REPORT ON THE DRAFT INTELLECTUAL PROPERTY (UNREGISTERED RIGHTS) (APPLICATION, TRANSITIONAL PROVISIONS AND SAVINGS) (JERSEY) REGULATIONS 201-
Introduction
The Intellectual Property (Unregistered Rights) (Jersey) Law 2011 (IPURL) completely updates the copyright framework in the Island. It also introduces protection for other unregistered intellectual property rights. In addition, the Law was drafted to be fully compliant with major international conventions and treaties to which many countries in the world belong. IPURL was approved unanimously by the States Assembly on 1 December 2010 and received Royal Assent on 16 November 2011.
The Report accompanying IPURL explained how the new Law will provide the commercial foundation stone for many parts of the creative industries and underpin the diversification of the Island’s economy in the area of e-commerce. The earlier Report included figures showing the impressive contribution of the UK’s creative industries to the economy and the above average rates of growth. The creative industries include music, publishing, broadcasting, software, computer games and film. The artistic originals these sectors create are disseminated by an ever increasing number of new business models relying on digital technology and the internet. A report published in the UK in June 2012 aimed at improving the measurement of UK investment in artistic originals suggests that UK investment in copyright was £5.1bn in 2009, that is £3.2bn higher than existing official data (see the press release published by the UK Intellectual Property Office (IPO) on 8 June 2012).
Current copyright law in Jersey is provided by extension of the UK Copyright Act 1911 to the Island. The fundamental principles in the 1911 Act are still present in IPURL. This includes the provision of exclusive rights that allow those who create and invest in creativity to obtain a return on often significant investment when material protected by copyright is exploited by being copied, published and so on. This also includes limited exceptions to rights that permit certain uses of protected material without permission from the copyright owner. The 1911 Act was clearly not, though, drafted with a view to covering the many different ways of copying, transmitting and using content that are commonplace today. A copyright work may now only exist as a digital file made available on the internet. IPURL therefore updates and amends exclusive rights for copyright owners, and exceptions to rights for users to provide a balanced, modern copyright framework.
The majority of the draft Intellectual Property (Unregistered Rights) (Application, Transitional Provisions and Savings) (Jersey) Regulations 201- (the draft Regulations) makes provision for the transition from the 1911 Act to IPURL, in particular regarding which law applies to things that already exist at commencement of IPURL and how it applies. The draft Regulations are to come into force on the same day that IPURL comes into force. The extension of the 1911 Act to the Island will cease on the day that IPURL comes into force as a result of an Order in Council already made in the UK (see the Copyright (Repeal of the Copyright Act 1911) (Jersey) Order 2012 – UK SI 2012 No. 1753).
The provision in IPURL about a number of rights related to copyright is also important to the creative industries. These related rights are recognised by many other countries, but they do not currently exist at all in Jersey. Some of these related rights, such as rights for performers in recordings (films and sound recordings) of their performances are required if Jersey wishes to have a law that complies with the major international conventions and treaties in the copyright and related rights area. The draft Regulations also make provision about whether or not, and if so, how these new rights related to copyright are to apply to things already in existence, and performances that have already taken place, at commencement.
The draft Regulations are therefore being presented to the States Assembly for approval in order to permit Jersey to make the transition from a very outdated copyright law to a modern, but balanced, legal framework that fairly protects creative content. The 1911 Act was revoked and replaced in the UK in 1956. Current copyright law in the UK is provided by Part 1 of the Copyright, Designs and Patents Act 1988 as amended, including amendments to make provision about rights in an age when the internet is so relevant to how material protected by copyright and related rights is made available to the public. IPURL copies all the important provisions in the 1988 Act as amended that underpin the functioning of the digital economy in the UK, and, moreover, permits amendments to be made by Regulations for a number of reasons so that it will be easier to keep the law in Jersey up-to-date in the future.
The framework of rights, and exceptions to rights, in IPURL will underpin Jersey’s position as an attractive place to do business in the area of e-commerce in particular. It will ensure that Jersey provides unregistered intellectual property rights comparable to those available in other territories at the forefront of the knowledge economy. The draft Regulations should ensure a smooth transition to this new regime for copyright and related rights.
International conventions for unregistered intellectual property rights
Copyright and other unregistered intellectual property rights come into being automatically when the material that can be protected is created and any relevant qualification provisions, such as a requirement for the author to be a national of, or first publication to have been in, a convention country, are met. International conventions and treaties set out some of the key principles for most of these unregistered rights, including to require a contracting party to give rights automatically to relevant material having its origin in all other contracting parties. Membership of an international convention therefore ensures automatic rights, that is without registration or any other formality, for the material covered by that convention in all countries that belong to the convention.
The main international convention in the area of copyright is the Berne Convention for the Protection of Literary and Artistic Works and there are currently 165 contracting parties to this Convention. Much material having its origin in Jersey will already be protected in much of the rest of the world as a result of UK membership of the Berne Convention and qualification for protection arising due to the author being a British citizen or the work being first published in the UK. There may, though, be some gaps in protection, particularly for a copyright work created by a body incorporated in Jersey. A law compliant with the Berne and other international conventions and treaties as explained in the report on IPURL will therefore permit Jersey to seek membership of those conventions and treaties and so address such gaps in protection. Jersey can, though, only belong to the conventions and treaties by an extension of the UK’s membership and so this was requested shortly after IPURL was adopted by the States Assembly in December 2010. If the draft Regulations are approved by the States Assembly, and IPURL then comes into force, extension of the UK’s membership of the main international treaties and conventions in the area of unregistered intellectual property rights will be pursued vigorously with the UK. The Regulations have, where necessary, and as explained further below, been drafted so as to be convention compliant.
Both IPURL and the draft Regulations are also believed to be compliant with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which is included in the Agreement establishing the World Trade Organisation (WTO). TRIPS compliance is essential if Jersey wishes to join the WTO. TRIPS does, though, require provision on registered intellectual property rights, as well as the unregistered rights in IPURL. There is already provision in Jersey for registered intellectual property rights in the area of trade marks, patents and registered designs, but these laws are not in all respects compliant with TRIPS. Amendments to these laws to make them TRIPS compliant (and compliant with the Paris Convention for the protection of industrial property, the main international convention for registered intellectual property rights) are currently being drafted and Economic Development Department intends to have a draft Law with these amendments ready to lodge for approval by the States Assembly next year. It will in addition be necessary to make new provision about plant variety rights for TRIPS compliance, another type of intellectual property right that is usually a registered right. Economic Development Department is also working on what will be needed on this to comply with TRIPS. But IPURL and the draft Regulations are concerned solely with unregistered intellectual property rights, which, as explained above, are automatic rights applying to the relevant material without the need for registration or any other formality.
Relationship with UK law
As indicated above, current copyright law in Jersey is provided by an extension to the Island of the UK Copyright Act 1911, and this extension will be repealed the day that IPURL and the draft Regulations come into force. Although the 1911 Act has been revoked and replaced in the UK for some considerable time, those changes to UK law have included transitional provisions preserving the extension of the 1911 Act to Jersey, and the subordinate legislation that has previously been made in the UK under the 1911 Act. Jersey has not, therefore, for a long time had the same copyright law as the UK. Continued reliance in Jersey on a law drafted in 1911 means there is significant doubt about the interpretation of the law in the modern world. Although case law in Jersey might develop the apparent boundaries of the 1911 Act to accommodate more recent types of copyright works and activities on the internet to some extent, the new provision in IPURL will provide a much more transparent legal framework.
IPURL is very similar to the markedly more up-to-date provision in UK copyright law provided by Part 1 of the Copyright, Designs and Patents Act 1988 as amended and other provision in UK law on unregistered intellectual property rights. (The 1988 Act is not the main UK law on patents and registered designs, but it was used as a legislative vehicle to make some amendments to these areas of law. Amendments to those registered intellectual property rights are not relevant to the provision in IPURL, which is about unregistered intellectual property rights only.) Also, as indicated above, it will in due course be possible to amend IPURL in a number of ways by Regulations, including to match changes to copyright law that are currently being discussed in the UK as a result of the recommendations made in the Hargreaves Review of Intellectual Property and Growth.
The UK has made the transition from the 1911 Act to the 1988 Act as amended in two major revisions of the law in 1956 and 1988, and a large number of more minor revisions, some of which, such as the changes made in 2003 to update rights for a world with the internet, were significant revisions. On each occasion the UK has made appropriate transitional provisions and savings and these have all been considered very carefully in drawing up the provision in the draft Regulations. Most parts of the draft Regulations do, therefore, have counterparts in UK law, but much of the provision has needed to be modified to a greater or lesser extent compared to UK law so as to make sense for the transition that is taking place in Jersey from the 1911 Act to a law very similar to the 1988 Act as amended in one stage rather than a large number of stages.
So long as the 1911 Act remains in force in Jersey, those who create copyright works in the Island are able to rely on a transitional provision in paragraph 36(4) of Schedule 1 of the UK 1988 Act that gives full copyright protection in the UK for all works having their origin in the Island. The draft Regulations clearly cannot deal with the transition in the UK from an extension of the 1911 Act to Jersey to an independent copyright law as in Part 1 of IPURL. However, the UK has recognised that it is appropriate to provide continuity of copyright protection in the UK for works having their origin in the Island by maintaining full copyright protection in the UK for all such works when the 1911 Act extension is revoked. This will be delivered by the provisions of another Order in Council already made in the UK, the Copyright and Performances (Application to Other Countries) (Amendment) Order 2012 (UK SI 2012 No. 1754), which comes into force the day that IPURL comes into force.
Copyright protection in Jersey under the 1911 Act for works having their origin in the UK is also preserved by paragraph 36(4) of Schedule 1 of the 1988 Act. When extension of the 1911 Act to the Island has been revoked, provisions in the draft Regulations will continue copyright protection in Jersey for existing works having their origin in the UK. The provision in the Intellectual Property (Unregistered Rights) (Works of Foreign Provenance) (Jersey) Order 201-, to be made under IPURL and explained further below, will ensure that works created after commencement and having their origin in the UK will also have full copyright protection in Jersey under IPURL.
