The Copyright (Cayman Islands) Order 2015

• Citation: S.I. 2015/795
• Sections: 75

Section 1 Citation and commencement

This Order may be cited as the Copyright (Cayman Islands) Order 2015 and comes into force on such date as the Governor of the Cayman Islands may appoint by proclamation published in the Gazette of the Cayman Islands.

Section 2 Extension of Part 1 of the Copyright, Designs and Patents Act 1988

Part 1 of the Copyright, Designs and Patents Act 1988 (“the 1988 Act”) extends to the Cayman Islands subject to the exclusions specified in Part 1 of the Schedule and the modifications set out in Part 2 of the Schedule.

Section 1 Excluded provisions

The following provisions of Part 1 of the 1988 Act do not extend to the Cayman Islands—

(a) Sections 44A , ... 98 , 114B , 144 , 144A , 157 , 158, 166A , 166B , 166C, 166D , 172A and 177;

(b) paragraphs 13, 21, 34, 36 and 37 of Schedule 1; and

(c) Schedule A1 .

Section 2 Modifications to the provisions of Part 1 of the 1988 Act applied by this Order

The provisions of Part 1 of the 1988 Act, which extend to the Cayman Islands by virtue of this Order, are to be read subject to the modifications specified in this Part of this Schedule.

Section 3 Modifications to the provisions of Part 1 of the 1988 Act applied by this Order

In the provisions of Part 1 applied by this Order—

(a) references to the EEA, an EEA State, the European Economic area and the United Kingdom are to be read as references to the Cayman Islands;

(b) references as to whether a person is or is not a national of an EEA state are to be read as to whether the person in question possesses Caymanian status or not.

(c) references to “educational establishments” are to be read as references to “educational institutions”.

Section 3A

Section 13A applies with the omission in subsection (2) of the words “and section 191(HA)(4).”.

Section 4

Section 27 applies with the omission of subsection (5).

Section 5

In section 31BB the reference to the Secretary of State is to be read as a reference to the Minister.

Section 6

Section 40A applies as if it were modified and set out as follows—

Lending of copies by libraries or archives

(40A) Copyright in a work of any description is not infringed by the lending of copies of the work by a library or archive (other than a public library) which is not conducted for profit.

Section 7

Section 46 applies—

(a) with the section heading being read as “Enquiries”;

(b) with references to Royal Commissions or statutory inquiries being read as references to Commissions of Enquiry appointed under the Commissions of Enquiry Act (1997 Revision); and

(c) with the omission of subsection (4).

Section 8

Section 47 applies —

(a) with references to the Secretary of State being read as references to the Cabinet as defined in section 44 of the Constitution of the Cayman Islands; and

(b) with the substitution for subsection (7) of—

(7) An order made under this section is subject to negative resolution, as provided in section 28(3) of the Interpretation Law (1995 Revision).

Section 9

Section 48 applies with the omission of subsection (6).

Section 10

Section 49 applies as modified and set out as follows—

Public records

(49) Material which is comprised in public records which are open to public inspection in pursuance of any enactment may be copied and a copy may be supplied to any person, by or with the authority of any officer appointed under that enactment, without infringement of copyright.

Section 11

Section 50 applies—

(a) with the substitution of the following in the place of subsection (1)—

(1) Where the doing of a particular act is specifically authorised by any law enacted by the Legislature of the Cayman Islands as defined in section 59 of the Constitution of the Cayman Islands, then, unless the law provides otherwise, the doing of that act does not infringe copyright.

(b) with the omission of subsection (2).

Section 12

Sections 50A(3) , 50B(4) , 50BA(2) and 50D(2) apply with the omission of the words “(such terms being by virtue of section 296A, void)”.

Section 13

Section 52 applies—

(a) with “Secretary of State” being read as “Cabinet as defined in section 44 of the Constitution of the Cayman Islands”; and

(b) with the substitution for subsection (5) of—

(5) An order made under this section is subject to negative resolution, as provided in section 28(3) of the Interpretation Law (1995 Revision).

