# The Copyright and Performances (Application to Other Countries) Order 2013 (revoked)

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U.K.

Statutory Instruments

# 2013 No. 536

Copyright

Rights In Performances

# The Copyright and Performances (Application to Other Countries) Order 2013

Made

13th March 2013

Laid before Parliament

15th March 2013

Coming into force

6th April 2013

At the Court at Buckingham Palace, the 13th day of March 2013

Present,

The Queen's Most Excellent Majesty in Council

Her Majesty is satisfied, to the extent this Order relates to a country which is neither a Convention country nor another                           member State of the European Union, that provision has been or will be made under the law of that country, giving adequate                           protection to the owners of copyright in respect of works under Part I of the Copyright, Designs and Patents Act 1988 F1 and to the owners of rights in respect of British performances.                        

Accordingly, Her Majesty, by and with the advice of Her Privy Council, in exercise of the powers conferred upon Her by sections                           159 and 208 of the Copyright, Designs and Patents Act 1988 F2 and by section 2(2) of the European Communities Act 1972 F3, makes the following Order:                        

F11988 c.48.

F2Section 159 was amended by regulation 2(2) of, and Schedule 2 to, the Copyright and Related Rights Regulations 2003 S.I. 2003/2498.

F31972 c.68; section 2(2) was amended by the Legislative and Regulatory Reform Act 2006 c. 51, **section 27(1)** and by section 3(3) of, and the Schedule to, the European Union (Amendment) Act 2008 c.7 which were brought into force on 1st December 2009 by the European Union (Amendment) Act 2008 (Commencement No. 1) Order                              2009 S.I. 2009/3143.

## IntroductoryU.K.

1.—(1) This Order may be cited as the Copyright and Performances (Application to Other Countries) Order 2013 and shall come into                     force on 6th April 2013.                  

(2) In this Order—

“Act” means the Copyright, Designs and Patents Act 1988;                  

“Berne Convention” means the Convention for the Protection of Literary and Artistic Works adopted in Berne in 1886 and its revisions F4;                  

“first published” has the meaning ascribed to it by section 155(3) of the Act;                  

“Part I” means Part I of the Act (copyright);                  

“Part II” means Part II of the Act (rights in performances);                  

“relevant country” means, in relation to the works referred to in article 2(1), each country listed in the first column of the Table and in                     relation to the works referred to in article 2(2) to (4), each country listed in the first column of the Table corresponding                     to an entry in the second to fourth columns of the Table;                  

“relevant declaration under the Rome Convention” means a declaration under Article 16(1)(a)(i) of the Rome Convention (which allows for reservations) by a country party                     to the Rome Convention that it will not apply the provisions of Article 12 (which provides for payment of a single equitable                     remuneration for secondary uses of phonograms);                  

“relevant declaration under the WPPT” means a declaration under Article 15(3) of the WPPT by a country party to the WPPT that it will apply the provisions of                     Article 15(1) of the WPPT (which confers on performers and producers of phonograms a right to remuneration for broadcasting                     and communication to the public) only in respect of certain uses, or that it will limit their application in some other way,                     or that it will not apply these provisions at all;                  

“Rome Convention” means the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations                     done at Rome on 6th October 1961 F5;                  

“Table” means the table set out in the Schedule;                  

“WPPT” means the World Intellectual Property Organisation Performances and Phonograms Treaty adopted in Geneva on 20th December                     1996 F6; and                  

“WTO TRIPS” means the Agreement establishing the World Trade Organisation (including the Agreement on Trade-Related Aspects of Intellectual                     Property Rights) signed in Marrakesh on 15th April 1994 F7.                  

(3) The Copyright and Performances (Application to Other Countries) Order 2012 F8 and the Copyright and Performances (Application to Other Countries) (Amendment) Order 2012 F9 are revoked.                  

F4Cm. 1212.

F5Cmnd. 2425.

F6Cm. 3728.

F7Cm. 3044-6, 3077-80, 3263-5, 3268-9, 3271, 3275-7 and 3282. The Agreement on Trade-Related Aspects of Intellectual Property                              Rights is published in Cm. 3046.