Summary of provision in the draft Regulations
Transitional provisions as in the draft Regulations will be particularly important to make it clear how IPURL applies to existing material and its affect on what people have already agreed to do or are planning to do under the existing law. For copyright, transitional provisions are essential because there is already a law in Jersey, the UK 1911 Act, which in a number of respects is different from the provision in IPURL. For other provision in IPURL there is, though, still a need to make some provision as there is already material in existence which could in the future attract rights and/or things that people have started and may still be doing in the future with such material when such rights have come into existence.
The approach taken on some significant provisions in the draft Regulations that will determine how, when IPURL comes into force, it will apply to things already in existence, or performances that have already taken place, is generally as follows:
- Copyright will only apply to existing works of a type that can currently attract copyright.
- There will be no revival of copyright for existing works which had copyright in the past but which has expired before commencement of IPURL.
- Database right and performers’ rights can apply to existing material, but there will be no unregistered design right for existing designs.
- No terms of protection for existing works can be longer than terms under IPURL, but existing works in copyright at commencement will benefit from any extended terms.
- Existing law continues to apply to anything done as a result of agreements reached or arrangements made under the existing law before commencement of IPURL.
- Continuation of activity that would have been permitted by the new exceptions to rights will be treated as though those exceptions had always been in place.
- States Assembly and States will be licensed to use existing works where States Assembly and States copyright would have applied if created after commencement of IPURL, but States Assembly or States is not the copyright owner of, and has no right to exploit, those works.
- Authors’ moral rights will apply to existing works if the author has not died, but performers’ moral rights will not apply to past performances.
- IPURL will in some cases be modified in how it applies to existing material of foreign provenance in the same way as for new material of foreign provenance.
Part 2 of the draft Regulations, which amounts to more than half of the Regulations, makes provision about copyright. As already indicated, this is where there is the greatest need to understand how and when the 1911 Act might still apply after commencement of IPURL, and how and when the new copyright law in Part 1 of IPURL will apply to things that already exists. A number of the Regulations are highly complex and some of the Regulations may in practice have little effect because they even continue the effect of some transitional provisions in the 1911 Act when that replaced earlier law relating to copyright. But, given that copyright may continue to subsist for 50 or more years after the death of the author, it is important to ensure that the transitional provisions do provide answers to relevant issues even for very old existing material. Parts 3 to 8 of the draft Regulations make transitional provisions for the introduction of the new unregistered intellectual property rights in IPURL and related matters. These rights do not currently apply to anything in the Island, but in some cases, with appropriate safeguards, the new rights do need to apply to existing material in order to comply with international conventions and treaties. Each Part of the draft Regulations is explained in more detail below.
Part 1
Regulation 1, the single Regulation in this Part provides some interpretation and definitions for terms used in the Regulations. Any references to “commencement” are to the day that IPURL comes into force.
Part 2
Regulations 2 to 54 all make provision about copyright. The additional interpretation in Regulation 2 defines an existing copyright work as one that has copyright under the 1911 Act, including as a result of any Orders in Council made under the 1911 Act. Those Orders in Council mean that many works having their origin in other countries already have copyright protection in Jersey. (An Order being made under Article 399 of IPURL will continue this application of Jersey copyright law to works from other countries, including as required by the international treaties and conventions Jersey wishes to join as explained below.) Regulation 2 also defines the concept of an “existing work” as one made before commencement because some of the Regulations make provision about how IPURL applies to existing works even if they do not already have copyright in Jersey under the 1911 Act.
Subsistence of rights as set out in Regulation 5 is a key provision. This Regulation defines when copyright under IPURL can apply to an existing work. Except in the cases identified in paragraph (2) of this Regulation, copyright can only apply where the existing work is an existing copyright work. Although there are a number of differences in how the type of work that can attract copyright under the 1911 Act and IPURL are defined, in practice there will be very little difference in what type of thing has copyright under the 1911 Act and can have copyright under IPURL. For example, Regulation 10 prevents there being any copyright in an existing film as such under IPURL for an existing work that is a film, but does permit there to be copyright in an existing film as a dramatic work and/or a collection of photographs as is the case under the 1911 Act so that existing films do have copyright protection. Paragraph (2) of Regulation 5 does additionally permit an existing work that is not an existing copyright work to have copyright under IPURL when provision is made in an Order under Article 399 to apply copyright to works having their origin in other countries.
Paragraph (3) of Regulation 5 does not, though, permit copyright to be revived for any work that had copyright under the 1911 Act and where copyright has already expired. Article 18(2) of the Berne Convention rules out revival of copyright as the default position. A contrary position was taken in the EU in 1996 when terms of protection were harmonised with some terms in the UK for example being extended and in some cases copyright being revived. But Jersey is copying the harmonised terms in EU law at a different time and from a different base compared to the UK. It would in these circumstances be very difficult indeed to deliver exactly the same duration of protection for very old works in Jersey and the UK even with provision on revival of copyright. Moreover, Jersey is not obliged to copy EU law. Copying the position taken in the Berne Convention and not reviving any copyright is thought to be less likely to cause problems than vice versa.
Regulation 19 provides for the duration of copyright for any existing works that do attract copyright under IPURL to be as in IPURL, but not longer than in IPURL. For some works still in copyright this will mean a period of copyright extended by up to 20 years compared to the 1911 Act. For some very old unpublished works this will mean a shorter term of protection than under the 1911 Act. Regulations 20 to 23 then provide reciprocity of term provisions for foreign existing works that attract copyright under IPURL, which may mean a shorter term than that provided in IPURL. This type of provision is the same as applies in the UK and other member States of the EU, but, in line with the requirements of EU law which Jersey has chosen to copy, there is no shortening of term for works from EEA States. Regulation 20(1) ensures that this exception from any shortening of term also applies to existing works from Guernsey and the Isle of Man that can attract copyright under IPURL. This provision is being made on the understanding that provision has been or will be made in those Islands in the same way for works having their origin in Jersey.
Regulation 26 ensures that in general whether anything done before commencement is an infringement of copyright is determined by the provisions in the 1911 Act with IPURL only applying to things that are done after commencement. Regulation 44 then ensures that the 1911 Act and IPURL civil remedies apply as appropriate for dealing with any infringement of copyright. Regulation 45 makes similar provision about copyright offences, which are provided in both the 1911 Act and IPURL where there is wilful infringement of copyright on a commercial scale, but there are some differences in the detail of the provision. The offences in IPURL only apply to acts done after commencement with the offences as in the 1911 Act applying to acts done before commencement.
The draft Regulations ensure that things done after commencement as a result of an agreement made, or arrangements made to exploit an existing work, before commencement are also judged against the provisions in the 1911 Act rather than IPURL. An existing work that has copyright under IPURL after commencement will, though, have copyright as defined in IPURL except where the draft Regulations provide otherwise. In this respect, Regulation 28 varies the rights that might apply to an existing foreign sound recording, and so what amounts to an infringement of copyright. This varies depending on which international convention or treaty a country belongs to, as these vary regarding what rights must be delivered. Only sound recordings from countries which belong to the Rome Convention (and, for example, all EU member States belong to this convention), or from Guernsey or the Isle of Man, get all the rights as in IPURL. The treatment indicated for Guernsey and the Isle of Man is on the understanding that those Islands do, or will, treat sound recordings from Jersey in the same way. Regulation 46 varies the copyright offences which can apply to existing foreign sound recordings depending on convention membership in a similar way.
The draft Regulations also make provision about exceptions to copyright, which affect what might be an infringement of rights. The provision on exceptions to copyright, limited activities which can be undertaken without infringing copyright, is considerably expanded in IPURL compared to the 1911 Act. For example, under IPURL librarians and archivists are indemnified against copyright infringement where they copy extracts from copyright works on behalf of other people in certain circumstances. Regulation 29(3) extends this benefit of indemnification to some copying that a librarian or archivist might have done before commencement. The draft Regulations also help others who have done something, or started doing something, that would be legal under an exception to copyright if done after commencement. Regulation 29(2) ensures that copies made illegally before commencement, which would be legal to make after commencement, are not treated as infringing copies under IPURL. Regulation 30 generally ensures that any activity started before commencement, which would be legal under any exception to copyright in IPURL, is to be treated as though the exceptions had always been in place.
Moral rights for authors of copyright works are provided for the first time in IPURL. These are essentially the right to be identified as the author of a work and the right to object to derogatory treatment of a work that damages the author’s reputation. The Berne Convention requires that moral rights apply to existing works that have copyright under IPURL where the author has not died before commencement. This is therefore delivered by Regulation 34, but there are some variations to this general rule, such as where the author assigned or licensed copyright to someone else before commencement.
Dealings in and licensing of copyright works are addressed in the draft Regulations as much activity will have started before commencement and continue afterwards. For example, Regulation 36 ensures that in general documents made or events occurring before commencement which affect the ownership of copyright in an existing work, or an interest, right or licence in such a work, have a corresponding effect in relation to copyright under IPURL. Regulation 42 ensures that existing licences and agreements relating to a copyright work which were to last for the whole period of copyright under the 1911 Act continue to have effect during any period of extended copyright under IPURL, which might arise as a result of the rule in Regulation 19 on duration of copyright. Copyright licensing by a collecting society is dealt with in Regulation 47 so that the new provisions in IPURL permitting independent adjudication on the terms and conditions of such licensing can apply appropriately to existing licensing schemes and existing licences.
A final important area covered by Part 2 of the draft Regulations relates to States Assembly and States copyright. These are two new types of copyright in IPURL similar to provision in UK law about Parliamentary and Crown copyright. They apply respectively to works created under the direction or control of the States Assembly, or made in the course of his or her duties for the States by a Minister, States’ employee and so on. Much of the existing material which would have attracted States Assembly or States copyright had it been created in the future is already likely to have copyright owned by the States due to the rules on first ownership of copyright by an employer for works created during the course of employment in the 1911 Act. Regulation 48 does, however, provide that, not only will there generally be States Assembly copyright in an existing work where this would have been the case if the work had been created after commencement, but also, even where the States Assembly is not currently the owner of copyright, the States Assembly will still be able to use such an existing work. In most cases this is because any existing right to exploit the work is preserved after commencement, but also, should this not be the case, the work is to be treated as licensed to the States Assembly with the copyright owner entitled to claim a royalty. Under the 1911 Act the States Assembly would only be able to use a copyright work where it is not the copyright owner and does not have a right to exploit it if it is able to agree a licence with the copyright owner. Regulation 49 makes similar provision about States copyright. Crown copyright can exist in works under the 1911 Act and Regulation 50 provides that Crown copyright under IPURL will only apply to an existing work that already has copyright owned by the Crown.
