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Intellectual
Property (Unregistered Rights) (Amendment – Disability and Rights in
Performances) (Jersey) Regulations 2021
Made 21st April 2021
Coming into
force 28th April 2021
THE STATES make these Regulations under Articles 44,
243, 274, 401 and 409(1) of the Intellectual Property (Unregistered Rights)
(Jersey) Law 2011[1] –
1 Intellectual Property
(Unregistered Rights) (Jersey) Law 2011 amended
These Regulations amend
the Intellectual Property (Unregistered Rights) (Jersey) Law 2011[2].
2 Article 42 (meaning of “infringing copy”) amended
In Article 42(6) for
“Articles 49(6) and (9), 50(9) and (10), 51(2),” there is substituted “Articles 49(4)
and (5), 50(4),”.
3 Articles 49 (making single accessible copy for personal use
by visually impaired person) to 54 (Articles 49 to 53: definitions and other
supplementary provision) substituted
For the crossheading
before Article 49 and for Articles 49 to 54 there is substituted –
49 Disabled persons: copies
of works for personal use
(1) This
Article applies if –
(a) a disabled person has
lawful access to a copy of the whole or part of a work; and
(b) that person’s disability
prevents the person from enjoying the work to substantially the same degree as
a person who does not have that disability.
(2) The
making of an accessible copy of the copy of the work referred to in paragraph (1)(a)
does not infringe copyright if –
(a) the copy is made by the
disabled person or by a person acting on behalf of the disabled person; and
(b) the copy is made for the
disabled person’s personal use.
(3) Except
where the transfer is authorised by the copyright owner, copyright is infringed
by the transfer of an accessible copy of a work made under this Article to any
person other than –
(a) a person by or for whom
an accessible copy of the work may be made under this Article; or
(b) a person who intends to
transfer the copy to a person falling within sub-paragraph (a).
(4) An
accessible copy of a work made under this Article is to be treated for all
purposes as an infringing copy if it is held by a person at a time when the
person does not fall within paragraph (3)(a) or (b).
(5) If
an accessible copy made under this Article is subsequently dealt with –
(a) it is to be treated as an
infringing copy for the purposes of that dealing; and
(b) if that dealing infringes
copyright, it is to be treated as an infringing copy for all subsequent
purposes.
(6) In
paragraph (5), “dealt with” means sold or let for hire or offered or
exposed for sale or hire or communicated to the public.
50 Making, communicating,
making available or distributing of accessible copies by authorised bodies
(1) An
authorised body may, without infringing copyright, on a non-profit basis for
the personal use of disabled persons in Jersey or a Marrakesh Contracting State,
make, communicate, make available or distribute accessible copies of a work which
has been published or otherwise made available if the body –
(a) has lawful access to the
whole or part of the work; and
(b) complies with paragraph (2).
(2) An
authorised body complies with this paragraph if it –
(a) distributes, communicates
or makes available accessible copies only to disabled persons or other
authorised bodies;
(b) takes appropriate steps
to discourage the unauthorised reproduction, distribution, communication to the
public or making available to the public of accessible copies;
(c) demonstrates due care in,
and maintains records of, its handling of works and accessible copies; and
(d) publishes and updates, on
its website if appropriate, or through other online or offline channels,
information on how it complies with the obligations in sub-paragraphs (a),
(b) and (c).
(3) For
the purposes of paragraph (1) communicating, making available, or
distributing for the personal use of disabled persons includes communicating,
making available or distributing to a person acting on behalf of a disabled
person.
(4) If
an accessible copy made under this Article is subsequently dealt with –
(a) it is to be treated as an
infringing copy for the purposes of that dealing; and
(b) if that dealing infringes
copyright, it is to be treated as an infringing copy for all subsequent
purposes.
(5) In
paragraph (4), “dealt with” means sold or let for hire or offered or
exposed for sale or hire or communicated to the public.
(6) An
authorised body which has made an accessible copy of a work under this Article
may communicate, make available or distribute it to another authorised body established
in Jersey or a Marrakesh Contracting State for the purposes of enabling that
other body to make accessible copies of the work.
