this Article shall have effect from the date on which it is made or such later date as may be specified by the licensing authority.

172    Factors to be taken into account on application, etc. under Articles 169 to 171

(1)     In determining what is reasonable on an application or reference made under Article 169 or 170, or on reviewing any order made under Article 171, the licensing authority shall –

(a)     have regard to the terms of any orders which he or she has made in the case of persons in similar circumstances exercising the right conferred by Article 168; and

(b)     exercise his or her powers so as to secure that there is no unreasonable discrimination between persons exercising that right against the same licensing body.

(2)     In settling the terms of payment under Article 169, the licensing authority shall not be guided by any order it has made under any enactment other than that Article.

(3)     Article 163 shall apply on an application or reference under Articles 169 to 171 as it applies on an application or reference relating to a licence.

173    Power to amend Articles 165 to 172

The Minister may by Order amend Articles 165 to 172 so as –

(a)     to include in any reference to sound recordings any works of a description specified in the Order; or

(b)     to exclude from any reference to a broadcast any broadcast of a description so specified.

Implied indemnity

174    Implied indemnity in certain schemes and licences for reprographic copying

(1)     This Article applies to –

(a)     schemes for licensing reprographic copying of literary, dramatic, musical or artistic works, or the typographical arrangement of published editions; and

(b)     licences granted by licensing bodies for such copying,

where the scheme or licence does not specify the works to which it applies with such particularity as to enable licensees to determine whether a work falls within the scheme or licence by inspection of the scheme or licence and the work.

(2)     There is implied –

(a)     in every scheme to which this Article applies, an undertaking by the operator of the scheme to indemnify a person granted a licence under the scheme; and

(b)     in every licence to which this Article applies, an undertaking by the licensing body to indemnify the licensee,

against any liability incurred by the person or licensee by reason of his or her having infringed copyright by making or authorizing the making of reprographic copies of a work in circumstances within the apparent scope of his or her licence.

(3)     The circumstances of a case are within the apparent scope of a licence if –

(a)     it is not apparent from inspection of the licence and the work that it does not fall within the description of works to which the licence applies; and

(b)     the licence does not expressly provide that it does not extend to copyright of the description infringed.

(4)     In this Article “liability” includes liability to pay costs.

(5)     This Article applies in relation to costs reasonably incurred by a licensee in connection with actual or contemplated proceedings against the licensee for infringement of copyright as it applies to sums which the licensee is liable to pay in respect of such infringement.

(6)     A scheme or licence to which this Article applies may contain reasonable provision –

(a)     with respect to the manner in which and the time within which claims under the undertaking implied by this Article are to be made;

(b)     enabling the operator of the scheme or, as the case may be, the licensing body, to take over the conduct of any proceedings affecting the operator or body’s liability to indemnify.

Copying by educational establishments

175    Power to extend coverage of scheme or licence authorizing copying by educational establishments

(1)     This Article applies to –

(a)     a licensing scheme to which Articles 147 to 152 apply and which is operated by a licensing body; or

(b)     a licence to which Articles 154 to 157 apply,

so far as it provides for the grant of licences, or is a licence, authorizing the making by or on behalf of educational establishments, for the purposes of instruction, of copies of copyright works, or the communication, by or on behalf of educational establishments, for the purposes of instruction, of copyright works to the public.

(2)     If it appears to the Minister with respect to a scheme or licence to which this Article applies that –

(a)     works of a description similar to those covered by the scheme or licence are unreasonably excluded from it; and

(b)     making them subject to the scheme or licence would not conflict with the normal exploitation of the works or unreasonably prejudice the legitimate interests of the copyright owners,

the Minister may determine that the scheme or licence shall extend to those works.

(3)     Where he or she proposes to make a determination under paragraph (2), the Minister shall cause notice of the proposal to be given to –

(a)     the copyright owners;

(b)     the licensing body in question; and

(c)     any persons or organizations representative of educational establishments, and such other persons or organizations as the Minister thinks fit.

(4)     The notice shall inform those persons of their right to make written or oral representations to the Minister about the proposal within 6 months from the date of the notice.

(5)     If any person given notice under paragraph (3) wishes to make oral representations the Minister shall appoint a person to hear the representations and report to him or her.

(6)     In considering whether to make a determination the Minister shall take into account any representations made to him or her in accordance with paragraphs (4) and (5), and such other matters as appear to him or her to be relevant.