Part 3
Regulations 55 to 60 in this Part of the draft Regulations make provision about the new right in databases provided in Part 2 of IPURL. Database right as in Part 2 copies UK and EU law on protection for databases created as a result of substantial investment in obtaining, verifying or presenting their contents. There are no convention obligations regarding database right, but the provision has been made in IPURL to support Jersey’s pursuit of recognition of rights in databases having their origin in Jersey throughout the EU. Regulation 56 on subsistence of database right therefore provides that this new right can subsist in an existing database as this is the approach taken in EU law. In practice, existing databases will often already have copyright under the 1911 Act so back-dating the right causes very few problems. Regulation 59 does, in any case, ensure that things done after commencement as a result of an existing agreement, or arrangements made before commencement to exploit an existing database, do not infringe database right. Regulation 60 makes similar provision about States, States Assembly and Crown database right by reference to that made in Part 2 of the draft Regulations for these special types of copyright.
Part 4
Regulation 61, the only Regulation in this Part, ensures that the new provision in Part 4 of IPURL that permits action to be taken against those who deal in devices that circumvent technology to protect copyright works, or who remove electronic rights management information, does not apply to anything done before commencement.
Part 5
Regulation 62, the only Regulation in this Part, ensures that the new provision in Part 5 of IPURL that permits action to be taken against those who deal in unauthorised decoders, which give access to conditional access transmissions such as satellite television, does not apply to anything done before commencement.
Part 6
Regulations 63 to 71 make transitional provisions about rights for performers in film or sound recordings of their performances, rights that are provided in Part 6 of IPURL. These rights are new in Jersey, but must be applied to recordings of past performances in order to comply with international treaties and conventions. Regulation 64 therefore applies performers’ rights to performances taking place before commencement, but this is subject to various modifications in other Regulations in this Part. The film and sound recordings of past performances are in any case likely to be existing works in which copyright already exists and so already subject to restrictions on how they can be used without the permission of the right owners. (In countries which already have performers’ rights, it is very common for performers to agree an assignment of their rights to the producer who owns the copyright in the recording of the performance so that all the rights are owned by one person.) The modifications to subsistence of performers’ rights in performances that have already taken place nevertheless protect the interests of those who have done things at a time when there were no rights. For example, according to paragraph (3) of Regulation 64, performers’ moral rights do not apply to a performance taking place before commencement. This is consistent with how the UK made provision when introducing these moral rights in 2006. Regulation 65 ensures that things done after commencement as a result of an existing agreement, or arrangements made before commencement to exploit a performance that took place before commencement, do not infringe performers’ rights. According to Regulation 67, recordings of performances made before commencement cannot be illicit recordings. According to Regulation 71, the offences in Part 6 of IPURL only apply to things done following commencement.
Part 7
Regulations 72 to 75 make transitional provisions about Part 7 of IPURL, which delivers a new right, unregistered design right, for original 3-D designs. It is a right to prevent copying and so very similar to copyright, and, indeed some things that may in the future be protected by design right may currently be protected by copyright under the 1911 Act. The UK introduced design right in 1988 as a right of much shorter duration than copyright to, in particular, apply to functional items like car exhausts, which may have otherwise attracted copyright as 3-D copies of 2-D drawings. The provision in IPURL essentially copies the provision in UK law. Design right can also apply to aesthetically pleasing designs, but they may sometimes continue to have copyright protection too, and such existing designs would generally also have been capable of protection by a registered design right where people felt intellectual property rights were important. There are no convention obligations in the area of unregistered design right which require protection for existing designs. Regulation 73 therefore does not back-date design right to apply to existing things. It provides that design right cannot subsist in a design recorded in a design document before commencement, or an article made to the design before commencement. Other provisions in the draft Regulations also ensure that this new right does not impact unfairly on people who may have agreed or arranged to do things, or done things, before commencement.
Part 8
Regulation 76, the only Regulation in this Part, ensures that the new provision in Schedule 1 of IPURL does not affect the liability of a service provider for anything done before commencement. Schedule 1 sets out the liability of internet service providers for copyright infringement by others, where it is taking place in their services, and the services providers’ obligations to in some situations take action to deal with that infringement,.
Part 9
Regulation 77, the only Regulation in this Part, ensures that the Regulations come into force on the same day as IPURL.
IPURL Appointed Day Act and Orders to be made under IPURL
If approved by the States Assembly, these draft Regulations come into force on the day IPURL comes into force. The draft Intellectual Property (Unregistered Rights) (Jersey) Law 2011 (Appointed Day) Act 201- makes provision for IPURL to come into force. Four Orders are to be made under IPURL to come into force on the same day as IPURL. These Orders will only be made by the Minister when the IPURL Appointed Day Act has been adopted by the States. The content of these Orders has, though, been made available in the Annex to this Report and the following is a brief explanation of what each Order will deliver.
1. Intellectual Property (Unregistered Rights) (Works of Foreign Provenance) (Jersey) Order 201-
There is copyright under the Copyright Act 1911 as it extends to Jersey for works from many other countries. This is generally due to the Orders in Council that have been made under section 29 of the 1911 Act. Article 399 of IPURL permits similar provision to be made by Order for copyright and all the other unregistered intellectual property rights in IPURL. The international conventions and treaties making provision about unregistered intellectual property rights generally require members to protect material having its origin in all other member countries. Each convention or treaty is relevant to only some types of material that can be protected by the rights in IPURL though, and the detail of the rights that must be provided can also vary. The conventions and treaties that Jersey has indicated an interest in joining are:
- the International Convention for the Protection of Literary and Artistic Works (the Berne Convention)
- the Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention)
- the WIPO Copyright Treaty (the WCT)
- the WIPO Performances and Phonograms Treaty (the WPPT)
Jersey has already requested that the UK extend its membership of the Berne Convention to Jersey as soon as possible and will be pursing this, and membership of the other conventions and treaties indicated above, vigorously as soon as IPURL is in force. Jersey also does not currently belong to the World Trade Organisation, but membership would require it to comply with the copyright and related rights’ provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
The provisions in IPURL are believed to be compatible with all the above conventions and treaties, including TRIPS, other than the requirement to protect material having its origin in other convention countries. An Order made under Article 399 can, though, anticipate membership of all of these conventions and treaties. It is unlikely that the UK would agree to an extension of conventions to Jersey without this evidence of convention compliance in this Order.
This Order therefore ensures that material having its origin in Jersey’s closest trading partners, ie in the EEA, is protected by rights under IPURL as favourably as material having its origin in Jersey. The Order also anticipates membership of the main international conventions and treaties indicated above by providing the relevant rights in IPURL to member countries, but also, where consistent with convention and treaty provision, limiting rights, including the possible duration of rights in the same way as has been done in UK and EU law regarding term of protection. Finally, as a result of discussions with Guernsey and the Isle of Man, the Order ensures that material having its origin in those Islands will have full rights under IPURL in the areas of copyright, database right, performers’ rights and design right on the understanding that this has been, or will be, reciprocated in those Islands for material having its origin in Jersey. (Note that provision in Regulations 20 to 23, 28 and 46 of the draft Regulations as indicated above makes provision as in the Order that might limit rights in existing works of foreign provenance. The provision in the draft Regulations will apply to existing works that have copyright from commencement as a result of other provision in the Regulations, or which have copyright from commencement or later as a result of provision in the Order.)
2. Intellectual Property (Unregistered Rights) (Miscellaneous Provisions) (Jersey) Order 201-
IPURL permits the Minister to prescribe a number of matters in order to supplement the provision that is made in this new Law. This Order and the other Orders in the Annex to this Report, which the Minister intends to make so that they can come into force at the same time as IPURL, do not make provision in all cases where it would be possible to do so. It has been decided that it is not necessary to do so at this point in time. One or more additional Orders can be made in due course if that should be desirable in respect of any cases where there is no provision in the current Orders and the Minister is permitted to prescribe something.
This Order about miscellaneous provisions does not amend the provision in IPURL. (There are a number of provisions in IPURL which do permit the new Law to be changed by Regulations in some situations, but no such Regulations are planned to coincide with commencement of IPURL, other than the draft Regulations making transitional provisions as explained in this Report.) The provisions in this Order merely supplement IPURL, for example by providing additional interpretation for terms used in the new Law, which bodies can benefit from certain parts of the new Law and the procedure to be followed for doing certain things under the new Law. Although it is hoped that the provision in the Order is appropriate, it can, moreover, be modified in due course should that be desirable.
In particular, this Order:
- defines “educational establishment” so that an establishment providing a course of higher, vocational or continuing education in Jersey and peripatetic teachers, as well as schools which are covered by the provision in IPURL, can benefit from certain educational exceptions to rights;
- prescribes which libraries and archives come within the scope of some other exceptions to rights, and elaborates on certain procedures which must be followed under these exceptions;
- defines the meaning of making an article by an industrial process, which is relevant to a limitation on copyright in designs protected by copyright;
- prescribes which bodies may record broadcasts for archival purposes without infringing rights; and
- specifies the form of the notice of seizure which must be left when infringing goods or illicit recordings being sold at street markets are seized by right holders.
3. Intellectual Property (Unregistered Rights) (Fees) (Jersey) Order 201-
The licensing authority is established by IPURL as a body able to adjudicate on certain matters to do with licensing of rights, in particular the terms and conditions of licensing offered by collecting societies. Collecting societies usually represent a large number of right owners and offer blanket licences covering the rights of those right owners for particular uses of certain types of protected material. The adjudication would determine what terms and conditions are reasonable in the circumstances. It would generally take place when a body representing a large number of users of the protected material refers a case to the licensing authority. Part 8 of IPURL makes provision about the licensing authority and permits fees to be paid to the States to be prescribed for applications and references to the licensing authority.