F8S.I. 2012/799.

F9S.1. 2012/1754.

## Application of Part IU.K.

2.—(1) All the provisions of Part I relating to literary, dramatic, musical and artistic works, films and typographical arrangement                     of published editions apply in relation to a relevant country in the manner set out in paragraph (5), subject to article 3.                  

(2) Where an entry in the second column of the Table shows a plus sign (+), all the provisions of Part I apply to sound recordings                     in relation to a relevant country in the manner set out in paragraph (5).                  

(3) Where there is an entry in the third column of the Table, all the provisions of Part I apply to wireless broadcasts in relation                     to a relevant country in the manner set out in paragraph (5), subject to article 5.                  

(4) Where there is an entry in the fourth column of the Table, all the provisions of Part I apply to broadcasts other than wireless                     broadcasts in relation to a relevant country in the manner set out in paragraph (5).                  

(5) The provisions of Part I apply in relation to—

(a)a person who is a citizen or subject of, or is domiciled or resident in, a relevant country as they apply to a person who                        is a British citizen or is domiciled or resident in the United Kingdom,                  

(b)a body incorporated under the law of a relevant country as they apply in relation to a body incorporated under the law of                        a part of the United Kingdom,                  

(c)the works referred to in paragraphs (1) and (2) first published in a relevant country as they apply in relation to such works                        first published in the United Kingdom, and                  

(d)broadcasts referred to in paragraphs (3) and (4) made from a relevant country as they apply in relation to broadcasts made                        from the United Kingdom.                  

## Exception relating to literary, dramatic, musical or artistic worksU.K.

3.  Where a literary, dramatic, musical or artistic work was first published before 1st June 1957 it shall not qualify for copyright                     protection under section 154 of the Act (qualification by reference to author) F10.                  

F10Section 154 of the Act was amended by regulation 5(3) of the Duration of Copyright and Rights in Performances Regulations 1995 S.I. 1995/3297, by section 2(3) of the British Overseas Territories Act 2002 c.8, and by regulation 2(2) of, and Schedule 2 to, the Copyright and Related Rights Regulations 2003.

## Exceptions and modifications relating to sound recordingsU.K.

4.—(1) Where the entry for a country in the second column of the Table does not include a plus (+) or minus (-) sign, the country                     is neither a party to the Rome Convention nor the WPPT but is a party to the Berne Convention or the WTO TRIPS or both, and                     accordingly the provisions of Part I, in so far as they relate to sound recordings, apply in relation to that country, except                     for the following—                  

(a)section 18A (infringement by rental or lending of work to the public) F11 in so far as it applies to lending;                  

(b)section 19 (infringement by playing of work in public) F12;                  

(c)section 20 (infringement by communication to the public) F13;                  

(d)section 26 (secondary infringement: provision of apparatus for infringing performance, &c); and                  

(e)section 107(2A) and (3) (criminal liability for communicating to the public or playing a sound recording) F14.                  

(2) Where the entry for a country in the second column of the Table includes a minus sign (-), the country is not a party to the                     Rome Convention but is a party to the WPPT, and accordingly the provisions of Part I, in so far as they relate to sound recordings,                     apply in relation to that country with the following modifications—                  

(a)section 18A (infringement by rental or lending of work to the public), except in so far as it applies to lending;                  

(b)section 20 (infringement by communication to the public), except that references to communication to the public do not include                        the broadcasting of a sound recording; and                  

(c)section 107(2A) (criminal liability for communicating to the public), except that it does not apply in relation to the broadcasting                        of a sound recording.                  

F11Section 18A of the Act was inserted by regulation 10(2) of the Copyright and Related Rights Regulations 1996 S.I. 1996/2967 and it was subsequently amended by regulation 2(1) of, and paragraph 6(2) of Schedule 1 to, the Copyright and Related Rights                              Regulations 2003.

F12Section 19 of the Act was amended by regulation 2(1) of, and paragraph 3(1) of Schedule 1 to, the Copyright and Related Rights Regulations                              2003.