176    Variation or discharge of determination under Article 175

(1)     The owner of the copyright in a work in respect of which a determination is in force under Article 175 may apply to the Minister for variation or revocation of the determination, stating his or her reasons for making the application.

(2)     The Minister shall not entertain an application made within 2 years of the making of the original determination, or of the making of a determination on a previous application under this Article, unless it appears to the Minister that the circumstances are exceptional.

(3)     On considering the reasons for the application the Minister may confirm the determination forthwith.

(4)     If the Minister does not confirm the determination forthwith, he or she shall cause notice of the application to be given to –

(a)     the licensing body in question; and

(b)     such persons or organizations representative of educational establishments, and such other persons or organizations, as the Minister thinks fit.

(5)     The notice shall inform those persons of their right to make written or oral representations to the Minister about the application within the period of 2 months from the date of the notice.

(6)     If any person given notice under paragraph (4) wishes to make oral representations, the Minister shall appoint a person to hear the representations and report to him or her.

(7)     In considering the application the Minister shall take into account the reasons for the application, any representations made to the Minister in accordance with paragraphs (5) and (6), and such other matters as appear to him or her to be relevant.

(8)     The Minister may make such determination as he or she thinks fit confirming or revoking the determination (or, as the case may be, the determination as previously varied), or varying (or further varying) it so as to exclude works from it.

177    Appeal against determination under Article 175 or 176

(1)     The owner of the copyright in a work which is the subject of a determination under Article 175 may appeal to the Court which may confirm or revoke the determination or vary it so as to exclude works from it, as it thinks fit having regard to the considerations mentioned in Article 175(2).

(2)     Where the Minister has made a determination under Article 176 –

(a)     the person who applied for the determination; or

(b)     any person or organization representative of educational establishments who was given notice of the application for the determination and made representations in accordance with Article 176(5) and (6),

may appeal to the Court which may confirm or revoke the determination or make any other determination which the Minister might have made.

(3)     An appeal under this Article shall be brought within 6 weeks of the making of the determination or such further period as the Court may allow.

(4)     A determination under Article 175 or 176 shall not come into effect until the end of the period of 6 weeks from the making of the determination or, if an appeal is brought before the end of that period, until the appeal proceedings are disposed of or withdrawn.

(5)     If an appeal is brought after the end of that period, any decision of the Court on the appeal shall not affect the validity of anything done in reliance on the determination appealed against before that decision takes effect.

178    Inquiry whether new scheme or general licence authorizing copying, etc., by educational establishments required

(1)     The Minister may appoint a person to inquire into the question of whether new provision is required, whether by way of a licensing scheme or general licence, to authorize the making or communication to the public, by or on behalf of educational establishments, for the purposes of instruction, of copies of copyright works of a description which appears to the Minister not to be covered by an existing licensing scheme or general licence and not to fall within the power conferred by Article 175.

(2)     The procedure to be followed in relation to an inquiry shall be such as may be prescribed by Order by the Minister.

(3)     The Order referred to in paragraph (2) shall, in particular, provide for notice to be given to –

(a)     persons or organizations appearing to the Minister to represent the owners of copyright in works of that description; and

(b)     persons or organizations appearing to the Minister to represent educational establishments,

and for the making of written or oral representations by such persons, but without prejudice to the giving of notice to, and the making of representations by, other persons and organizations.

(4)     The person appointed under paragraph (1) to hold the inquiry shall not recommend the making of new provision unless he or she is satisfied –

(a)     that it would be of advantage to educational establishments to be authorized to make or communicate to the public copies of the works in question; and

(b)     that making those works subject to a licensing scheme or general licence would not conflict with the normal exploitation of the works or unreasonably prejudice the legitimate interests of the copyright owners.

(5)     If the person appointed under paragraph (1) to hold the inquiry does recommend the making of new provision he or she shall specify any terms, other than terms as to charges payable, on which authorization under the new provision should be available.

(6)     In this Article and in Article 179 a “general licence” means a licence granted by a licensing body which covers all works of the description to which it applies.

179    Statutory licence where recommendation under Article 178 not implemented

(1)     The Minister may, within one year of a person making a recommendation under Article 178, by Order provide that if, or to the extent that, provision has not been made in accordance with the recommendation, the making or communicating to the public, by or on behalf of an educational establishment, for the purposes of instruction, of copies of the works to which the recommendation relates shall be treated as licensed by the owners of the copyright in the works.

