(4) The author of an artistic work has the right to be identified whenever—
(a) the work is published commercially or
exhibited in public, or a visual image of it is broadcast or included in a cable programme
service;
(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, broadcast or included in a cable programme service or copies of the film are issued to the public.
(7) The right of the author or director under this section 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 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 identity to the attention of a person seeing or hearing the performance, exhibition, showing, broadcast or cable programme in question;
and the identification must in each case be clear and reasonably prominent.
(8) If the author or director in asserting
his 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 section has effect subject to
section 79 (exceptions to right).
78 Requirement that right be asserted
(1) A person does not infringe the right conferred by section 77 (right to be identified as author or director) by doing any of the acts mentioned in that section unless the right has been asserted in accordance with the
following provisions so as to bind him 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 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 under his 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 authorises 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 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 subsection (2) or (3) are—
(a) in the case of an assertion under
subsection (2)(a), the assignee and anyone claiming through him, whether or not he has
notice of the assertion;
(b) in the case of an assertion under
subsection (2)(b), anyone to whose notice the assertion is brought;
(c) in the case of an assertion under
subsection (3)(a), anyone into whose hands that original or copy comes, whether or not the
identification is still present or visible;
(d) in the case of an assertion under
subsection (3)(b), the licensee and anyone into whose hands a copy made in pursuance of
the licence comes, whether or not he 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.
79 Exceptions to right
(1) The right conferred by section 77
(right to be identified as author or director) 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—
(a) in the author’s employer by virtue
of section 11(2) (works produced in course of employment), or
(b) in the director’s employer by
virtue of section 9(2)(a) (person to be treated as author of film).
(4) The right is not infringed by an act
which by virtue of any of the following provisions would not infringe copyright in the
work—
(a) section 30 (fair dealing for certain
purposes), so far as it relates to the reporting of current events by means of a sound
recording, film, broadcast or cable programme;
(b) section 31 (incidental inclusion of
work in an artistic work, sound recording, film, broadcast or cable programme);
(c) section 32(3) (examination questions);
(d) section 45 (parliamentary and judicial
proceedings);
(e) section 46(1) or (2) (Royal Commissions
and statutory inquiries);
(f) section 51 (use of design documents and
models);
(g) section 52 (effect of exploitation of
design derived from artistic work);
(h) [section 57 or 66A (acts permitted on
assumptions as to expiry of copyright, &c)].
(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 Crown copyright or
Parliamentary copyright subsists, or
(b) a work in which copyright originally
vested in an international organisation by virtue of section 168,
unless the author or director has
previously been identified as such in or on published copies of the work.
Right to object to derogatory treatment
of work
80 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 section not to have his work subjected to derogatory
treatment.
(2) For the purposes of this section—
(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 provisions of this
section 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, broadcasts or includes in a cable programme service 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 broadcasts or includes in a cable programme
service 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) Subsection (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 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, broadcasts or includes
in a cable programme service 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 section
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 section has effect subject to
sections 81 and 82 (exceptions to and qualifications of right).
81 Exceptions to right
(1) The right conferred by section 80
(right to object to derogatory treatment of work) is subject to the following exceptions.
(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 [section 57 or 66A (acts permitted on assumptions as to expiry of copyright, &c)] 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.
82 Qualification of right in
certain cases
(1) This section applies to—
(a) works in which copyright originally
vested in the author’s employer by virtue of section 11(2) (works produced in course
of employment) or in the director’s employer by virtue of section 9(2)(a) (person to
be treated as author of film),
(b) works in which Crown copyright or
Parliamentary copyright subsists, and
(c) works in which copyright originally
vested in an international organisation by virtue of section 168.
(2) The right conferred by section 80
(right to object to derogatory treatment of work) 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.
83 Infringement of right by possessing or dealing with infringing article
(1) The right conferred by section 80
(right to object to derogatory treatment of work) is also infringed by a person who—
(a) possesses in the course of a business, or
(b) sells or lets for hire, or offers or
exposes for sale or hire, or
(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 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 section 80, and
(b) has been or is likely to be the subject
of any of the acts mentioned in that section in circumstances infringing that right.
False attribution of work
84 False attribution of work
(1) A person has the right in the
circumstances mentioned in this section—
(a) not to have a literary, dramatic,
musical or artistic work falsely attributed to him as author, and
(b) not to have a film falsely attributed
to him as director;
and in this section 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, broadcasts it or includes it in a cable
programme service as being the work of a person, or
(b) in the case of a film, shows it in
public, broadcasts it or includes it in a cable programme service 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 subsection (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 subsection (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 also 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 section to dealing
are to selling or letting for hire, offering or exposing for sale or hire, exhibiting in
public, or distributing.
(8) This section 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.
Right to privacy of certain photographs
and films
85 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 broadcast or included in a
cable programme service;
and, except as mentioned in subsection (2),
a person who does or authorises the doing of any of those acts infringes that right.