Section 14

Section 53 applies—

(a) with the omission in subsection (1)(a)—

(i) of sub-paragraph (ii); and

(ii) of the words “or, in a case of registration under the Community Design Regulation, that the person registered as the right holder was not the right holder of the design for the purposes of the Regulation”;

(b) with the omission of subsections (3) and (4); and

(c) with references to the Registered Designs Act 1949 being read as references to the enactments relating to the registration of designs in force in the Cayman Islands.

Section 15

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 16

Section 66 applies—

(a) with “Secretary of State” being read as “Cabinet as defined in section 44 of the Constitution of the Cayman Islands”; and

(b) with the substitution for subsection (4) of—

(4) Orders made under this section are subject to affirmative resolution, as provided in section 28(2) of the Interpretation Law (1995 Revision).

Section 17

Section 69 applies as modified and set out as follows—

Recording for purposes of supervision and control of broadcasts and cable programmes

(69)

(1) Copyright is not infringed by the making or use by a prescribed broadcasting undertaking, for the purpose of maintaining supervision and control over programmes broadcast by that undertaking, of recordings of those programmes.

(2) Copyright is not infringed by the making or use by the Board of directors referred to in section 4 of the Information and Communications Technology Authority Law (2011 Revision) of recordings of programmes in connection with and for the purpose of carrying out their functions under that Law.

(3) In this section “prescribed” means prescribed by order of the Cabinet.

(4) An order made under this section is subject to negative resolution, as provided in section 28(3) of the Interpretation Law (1995 Revision).

Section 18

Section 73 applies—

(a) with the substitution for subsections (6), (7) and (8) of the following—

(6) In this section, “qualifying service” means a service prescribed by Cabinet under subsection (8).

(7) In this section, “relevant requirement” means a requirement imposed by a licence relating to a “must-carry service” (within the meaning of such Law as may be for the time being in force in Cayman Islands in relation to broadcasting), the setting of which is authorized by that Law.

(8) Cabinet may by order prescribe a qualifying service, which may be identified by type of institution providing the service.

(b) with the substitution in subsections (9), (10) and (11) for the words “Secretary of State” of the word “Cabinet”; and

(c) with the substitution for subsection (12) of the following—

(12) An order made under this section is subject to negative resolution, as provided in section 28(3) of the Interpretation Law (1995 Revision).

Section 19

Section 79(4)(e) applies with the substitution of “enquiries under the Commissions of Enquiry under the Commissions of Enquiry Law (1997 Revision) and statutory enquiries” for “section 46(1) or (2) (Royal Commissions and statutory inquiries)”.

Section 20

Section 81(6) applies—

(a) with the insertion at the end of paragraph (a) of the word “or”;

(b) with the omission of the word “or” at the end of paragraph (b); and

(c) with the omission of paragraph (c).

Section 21

Section 82(1) applies with substitution for paragraph (b) of—

(b) work in which copyright subsists in favour of the Crown or the Legislative Assembly;

Section 22

Section 85(2)(c) applies with the substitution of “enquiries ... under the Commissions of Enquiry Law (1997 Revision) and statutory enquiries” for “section 46(1) or (2) (Royal Commissions and statutory inquiries)”.

Section 23

Section 97A applies—

(a) with the substitution for “the High Court (or in Scotland the Court of Session)” of “the Grand Court referred to in section 84 of the Constitution of the Cayman Islands”;

(b) with the substitution for “regulation 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002 ( SI 2002/2013 )” of “such law as may for the time being be in force in relation to the giving of notices.”;

(c) with the substitution for subsection (3) of—

(3) In this section—

(a) a “service provider” is a person who provides any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services; and

(b) for the purposes of paragraph (a), a service is provided—

(i) “at a distance” where the provider of the service and the recipient of the service are not simultaneously present;

(ii) “by “electronic means” where that service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; and

(iii) “at the individual request of a recipient of services” where the service is provided through the transmission of data on individual request.