(2)     For that purpose provision shall be regarded as having been made in accordance with the recommendation if –

(a)     a licensing scheme notified for the purposes of this Article in accordance with Article 180 has been established under which a licence is available to the establishment in question; or

(b)     a general licence has been –

(i)      granted to or for the benefit of that establishment,

(ii)      referred by or on behalf of that establishment to the licensing authority under Article 154, or

(iii)     offered to or for the benefit of that establishment and refused without such a reference,

and the terms of the scheme or licence accord with the recommendation.

(3)     An Order under paragraph (1) shall also provide that any existing licence authorizing the making or communicating to the public of such copies (not being a licence described in paragraph (2)(a) or (b)) shall cease to have effect to the extent that it is more restricted or more onerous than the licence provided for by the Order.

(4)     An Order under paragraph (1) shall provide for the licence to be free of royalty but, as respects other matters, subject to any terms specified in the recommendation and to any other terms as the Minister may think fit.

(5)     An Order under paragraph (1) may provide that where a copy which would otherwise be an infringing copy is made or communicated to the public in accordance with the licence provided for by the Order but is subsequently dealt with, it shall be treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright, for all subsequent purposes.

(6)     In paragraph (5), “dealt with” means communicated to the public otherwise than in accordance with an Order under paragraph (1), sold, let for hire, offered or exposed for sale or hire or exhibited in public.

(7)     An Order under paragraph (1) shall not come into force until at least 6 months after it is made.

(8)     An Order under paragraph (1) which provides for a statutory licence may be varied from time to time, but not so as to include works other than those to which the recommendation relates or remove any terms specified in the recommendation.

(9)     Paragraph (7) shall not apply to an Order amending, vary or revoking an Order which provides for a statutory licence.

Miscellaneous

180    Notification of licensing schemes

(1)     For the purposes of Article 52, 58, 59, 88, 102 or 179, a licensing scheme is notified if the requirements of this Article have been complied with.

(2)     The person operating or proposing to operate the scheme must –

(a)     make the scheme available for inspection, without charge, at a place in Jersey during normal office hours; or

(b)     publish the scheme on an internet website that may be accessed by the public, without charge.

(3)     The person operating or proposing to operate the scheme must take such steps as may be reasonable to bring to the attention of persons likely to be affected by the scheme –

(a)     the arrangements made in compliance with paragraph (2);

(b)     the Article or Articles of this Law for the purposes of which the scheme is being notified; and

(c)     the date the scheme comes into operation.

(4)     A scheme shall not come into operation –

(a)     less than 8 weeks after paragraphs (2) and (3) are first complied with; or

(b)     if the scheme is the subject of a reference under Article 147, on any later date on which the order of the licensing authority under that Article comes into force or the reference is withdrawn.

(5)     Paragraph (3) shall be taken to have been complied with if the information required by sub-paragraphs (a) to (c) of that paragraph is published in the Jersey Gazette.

(6)     A person operating a scheme shall, within 8 weeks of the scheme first coming into operation, inform the Minister that the scheme is in operation and, if so requested by the Minister, provide the Minister with a copy of the scheme.

(7)     This Article applies to any modification made to a scheme as it applies to the first operation of a scheme.

181    Collective exercise of certain rights in relation to cable re-transmission

(1)     This Article applies to the right (in this Article referred to as “cable re-transmission right”) of the owner of copyright in a literary, dramatic, musical or artistic work, sound recording or film to grant or refuse authorization –

(a)     for cable re-transmission of a wireless broadcast in Jersey to which Article 101(2) does not apply; or

(b)     for cable re-transmission of a wireless broadcast to Jersey from another country in which the work is included.

(2)     Cable re-transmission right may be exercised against a cable operator only through a licensing body.

(3)     Where a copyright owner has not transferred management of his or her cable re-transmission right to a licensing body, the licensing body which manages rights of the same category shall be deemed to be mandated to manage his or her right, and where more than one licensing body manages rights of that category, he or she may choose which of them is deemed to be mandated to manage his or her right.

(4)     A copyright owner to whom paragraph (3) applies has the same rights and obligations resulting from any relevant agreement between the cable operator and the licensing body as have copyright owners who have transferred management of their cable re-transmission right to that licensing body.