51 Making,
communicating, making available, distributing or
lending of intermediate copies by authorised bodies
(1) An
authorised body which is entitled to make an accessible copy of a work under
Article 50 may, without infringing copyright, make a copy of the work (“an
intermediate copy”) if this is necessary in order to make the accessible copy.
(2) An
authorised body which has made an intermediate copy of a work under this
Article may communicate, make available, distribute or lend it on a non-profit
basis to another authorised body established in Jersey or a Marrakesh
Contracting State for the purposes of enabling that other body to make
accessible copies of the work.
(3) Copyright
is infringed by the transfer of an intermediate copy made under this Article to
a person other than another authorised body as permitted by paragraph (2),
except where the transfer is authorised by the copyright owner.
52 Accessible and
intermediate copies: records and notification
(1) A
person listed in paragraph (3) may, on payment of such fee as may be
prescribed, request an authorised body to provide the person with the
information in paragraph (4) if the authorised body –
(a) makes accessible copies
under Article 50; or
(b) makes intermediate copies
under Article 51.
(2) On
receipt of a request under paragraph (1), an authorised body must provide
the information to the person in an accessible way within a reasonable time.
(3) The
persons who may make a request under paragraph (1) are –
(a) any disabled person;
(b) another authorised body;
(c) any person holding rights
in the work.
(4) The
information that must be provided by the authorised body is –
(a) the list of works for
which it has accessible copies and the available formats; and
(b) the name and contact
details of any authorised body established in a Marrakesh Contracting State from which it has accessed or imported,
or to which it has exported, an accessible copy.
53 Articles 49 to 52:
definitions and other supplementary provisions
(1) This
Article supplements Articles 49 to 52 and includes definitions for the
purposes of those Articles.
(2) An
“accessible copy” of a copyright work means a version of the work which enables
disabled persons to access the work, including accessing it as feasibly and
comfortably as a person who is not a disabled person.
(3) An
accessible copy –
(a) may include facilities
for navigating around the version of the work; but
(b) must not include any
changes to the work which are not necessary to overcome the problems suffered
by the disabled persons for whom the accessible copy is intended.
(4) “Authorised
body” means –
(a) an educational
establishment; or
(b) a body that is not
conducted for profit.
(5) “Disabled
person” means a person who has a physical or mental impairment which prevents
the person from enjoying a copyright work to substantially the same degree as a
person who does not have that impairment, and “disability” is to be construed
accordingly.
(6) But
a person is not to be regarded as disabled by reason only of an impairment of
visual function which can be improved, for example by the use of corrective
lenses, to a level that is normally acceptable for reading without a special
level or kind of light.
(7) “Marrakesh
Contracting State” means a country or territory that is party to, or subject
to, the Marrakesh Treaty to Facilitate Access to Published Works for Persons
Who Are Blind, Visually Impaired or Otherwise Print Disabled signed in
Marrakesh on 27th June 2013.
(8) To
the extent that a term of a contract purports to prevent or restrict the doing
of any act which, by virtue of Articles 42, 49, 50 or 51, would not
infringe copyright, that term is unenforceable.
(9) A
copy of a work does not infringe any intellectual property right for the
purpose of the Community Provisions (Goods Suspected of Infringing Intellectual
Property Rights) (Jersey) Regulations 2014 if it is –
(a) made under Article 49,
50 or 51 and is not an infringing copy;
(b) an accessible copy
created in a Marrakesh Contracting State for personal use by a disabled person;
or
(c) an accessible copy or
intermediate copy created by an authorised body in a Marrakesh Contracting State.”.
4 Article 102 (provision of sub-titled
copies of broadcast) deleted
Article 102 is
deleted.
5 Article 180 (notification of licensing schemes) amended
In Article 180(1)
for “Article 52, 58, 59, 88, 102 or 179,” there is substituted “Article 58,
59, 88 or 179”.