F13Section 20 of the Act was substituted by regulation 6(1) of the Copyright and Related Rights Regulations 2003.

F14Section 107(2A) of the Act was inserted by regulation 26(1)(a) of the Copyright and Related Rights Regulations 2003 and section 107(3) of                              the Act was amended by regulation 2(1) of, and paragraph 9(2) of Schedule 1 to, those Regulations.

## Exceptions relating to wireless broadcastsU.K.

5.—(1) Where the entry for a country in the third column of the Table includes a minus sign (-), the country is not a party to the                     Rome Convention but is a party to the WTO TRIPS, and accordingly the following provisions of Part I, in so far as they relate                     to wireless broadcasts, do not apply in relation to that country—                  

(a)section 18A (infringement by rental or lending of work to the public);                  

(b)section 19 (infringement by showing or playing of work in public), but only in so far as it relates to broadcasts other than                        television broadcasts;                  

(c)section 20 (infringement by communication to the public), except in relation to broadcasting by wireless telegraphy;                  

(d)section 26 (secondary infringement: provision of apparatus for infringing performance, &c), but only in so far as it relates                        to broadcasts other than television broadcasts;                  

(e)section 107(2A) (criminal liability for communicating to the public), except in relation to broadcasting by wireless telegraphy.                  

(2) The provisions of Part I do not apply in relation to a wireless broadcast made from a place in a country, referred to in paragraph                     (1), before the relevant date.                  

(3) The relevant date in relation to a country—

(a)where its entry in the third column of the Table includes an “(X)”, is 1st June 1957;                  

(b)where its entry in the third column of the Table includes a “(Y)”, is 1st January 1996; or                  

(c)where there is a date next to its entry in the third column of the Table, is that date.                  

## Application of Part IIU.K.

6.—(1) Where the entry for a country in the fifth column of the Table is the word “designated”, the country—                  

(a)is a party to the Rome Convention and has not made a relevant declaration under the Rome Convention, or                  

(b)has made or will make provision giving adequate protection for British performances under its law,                  

and accordingly that country is designated as enjoying reciprocal protection under Part II.

(2) Where the entry for a country in the fifth column of the Table is the word “deemed”, the country is not a party to the Rome                     Convention but is a party to the WPPT, and accordingly that country shall be treated as if it were designated as enjoying                     reciprocal protection under Part II, except as provided in paragraph (6) and article 7(1).                  

(3) Where the entry for a country is a minus sign (-) in the fifth column of the Table, the country is neither a party to the                     Rome Convention nor the WPPT but is a party to the WTO TRIPS, and accordingly that country shall be treated as if it were                     designated as enjoying reciprocal protection under Part II, except as provided in paragraph (6) and article 7(1) and (2).                  

(4) Where the entry for a country includes an asterisk (*) in the fifth column of the Table, the country is a party to the Rome                     Convention but has made a relevant declaration under the Rome Convention, and accordingly that country shall be treated as                     if it were designated as enjoying reciprocal protection under Part II, except as provided in article 7(3).                  

(5) Where the entry for a country includes a hash sign (#) in the fifth column of the Table, the country is a party to the WPPT                     but has made a relevant declaration under the WPPT, and accordingly that country shall be treated as if it were designated                     as enjoying reciprocal protection under Part II, except as provided in paragraph (6) and article 7(1) and (4).                  

(6) In relation to the provisions of Part II—

(a)as applied by paragraphs (2) and (3), and                  

(b)to the extent applied by paragraph (5),                  

the definition of “recording”, in section 180(2) (rights conferred on performers and persons having recording rights) F15, shall be construed as applying only to sound recordings (and not to films).                  

F15Section 180(2) of the Act was amended by regulation 2(2) of, and Schedule 2 to, the Copyright and Related Rights Regulations 2003.