(5)     Any rights to which a copyright owner may be entitled by virtue of paragraph (4) must be claimed within the period of 3 years beginning with the date of the cable re-transmission concerned.

(6)     This Article does not affect any rights exercisable by the maker of the broadcast, whether in relation to the broadcast or a work included in it.

(7)     In this Article –

“cable operator” means a person responsible for re-transmission of a wireless broadcast;

“cable re-transmission” means the reception and immediate re-transmission by cable, including the transmission of microwave energy between terrestrial fixed points of a wireless broadcast.

CHAPTER 9 – MISCELLANEOUS AND GENERAL

182    States Assembly copyright

(1)     Where a work is made by or under the direction of the States Assembly –

(a)     the work qualifies for copyright protection notwithstanding Article 20(1); and

(b)     the States Assembly shall be the first owner of any copyright in the work.

(2)     Copyright in that work is referred to in this Law as “States Assembly copyright”, notwithstanding that it may be, or have been, assigned to another person.

(3)     States Assembly copyright in a literary, dramatic, musical or artistic work or a film shall subsist until the end of the period of 50 years from the end of the year in which the work was made.

(4)     For the purposes of this Article works made by or under the direction of the States Assembly include –

(a)     works made, in the course of his or her duties, by –

(i)      the Greffier of the States,

(ii)      the Deputy Greffier of the States, or

(iii)     a States’ employee appointed under Article 41(6) of the States of Jersey Law 2005; and

(b)     any sound recording, film or live broadcast of the proceedings of the States Assembly.

(5)     A work shall not be regarded as made by or under the direction of the States Assembly by reason only of its being commissioned by or on behalf of that body.

(6)     In the case of a work of joint authorship where one or more but not all of the authors are acting on behalf of, or under the direction of, the States Assembly, this Article applies only in relation to those authors and the copyright subsisting by virtue of their contribution to the work.

(7)     Except as mentioned in paragraphs (1) to (6), and subject to any express exclusion elsewhere in this Part, this Part applies in relation to copyright conferred by this Article as it applies to other copyright.

183    States copyright

(1)     This Article does not apply to a work if or to the extent that States Assembly copyright subsists in the work.

(2)     Subject to paragraph (1), where a work is made, in the course of his or her duties by –

(a)     a Minister;

(b)     an Assistant Minister;

(c)     a States’ employee (other than a States’ employee to whom paragraph (3)(c) or (4)(c) applies); or

(d)     a member of a tribunal or other committee, or a person, appointed under an enactment administered by a Minister, to have authority to decide any matter affecting another person’s legal rights or liabilities arising under that enactment,

the work qualifies for copyright protection notwithstanding Article 20(1) and the Chief Minister shall be the first owner of any copyright in the work.

(3)     Subject to paragraph (1), where a work is made, in the course of his or her duties by –

(a)     the Bailiff;

(b)     the Deputy Bailiff;

(c)     an officer (whether or not a States’ employee but other than the Greffier of the States and the Deputy Greffier of the States) appointed by or with the consent of the Bailiff, the Viscount or the Judicial Greffier;

(d)     the Master of the Royal Court;

(e)     a Jurat; or

(f)      any other member of a tribunal or other committee, or a person, who has authority to decide any matter affecting another person’s legal rights or liabilities (other than a member or person to whom paragraph (2)(d) applies),

the work qualifies for copyright protection notwithstanding Article 20(1) and the Bailiff shall be the first owner of any copyright in the work.

(4)     Subject to paragraph (1), where a work is made, in the course of his or her duties by –

(a)     the Attorney General;

(b)     the Solicitor General; or

(c)     an officer (whether or not a States’ employee) appointed by or with the consent of the Attorney General,

the work qualifies for copyright protection notwithstanding Article 20(1) and the Attorney General shall be the first owner of any copyright in the work.

(5)     Copyright in a work which, by virtue of any of paragraphs (2) to (4), is first owned by the Chief Minister, the Bailiff or the Attorney General is referred to in this Part as “States copyright”, notwithstanding that it may be, or have been, assigned to another person.

(6)     States copyright in a literary, dramatic, musical or artistic work continues to subsist –

(a)     until the end of the period of 125 years from the end of the calendar year in which the work was made; or

(b)     if the work is published commercially before the end of the period of 75 years from the end of the calendar year in which it was made, until the end of the period of 50 years from the end of the calendar year in which it was first so published.