6 Article 243 (remedy where effective
technological measures prevent permitted acts) amended
In Article 243 –
(a) in paragraph (1)
before the definition “permitted act” there is inserted –
“Marrakesh beneficiary” means a person who –
(a) is blind;
(b) has a visual impairment
which cannot be improved so as to give the person visual function substantially
equivalent to that of a person who has no such impairment, and who is, as a
result, unable to read printed works to substantially the same degree as a
person without such an impairment;
(c) has a perceptual or
reading disability and is, as a result, unable to read printed works to
substantially the same degree as a person without such disability; or
(d) is otherwise unable, due
to a physical disability, to hold or manipulate a book or to focus or move
their eyes to the extent that would normally be acceptable for reading;
“Marrakesh work” means a work –
(a) in the form of a book,
journal, newspaper, magazine or other kind of writing, notation, including
sheet music, and related illustrations; and
(b) in any media, including
in audio form, such as audiobooks, and in digital format,
which is protected by copyright, related rights or database rights
and which is published or otherwise lawfully made publicly available;”;
(b) in the definition
“permitted acts” sub-paragraph (y) is deleted;
(c) in paragraph (13)
before “This Article” there is inserted “Except where paragraph (13A)
applies,”;
(d) after paragraph (13)
there is inserted –
“(13A) This
paragraph applies where the application of any effective technological measure
to a Marrakesh work prevents the making of an accessible copy of that work
under Articles 49, 50, 51, 297, 297A and 297B for the benefit of a Marrakesh
beneficiary.”.
7 Article 244 (application of
Article 243 to database right, publication right and rights in
performances) amended
In Article 244(4)
after sub-paragraph (n) there is inserted –
“(na) Article 297A;
(nb) Article 297B;”.
8 Article 255 (illicit recording) amended
In Article 255(5)
for “or 294(2)” there is substituted “, 294(2), 297(4) and (5) or 297A(4)”.
9 Articles 297 (provision
of sub-titled copies of broadcast) substituted
For Article 297 there
is substituted –
“297 Disabled persons: copies of
recordings for personal use
(1) This
Article applies if –
(a) a disabled person has
lawful access to a copy of the whole or part of a recording of a performance;
and
(b) the person’s disability
prevents the person from enjoying the recording to substantially the same
degree as a person who does not have that disability.
(2) The
making of an accessible copy of the copy of the recording referred to in paragraph (1)(a)
does not infringe the relevant rights if –
(a) the copy is made by the
disabled person or by a person acting on behalf of the disabled person; and
(b) the copy is made for the
disabled person’s personal use.
(3) Except
where the transfer is authorised by the rights owner, the relevant rights are
infringed by the transfer of an accessible copy of a recording made under this Article
to any person other than –
(a) a person by or for whom
an accessible copy of the recording may be made under this Article; or
(b) a person who intends to
transfer the copy to a person falling within sub-paragraph (a).
(4) An
accessible copy of a recording made under this Article is to be treated for all
purposes as an illicit recording if it is held by a person at a time when the
person does not fall within paragraph (3)(a) or (b).
(5) If
an accessible copy of a recording made under this Article is subsequently dealt
with –
(a) it is to be treated as an
illicit recording for the purposes of that dealing; and
(b) if that dealing infringes
any relevant right, it is to be treated as an illicit recording for all
subsequent purposes.
(6) In
paragraph (5), “dealt with” means sold or let for hire or offered or
exposed for sale or hire or communicated to the public.
297A Making, communicating, making available or
distributing of accessible copies by authorised bodies
(1) An
authorised body may without infringing the relevant rights, on a non-profit
basis for the personal use of disabled persons in Jersey, make, communicate,
make available or distribute accessible copies of a recording of a performance if
the body –
(a) has lawful access to the
whole or part of the recording; and
(b) complies with paragraph (2).