## Exceptions to application of Part IIU.K.

7.—(1) In relation to article 6(2), (3) and (5), the following provisions of Part II shall not apply—                  

(a)section 182C (consent required for rental or lending of copies to public) F16, in so far as it relates to lending;                  

(b)section 183 (infringement of performer's rights by use of recording made without consent) F17;                  

(c)sections 185 to 188 (rights of person having recording rights) F18;                  

(d)section 198(2) (criminal liability for playing or communicating to the public) F19.                  

(2) In relation to article 6(3), the following provisions of Part II shall not apply—

(a)section 182CA (consent required for making available to the public) F20;                  

(b)section 182D (right to equitable remuneration for exploitation of sound recording) F21;                  

(c)section 198(1A) (criminal liability for making available to the public) F22.                  

(3) In relation to article 6(4), to the extent that the relevant declaration under the Rome Convention is in force in the law                     of the country in relation to British performances, the provisions of Part II shall not apply to grant the protection provided                     under Article 12 of the Rome Convention, unless the recording has been first published in a country which is party to the                     Rome Convention and which has not made a relevant declaration under that Convention.                  

(4) In relation to article 6(5), where a country is a party to the WPPT and has made a relevant declaration under the WPPT, the                     provisions of Part II shall not apply to protect the right provided for in Article 15(1) of the WPPT to the extent the declaration                     is in force in the law of that country in relation to British performances.                  

F16Section 182C of the Act was inserted by regulation 20(2) of the Copyright and Related Rights Regulations 1996 and was subsequently amended                              by regulation 2(1) of, and paragraph 6(2) of Schedule 1 to, the Copyright and Related Rights Regulations 2003 and regulation                              2 of, and paragraph 8 of the Schedule to, the Performances (Moral Rights, etc) Regulations 2006 S.I. 2006/18.

F17Section 183 of the Act was amended by regulation 2(1) of, and paragraph 13(1)(a) of Schedule 1 to, the Copyright and Related Rights Regulations                              2003.

F18Section 185 of the Act was amended by regulation 2 of, and paragraph 8 of the Schedule to, the Performances (Moral Rights, etc) Regulations                              2006; section 186 of the Act was amended by regulation 2(2) of, and Schedule 2 to, the Copyright and Related Rights Regulations 2003; section 187 of the Act was amended by regulation 2(1) of, and paragraph 13(1)(b) of Schedule 1 to, the Copyright and Related Rights Regulations                              2003.

F19Section 198(2) of the Act was amended by regulation 2(1) of, and paragraph 4(5) of the Schedule to, the Copyright and Related Rights Regulations                              2003 and by regulation 2 of, and paragraph 8 of the Schedule to, the Copyright and Related Rights Regulations 2006.

F20Section 182CA of the Act was inserted by regulation 7(1) of the Copyright and Related Rights Regulations 2003 and was subsequently amended                              by regulation 2 of, and paragraph 8 of the Schedule to, the Performances (Moral Rights, etc) Regulations 2006.

F21Section 182D of the Act was inserted by regulation 20(2) of the Copyright and Related Rights Regulations 1996 and was subsequently amended                              by regulation 7(2) of the Copyright and Related Regulations 2003 and regulation 2 of, and paragraph 3 of the Schedule to,                              the Performances (Moral Rights, etc) Regulations 2006.

F22Section 198(1A) of the Act was inserted by regulation 26(3) of the Copyright and Related Rights Regulations 2003.

## SavingsU.K.

8.—(1) For the purposes of this article an act is an “excluded act” where—                  

(a)a person (A) has incurred any expenditure or liability in connection with the act; and                  

(b)he—                  

(i)began in good faith to do the act, or                  

(ii)made in good faith effective and serious preparations to do the act,                  

at a time when the act neither infringed nor was restricted by the relevant rights in the work or performance.

(2) Where another person (B) acquires those relevant rights on or after the coming into force of this Order, A has the right—

(a)to continue to do the excluded act, or                  

(b)to do the excluded act,                  

notwithstanding that the excluded act infringes or is restricted by those relevant rights under this Order.

(3) Where B, or his exclusive licensee, pays reasonable compensation to A paragraph (2) no longer applies.