(7)     States copyright in a film continues to subsist –

(a)     until the end of the period of 125 years from the end of the calendar year in which the film was made; or

(b)     if, before the end of the period of 75 years from the end of the calendar year in which it was made, the film is made available to the public, until the end of the period of 50 years from the end of the calendar year in which it is first made so available.

(8)     Paragraph (6) of Article 27 shall apply for the purposes of paragraph (7) of this Article as it applies for the purposes of paragraph (4) of Article 27.

(9)     In the case of a work of joint authorship where one or more but not all of the authors are persons falling or deemed to fall within any of paragraphs (2) to (4), this Article applies only in relation to those authors and the copyright subsisting by virtue of their contribution to the work.

(10)    Except as mentioned in paragraphs (2) to (9), and subject to any express exclusion elsewhere in this Part, this Part applies in relation to States copyright as to other copyright.

184    Crown copyright

(1)     This Article does not apply to a work if, or to the extent that, States Assembly copyright or States copyright subsists in the work.

(2)     Subject to paragraph (1), where a work is made by Her Majesty or by an officer or servant of the Crown in the course of his or her duties –

(a)     the work qualifies for copyright protection notwithstanding Article 20(1); and

(b)     Her Majesty shall be the first owner of any copyright in the work.

(3)     Copyright in a work that, by virtue of paragraph (2), is first owned by Her Majesty, is referred to in this Part as “Crown copyright”, notwithstanding that it may be, or have been, assigned to another person.

(4)     Crown copyright in a literary, dramatic, musical or artistic work continues to subsist –

(a)     until the end of the period of 125 years from the end of the calendar year in which the work was made; or

(b)     if the work is published commercially before the end of the period of 75 years from the end of the calendar year in which it was made, until the end of the period of 50 years from the end of the calendar year in which it was first so published.

(5)     Crown copyright in a film continues to subsist –

(a)     until the end of the period of 125 years from the end of the calendar year in which the film was made; or

(b)     if, before the end of the period of 75 years from the end of the calendar year in which it was made, the film is made available to the public, until the end of the period of 50 years from the end of the calendar year in which it is first made so available.

(6)     Paragraph (6) of Article 27 shall apply for the purposes of paragraph (5) of this Article as it applies for the purposes of paragraph (4) of Article 27.

(7)     In the case of a work of joint authorship where one or more but not all of the authors are persons falling or deemed to fall within paragraph (2), this Article applies only in relation to those authors and the copyright subsisting by virtue of their contribution to the work.

(8)     Except as mentioned in paragraphs (2) to (7), and subject to any express exclusion elsewhere in this Part, this Part applies in relation to Crown copyright as to other copyright.

185    Enforcement, etc. of States Assembly copyright

(1)     For the purposes of holding, dealing with and enforcing copyright, and in connection with all legal proceedings relating to copyright, the States Assembly shall be treated as having the legal capacities of a body corporate.

(2)     Notwithstanding paragraph (1), the functions of the States Assembly as owner of or entity entitled to copyright shall be exercised by the Greffier of the States in accordance with directions given to the Greffier of the States by –

(a)     the States Assembly; or

(b)     in accordance with Standing Orders of the States of Jersey, by a committee or panel established by Standing Orders.

(3)     Notwithstanding paragraph (1), legal proceedings relating to copyright that are brought by or against the States Assembly shall be taken in the name of the Greffier of the States.

186    Copyright in enactments and revised edition

(1)     The States Assembly is entitled to copyright in any enactment or in a revised edition.

(2)     Copyright under this Article subsists –

(a)     in the case of a Law, for the period of 50 years from the end of the year in which the enactment is registered in the Royal Court;

(b)     in the case of any enactment other than a Law, for the period of 50 years from the end of the year in which the enactment was passed or made;

(c)     in the case of a revised edition, for the period of 50 years from the end of the year in which the revised edition was brought into force.

(3)     No other copyright, or right in the nature of copyright, subsists in an enactment or revised edition.

(4)     This Article does not derogate from the duties imposed and powers conferred by Article 8(2) to (4) of the Law Revision (Jersey) Law 2003[19].

(5)     Except as provided in paragraphs (1) to (4), this Part applies in relation to copyright under this Article as it applies to States Assembly copyright and, accordingly, references in this Part (except Article 182) to States Assembly copyright include copyright under this Article.

