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Interpretation: who is an intending user of a tariff scheme
468. In this Division, an “intending user”, in relation to a tariff scheme —(a) is a person who requires permission in a case falling under a class of cases to which the tariff scheme applies; and (b) includes a person who has been granted permission under the tariff scheme, but who requires further permission of the same kind after the expiry of the granted permission.
Interpretation: when does a tariff scheme apply or not apply to a case
469. For the purposes of this Division, a tariff scheme (being a scheme that is in force) is taken —(a) subject to paragraph (b), as applying to a case if permission would be granted in that case under the terms of the tariff scheme; and (b) as not applying to a case if —(i) the permission granted would be subject to exceptions; and (ii) the case falls within one or more of those exceptions.
Review of proposed tariff scheme
470.—(1) A CMO may refer a tariff scheme formulated by it to a Copyright Tribunal before bringing the scheme into force. (2) The Tribunal must, after reviewing the tariff scheme and having regard to what is reasonable in the circumstances —(a) make an order to confirm or vary the tariff scheme (including substituting the tariff scheme with another tariff scheme); (b) specify the date from which the order has effect; and (c) specify whether the order has effect indefinitely or for a specified period. (3) To avoid doubt, the Tribunal is not constrained by any term of the tariff scheme (whether relating to its duration or otherwise) in making an order under subsection (2). (4) Before an order is made under subsection (2), the CMO may do either or both of the following:(a) bring the tariff scheme into force; (b) withdraw the reference (whether or not the tariff scheme has been brought into force). (5) Once an order under subsection (2) takes effect, the tariff scheme —(a) comes into force (if it has not already been brought into force); and (b) remains in force so long as the order has effect.
Review of in‑force tariff scheme
471.—(1) This section applies where —(a) a tariff scheme is in force; and (b) there is a dispute about the terms of the tariff scheme between the CMO that formulated the tariff scheme and —(i) an intending user of the tariff scheme; or (ii) an organisation that is representative of intending users of the tariff scheme. (2) The CMO, user or organisation may refer the tariff scheme, so far as it relates to the class of cases the user or organisation is concerned with, to a Copyright Tribunal. (3) The Tribunal must reject the reference without considering its merits if —(a) it is made by an organisation; and (b) the organisation is not reasonably representative of the intending users it claims to represent. (4) Subject to subsection (3), the Tribunal must, after reviewing the tariff scheme and having regard to what is reasonable in the circumstances —(a) make an order to confirm or vary the tariff scheme (including substituting the tariff scheme with another tariff scheme); (b) specify the date from which the order has effect; and (c) specify whether the order has effect indefinitely or for a specified period. (5) To avoid doubt, the Tribunal is not constrained by any term of the tariff scheme (whether relating to its duration or otherwise) in making an order under subsection (4). (6) The reference may be withdrawn at any time before the Tribunal makes an order under subsection (4). (7) Despite anything in the tariff scheme but subject to any interim order made by the Tribunal, the tariff scheme remains in force while the reference is pending. (8) Once an order made under subsection (4) takes effect, the tariff scheme remains in force so long as the order has effect.
Review after order made under section 470 or 471, etc.
472.—(1) This section applies where an order (called in this section the existing order) has been made under section 470 or 471, or under subsection (6)(b), in respect of a tariff scheme. (2) Subject to subsections (3) and (4), the following persons may refer the tariff scheme to a Copyright Tribunal at any time while the existing order has effect:(a) the CMO operating the tariff scheme; (b) an intending user of the tariff scheme; (c) an organisation that is representative of intending users of the tariff scheme. (3) If the existing order applies only to one or some (but not all) of the classes of cases to which the tariff scheme applies —(a) the intending user mentioned in subsection (2)(b) must be an intending user in respect of the class or classes of cases to which the existing order applies; (b) the organisation mentioned in subsection (2)(c) must be representative of intending users in respect of the class or classes of cases to which the existing order applies; and (c) the reference must relate only to the class or classes of cases to which the existing order applies. (4) The permission of a Tribunal is required to bring a reference in the following cases:(a) if the existing order has effect indefinitely or for a period exceeding 15 months — less than 12 months have elapsed since the date of the order; (b) if the existing order has effect for a period of 15 months or less — there are more than 3 months before the order expires. (5) The Tribunal must reject the reference without considering its merits if —(a) it is made by an organisation; and (b) the organisation is not reasonably representative of the intending users it claims to represent. (6) Subject to subsection (5), the Tribunal must, after reviewing the tariff scheme and having regard to what is reasonable in the circumstances —(a) confirm the existing order; or (b) revoke the existing order and make a fresh order to vary the tariff scheme (including substituting the tariff scheme with another tariff scheme), in which case the Tribunal must also —(i) specify the date from which the fresh order has effect; and (ii) specify whether the fresh order has effect indefinitely or for a specified period. (7) To avoid doubt, the Tribunal is not constrained by any term of the tariff scheme (whether relating to its duration or otherwise) in making a fresh order under subsection (6)(b). (8) The reference may be withdrawn at any time before the Tribunal makes a decision under subsection (6). (9) Despite anything in the tariff scheme but subject to any interim order made by the Tribunal, the tariff scheme remains in force while the reference is pending. (10) Once an order under subsection (6)(b) takes effect, the tariff scheme remains in force so long as the order has effect. (11) This section does not prevent a person from bringing a reference of the tariff scheme under section 470 or 471 at any time —(a) in respect of any class of cases to which the existing order does not apply; or (b) after the existing order expires.