(4) Where—

(a)B offers to pay compensation to A under paragraph (3); but                  

(b)A and B cannot agree on what compensation is reasonable,                  

either person may refer the matter to arbitration.

(5) In this article “relevant rights” means copyright, the rights conferred by Chapter 4 of Part I (moral rights) and the rights conferred by Part II.                  

Richard Tilbrook

 Clerk of the Privy Council

 Articles 2 to 6

## SCHEDULEU.K.APPLICATION OF PARTS I AND II

## Explanatory Note

(This note is not part of the Order)

Part I of the Copyright, Designs and Patents Act 1988 (“the Act”) confers copyright on the creators of certain works. Part II of the Act confers rights on performers and persons having                        recording rights in relation to a performance. The purpose of this Order is to apply Part I to works originating from other                        countries and to confer on certain countries reciprocal protection under Part II. This Order provides a consolidated list                        of countries in relation to which provisions of the Act apply. In this Order the term “country” includes any territory, by virtue of sections 178 and 211 of the Act.                     

This Order revokes the Copyright and Performances (Application to Other Countries) Order 2012 (“the 2012 Order”) and the Copyright and Performances (Application to Other Countries) (Amendment) Order 2012 (article 1(3)).                     

Changes in the Table from the 2012 Order include the following:

entries in relation to Samoa and Lao People's Democratic Republic in columns 3 and 5 following their accession to WTO TRIPS                                 on 10th May 2012 and 2nd February 2013 respectively;                              

entries in relation to Vanuatu following its accession to WTO TRIPS on 24th August 2012 and to the Berne Convention on 27thDecember 2012; and                              

amendments to the entries in the fifth column in relation to Malaysia and Ghana following their accession to the WPPT on 27th                                 December 2012 and 16th February 2013 respectively.                              

Powers under section 2(2) of the European Communities Act 1972 are used to implement obligations arising under the WTO TRIPS                        and the WPPT. Under section 1(3) of the European Communities Act 1972, the Agreement establishing the World Trade Organisation                        and the WPPT have been specified as EU Treaties in the following instruments: the European Communities (Definition of Treaties) (The Agreement Establishing the                        World Trade Organisation) Order 1995 (S.I. 1995/265) and the European Communities (Definition of Treaties) (WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty) Order 2005 (S.I. 2005/3431). Both the European Union and the                        United Kingdom have now ratified the WPPT.                     

By virtue of section 153(3) of the Act this Order will not affect works in which copyright already subsists. Further, by virtue                        of paragraph 35 of Schedule 1 to the Act, any work in which copyright subsisted under the Copyright Act 1956 (c.74) is deemed                        to satisfy the requirements of qualification for copyright protection.                     

Article 2 applies the provisions of Part I to copyright works in relation to the relevant countries. Any exceptions or modifications                        to the application of Part I to copyright works in relation to the relevant countries are set out in articles 3 to 5.                     

Literary, dramatic, musical and artistic works, films and typographical arrangements of published editions qualify for copyright                        protection under Part I where they are connected to the countries indicated in the first column of the Table (article 2(1)).                        All of those countries are parties to the Berne Convention or to the Universal Copyright Convention (as revised in 1971) (Cmnd. 5844) or to the WTO TRIPS or are member States of the European Economic Area or otherwise give adequate protection under                        their laws.                     

Sound recordings qualify for copyright protection under Part I where they are connected to the countries indicated by an entry                        in the second column of the Table (article 2(2)). The protection extends to lending, playing in public or broadcasting if                        the entry in the second column includes a plus sign (+). All such countries are parties to the Rome Convention or are member                        States of the European Economic Area or otherwise give adequate protection under their laws.                     

Where the entry for a country in the second column of the Table does not include a plus (+) or minus (-) sign, the country                        is neither a party to the Rome Convention nor to the WPPT but is a party to the Berne Convention or the WTO TRIPS or both.                        Accordingly, the provisions of Part I, in so far as they relate to sound recordings, apply in relation to that country, except                        for those provisions set out in article 4(1).                     