(6)     In this Article “revised edition” and references to a revised edition being brought into force shall be construed in accordance with the Law Revision (Jersey) Law 2003.

187    Copyright in Acts and Measures

(1)     Her Majesty is entitled to copyright in every Act of Parliament, Order in Council or Measure of the General Synod of the Church of England.

(2)     Copyright under paragraph (1) subsists from Royal Assent, or, as the case may be, from when the Order or Measure was made, until the end of the period of 50 years from the end of the calendar year in which Royal Assent was given or the Order or Measure was made.

(3)     References in this Part to Crown copyright (except in Article 184) include copyright under this Article and, except as mentioned in paragraphs (1) and (2), this Part applies in relation to copyright under this Article as to other Crown copyright.

(4)     No other copyright, or right in the nature of copyright, subsists in an Act of Parliament, Order in Council or Measure of the General Synod of the Church of England.

188    Copyright in works first owned by prescribed international organizations

(1)     Where an original literary, dramatic, musical or artistic work is made by an officer or employee of, or is published by, a prescribed international organization, and does not qualify for copyright protection under Article 21 or 22, copyright nevertheless subsists in the work by virtue of this Article and the organization is first owner of that copyright.

(2)     Copyright of which a prescribed international organization is first owner by virtue of this Article continues to subsist until the end of the period of 50 years from the end of the calendar year in which the work was made or any longer period as may be prescribed for the purpose of complying with the international obligations of the United Kingdom which extend to Jersey.

(3)     A prescribed international organization shall be deemed to have, and to have had at all material times, the legal capacities of a body corporate for the purpose of holding, dealing with and enforcing copyright and in connection with all legal proceedings relating to copyright.

189    Folklore, etc.: anonymous unpublished works

(1)     Where in the case of an unpublished literary, dramatic, musical or artistic work of unknown authorship there is evidence that the author or, in the case of a joint work, any of the authors, was a qualifying individual by connection with a country outside Jersey, it shall be presumed until the contrary is proved that he or she was a qualifying individual and that copyright accordingly subsists in the work, subject to the provisions of this Part.

(2)     A body appointed under the law of the country referred to in paragraph (1) to protect and enforce copyright in the works referred to in paragraph (1) may be prescribed for the purposes of this Article.

(3)     A body prescribed under paragraph (2) shall be recognized in Jersey as having authority to do in place of the copyright owner anything, other than assign copyright, which it is empowered to do under the law of that country, and it may, in particular, bring proceedings in its own name.

(4)     In paragraph (1) a “qualifying individual” means an individual who at the material time, within the meaning of Article 21, was an individual whose works qualified under that Article for copyright protection.

(5)     This Article does not apply if there has been an assignment of copyright in the work by the author of which notice has been given to the prescribed body.

(6)     Nothing in this Article affects the validity of an assignment of copyright made, or licence granted, by the author or a person lawfully claiming under him or her.

190    Avoidance of terms of agreement relating to computer program

(1)     Where a person has the use of a computer program under an agreement, any term or condition in the agreement shall be void in so far as it purports to prohibit or restrict –

(a)     the making of any backup copy of the program which it is necessary for him or her to have for the purposes of the agreed use;

(b)     where the conditions in Article 75(2) are met, the decompiling of the program; or

(c)     the observing, studying or testing of the functioning of the program in accordance with Article 76.

(2)     In this Article, decompile, in relation to a computer program, has the same meaning as in Article 75.

191    Avoidance of terms of agreement relating to database

Where under an agreement a person has a right to use a database or part of a database, any term or condition in the agreement shall be void in so far as it purports to prohibit or restrict the performance of any act which would, but for Article 78, infringe the copyright in the database.

Part 2

database right

CHAPTER 1 – SUBSISTENCE, OWNERSHIP AND DURATION OF DATABASE RIGHT

192    Interpretation of Part 2

(1)     In this Part –

“database right” shall be construed in accordance with Article 193;

“extraction”, in relation to any contents of a database, means the permanent or temporary transfer of those contents to another medium by any means or in any form;

“insubstantial”, in relation to part of the contents of a database, shall be construed subject to Article 196(2);

“investment” includes any investment, whether of financial, human or technical resources;

“jointly”, in relation to the making of a database, shall be construed in accordance with Article 194(7);

“lawful user”, in relation to a database, means any person who (whether under a licence to do any of the acts restricted by any database right in the database or otherwise) has a right to use the database;

“licensing body” shall be construed in accordance with Article 214(2);

“licensing scheme” shall be construed in accordance with Article 214(1);

“maker”, in relation to a database, shall be construed in accordance with Article 194;

“qualifying country” shall be construed in accordance with Article 198(2);

“qualifying person” shall be construed in accordance with Article 198(2);

“re-utilisation”, in relation to any contents of a database, means making those contents available to the public by any means;

“substantial”, in relation to any investment, extraction or re-utilisation, means substantial in terms of quantity or quality or a combination of both.