This Order sets a fee of £200 for such applications and references. This is most unlikely to be enough to cover the costs of determining a case, but on the basis of experience elsewhere it is extremely unlikely that there will be a case. The licensing authority deals with the same sort of disputes as the Copyright Tribunals in the UK and the Isle of Man. There have been no decisions by the Isle of Man Tribunal since it was established in the early 1990s. Even in the UK where the Copyright Tribunal was established in 1989 (and replaced an earlier tribunal with more limited jurisdiction), there are a number of years where there have been no decisions and in other years no more than 2 or 3 decisions at most. Unless or until an Order is made setting up a specific body or appointing a particular person to be the licensing authority, IPURL provides that the Minister is the licensing authority.
It is important to not set a fee that would completely deter a person from taking a case to the licensing authority as that would undermine the effect the possibility of such a referral has on those negotiating licensing to behave reasonably. A fee of £200 therefore seems to strike the right balance between deterring frivolous cases but not making the licensing authority inaccessible for a genuine case. The fee can, of course, always be adjusted in the light of experience. In the meantime Economic Development Department already has funds which should be sufficient to cover the costs of determining two or more cases should that be necessary. Moreover, IPURL provides that a case can always be passed to the Royal Court to be determined should that seem a more suitable and cost-effective way of resolving a case. This might be appropriate for a complex case. The Court can set fees under the Stamp Duties and Fees (Jersey) Law 1998.
The Order also sets a fee for a person issuing a notice of complaint under Article 243(2) of IPURL to the Minister that their enjoyment of an exception to rights is prevented by the use of technological protection measures with copyright and other protected material. The fee varies depending on whether or not the complainant is a representative body of a class of persons. The equivalent provision in the UK has operated since 2003 with no fee charged. It is believed that there have been very few complaints and none have been found to be valid so again there may well be no cases to deal with in Jersey. Economic Development Department also has funds which should be sufficient to cover the costs of dealing with a notice of complaint should that be necessary.
4. Intellectual Property (Unregistered Rights) (Proceedings Before Licensing Authority) (Jersey) Order 201-
As indicated above for the Intellectual Property (Unregistered Rights) (Fees) (Jersey) Order 201-, it is actually very unlikely that the licensing authority will have to decide a case. Should there be a case, however, and should the Minister decide not to simply refer the case to the Court, he may find it helpful to appoint an adviser to assist him on various matters that might need to be decided. This Order therefore provides for the appointment of advisers to assist the licensing authority, but none will be appointed unless or until there is a case where this would be appropriate. The costs of any adviser would then be paid out of the funds that Economic Development Department already has, as indicated above, to cover the costs of determining a case should that be necessary.
Consultation on the draft Regulations
A targeted stakeholder consultation was held from May to July 2012 on an earlier draft of the Regulations making transitional provisions and savings, and drafts of the first two of the Orders indicated above to be made under IPURL to coincide with its commencement. There have in addition been discussions with Guernsey and the Isle of Man about whether or not and, if so, how Jersey should make provision to protect material from those Islands in Jersey under IPURL, and how those Islands do, or intend to, protect material having its origin in Jersey. Drafts of the various pieces of subordinate legislation have also been shown to, and parts discussed with, the UK Intellectual Property Office.
Only a very few comments were received from stakeholders. As a result of these, the main change to the draft Regulations has been to make additional provision about licensing schemes that currently operate in Jersey in areas which, when IPURL is in force, will need to be notified under Article 180 in order to have effect in replacing enjoyment of certain exceptions to rights. For example, Article 58 of IPURL permits educational establishments to record and copy broadcasts for educational purposes without infringing copyright, but only if and to the extent there is no notified licensing scheme covering the use. At the moment, this activity probably requires a licence but there is no notification requirement in the 1911 Act. Regulation 47 therefore now provides that any licensing already operating does not need to be notified for up to year, or until new licences are offered, existing licences are modified or the licensing scheme is modified if any of these happen earlier. The main reason for notification is to ensure that those who need to take out a licence are aware that licences are available and what their terms and conditions are. Varying the need for immediate notification of existing licensing schemes as now set out in Regulation 47 does not, therefore, undermine the purpose of notification, but removes an immediate burden from those operating existing licensing schemes.
A further change has been made to the Regulations in the light of the report on the proposed subordinate legislation written for the Economic Affairs Scrutiny Panel. That report queries the compatibility of compulsory licences with relevant international standards. In general such licences are not permitted by international treaties and conventions about copyright, although there is some latitude in how treaty compliant provision is applied to existing works. The earlier draft of Regulation 43 provided for compulsory licences that may have been granted in relation to an existing copyright work in compliance with an order made under section 4 of the 1911 Act to continue for the full term of copyright and any period of extended copyright. It has been decided that the provision would be more consistent with the spirit of international treaties and conventions by providing for termination of any such licences after a transitional period. Regulation 43 therefore now provides that any compulsory licences that may have been granted will last no longer than a year at most from commencement. It is believed that there are no such licences in existence in any case, but the provision in Regulation 43 deals with the issue to provide certainty about the ending of the provision in the 1911 Act.
A final amendment has been made to Regulation 30. The policy decision to not apply design right to existing designs (as delivered by Part 7 of the Regulations), and the decision about how to apply the new provisions on exceptions to copyright where there are existing works and where activity has started before commencement, had inadvertently significantly reduced the scope of copyright protection that might exist under the 1911 Act for some existing designs. Paragraphs (3) and (4) of Regulation 30 therefore now ensure that some existing designs are not subject to the copyright exception in Article 79 of IPURL for a transitional period. Article 79 will in general permit people to make and sell articles to a design recorded in a design document or model without infringing copyright in that document or model. New designs may, of course, have design right after commencement that would still prevent this, but the term of protection for design right is much shorter than copyright. Article 79 does not, moreover, permit anything where the design is for an artistic work or a typeface and so this exception to copyright is particularly relevant to designs for functional articles. It would not, therefore, be appropriate for Article 79 to be disapplied from all existing designs as that could mean that unrestricted copyright could continue to apply to some existing designs for a very long time where they would only get a short period of protection under design right if created after commencement. New paragraphs (3) and (4) of Regulation 30 therefore ensure that for existing designs Article 79 will not apply for a period of 10 years only from when the design was recorded. New paragraph (5) then ensures that, even though Article 79 will not apply for this transitional period, this does not affect any rule of law that might prevent or restrict the enforcement of copyright in relation to a design. Enforcement of copyright might, for example, be restricted where it would otherwise prevent repair of something that a person has bought.
The Intellectual Property (Unregistered Rights) (Miscellaneous Provisions) (Jersey) Order 201- has been amended since the consultation to ensure that the library operated by Jersey Archive can clearly benefit from the provisions in IPURL that apply to prescribed libraries. There was a query about peripatetic teachers working in more than one school and how they benefit from the provisions in IPURL applying to “educational establishments”, but they are covered by the fact that the schools they work in are covered. The Intellectual Property (Unregistered Rights) (Works of Foreign Provenance) (Jersey) Order 201- has been amended since the consultation to deliver the agreed protection for material having its origin in Guernsey and the Isle of Man as explained above.
The current draft Regulations (and the Orders) are therefore believed to provide appropriate and balanced provision on the issues that have been explored with stakeholders.
Statement of financial and manpower implications
There are not expected to be any financial or manpower implications arising from the adoption of the draft Regulations by the States. When IPURL comes into force, there could be an increase in enquiries about copyright and how this affects particular interests. This is likely, however, to be increased awareness about copyright because of the publicity that the debate on the Regulations in the States Assembly will give to copyright, rather than just enquires about IPURL, the Regulations and Orders. As has already been explained, the main right, copyright, already exists in Jersey and the main principles in the old and new laws are not really changing. It is currently expected that the costs and required manpower for dealing with such enquiries will be met from existing resources.
There are a number of situations in which the Minister could be involved in resolving issues referred to him, particularly in his capacity as the licensing authority. This can include cases referred to the licensing authority in relation to existing licensing schemes and licensing as permitted by Regulation 47 of the draft Regulations. It is anticipated that in practice applications and references to the licensing authority will, though, happen infrequently, or not at all. The comparison with the position in the UK and the Isle of Man supports this as a reasonable position to take. Since the equivalent provision to that in IPURL was enacted many years ago in the UK and the Isle of Man, there have been few or no cases respectively that have needed to be resolved. This is explained further in the section of the Report above about the Intellectual Property (Unregistered Rights) (Fees) (Jersey) Order 201-. Should there be any financial costs and required manpower, however, it is expected that this can also be met from existing resources. Should it become appropriate or necessary to appoint another person or establish a body as the licensing authority, the draft Law enables any costs of doing so to be met, if appropriate, by charges paid by those referring cases to the authority for adjudication. The current Order setting out the fees could then, if appropriate, be revoked and replaced by a new Order prescribing different, higher fees.
ANNEX
The text of the following Orders to be made under IPURL and to come into force to coincide with commencement is included in this Annex:
1. Intellectual Property (Unregistered Rights) (Works of Foreign Provenance) (Jersey) Order 201-
2. Intellectual Property (Unregistered Rights) (Miscellaneous Provisions) (Jersey) Order 201-
3. Intellectual Property (Unregistered Rights) (Fees) (Jersey) Order 201-
4. Intellectual Property (Unregistered Rights) (Proceedings Before Licensing Authority) (Jersey) Order 201-
Intellectual Property (Unregistered Rights) (Works of Foreign Provenance) (Jersey) Order 201-
Explanatory Note
This Order –
(a) extends the application of the rights conferred by the Intellectual Property (Unregistered Rights) (Jersey) Law 2011 (the “Law”) to certain works of foreign provenance; and
(b) modifies the Law in its application to certain copyright works and protected performances of foreign provenance.