Effect where tariff scheme remains in force pending reference or after Tribunal order
473.—(1) This section applies where a tariff scheme remains in force —(a) under section 471(7) or 472(9) while a reference is pending; or (b) under an order of a Copyright Tribunal made under section 470(2), 471(4) or 472(6). (2) While the tariff scheme remains in force, a person is deemed to have been granted permission in accordance with the tariff scheme if the person complies with the terms of the tariff scheme (including any variations ordered by the Tribunal) at all material times. (3) For the purposes of subsection (2), if the terms of a tariff scheme require the payment of a sum the amount of which cannot be ascertained at the material time, a person is deemed to have complied with those terms if the person —(a) gives the CMO operating the tariff scheme a written undertaking to pay the sum when it is ascertained; and (b) pays the sum to the CMO as soon as practicable when it is ascertained. (4) If —(a) while the tariff scheme remains in force, a person does an act that —(i) is a rights infringement; but (ii) would not be a rights infringement if permission had been granted under the tariff scheme; and (b) the terms of the tariff scheme require the payment of a sum for the grant of that permission, the sum is recoverable as a debt due by the person to the CMO. (5) Upon the payment or recovery of the sum mentioned in subsection (4), the person is deemed for the purposes of subsection (2) to have complied with the terms of the tariff scheme so far as they relate to the payment of the sum.
Application to Tribunal for permission to be granted on reasonable terms
474.—(1) The following persons or organisations may make an application against a CMO to a Copyright Tribunal:(a) a person (X) who claims, in a case to which a tariff scheme applies, that —(i) the CMO operating the tariff scheme has refused to grant X (or procure the grant to X of) permission in accordance with the terms of the tariff scheme after a request was made by X; or (ii) the terms of the tariff scheme for granting (or procuring the grant of) permission to X are unreasonable in the circumstances; (b) a person (Y) who claims to require permission in a case where —(i) a tariff scheme does not apply, has not been formulated or is not in force; and (ii) a CMO has —(A) unreasonably refused to grant (or procure the grant of) the required permission after a request was made by Y; or (B) proposed to grant (or procure the grant of) permission to Y on terms that are unreasonable in the circumstances; (c) an organisation (Z) that is representative of persons to which paragraph (b) applies. (2) For the purposes of subsection (1), a CMO is deemed to have refused to grant (or procure the grant of) permission to a person if it fails to grant (or procure the grant of) that permission within a reasonable time after a request to do so. (3) The Tribunal must reject the application without considering its merits if —(a) it is made by an organisation; and (b) the organisation is not reasonably representative of the persons it claims to represent. (4) Subject to subsection (3), the Tribunal may, having regard to what is reasonable in the circumstances, order the CMO —(a) to grant (or procure the grant of) the permission required by X, Y or the persons represented by Z, as the case may be; and (b) to do so on the terms specified by the Tribunal. (5) While an order under subsection (4) has effect, X, Y or a person represented by Z (as the case may be) is deemed to have been granted the relevant permission if X, Y or the person complies with the terms specified by the Tribunal at all material times. (6) For the purposes of subsection (5), if the terms specified by the Tribunal require the payment of a sum the amount of which cannot be ascertained at the material time, a person is deemed to have complied with those terms if the person —(a) gives the CMO a written undertaking to pay the sum when it is ascertained; and (b) pays the sum to the CMO as soon as practicable when it is ascertained. (7) If —(a) while the order of the Tribunal has effect, a person does an act that —(i) is a rights infringement; but (ii) would not be a rights infringement if permission is deemed to have been granted under subsection (5); and (b) the terms of the order require the payment of a sum for the grant of that permission, the sum is recoverable as a debt due by the person to the CMO. (8) Upon the payment or recovery of the sum mentioned in subsection (7), the person is deemed for the purposes of subsection (5) to have complied with the terms of the order so far as they relate to the payment of the sum.
Orders not to contradict regulatory directions or class licence conditions
475.—(1) Despite any contrary provision in this Division, a Copyright Tribunal may not order a CMO to do anything that contravenes any class licence condition or regulatory direction applicable to the CMO. (2) Without limiting section 494 (reference of question of law), the question whether an order or a proposed order of a Copyright Tribunal requires a CMO to do anything that contravenes any class licence condition or regulatory direction applicable to the CMO is a question of law that may be referred under that section.
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Compiled from an official source version. Later amendments or repeals may not be reflected; the official text prevails. Read the official text ↗
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