(2) The right is not infringed by an act
which by virtue of any of the following provisions would not infringe copyright in the
work—
(a) section 31 (incidental inclusion of
work in an artistic work, film, broadcast or cable programme);
(b) section 45 (parliamentary and judicial
proceedings);
(c) section 46 (Royal Commissions and
statutory inquiries);
(d) section 50 (acts done under statutory
authority);
(e) [section 57 or 66A (acts permitted on
assumptions as to expiry of copyright, &c)].
Supplementary
86 Duration of rights
(1) The rights conferred by section 77
(right to be identified as author or director), section 80 (right to object to derogatory
treatment of work) and section 85 (right to privacy of certain photographs and films)
continue to subsist so long as copyright subsists in the work.
(2) The right conferred by section 84
(false attribution) continues to subsist until 20 years after a person’s death.
87 Consent and waiver of 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 those rights 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 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 subsection (1).
88 Application of provisions to
joint works
(1) The right conferred by section 77
(right to be identified as author or director) 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 section 78 by each joint author in relation to himself.
(2) The right conferred by section 80 (right to object to derogatory treatment of work) is, in the case of a work of joint authorship, a right of each joint author and his right is satisfied if he consents to the treatment in question.
(3) A waiver under section 87 of those rights by one joint author does not affect the rights of the other joint authors.
(4) The right conferred by section 84 (false attribution) is infringed, in the circumstances mentioned in that section—
(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) The above provisions 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.
A film is "jointly directed" if
it is made by the collaboration of two or more directors and the contribution of each
director is not distinct from that of the other director or directors.
(6) The right conferred by section 85
(right to privacy of certain photographs and films) 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
consents to the act in question, and
(b) a waiver under section 87 by one of
them does not affect the rights of the others.
NOTES
Appointment
Commencement order:
SI 1989/816.
89 Application of provisions to
parts of works
(1) The rights conferred by section 77
(right to be identified as author or director) and section 85 (right to privacy of certain
photographs and films) apply in relation to the whole or any substantial part of a work.
(2) The rights conferred by section 80
(right to object to derogatory treatment of work) and section 84 (false attribution) apply
in relation to the whole or any part of a work.
NOTES
Appointment
Commencement order:
SI 1989/816.
Chapter V
Dealings with Rights in Copyright Works
Copyright
90 Assignment and licences
(1) Copyright is transmissible by
assignment, by testamentary disposition or by operation of law, as personal or 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 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.
91 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 would be entitled as against all other persons to require the
copyright to be vested in him, the copyright shall vest in the assignee or his successor
in title by virtue of this subsection.
(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; and
"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 subsection (1).
(3) A licence granted by a prospective
owner of copyright is binding on every successor in title to his 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
such a purchaser; and references in this Part to doing anything with, or without, the
licence of the copyright owner shall be construed accordingly.
92 Exclusive licences
(1) In this Part an "exclusive
licence" means a licence in writing signed by or on behalf of the copyright owner
authorising 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.
(2) The licensee under an exclusive licence
has the same rights against a successor in title who is bound by the licence as he has
against the person granting the licence.
93 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 death.
[93A 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 section "author"
means an author, or prospective author, of a literary, dramatic, musical or artistic work.
(3) Subsection (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 section applies, the absence
of signature by or on behalf of the author does not exclude the operation of section 91(1)
(effect of purported assignment of future copyright).
(5) The reference in subsection (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) Section 93B (right to equitable
remuneration on transfer of rental right) applies where there is a presumed transfer by
virtue of this section as in the case of an actual transfer.]
[Right to equitable remuneration where
rental right transferred]
[93B Right to equitable
remuneration where rental right transferred]
[(1) Where an author to whom this section
applies has transferred his rental right concerning a sound recording or a film to the
producer of the sound recording or film, he retains the right to equitable remuneration
for the rental.
The authors to whom this section applies
are—
(a) the author of a literary, dramatic,
musical or artistic work, and
(b) the principal director of a film.
(2) The right to equitable remuneration
under this section may not be assigned by the author except to a collecting society for
the purpose of enabling it to enforce the right on his behalf.
The right is, however, transmissible by
testamentary disposition or by operation of law as personal or moveable property; and it
may be assigned or further transmitted by any person into whose hands it passes.
(3) Equitable remuneration under this
section 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.
(4) 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 section 93C (reference of amount to Copyright Tribunal).
(5) An agreement is of no effect in so far
as it purports to exclude or restrict the right to equitable remuneration under this
section.
(6) References in this section to the
transfer of rental right by one person to another include any arrangement having that
effect, whether made by them directly or through intermediaries.
(7) In this section a "collecting
society" means a society or other organisation which has as its main object, or one
of its main objects, the exercise of the right to equitable remuneration under this
section on behalf of more than one author.]