Arrangement
Article
1 Interpretation
2 Application
3 Copyright - qualifying persons
4 Copyright - qualifying countries
5 Restrictions on qualification for copyright under Article 3 or 4
6 Database right - qualifying countries and persons
7 Publication right - qualifying countries and persons
8 Fraudulent reception of transmissions - qualifying countries
9 Performers’ protection - qualifying individuals
10 Performers’ protection - qualifying countries
11 Design right - qualifying countries and individuals
12 Part 1 of the Law modified in its application to certain copyright works of foreign provenance
13 Part 6 of the Law modified in its application to certain qualifying performances of foreign provenance
14 Saving
15 Citation and commencement
SCHEDULE 1
MODIFICATION OF pART 1 OF the LAW - copyright works of foreign provenance
1 Application and interpretation of Schedule 1
2 Duration of copyright in literary, dramatic, musical and artistic works
3 Duration of copyright in sound recordings
4 Further modifications of Part 1 of Law - sound recordings
5 Duration of copyright in films
6 Duration of copyright in broadcasts
7 Further modifications of Part 1 of Law - wireless broadcasts
8 Determination of country of origin for the purposes of paragraphs 2 and 5
SCHEDULE 2
modification of part 6 of the law - qualifying performances of foreign provenance
1 Application of Schedule 2
2 Duration of performers’ protection
3 Further modifications of Part 6 of Law
THE MINISTER FOR ECONOMIC DEVELOPMENT, in pursuance of Articles 399 and 400 of the Intellectual Property (Unregistered Rights) (Jersey) Law 2011, orders as follows –
1 Interpretation
(1) In this Order, except where the context otherwise requires –
“Berne Convention” means the International Convention for the Protection of Literary and Artistic Works, signed at Berne on 9th September 1886;
“Berne Convention country” means a country which is a party to any Act of the Berne Convention;
“commencement” means the day the Law comes into force;
“Law” means the Intellectual Property (Unregistered Rights) (Jersey) Law 2011;
“Part 1 of the Law” includes any provision of Part 8 or 9 of the Law, to the extent that it has effect in relation to and for the purposes of Part 1 of the Law;
“Part 6 of the Law” includes any provision of Part 8 or 9 of the Law, to the extent that it has effect in relation to and for the purposes of Part 6 of the Law;
“Rome Convention” means the Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, adopted in Rome on 26th October 1961;
“Rome Convention country” means a country that is a party to the Rome Convention;
“WIPO” means the World Intellectual Property Organisation;
“WIPO Copyright Treaty” means the WIPO Copyright Treaty done at Geneva, 2nd to 20th December 1996;
“WIPO copyright country” means a country that is a party to the WIPO Copyright Treaty;
“WPPT” means the WIPO Performances and Phonograms Treaty adopted at Geneva on 20th December 1996;
“WPPT country” means a country that is a party to the WPPT;
“WTO country” means a country that is a member of the World Trade Organization;
“World Trade Organization” means the organization established by the Agreement Establishing the World Trade Organization done at Marrakesh on 15th April 1994 and which includes, as Annex 1C to that Agreement, the Agreement on Trade-Related Aspects of Intellectual Property Rights.
(2) A reference in this Order to a country being a party to any convention or treaty or a member of an organisation includes a reference to a country to which the convention, treaty or membership extends.
2 Application
(1) If, following commencement, a country becomes an EEA State, the provisions of this Order relating to EEA States have effect in relation to the country, as an EEA State, from the day that it becomes an EEA State.
(2) If, following commencement, a country becomes a Berne Convention country, the provisions of this Order relating to Berne Convention countries have effect in relation to the country, as a Berne Convention country, from the day that it becomes a Berne Convention country.
(3) Paragraph (2) applies, with the necessary modifications, to a country that, following commencement, becomes a Rome Convention country, a WIPO copyright country, a WPPT country or a WTO country as it applies to a country that, following commencement, becomes a Berne Convention country.
3 Copyright - qualifying persons
(1) The following persons are prescribed for the purposes of Article 21(2)(d) of the Law in its application to all works described in Article 13(1) of the Law –
(a) individuals who are nationals of, or domiciled or resident in, an EEA State, Guernsey or the Isle of Man; and
(b) bodies incorporated under the law of an EEA State, Guernsey or the Isle of Man.
(2) The following persons are prescribed for the purposes of Article 21(2)(d) of the Law in its application to literary, dramatic, artistic and musical works, films and the typographical arrangement of published editions –
(a) individuals who are nationals of, or domiciled or resident in –
(i) a Berne Convention country,
(ii) a WIPO copyright country, or
(iii) a WTO country; and
(b) bodies incorporated under the law of –
(i) a Berne Convention country,
(ii) a WIPO copyright country, or
(iii) a WTO country.
(3) The following persons are prescribed for the purposes of Article 21(2)(d) of the Law in its application to sound recordings –
(a) individuals who are nationals of, or domiciled or resident in –
(i) a WTO country,
(ii) a WPPT country, or
(iii) a Rome Convention country; and
(b) bodies incorporated under the law of –
(i) a WTO country,
(ii) a WPPT country, or
(iii) a Rome Convention country.
(4) The following persons are prescribed for the purposes of Article 21(2)(d) of the Law in its application to wireless broadcasts –
(a) individuals who are nationals of, or domiciled or resident in –
(i) a WTO country, or
(ii) a Rome Convention country; and
(b) bodies incorporated under the law of –
(i) a WTO country, or
(ii) a Rome Convention country.
4 Copyright - qualifying countries
(1) EEA States, Guernsey and the Isle of Man are prescribed for the purposes of Article 22(2)(b) of the Law in its application to all works described in Article 13(1) of the Law.
(2) The following countries are prescribed for the purposes of Article 22(2)(b) of the Law in its application to literary, dramatic, artistic and musical works, films and the typographical arrangement of published editions –
(a) Berne Convention countries;
(b) WIPO copyright countries; and
(c) WTO countries.
(3) The following countries are prescribed for the purposes of Article 22(2)(b) of the Law in its application to sound recordings –
(a) WTO countries;
(b) WPPT countries; and
(c) Rome Convention countries.
(4) The following countries are prescribed for the purposes of Article 22(2)(b) of the Law in its application to wireless broadcasts –
(a) WTO countries; and
(b) Rome Convention countries.
5 Restrictions on qualification for copyright under Article 3 or 4
(1) A wireless broadcast made from a country other than an EEA State, Guernsey or the Isle of Man shall not qualify for copyright protection by virtue Article 3 or 4 if the wireless broadcast is made before the date the country becomes a WTO country or Rome Convention country.
(2) A repeat broadcast shall not qualify for copyright protection by virtue of Article 3 or 4 if the repeat broadcast is broadcast more than 50 years after the end of the calendar year in which the original broadcast was made.
6 Database right - qualifying countries and persons
(1) EEA States, Guernsey and the Isle of Man are prescribed for the purposes of sub-paragraph (b) of the definition “qualifying country” in Article 198(2) of the Law.
(2) Individuals who are nationals of an EEA State are prescribed for the purposes of sub-paragraph (e) of the definition “qualifying person” in Article 198(2) of the Law.
7 Publication right - qualifying countries and persons
(1) EEA States are prescribed for the purposes of sub-paragraph (b) of the definition “qualifying country” in Article 218(1) of the Law.
(2) The following persons are prescribed for the purposes of sub-paragraph (c) of the definition “qualifying person” in Article 218(1) of the Law –
(a) individuals who are nationals of an EEA State; and
(b) bodies incorporated under the law of an EEA State.
8 Fraudulent reception of transmissions - qualifying countries
EEA States are prescribed for the purposes of Article 249(1)(b) of the Law.
9 Performers’ protection - qualifying individuals
Individuals who are nationals of, or domiciled or resident in, one of the following countries are prescribed for the purposes of sub-paragraph (c) of the definition “qualifying individual” in Article 254(1) of the Law –
(a) EEA States;
(b) Guernsey;
(c) the Isle of Man;
(d) WTO countries;
(e) WPPT countries; and
(f) Rome Convention countries.
10 Performers’ protection - qualifying countries
The following countries are prescribed for the purposes of sub-paragraph (b) of the definition “qualifying country” in Article 254(1) of the Law –
(a) EEA States;
(b) Guernsey;
(c) the Isle of Man;
(d) WTO countries;
(e) WPPT countries; and
(f) Rome Convention countries.
11 Design right - qualifying countries and individuals
(1) EEA States, Guernsey and the Isle of Man are prescribed for the purposes of sub-paragraph (b) of the definition “qualifying country” in Article 341(1) of the Law.
(2) WTO countries are prescribed for the purposes of sub-paragraph (b) of the definition “qualifying country” in Article 341(1) of the Law in its application in relation only to designs that are semiconductor topographies.
(3) Individuals who are nationals of, or domiciled or resident in an EEA State, Guernsey or the Isle of Man are prescribed for the purposes of sub-paragraph (c) of the definition “qualifying individual” in Article 341(1) of the Law.
(4) Individuals who are nationals of, or domiciled or resident in, a WTO country are prescribed for the purposes of sub-paragraph (c) of the definition “qualifying individual” in Article 341(1) of the Law in its application in relation only to designs that are semiconductor topographies.
12 Part 1 of the Law modified in its application to certain copyright works of foreign provenance
(1) Schedule 1 has effect to modify Part 1 of the Law in its application to certain copyright works of foreign provenance that are made following commencement.
(2) For the purposes of the reference in this Article to works made following commencement, a work of which the making extended over a period shall be taken to have been made when its making was completed.
13 Part 6 of the Law modified in its application to certain qualifying performances of foreign provenance
Schedule 2 has effect to modify Part 6 of the Law in its application to certain qualifying performances of foreign provenance, whether taking place before or following commencement.
14 Saving
(1) This Article applies where a person –
(a) began, in good faith, to do an act or made, in good faith, effective and serious preparations to do an act, in connection with a work, database, performance or design; and
(b) incurred any expenditure or liability in connection with the act,
at a time when the act neither infringed nor was restricted by copyright or by any other right conferred by the Law in the work, database, performance or design.