(2) An
authorised body complies with this paragraph if it –
(a) distributes,
communicates, makes available or lends accessible copies only to disabled
persons or other authorised bodies;
(b) takes appropriate steps
to discourage the unauthorised reproduction, distribution, communication to the
public or making available to the public of accessible copies;
(c) demonstrates due care in,
and maintains records of, its handling of works and accessible copies; and
(d) publishes and updates, on
its website if appropriate, or through other online or offline channels,
information on how it complies with the obligations in sub-paragraphs (a),
(b) and (c).
(3) For
the purposes of paragraph (1) communicating, making available or
distributing for the personal use of disabled persons includes communicating,
making available or distributing to a person acting on behalf of a disabled
person.
(4) If
an accessible copy of a recording made under this Article is subsequently dealt
with –
(a) it is to be treated as an
illicit recording for the purposes of that dealing; and
(b) if that dealing infringes
any relevant right, it is to be treated as an illicit recording for all
subsequent purposes.
(5) In
paragraph (4) “dealt with” means sold or let for hire or offered or
exposed for sale or hire or communicated to the public.
(6) An
authorised body which has made an accessible copy of a recording under this Article
may communicate, make available or distribute it to another authorised body established
in Jersey for the purposes of enabling that other body to make accessible
copies of the recording.
297B Making, communicating, making available, distributing or lending of intermediate copies by authorised
bodies
(1) An
authorised body which is entitled to make an accessible copy of a recording of
a performance under Article 297A may, without infringing the relevant rights,
make a copy of the recording (“an intermediate copy”) if this is necessary in
order to make the accessible copy.
(2) An
authorised body which has made an intermediate copy of a recording under this Article
may communicate, make available, distribute or lend it on a non-profit basis to
another authorised body established in Jersey for the purposes of enabling that
other body to make accessible copies of the recording.
(3) The
relevant rights are infringed if an intermediate copy of the recording made
under this Article is transferred to a person other than another authorised
body as permitted by paragraph (2), except where the transfer is
authorised by the rights owner.
297C Accessible and intermediate copies: records
(1) A
person listed in paragraph (3) may, on payment of such fee as may be prescribed,
request an authorised body to provide the person with the information in
paragraph (4) if the authorised body makes –
(a) accessible copies under
Article 297A; or
(b) intermediate copies under
Article 297B.
(2) On
receipt of a request under paragraph (1), an authorised body must provide
the information to the person in an accessible way within in a reasonable time.
(3) The
persons who may make a request under paragraph (1) are –
(a) any disabled person;
(b) another authorised body;
(c) any person holding rights
in the recording.
(4) The
information that must be provided by the authorised body is –
(a) the list of recordings for
which it has accessible copies and the available formats; and
(b) the name and contact
details of any authorised body established in Jersey from which it has accessed
or to which it has supplied an accessible copy.
297D Articles 297 to 297C: interpretation and
general
(a) may include facilities
for navigating around the version of the recording; but
(b) must not include any
changes to the recording which are not necessary to overcome the problems
suffered by the disabled persons for whom the accessible copy is intended.
(4) “Authorised
body” means –
(a) an educational
establishment; or
(b) a body that is not
conducted for profit.
(5) “Disabled
person” means a person who has a physical or mental impairment which prevents
the person from enjoying a recording of a performance to substantially the same
degree as a person who does not have that impairment, and “disability” is to be
construed accordingly.
(6) But
a person is not to be regarded as disabled by reason only of an impairment of
visual function which can be improved, for example by the use of corrective
lenses, to a level that is normally acceptable for reading without a special
level or kind of light.
(7) “Relevant
right” means a right conferred by Chapters 1 to 6.
(8) To
the extent that a term of a contract purports to prevent or restrict the doing
of any act which, by virtue of Articles 297, 297A or 297B would not
infringe a relevant right, that term is unenforceable.”.
10 Article 328 (notification
of licensing schemes) amended
In Article 328(1) for “Article 280 or 297” there is
substituted “Article 280”.
11 Citation and commencement
These Regulations may be
cited as the Intellectual Property (Unregistered Rights) (Amendment –
Disability and Rights in Performances) (Jersey) Regulations 2021 and come into
force 7 days after they are made.