Section 24

Section 100 applies—

(a) with the substitution in subsection (2) of “the Commissioner of Police referred to in section 2 of the Police Law (Law 36 of 2010)” for “a local police station”;

(b) with the substitution of “Cabinet” for “Secretary of State”.

(c) with the substitution for subsection (6) of—

(6) An order made under this section is subject to negative resolution, as provided in section 28(3) of the Interpretation Law (1995 Revision).

Section 25

For the purposes of sections 107(4)(a) , 107(4A)(a) , and 107(5) , the fine which may be imposed on summary conviction is a fine not exceeding $20,000.

Section 26

Section 107A applies as modified and set out below—

Enforcement by the Director of Commerce and Investment

(107A)

(1) It is the duty of the Director of Commerce and Investment to take administrative measures that are necessary or expedient for the enforcement of copyright legislation, but this shall not be read as empowering the Director to prosecute criminal cases relating to infringement, which power remains with the Director of Public Prosecutions in accordance with the Constitution of the Cayman Islands.

(2) For the purposes of subsection (1), the Director of Commerce and Investment (and any officer generally or specifically authorised by him in writing) has the power—

(a) to make test purchases; and

(b) to enter premises and inspect and seize goods and documents.

(3) The Director of Commerce and Investment (and any officer generally or specifically authorised by him in writing) has all the powers of a constable under the Police Law (2014 Revision) and, without limiting this provision, enjoys the protections afforded to a constable under the Police Law (2014 Revision) but is not protected from suit for compensation on account of any loss suffered by any person arising from the exercise of those powers in bad faith.

Section 27

Section 108 applies—

(a) with the substitution for subsection (2) of—

(2) For this purpose a person is to be treated as charged with an offence when he is orally charged or is served with a summons or indictment.

(b) with the omission in subsection (3) of “(or in Scotland, the Lord Advocate or procurator fiscal)”;

(c) with the substitution for subsection (4) of—

(4) An appeal lies from an order made under this section by a summary court constituted under the Summary Jurisdiction Law (2006 Revision) to the Grand Court referred to in section 84 of the Constitution of the Cayman Islands.

(d) with the omission of subsection (6) .

Section 28

Section 109 applies—

(a) with the deletion of “(in Scotland, a sheriff or justice of the peace)” and “(in Scotland, by evidence on oath)”; and

(b) the substitution in subsection (2) of “does not extend to authorising a search for personal or confidential material that is protected under legislation.” for “does not” to the end of that subsection.

Section 29

Section 111 applies—

(a) with references to “the Commissioners of Customs and Excise” being read as references to the Collector of Customs referred to in section 2 of the Customs Law (2012 Revision); and

(b) with the substitution for subsections (3A), (3B), and (4) of—

(3A) The Collector of Customs may treat as prohibited goods only infringing copies of works which arrive from outside the Cayman Islands.

(4) Subject to subsections (3A), when a notice is in force under this section, the importation of goods to which this notice relates, otherwise than by a person for his private and domestic use, is prohibited; but a person is not by reason of the prohibition liable to any penalty other than forfeiture of the goods.

Section 30

Section 112 applies—

(a) with references to the Commissioners of Customs and Excise being read as references to the Minister responsible for customs and excise; and

(b) with the substitution for subsection (4) of—

(4) Regulations made under this section are subject to negative resolution, as provided in section 28(3) of the Interpretation Law (1995 Revision).

Section 31

Section 113 applies with the substitution for subsection (3) of—

(3) In this section “disability” means an impairment in a person’s ability to function, caused by changes in various subsystems of the body, or mental incapacity.

Section 32

Section 114 applies with the substitution for subsection (6) of—

(6) References in this section to a person having an interest in a copy or other article include any person in whose favour an order could be made in respect of it under any enactment permitting orders to be made as to disposal of goods, other articles or material infringing any intellectual property.