Different protection is given to those countries where a minus sign (-) is included in the second column of the Table (article                        4(2)). All such countries are parties to the WPPT, but not parties to the Rome Convention. All the provisions of Part I apply                        to sound recordings in relation to countries party to the WPPT, except that sections 20 and 107(2) of the Act do not apply                        to broadcasts as these are not covered by the WPPT and section 18A of the Act only applies to rental as lending is not covered                        by the WPPT.                     

Wireless broadcasts qualify for copyright protection under Part I where they are connected to the countries indicated by an                        entry in the third column of the Table. These countries are parties to the Rome Convention or are member States of the European                        Economic Area or otherwise give adequate protection under their laws, unless a minus sign (-) is included in the third column                        of the Table.                     

As indicated in article 5, the countries marked by a minus sign (-) in the third column of the Table receive more limited                        protection. These countries are parties to the WTO TRIPS, but not to the Rome Convention.                     

Protection does not extend to wireless broadcasts made before the specified dates. By virtue of paragraph 9(a) of Schedule                        1 to the Act, protection never extends to such broadcasts made before 1st June 1957 and this is reflected in article 5(2)                        and (3)(a) and the letter “(X)” in the third column of the Table. Countries which qualify for protection in relation to wireless                        broadcasts by virtue of their membership of the WTO TRIPS on its coming into force on 1st January 1996 are indicated by the                        letter “(Y)” in the third column of the Table (article 5(3)(b)).                     

Broadcasts (other than wireless broadcasts) qualify for copyright protection where they are connected to the countries indicated                        in the fourth column of the Table. These countries are member States of the European Economic Area or otherwise give adequate                        protection under their laws. By virtue of paragraph 9(b) of Schedule 1 to the Act, protection does not extend to such broadcasts                        made before 1st January 1985.                     

Article 6(1) provides that performances and persons having recording rights in relation to a performance qualify for protection                        under Part II where they are connected to the countries indicated by the word “designated” in the fifth column of the Table.                        These are the countries “designated” as enjoying full protection. These are countries which are parties to the Rome Convention                        and have not made a relevant declaration under the Rome Convention or which have made or will make provision giving adequate                        protection for British performances under their laws.                     

Where a country is not a party to the Rome Convention, but is a party to the WPPT and has not made a relevant declaration                        under the WPPT, the provisions of Part II apply, with certain limitations referred to in article 6(2). These countries are                        indicated by the word “deemed” in the fifth column of the Table.                     

Where a country is neither a party to the Rome Convention nor the WPPT but is a party to the WTO TRIPS, more limited protection                        is granted under Part II as provided in article 6(3). This is indicated by the minus sign (-) in the fifth column of the Table.                     

The effect of the relevant declarations to the Rome Convention and the WPPT are clarified in articles 6(4) and (5) and 7(3)                        and (4). The Order implements paragraph (3)(b) of the UK declaration made under Article 16(1) of the Rome Convention, (United Nations Treaty Series, vol. 496).                     

Where a country is a party to the Rome Convention but has made a relevant declaration under that Convention, the country is                        treated as if it were designated, except that Part II will not protect the right under Article 12 of the Rome Convention to                        the extent that the declaration is in force in the law of that country in relation to British performances, unless the sound                        recording in question has been first published in a country which is a party to the Rome Convention and has not made a relevant                        declaration under that Convention. These countries are indicated by including an asterisk (*) in the fifth column of the Table.                     

Where a country is a party to the WPPT and has made a relevant declaration under the WPPT, the country shall be treated as                        if it were deemed as enjoying protection under Part II, except to the extent the declaration is in force in the law of that                        country in relation to British performances. These countries are indicated by including a hash sign (#) in the fifth column                        of the Table.                     

A member State of the European Union is a qualifying country for the purposes of Part II by virtue of section 206(1)(b) of                        the Act.                     

Article 8 is a savings provision.

No impact assessment has been produced for this instrument as no impact on the private or voluntary sectors is foreseen. An                        Explanatory Memorandum is available alongside the instrument on www.legislation.gov.uk.