(2) If, by virtue of this Order, another person (the “rights owner”) acquires copyright or any other right conferred by the Law in the work, database, performance or design, a person who has acted as described in paragraph (1) has the right –
(a) to continue to so act; or
(b) to so act,
notwithstanding that the act infringes or is restricted by the right so acquired in the work, database, performance or design.
(3) However, paragraph (2) shall cease to apply if the rights owner (or his or her exclusive licensee) pays reasonable compensation to the person.
(4) If the rights owner (or licensee) offers to pay compensation to the person, but the rights owner (or licensee) and the person cannot agree on what compensation is reasonable, either of them may refer the matter to arbitration.
15 Citation and commencement
This Order may be cited as the Intellectual Property (Unregistered Rights) (Works of Foreign Provenance) (Jersey) Order 201- and shall come into force on the same day as the Law.
SCHEDULE 1
(Article 12(1))
MODIFICATION OF pART 1 OF the LAW - copyright works of foreign provenance
1 Application and interpretation of Schedule 1
(1) This Schedule applies to works made following commencement.
(2) In this Schedule –
(a) a reference to an EEA State shall be construed as if Jersey, Guernsey and the Isle of Man were also EEA States;
(b) a reference to a national of an EEA State includes a reference to a body incorporated under the law of an EEA State;
(c) a reference to a national of a country includes a reference to a body incorporated under the law of the country.
2 Duration of copyright in literary, dramatic, musical and artistic works
(1) Notwithstanding Part 1 of the Law, where the country of origin of a literary, dramatic, musical or artistic work is not an EEA State and the author of the work is not a national of an EEA State, the duration of copyright in the work shall be whichever is the lesser of –
(a) the term to which the work is entitled in the country of origin; and
(b) the term determined in accordance with Part 1 of the Law.
(2) If the work is of joint authorship, the reference in sub-paragraph (1) to the author not being a national of an EEA State shall be construed as a reference to none of the authors being such a person.
3 Duration of copyright in sound recordings
Notwithstanding Part 1 of the Law, where the author of a sound recording is not a national of an EEA State, the duration of copyright in the sound recording shall be whichever is the lesser of –
(a) the term to which the sound recording is entitled in the country of which the author is a national; and
(b) the term determined in accordance with Part 1 of the Law.
4 Further modifications of Part 1 of Law - sound recordings
(1) This paragraph applies to a work that qualifies for copyright protection only by virtue of either or both of –
(a) the author being a person prescribed in Article 3; and
(a) the country of first publication (if any) being a country prescribed in Article 4.
(2) The provisions of the Law specified in sub-paragraph (3) shall not apply in the work’s case if –
(a) the author is not a national of, or domiciled or resident in, Guernsey, the Isle of Man, a WPPT country or a Rome Convention country; and
(b) the country of first publication (if any) is not Guernsey, the Isle of Man, a WPPT country or a Rome Convention country.
(3) The provisions are –
(a) Article 34;
(b) Article 35;
(c) Article 41; and
(d) Article 139(3) and (4).
(4) The provisions of the Law specified in sub-paragraph (6) shall not apply in the work’s case if –
(a) the author is not a national of, or domiciled or resident in, Guernsey, the Isle of Man or a Rome Convention country;
(b) the country of first publication (if any) is not Guernsey, the Isle of Man or a Rome Convention country; and
(c) the work satisfies either or both of the conditions in sub-paragraph (5).
(5) The conditions are that –
(a) the author of the work is a national of, or domiciled or resident in, a WPPT country; or
(b) the country of first publication (if any) of the work is a WPPT country.
(6) The provisions are –
(a) Article 34;
(b) Article 35, to the extent that it would otherwise apply to a broadcast of a sound recording;
(c) Article 41;
(d) Article 139(3), to the extent that it would otherwise apply to a broadcast of a sound recording; and
(e) Article 139(4).
5 Duration of copyright in films
(1) Notwithstanding Part 1 of the Law, where the country of origin of a film is not an EEA State and the author of the film is not a national of an EEA State, the duration of copyright is whichever is the lesser of –
(a) the term to which the work is entitled in the country of origin; and
(b) the term determined in accordance with Part 1 of the Law.
(2) In relation to a film of which there are joint authors, the reference in sub-paragraph (1) to the author not being a national of an EEA State shall be construed as a reference to none of the authors being such a person.
6 Duration of copyright in broadcasts
(1) Subject to sub-paragraph (2), copyright in a broadcast that is a repeat of a broadcast originally made before the day on which the repeat broadcast qualified for copyright by virtue of Article 3(1) or (4) or 4(1) or (4) shall expire at the end of the period of 50 years from the end of the calendar year in which the original broadcast was made.
(2) Notwithstanding Part 1 of the Law, where the author of a broadcast is not a national of an EEA State, the duration of copyright in the broadcast shall be whichever is the lesser of –
(a) the term to which the work is entitled in the country of which the author is a national; and
(b) the term determined in accordance with Part 1 of the Law.
7 Further modifications of Part 1 of Law - wireless broadcasts
(1) This paragraph applies to a wireless broadcast if –
(a) the broadcast qualifies for copyright protection only by virtue of either or both of –
(i) the author being a person prescribed in Article 3, and
(ii) the broadcast being made from a place in a country that is prescribed in Article 4;
(b) the author is not a national of, or domiciled or resident in Guernsey, the Isle of Man or a Rome Convention country; and
(c) the broadcast is not made from a place in Guernsey, the Isle of Man or a Rome Convention country.
(2) Articles 34 and 41 of the Law shall only apply in the broadcast’s case to the extent that they relate to showing a television wireless broadcast in public.
(3) Articles 35 and 139(3) of the Law shall only apply in the broadcast’s case to the extent that they relate to a wireless broadcast by wireless telegraphy.
8 Determination of country of origin for the purposes of paragraphs 2 and 5
(1) For the purposes of paragraphs 2 and 5, the country of origin of a work shall be determined in accordance with this paragraph.
(2) If the work is first published in an EEA State, and is not simultaneously published elsewhere, the country of origin is an EEA State.
(3) If the work is first published simultaneously in 2 or more countries, one or more of which is an EEA State, the country of origin is an EEA State.
(4) Sub-paragraphs (5) to (7) apply to a work to which neither sub-paragraph (2) or (3) applies.
(5) If the work is first published in a Berne Convention country and is not simultaneously published elsewhere, the country of origin is that country.
(6) If the work is first published simultaneously in 2 or more countries, only one of which is a Berne Convention country, the country of origin is that country.
(7) If the work is first published simultaneously in 2 or more countries of which 2 or more are Berne Convention countries, the country of origin is the Berne Convention country which grants the shorter or shortest period of copyright protection.
(8) If the work is unpublished or is a published work to which none of sub-paragraphs (2) to (7) apply, the country of origin is –
(a) if the work is a film and the maker of the film has his or her headquarters in, or is domiciled or resident in an EEA State or Berne Convention country - that State or country;
(b) if the work is a work of architecture constructed in an EEA State or Berne Convention country - that State or country;
(c) if the work is an artistic work incorporated in a building or other structure situated in an EEA State or Berne Convention country - that State or country; or
(d) in the case of any other work, the EEA State or country of which the author of the work is a national.
(9) In this paragraph, references to simultaneous publication are to publication within 30 days of the first publication.
SCHEDULE 2
(Article 13)
modification of part 6 of the law - qualifying performances of foreign provenance
1 Application of Schedule 2
This Schedule applies to qualifying performances, whether taking place before or following commencement.
2 Duration of performers’ protection
Notwithstanding Article 272 of the Law, where the performer of a performance is not a national of an EEA State, the duration of the rights conferred by Part 6 of the Law in relation to the performance shall be whichever is the lesser of –
(a) the term to which the performance is entitled in the country of which the performer is a national; and
(b) the term determined in accordance with Part 6 of the Law.
3 Further modifications of Part 6 of Law
(1) This paragraph applies to a performance that is a qualifying performance only by virtue of either or both of –
(a) the performer being an individual prescribed in Article 9; and
(a) the performance taking place in a country prescribed in Article 10.
(2) Part 6 of the Law is modified as specified in sub-paragraph (3), in its application in relation to the performance, if –
(a) the performer is not a national of or domiciled or resident in Guernsey, the Isle of Man, a WPPT country or a Rome Convention country; and
(b) the performance does not take place in Guernsey, the Isle of Man, a WPPT country or a Rome Convention country.
(3) The modifications are that –
(a) in Article 254(1) of the Law, the definition “recording” shall not include a film recording; and
(b) the following Articles of the Law shall not apply –
(i) Article 263,
(ii) Article 264,
(iii) Article 266,
(iv) Articles 268 to 271, and
(v) Article 318(2) and (3).
(4) Part 6 of the Law is modified as specified in sub-paragraph (6), in its application in relation to the performance, if –
(a) the performer is not a national of, or domiciled or resident in, Guernsey, the Isle of Man or a Rome Convention country;
(b) the performance does not take place in Guernsey, the Isle of Man or a Rome Convention country; and
(c) the performance satisfies either or both of the conditions in sub-paragraph (5).
(5) The conditions are that –
(a) the performer is a national of, or domiciled or resident in, a WPPT country; or
(b) the performance takes place in a WPPT country.
(6) The modifications are that –
(a) in Article 254(1) of the Law, the definition “recording” shall not include a film recording; and
(b) the following Articles of the Law shall not apply –
(i) Article 264,
(ii) Article 266,
(iii) Articles 268 to 271, and
(iv) Article 318(3).
Intellectual Property (Unregistered Rights) (Miscellaneous Provisions) (Jersey) Order 201-
Explanatory Note
This Order contains miscellaneous provisions that supplement the Intellectual Property (Unregistered Rights) (Jersey) Law 2011 (the “Law”).
Article 1 is the interpretation provision.
Article 2 prescribes, for the purposes of Article 7 of the Law, establishments and peripatetic teachers employed by the States as, respectively, establishments and persons who are, for the purposes of Part 1 of the Law, to be treated as educational establishments.