(2)     Except where the context otherwise requires –

(a)     expressions used in this Part that are not defined in this Part but are defined in Part 1 have the same meaning as in Part 1;

(b)     other rules of construction that apply for the purposes of Part 1 also apply for the purposes of this Part.

(3)     The making of a copy of a database available for use, on terms that it will or may be returned, otherwise than for direct or indirect economic or commercial advantage, through an establishment which is accessible to the public shall not be taken for the purposes of this Part to constitute extraction or re-utilisation of the contents of the database.

(4)     Where the making of a copy of a database available through an establishment which is accessible to the public gives rise to a payment the amount of which does not go beyond what is necessary to cover the costs of the establishment, there shall be no direct or indirect economic or commercial advantage for the purposes of paragraph (3).

(5)     Paragraph (3) does not apply to the making of a copy of a database available for on-the-spot reference use.

(6)     Where a copy of a database has been sold within the protected area by, or with the consent of, the owner of the database right in the database, the further sale within the protected area of that copy shall not be taken for the purposes of this Part to constitute extraction or re-utilisation of the contents of the database.

193    Database right

(1)     A property right (“database right”) subsists, in accordance with this Part, in a database if there has been a substantial investment in obtaining, verifying or presenting the contents of the database.

(2)     For the purposes of paragraph (1) it is immaterial whether or not the database or any of its contents is a copyright work.

(3)     This Article has effect subject to Article 198.

194    Who is maker of a database

(1)     Subject to paragraphs (2) to (5), the person who takes the initiative in obtaining, verifying or presenting the contents of a database and assumes the risk of investing in that obtaining, verification or presentation shall be regarded as the maker of, and as having made, the database.

(2)     Where a database is made by an employee in the course of his or her employment, his or her employer shall be regarded as the maker of the database, subject to any agreement to the contrary.

(3)     Where a database is made by a person and in circumstances in which, if the database was a work to which Article 182 applied, the copyright in the work would be States Assembly copyright, the States Assembly shall be regarded as the maker of the database.

(4)     Where a database is made by a person and in circumstances in which, if the database was a work to which Article 183 applied, the copyright in the work would be States copyright, the Chief Minister shall be regarded as the maker of the database.

(5)     Where a database is made by a person and in circumstances in which, if the database was a work to which Article 184 applied, the copyright in the work would be Crown copyright, the Crown shall be regarded as the maker of the database.

(6)     For the purposes of this Part a database is made jointly if 2 or more persons acting together in collaboration take the initiative in obtaining, verifying or presenting the contents of the database and assume the risk of investing in that obtaining, verification or presentation.

(7)     References in this Part to the maker of a database shall, except as otherwise provided, be construed, in relation to a database which is made jointly, as references to all the makers of the database.

195    First ownership of database right

The maker of a database is the first owner of database right in it.

196    Acts infringing database right

(1)     Subject to this Part, a person infringes database right in a database if, without the consent of the owner of the right, he or she extracts or re-utilises all or a substantial part of the contents of the database.

(2)     For the purposes of this Part, the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database may amount to the extraction or re-utilisation of a substantial part of those contents.

197    Duration of database right

(1)     Database right in a database expires at the end of the period of 15 years from the end of the calendar year in which the making of the database was completed.

(2)     Where a database is made available to the public before the end of the period referred to in paragraph (1), database right in the database expires 15 years from the end of the calendar year in which the database was first made available to the public.

(3)     Any substantial change to the contents of a database, including a substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment qualify the database resulting from that investment for its own term of protection.

198    Qualification for database right

(1)     Database right does not subsist in a database unless, at the material time, its maker, or if it was made jointly, one or more of its makers, was a qualifying person.