[93C Equitable remuneration:
reference of amount to Copyright Tribunal]
[(1) In default of agreement as to the
amount payable by way of equitable remuneration under section 93B, the person by or to
whom it is payable may apply to the Copyright Tribunal to determine the amount payable.
(2) A person to or by whom equitable
remuneration is payable under that section may also apply to the Copyright Tribunal—
(a) to vary any agreement as to the amount
payable, or
(b) to vary any previous determination of
the Tribunal as to that matter;
but except with the special leave of the
Tribunal no such application may be made within twelve months from the date of a previous
determination.
An order made on an application under this
subsection has effect from the date on which it is made or such later date as may be
specified by the Tribunal.
(3) On an application under this section
the Tribunal shall consider the matter and make such order as to the method of calculating
and paying equitable remuneration as it 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.
(4) 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.
(5) 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 Copyright Tribunal under this section.]
Moral rights
94 Moral rights not assignable
The rights conferred by Chapter IV (moral
rights) are not assignable.
NOTES
Appointment
Commencement order:
SI 1989/816.
95 Transmission of moral rights on
death
(1) On the death of a person entitled to
the right conferred by section 77 (right to identification of author or director), section
80 (right to object to derogatory treatment of work) or section 85 (right to privacy of
certain photographs and films)—
(a) the right passes to such person as he
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 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 paragraph (a) or (b) it is exercisable by his personal representatives.
(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 authorise, 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 subsection (1) is correspondingly divided.
(3) Where by virtue of subsection (1)(a) or
(b) a right becomes exercisable by more than one person—
(a) it may, in the case of the right
conferred by section 77 (right to identification of author or director), be asserted by
any of them;
(b) it is, in the case of the right
conferred by section 80 (right to object to derogatory treatment of work) or section 85
(right to privacy of certain photographs and films), a right exercisable by each of them
and is satisfied in relation to any of them if he consents to the treatment or act in
question; and
(c) any waiver of the right in accordance
with section 87 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 subsection (1).
(5) Any infringement after a person’s
death of the right conferred by section 84 (false attribution) is actionable by his
personal representatives.
(6) Any damages recovered by personal
representatives by virtue of this section in respect of an infringement after a
person’s death shall devolve as part of his estate as if the right of action had
subsisted and been vested in him immediately before his death.
Chapter VI
Remedies for Infringement
Rights and remedies of copyright owner
96 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 section has effect subject to the
following provisions of this Chapter.
97 Provisions as to damages in infringement action
(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 copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, 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.
98 Undertaking to take licence of right in infringement proceedings
(1) If in proceedings for infringement of
copyright in respect of which a licence is available as of right under section 144 (powers
exercisable in consequence of report of Monopolies and Mergers Commission) the defendant
undertakes to take a licence on such terms as may be agreed or, in default of agreement,
settled by the Copyright Tribunal under that section—
(a) no injunction shall be granted against
him,
(b) no order for delivery up shall be made
under section 99, and
(c) the amount recoverable against him by
way of damages or on an account of profits shall not exceed double the amount which would
have been payable by him as licensee if such a licence on those terms had been granted
before the earliest infringement.
(2) An undertaking may be given at any time
before final order in the proceedings, without any admission of liability.
(3) Nothing in this section affects the
remedies available in respect of an infringement committed before licences of right were
available.
NOTES
Appointment
Commencement order:
SI 1989/816.
99 Order for delivery up
(1) Where a person—
(a) has an infringing copy of a work in his
possession, custody or control in the course of a business, or
(b) has in his 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 to such other person as the court may direct.
(2) An application shall not be made after
the end of the period specified in section 113 (period after which remedy of delivery up
not available); and no order shall be made unless the court also makes, or it appears to
the court that there are grounds for making, an order under section 114 (order as to
disposal of infringing copy or other article).
(3) A person to whom an infringing copy or
other article is delivered up in pursuance of an order under this section shall, if an
order under section 114 is not made, retain it pending the making of an order, or the
decision not to make an order, under that section.
(4) Nothing in this section affects any
other power of the court.
100 Right to seize infringing
copies and other articles
(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 section 99, may be
seized and detained by him or a person authorised by him.
The right to seize and detain is
exercisable subject to the following conditions and is subject to any decision of the
court under section 114.
(2) Before anything is seized under this
section notice of the time and place of the proposed seizure must be given to a local
police station.
(3) A person may for the purpose of
exercising the right conferred by this section enter premises to which the public have
access but may not seize anything in the possession, custody or control of a person at a
permanent or regular place of business of his, and may not use any force.
(4) At the time when anything is seized
under this section 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.
(5) In this section—
"premises" includes land,
buildings, moveable structures, vehicles, vessels, aircraft and hovercraft; and
"prescribed" means prescribed by
order of the Secretary of State.
(6) An order of the Secretary of State
under this section shall be made by statutory instrument which shall be subject to
annulment in pursuance of a resolution of either House of Parliament.