Section 33

Section 114A applies—

(a) with the deletion from the section heading of the words “England and Wales or Northern Ireland”;

(b) the substitution of “Where” for “ In England and Wales or Northern Ireland where”;

(c) the substitution for subsections (2)(b) to 2(bb) of—

(b) any law for the time being in force in the Cayman Islands relating to trade descriptions;

(d) the substitution for subsection (6) of—

(6) Any person aggrieved by an order made under this section by a summary court referred to in the Summary Jurisdiction Law (2006 Revision), or by a decision of such a court not to make such an order, may appeal that order or decision to the Grand Court.

(e) the substitution for appeal” to the end of the section of “appeal, including a case stated pursuant to section 172 (Case stated) under the Criminal Procedure Code (2014 Revision)”.

Section 34

Section 115 applies as modified and set out as follows—

Jurisdiction of summary court

(115)

(1) A summary court may entertain proceedings under—

(a) section 99 (order for delivery up of infringing copy or other article);

(b) section 101(5) (order as to exercise of rights by copyright owner where exclusive licensee has concurrent rights); or

(c) section 114 (order as to disposal of infringing copy or other article.

(2) Nothing in this section shall be construed as affecting the jurisdiction of the Grand Court.

Section 35

Section 116 applies—

(a) with the reference to subsidiaries in subsection (4) being read as references to subsidiary companies within the meaning of section 232 of the Companies Law (2013 Revision);

(b) with the reference to a holding company in subsection (4) being read as a reference to “a parent company” within the meaning of section 232 of the Companies Law (2013 Revision); and

(c) with the omission of subsection (5).

Section 36

In sections 116A and 116B references to the Secretary of State are to be read as references to the Cabinet as defined in section 44 of the Constitution of the Cayman Islands.

Section 37

Section 116D applies with the substitution for subsections (4) and (5) of—

(4) Regulations made under this section are subject to affirmative resolution, as provided in section 28(2) of the Interpretation Law (1995 Revision).

Section 38

Section 134 applies with the omission of—

(a) “Subject to subsection (3A)” in subsection (1); and

(b) subsections (3) and (3A).

Section 39

Section 135H applies—

(a) with references to the Secretary of State being read as references to the Cabinet as defined in section 44 of the Constitution of the Cayman Islands; and

(b) with the substitution for subsection (2) of—

(2) An order made under this section is subject to affirmative resolution, as provided in section 28(2) of the Interpretation Law (1995 Revision).

Section 40

In sections 137 to 139, references to the Secretary of State are to be read as references to the Cabinet as defined in section 44 of the Constitution of the Cayman Islands.

Section 41

Section 140 applies—

(a) with references to the Secretary of State being read as references to the Minister responsible for matters relating to intellectual property; and

(b) with the substitution for subsection (6) of—

(6) Regulations made under this section are subject to negative resolution, as provided in section 28(3) of the Interpretation Law (1995 Revision).

Section 42

Section 141 applies—

(a) with references to the Secretary of State being read as references to the Cabinet as defined in section 44 of the Constitution of the Cayman Islands; and

(b) with the substitution for subsection (8) of—

(8) An order made under this section is subject to negative resolution, as provided in section 28(3) of the Interpretation Law (1995 Revision).

Section 43

Section 143 applies—

(a) with references to the Secretary of State being read as references to the Cabinet as defined in section 44 of the Constitution of the Cayman Islands; and

(b) with the omission in subsection (2) of the words “made by statutory instrument”.

Section 44

Sections 145 to 148 apply as modified and set out as follows—

The Copyright Tribunal

(145)

(1) There shall be a Copyright Tribunal for the Cayman Islands.

(2) The Copyright Tribunal shall consist of a chairman, a deputy chairman and not more than three other members, appointed by the Cabinet.

(3) A person is not eligible for appointment as chairman or deputy chairman unless—

(a) he is a barrister or attorney of at least five years’ standing or he has held judicial office; or

(b) he has considerable experience of copyright matters.