Articles 3 to 6 supplement Articles 60 to 66 of the Law as to the circumstances in which librarians and archivists may make and supply copies of works, and the administrative arrangements for such supply. Schedules 1 and 2 contain forms to be used in those circumstances.
Article 7 prescribes circumstances in which an article is to be regarded, for the purposes of Article 80 of the Law, as made by an industrial process.
Article 8 prescribes bodies who may make recordings of broadcasts (but not of encrypted transmissions) for archival purposes.
Article 9 gives effect to Schedule 3, which contains a form of notice of seizure of infringing goods that must be left at premises at which the goods are seized under Article 131 or 317 of the Law.
Article 10 provides for the citation and commencement of the Order.
Arrangement
Article
1 Interpretation
2 Educational establishments and teachers - Article 7 of Law
3 Supply of copies by librarians - Articles 61 and 62 of Law
4 Supply of copies by librarians - Article 64 of Law
5 Supply of copies by librarians or archivists - Article 65 of Law
6 Supply of copies by librarians or archivists - Article 66 of Law
7 Designs made by industrial process - Article 80 of Law
8 Archiving of recordings of broadcasts - Article 103 of Law
9 Notice of seizure of infringing copy or illicit recording - Articles 131 and 317 of Law
10 Citation and commencement
SCHEDULE 1
declaration: copy of article or part of published work
SCHEDULE 2
declaration: copy of whole or part of material not previously made available to the public
SCHEDULE 3
notice of seizure
THE MINISTER FOR ECONOMIC DEVELOPMENT, in pursuance of Articles 7, 60 to 66, 80, 103, 131, 317 and 400 of the Intellectual Property (Unregistered Rights) (Jersey) Law 2011, orders as follows –
1 Interpretation
(1) In this Order –
“The Jersey Heritage Trust” means the trust accorded an act of incorporation by the Loi (1983) accordant un Acte d’Incorporation à l’Association dite “The Jersey Heritage Trust”;
“Law” means the Intellectual Property (Unregistered Rights) (Jersey) Law 2011.
(2) For the purposes of this Order, a library or archive is conducted for profit if it is established or conducted for profit or forms part of, or is administered by, a body established or conducted for profit.
2 Educational establishments and teachers - Article 7 of Law
(1) The following descriptions of establishment are prescribed for the purposes of Article 7(1)(b) of the Law –
(a) any establishment in Jersey, to the extent that it provides instruction in one or more courses of higher education;
(b) any establishment in Jersey, to the extent that it provides instruction in one or more courses of vocational education; and
(c) any establishment in Jersey, to the extent that it provides instruction in more or more courses of continuing education.
(2) The provisions of Part 1 of the Law relating to educational establishments shall apply in relation to States employees who are peripatetic teachers as they apply in relation to such establishments.
(3) In this Article –
(a) “continuing education”, “higher education” and “vocational education” have the same meaning as in the Education (Jersey) Law 1999;
(b) “peripatetic teacher” means a person employed to give instruction, otherwise than in an educational establishment, to pupils who are unable to attend such an establishment.
3 Supply of copies by librarians - Articles 61 and 62 of Law
(1) The following libraries are prescribed for the purposes of Articles 61 and 62 of the Law –
(a) the public library service of Jersey;
(b) a library in a school in Jersey;
(c) a library in an establishment prescribed in Article 2(1), to the extent that the library is provided for the purposes of the instruction described in that provision;
(d) a library provided by and for the purposes of an administration of the States or the States Assembly;
(e) a library provided by The Jersey Heritage Trust; and
(f) any other library in Jersey, if it is not conducted for profit.
(2) The following conditions must be complied with when a librarian makes and supplies a copy of any material to a person (the “recipient”) pursuant to Article 61 or 62 of the Law –
(a) the recipient must have delivered to the librarian a declaration, in writing, in relation to the material, in the form in Schedule 1 and signed as indicated in that form;
(b) the librarian must be satisfied that the recipient requires the copy of the material for the purposes of research or private study and will not use it for any other purpose;
(c) the librarian must be satisfied that the recipient is not furnished –
(i) under Article 61 of the Law, with more than one copy of an article or more than one article contained in the same issue of a periodical, or
(ii) under Article 62 of the Law, with more than one copy of the same material or with a copy of more than a reasonable proportion of any work; and
(d) the librarian must be satisfied that the requirements of the recipient and of any other person –
(i) are not similar, that is to say, are not for copies of substantially the same material at substantially the same time and for substantially the same purposes, and
(ii) are not related, that is to say, the recipient and the other person do not receive instruction to which the material is relevant at the same time and place.
(3) Unless the librarian is aware that the signed declaration delivered by an recipient pursuant to paragraph (2)(a) is false in a material particular, the librarian may rely on it as to the matter the librarian is required to be satisfied of under paragraph (2)(b) before making or supplying the copy.
4 Supply of copies by librarians - Article 64 of Law
(1) All libraries in Jersey are prescribed as libraries the librarians of which may make and supply copies of material pursuant to Article 64(1) of the Law.
(2) The following libraries are prescribed as libraries to which copies of material may be supplied pursuant to Article 64(1) of the Law –
(a) any library specified in Article 3(1); and
(b) any library that is outside Jersey and is not conducted for profit.
(3) The following conditions must be complied with when a librarian makes and supplies to another library (the “receiving library”) a copy under Article 64 –
(a) the receiving library must not be furnished with more than one copy of the material; and
(b) where the requirement is for a copy of more than one article in the same issue of a periodical, or for a copy of the whole or part of a published edition, the librarian of the receiving library must furnish a written statement to the effect that –
(i) it is a prescribed library, within paragraph (2), and
(ii) the librarian does not know, and could not by reasonable inquiry ascertain, the name and address of a person entitled to authorize the making of the copy.
5 Supply of copies by librarians or archivists - Article 65 of Law
(1) All libraries and archives in Jersey are prescribed as libraries and archives the librarians or archivists of which may make a copy from an item for either of the purposes in Article 65(1) of the Law.
(2) The following libraries and archives are prescribed as libraries and archives to which copies of material may be supplied pursuant to Article 65(1)(b) of the Law –
(a) any library specified in Article 3(1);
(b) any archive provided by The Jersey Heritage Trust;
(c) any other archive in Jersey, if it is not conducted for profit; and
(d) if or to the extent that it does not fall within sub-paragraph (b) or (c), any archive of a public institution of its public records, within the meaning of the Public Records (Jersey) Law 2002;
(e) any library or archive that is outside Jersey, if it is not conducted for profit.
(3) The following conditions must be complied with when a librarian or archivist makes a copy of an item for either of the purposes in Article 65(1) of the Law –
(a) that it is not reasonably practicable for the librarian or archivist to purchase a copy of that item to fulfil the purpose in Article 65(1)(a) or (b) of the Law;
(b) that the item in question –
(i) is an item in the part of the permanent collection maintained by the library or archive wholly or mainly for the purposes of reference on the premises of the library or archive, or
(ii) is an item in the permanent collection of the library or archive which is available on loan only to other libraries or archives; and
(c) that, in the case of a copy made for the purpose in Article 65(1)(b) of the Law, librarian of the library or the archivist of the archive prescribed in paragraph (2) furnishes a written statement to the effect that –
(i) the item has been lost from that library or archive, destroyed or damaged,
(ii) it is not reasonably practicable for the library or archive to purchase a copy of that item, and
(iii) if a copy is supplied it will only be used to fulfil the purpose in Article 65(1)(b) of the Law.
6 Supply of copies by librarians or archivists - Article 66 of Law
(1) All libraries and archives in Jersey are prescribed for the purposes of Article 66 of the Law.
(2) The following conditions must be complied with when a librarian or archivist makes and supplies a copy of material to a person (the “recipient”) under Article 66(1) of the Law –
(a) the recipient must have delivered to the librarian or archivist a declaration, in writing, in relation to the material, in the form in Schedule 2, and signed as indicated in the form;
(b) the librarian or archivist must be satisfied that the recipient requires the copy for the purposes of research or private study and will not use it for any other purpose; and
(c) the recipient must not be furnished with more than one copy of the same material.
(3) Unless the librarian or archivist is aware that the signed declaration delivered pursuant to paragraph (2)(a) is false in a material particular, the librarian or archivist may rely on it as to the matter he or she is required to be satisfied of under paragraph (2)(b) before making or supplying the copy.
(4) In paragraph (2) “material” means any document, film, sound recording or other matter in the library or archive.
7 Designs made by industrial process - Article 80 of Law
(1) An article is to be regarded, for the purposes of Article 80 of the Law, as made by an industrial process if –
(a) it is one of more than 50 articles which –
(i) all fall to be treated, for the purposes of Part 1 of the Law, as copies of a particular artistic work, but
(ii) do not, all together, constitute a single set of articles as defined in Article 1(1) of the Registered Designs (Jersey) Law 1957; or
(b) it consists of goods manufactured in lengths or pieces, not being hand-made goods.
(2) There are excluded from the operation of Article 80 of the Law –
(a) works of sculpture, other than casts or models used or intended to be used as models or patterns to be multiplied by any industrial process;
(b) wall plaques, medals and medallions; and
(c) printed matter primarily of a literary or artistic character, including book jackets, calendars, certificates, coupons, dress-making patterns, greeting cards, labels, leaflets, maps, plans, playing cards, postcards, stamps, trade advertisements, trade forms and cards, transfers and similar articles.
(3) Paragraph (1) shall not be taken to limit the meaning of “industrial process” in paragraph (2)(a).
8 Archiving of recordings of broadcasts - Article 103 of Law
(1) All broadcasts, other than encrypted transmissions, are broadcasts of a designated class for the purpose described in Article 103(1) of the Law.
(2) The following bodies are designated for the purposes of Article 103(1) of the Law –
(a) the public library service of Jersey; and
(b) The Jersey Heritage Trust.
9 Notice of seizure of infringing copy or illicit recording - Articles 131 and 317 of Law
A notice required by Article 131(5) or 317(5) of the Law shall be in the form and contain the particulars in Schedule 3.