(2)     In this Part –

“qualifying country” means –

(a)     Jersey; or

(b)     so far as provision is made by Order under Article 399, a country prescribed by the Order for the purposes of this Part;

“qualifying person” means –

(a)     a British citizen;

(b)     an individual habitually resident in a qualifying country;

(c)     a body which was incorporated under the law of a qualifying country and which, at the material time, either –

(i)      has its central administration or principal place of business in a qualifying country, or

(ii)      has its registered office within a qualifying country, and the body’s operations are linked on an ongoing basis with the economy of a qualifying country;

(d)     an unincorporated body which was formed under the law of a qualifying country and which, at the material time, has its central administration or principal place of business in a qualifying country; or

(e)     an individual to whom protection under this Part is extended by Order under Article 399.

(3)     Paragraph (1) shall not apply in any case falling within Article 194(3), (4) or (5).

(4)     In this Article “the material time” means the time when the database was made, or if the making extended over a period, a substantial part of that period.

199    Avoidance of certain terms affecting lawful users

(1)     A lawful user of a database which has been made available to the public in any manner is entitled to extract or re-utilise insubstantial parts of the contents of the database for any purpose.

(2)     Where under an agreement a person has a right to use a database, or part of a database, which has been made available to the public in any manner, any term or condition in the agreement is void in so far as it purports to prevent that person from extracting or re-utilising insubstantial parts of the contents of the database, or of that part of the database, for any purpose.

CHAPTER 2 – ACTS PERMITTED IN RELATION TO DATABASE RIGHT

200    Chapter 2: introductory

(1)     This Chapter specifies acts which may be done in relation to databases notwithstanding the subsistence of database right.

(2)     This Chapter relates only to the question of infringement of database right and, except as expressly provided by this Law, does not affect any other right or obligation restricting the doing of any of the specified acts.

(3)     Where it is provided by this Chapter that an act does not infringe database right, or may be done without infringing database right, and no particular description of database is mentioned, the act in question does not infringe database right in a database of any description.

(4)     No inference shall be drawn from the description of any act which may by virtue of this Chapter be done without infringing database right as to the scope of the acts restricted by the database right in any description of database.

(5)     The provisions of this Chapter are to be construed independently of each other, so that the fact that an act does not fall within one provision does not mean that it is not covered by another provision.

201    Power to amend Chapter 2

(1)     The States may by Regulations amend in this Chapter the acts that may be done in relation to databases, notwithstanding the subsistence of database right.

(2)     Regulations under paragraph (1) may also amend this Chapter so as to provide that an agreement is void to the extent that it purports to prohibit or restrict an act which would, but for a provision of this Chapter, infringe database right.

(3)     Regulations made under paragraph (1) may also amend –

(a)     any other provision of this Law which applies or otherwise refers to any provision of this Chapter;

(b)     any other provision of this Law, consequentially upon any amendment of this Chapter.

202    Database in which copyright subsists

(1)     This Article applies to a database in which both database right and copyright subsist.

(2)     Database right in the database is not infringed by the doing of anything which, by virtue of Chapter 4 of Part 1, does not infringe copyright in the database.

203    Use of database content for teaching or research

Database right in a database which has been made available to the public in any manner is not infringed by fair dealing with a substantial part of its contents if –

(a)     that part is extracted from the database by a person who is apart from this Article a lawful user of the database;

(b)     it is extracted for the purpose of illustration for teaching or for research; and

(c)     the source is indicated.

204    States Assembly and judicial proceedings

Database right in a database is not infringed by anything done for the purposes of proceedings of the States Assembly or judicial proceedings or for the purposes of reporting such proceedings.

205    Committee of inquiry or public inquiry

(1)     Database right in a database is not infringed by anything done for –

(a)     the purposes of the proceedings of a committee of inquiry or public inquiry; or

(b)     the purpose of reporting any such proceedings held in public.

(2)     Database right in a database is not infringed by the issue or communication to the public of copies of the report of a committee of inquiry or a public inquiry containing all or a substantial part of the contents of the database.

206    Database contents open to public inspection or on official register

(1)     Where the contents of a database are open to public inspection pursuant to a statutory requirement, or are on a statutory register, database right in the database is not infringed by the extraction of all or a substantial part of the contents containing factual information of any description, by or with the authority of the appropriate person, for a purpose which does not involve re-utilisation of all or a substantial part of the contents.

(2)     Where the contents of a database are open to public inspection pursuant to a statutory requireme