Membership of the Copyright Tribunal

(146)

(1) The members of the Copyright Tribunal shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.

(2) The term of appointment of a member of the Copyright Tribunal shall not exceed 3 years, and may be renewed.

(3) A member of the Copyright Tribunal may resign his office by notice in writing to the Cabinet.

(4) The Cabinet may by notice in writing to the member concerned remove him from office if—

(a) he has become bankrupt or made an arrangement with his creditors;

(b) he is incapacitated by physical or mental illness; or

(c) he is in the opinion of the Cabinet otherwise unable or unfit to perform his duties as member.

(5) If a member of the Copyright Tribunal is by reason of illness, absence or other reasonable cause for the time being unable to perform the duties of his office, either generally or in relation to particular proceedings, a person may be appointed by the Cabinet to discharge his duties for a period not exceeding six months at one time or, as the case may be, in relation to those proceedings.

Financial provisions

(147) There shall be paid to the members of the Copyright Tribunal such remuneration, and such allowances, as the Cabinet may determine, and, under the Public Service Management Law (2011 Revision), support staff for the Tribunal may be appointed.

Constitution for the purposes of proceedings

(148)

(1) For the purposes of any proceedings, the Copyright Tribunal shall consist of—

(a) a chairman, who shall be either the chairman or ... deputy chairman of the Tribunal; and

(b) two other members appointed by the Minister from the panel of members.

(2) If the members of the Copyright Tribunal dealing with any matter are not unanimous, the decision shall be taken by majority vote; and if, in such a case, the votes are equal the chairman shall have a further, casting vote.

(3) If the chairman is unable to continue, he shall appoint one of the remaining members to act as chairman.

(4) The chairman may (where necessary) appoint a suitably qualified person to attend the proceedings and advise the members on any technical questions on copyright issues arising.

(5) A person is suitably qualified for the purpose of subsection (4) if he is, or is eligible for appointment as, chairman or deputy chairman of the Copyright Tribunal.

Section 45

Section 149 , applies with the omission of paragraphs (ca) and (f) .

Section 46

Sections 150 and 151 apply as modified and set out as follows—

Power to make rules

(150)

(1) The Cabinet may make rules for regulating proceedings before the Copyright Tribunal and as to the fees chargeable in respect of such proceedings.

(2) The rules may apply in relation to the Copyright Tribunal any of the provisions of the Arbitration Law, 2012 (Law 3 of 2012).

(3) Provision shall be made by the rules—

(a) prohibiting the Copyright Tribunal from entertaining a reference under section 118, 119 or 120 by a representative organisation unless the Tribunal is satisfied that the organisation is reasonably representative of the class of persons which it claims to represent;

(b) specifying the parties to any proceedings and enabling the Copyright Tribunal to make a party to the proceedings any person or organisation satisfying the Tribunal that they have a substantial interest in the matter; and

(c) requiring the Copyright Tribunal to give the parties to proceedings an opportunity to state their case, in writing or orally as the rules may provide.

(4) The rules may make provision for regulating or prescribing any matters incidental to or consequential upon any appeal from the Copyright Tribunal under section 152 (appeal to the court on point of law).

(5) Rules made under this section are subject to negative resolution, as provided in section 28(3) of the Interpretation Law (1995 Revision).

Costs, proof of orders

(151)

(1) Subject to any rules that may be made by the Rules Committee referred to in section 19 of the Grand Court Law (2008 Revision), the Copyright Tribunal may order that the costs of a party to proceedings before it shall be paid by such other party as the Tribunal may direct; and the Tribunal may tax or settle the amount of the costs, or direct in what manner they are to be taxed.

(2) A document purporting to be a copy of an order of the Copyright Tribunal and to be certified by the chairman to be a true copy shall, in any proceedings, be sufficient evidence of the order unless the contrary is proved.

Section 47

Section 152 applies with the substitution for subsection (1) of—

(1) An appeal lies on any point of law arising from a decision of the Copyright Tribunal to the Grand Court.