10 Citation and commencement
This Order may be cited as the Intellectual Property (Unregistered Rights) (Miscellaneous Provisions) (Jersey) Order 201- and shall come into force on the same day as the Law.
SCHEDULE 1
(Article 3(2)(a))
declaration: copy of article or part of published work
TO:
The Librarian of …………………………………. Library (address of library)
Please supply me with a copy of [the article in the periodical] [the part of the published work][1] the particulars of which are –
……………………………………………………………………………………
……………………………………………………………………………………
required by me for the purposes of research or private study.
I DECLARE THAT –
(a) I will not use the copy except for research or private study and will not supply a copy of it to any other person;
(b) I have not previously been supplied with a copy of the same material by you or any other librarian; and
(c) to the best of my knowledge, no other person with whom I work or study has made or intends to make, at or about the same time as this request, a request for substantially the same material for substantially the same purpose.
I UNDERSTAND THAT if this declaration is false in a material particular the copy supplied to me by you will be an infringing copy AND THAT I shall be liable for infringement of copyright as if I had made the copy myself.
Signature …………………………………………………………………………
(This must be the personal signature of the person making the request. A stamped or typewritten signature, or the signature of an agent, is not acceptable.)
Date ………………………………………………………………………………
Name ……………………………………………………………………………..
Address …………………………………………………………………………..
……………………………………………………………………………………
SCHEDULE 2
(Article 6(2)(a))
declaration: copy of whole or part of material not previously made available to the public
TO:
The Librarian/Archivist of ……………………….……………. Library/Archive
(address of library/archive)[2]
Please supply me with a copy of the whole/part1 of the document/film/sound recording/other material1 which has not previously been made available to the public the particulars of which are –
……………………………………………………………………………………
……………………………………………………………………………………
required by me for the purposes of research or private study.
I DECLARE THAT –
(a) I will not use the copy except for research or private study and will not supply a copy of it to any other person;
(b) I have not previously been supplied with a copy of the same material by you or any other librarian or archivist; and
(c) to the best of my knowledge –
(i) copies of the material were not issued to the public, and the material was not made available to the public by way of an electronic retrieval system, before the document was deposited in your library/archive1, and
(ii) the owner of a copyright work recorded or comprised in the material has not prohibited copying of the work.
I UNDERSTAND THAT if this declaration is false in a material particular the copy supplied to me by you will be an infringing copy AND THAT I shall be liable for infringement of copyright as if I had made the copy myself.
Signature …………………………………………………………………………
(This must be the personal signature of the person making the request. A stamped or typewritten signature, or the signature of an agent, is not acceptable.)
Date………………………….Name……………………………………………..
Address …………………………………………………………………………..
……………………………………………………………………………………
SCHEDULE 3
(Article 9)
notice of seizure
TO WHOM IT MAY CONCERN
Goods in which you were trading have been seized. This notice tells you who carried out the seizure, the legal grounds on which this has been done and the goods which have been seized and detained. As required by the Intellectual Property (Unregistered Rights) (Jersey) Law 2011 (the “Law”), notice of the proposed seizure was given to the Connétable of the parish of –
……………………………………………………………(insert name of parish)
The seizure was carried out by –
Name ……………………………………………………………………………
Address …………………………………………………………………………
…………………………………………………………………………………..
acting on the authority of[3] –
Name ……………………………………………………………………………
Address …………………………………………………………………………
…………………………………………………………………………………..
Legal grounds for seizure and detention
This action has been taken under Article 131/317[4] of the Law which, subject to certain conditions, permits a copyright owner, or a person having performing rights or recording rights to seize and detain infringing copies or illicit recordings found exposed or immediately available for sale or hire, or to authorize such seizure. The right to seize or detain is subject to a decision of the Royal Court under Article 143/3212 of the Law (order as to disposal of goods seized and detained).
Nature of the goods seized and detained
The following [infringing copies of works (within the meaning of the Article 42 of the Law)] [illicit recordings (within the meaning of Article 255 of the Law)]2 have been seized –
……………………………………………………………………………………
……………………………………………………………………………………
Signed ……………………………………………………………………………
Date ………………………………………………………………………………
Intellectual Property (Unregistered Rights) (Fees) (Jersey) Order 201-
Explanatory Note
This Order prescribes fees in respect of applications and references to the licensing authority under the Intellectual Property (Unregistered Rights) (Jersey) Law 2011.
Arrangement
Article
1 Interpretation
2 Fees
3 Citation and commencement
THE MINISTER FOR ECONOMIC DEVELOPMENT, in pursuance of Articles 243(3), 383(2) and 400 of the Intellectual Property (Unregistered Rights) (Fees) (Jersey) Law 2011, orders as follows –
1 Interpretation
In this Order “Law” means the Intellectual Property (Unregistered Rights) (Jersey) Law 2011.
2 Fees
(1) The fee required to accompany a notice of complaint issued under Article 243(2) of the Law is –
(a) £25, where the notice is issued by a person in the person’s own behalf;
(b) £200, where the notice is issued by a person as a representative of a class of persons.
(2) A fee paid by a person in the person’s own behalf upon the issue of a notice of complaint under Article 243(2) of the Law shall be refunded if the Minister gives directions under Article 243(4)(b) in respect of the complaint.
(3) The fee payable in respect of an application or reference to the licensing authority under the Law is £200.
3 Citation and commencement
This Order may be cited as the Intellectual Property (Unregistered Rights) (Fees) (Jersey) Order 201- and shall come into force on the same day as the Law.
Intellectual Property (Unregistered Rights) (Proceedings Before Licensing Authority) (Jersey) Order 201-
Explanatory Note
This Order provides for the appointment of advisers to assist the licensing authority in proceedings before the licensing authority under the Intellectual Property (Unregistered Rights) (Jersey) Law 2011. The licensing authority is permitted by the Order to appoint advisors to advise upon technical matters, matters of law, taxation of costs and whether to award interest in proceedings before the licensing authority.
The Minister for Economic Development may, by Order, make provision as to who is the licensing authority. In the absence of provision for the appointment or establishment of a licensing authority, the Minister for Economic Development is the licensing authority.
THE MINISTER FOR ECONOMIC DEVELOPMENT, in pursuance of Articles 384 and 400 of the Intellectual Property (Unregistered Rights) (Jersey) Law 2011, orders as follows –
1 Interpretation
In this Order, “Law” means the Intellectual Property (Unregistered Rights) (Jersey) Law 2011.
2 Appointment of advisers
(1) The licensing authority may appoint one or more advisers to assist the authority in proceedings before the authority under the Law.
(2) The assistance given by an adviser may be –
(a) to advise upon a technical matter to which the proceedings relate;
(b) to give legal advice in connection with the proceedings;
(c) to advise upon the taxation of costs in the proceedings; or
(d) to advise upon the inclusion of awards of interest under Article 386 of the Law.
(3) If the parties to the proceedings are to state their cases orally, the licensing authority may allow an adviser in the proceedings to be present.
(4) If the licensing authority appoints one or more advisers in proceedings, the parties to the proceedings shall be given a reasonable opportunity to comment on any information, opinion or advice offered by the adviser.
3 Citation and commencement
This Order may be cited as the Intellectual Property (Unregistered Rights) (Proceedings Before Licensing Authority) (Jersey) Order 201- and shall come into force on the same day as the Law.
REPORT ON THE DRAFT INTELLECTUAL PROPERTY (UNREGISTERED RIGHTS) (JERSEY) LAW 2011 (APPOINTED DAY) ACT 201-
Overview
The Intellectual Property (Unregistered Rights) (Jersey) Law 2011 was adopted by the States on 1 December 2010, sanctioned by Order of Her Majesty in Council on 16 November 2011 and registered in the Royal Court on 9 December 2011. Article 411(2) of the Law provides for it to come into force on such day or days as the States may appoint. The draft Intellectual Property (Unregistered Rights) (Jersey) Law 2011 (Appointed Day) Act 201- will bring the whole of the Intellectual Property (Unregistered Rights) (Jersey) Law 2011 into force 7 days after the Act is adopted by the States.
Background
The Intellectual Property (Unregistered Rights) (Jersey) Law 2011 completely replaces and modernises current copyright law in the Island. The current law is provided by an extension to the Island of the UK Copyright Act 1911, an Act which has not provided copyright law in the UK since 1956. The Law also makes provision about other unregistered intellectual property rights. The provisions in the Law comply with major international conventions and treaties about unregistered intellectual property rights and so the Law paves the way for Jersey to have the UK’s membership of these extended to the Island. Convention membership delivers automatic protection for the relevant creative content in all convention countries. Both the modern Law and convention membership increase the attractiveness of Jersey as a place for the successful creative industries, such as music, publishing, film, software and video games, and other industries, particularly in the area of e-commerce, to do business. Bringing the Law into force will be a milestone in the Island’s work to encourage diversification of the Island’s economy.
Article 411(2) of the 2011 Law permits different days to be appointed for different purposes or different provisions of the Law. Article 408 of the Law permits Regulations about application, transitional provisions and savings in respect of commencement of the Law. The draft Intellectual Property (Unregistered Rights) (Application, Transitional Provisions and Savings) (Jersey) Regulations 201- make provision for the transition from the 1911 Act to the provision in the 2011 Law on copyright, and also for the introduction of new provision on related rights and other matters in the Law. The report on those draft Regulations in addition explains four Orders which will be made by the Minister to coincide with commencement of the Law. It is therefore appropriate to bring the whole of the Law into force on the same day and this is what the draft Appointed Day Act will do. If the draft Regulations and the Appointed Day Act are approved by the States, the Intellectual Property (Unregistered Rights) (Jersey) Law 2011 will come into force 7 days after the Act is adopted by the States.
Financial and manpower implications
The report on the draft Intellectual Property (Unregistered Rights) (Jersey) Law 201- (P.141/2010) and the report on the draft Intellectual Property (Unregistered Rights) (Application, Transitional Provisions and Savings) (Jersey) Regulations 201- both indicate that there are unlikely to be financial or manpower implications which cannot be met from the existing resources of Economic Development Department. No further resource implications have been identified.
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