QUO FA T A F U E R N T BERMUDA COPYRIGHT AND DESIGNS ACT 2004 2004 : 5 TABLE OF CONTENTS PART I COPYRIGHT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 CHAPTER I PRELIMINARY Index of defined expressions Minor definitions General provisions as to construction of this Part Construction of references to copyright owner Meaning of educational establishment and related expressions Meaning of publication and commercial publication CHAPTER II SUBSISTENCE, OWNERSHIP AND DURATION OF COPYRIGHT Introductory Copyright and copyright works Rights subsisting in copyright works Descriptions of work and related provisions Literary, dramatic and musical works Databases Artistic works Sound recordings Films Broadcasts Safeguards in case of certain satellite broadcasts Cable programmes Published editions 1
18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Authorship of work Works of joint authorship First ownership of copyright Authorship and ownership of copyright Duration of copyright Duration of copyright in literary, dramatic, musical or artistic works Duration of copyright in sound recordings Duration of copyright in films Duration of copyright in broadcasts and cable programmes Duration of copyright in typographical arrangement of published editions Meaning of country of origin CHAPTER III RIGHTS OF COPYRIGHT OWNER The acts restricted by copyright The acts restricted by copyright in a work Infringement of copyright by copying Infringement by issue of copies to the public Infringement by rental or lending of work to the public Infringement by performance, showing or playing of work in public Infringement by broadcasting or inclusion in a cable programme service Infringement by making adaptation or act done in relation to adaptation Secondary infringement of copyright Secondary infringement: importing infringing copy Secondary infringement: possessing or dealing with infringing copy Secondary infringement: providing means for making infringing copies Secondary infringement: permitting use of premises for infringing performance Secondary infringement: provision of apparatus for infringing performance etc. Meaning of infringing copy Infringing copies CHAPTER IV ACTS PERMITTED IN RELATION TO COPYRIGHT WORKS Introductory provisions Introductory General Research and private study Criticism, review and news reporting Incidental inclusion of copyright material Visual impairment Making a single accessible copy for personal use 2
45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 Multiple copies for visually impaired persons Intermediate copies and records Licensing schemed Limitations, etc. following infringement of copyright Definitions and other supplementary provisions for sections 44 to 48 Education Things done for purposes of instruction or examination Anthologies for educational use Performing, playing or showing work in course of activities of educational establishment Recording by educational establishments of broadcasts and cable programmes Reprographic copying by educational establishments of passages from published works Lending of copies by educational establishments Libraries and archives Libraries and archives: introductory Copying by librarians: articles in periodicals Copying by librarians: parts of published works Restriction on production of multiple copies of the same material Lending of copies by libraries or archives Copying by librarians: supply of copies to other libraries Copying by librarians or archivists: replacement copies of works Copying by librarians or archivists: certain unpublished works Copy of work required to be made as condition of export Public administration Parliamentary and judicial proceedings Commissions and statutory inquiries Material open to public inspection or on official register Material communicated to the Crown in the course of public business Public records Acts done under statutory authority Computer programs: lawful users Back up copies Decompilation Other acts permitted to lawful users Databases: permitted acts Acts permitted in relation to databases Designs Design documents and models Effect of exploitation of design derived from artistic work Things done in reliance on registration of design 3
78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 Typefaces Use of typeface in ordinary course of printing Articles for producing material in particular typeface Works in electronic form Transfers of copies of works in electronic form Miscellaneous: literary, dramatic, musical and artistic works Anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author Use of notes or recordings of spoken words in certain cases Public reading or recitation Abstracts of scientific or technical articles Recordings of folksongs Representation of certain artistic works on public display Advertisement of sale of artistic work Making of subsequent works by same artist Reconstruction of buildings Miscellaneous: lending of works and playing of sound recordings Lending to public of copies of certain works Royalty or other sum payable for lending of certain works Miscellaneous: films and sound recordings Films: acts permitted on assumptions as to expiry of copyright, etc. Playing of sound recordings for purposes of club, society; etc. Miscellaneous: broadcasts and cable programmes Incidental recordings for purposes of broadcast or cable programme Recording for purposes of supervision and control of broadcasts and cable programmes Recording for purposes of time-shifting Photographs of television broadcasts or cable programmes Free public showing or playing of broadcast or cable programme Reception and re-transmission of broadcast in cable programme service Provision of sub-titled copies of broadcast or cable programme Recording for archival purposes Adaptations Adaptations CHAPTER V MORAL RIGHTS Right to be identified as author or director Right to be identified as author or director Requirement that right be asserted Exceptions to right 4
106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 Right to object to derogatory treatment of work Right to object to derogatory treatment of work Exceptions to right Qualification of right in certain cases Infringement of right by possessing or dealing with infringing article False attribution of work False attribution of work Right to privacy of certain photographs and films Right to privacy of certain photographs and films Supplementary Duration of rights Consent and waiver of rights Application of provisions to joint works Application of provisions to parts of works CHAPTER VI DEALING WITH RIGHTS IN COPYRIGHT WORKS Copyright Assignment and licences Prospective ownership of copyright Exclusive licences Copyright to pass under will with unpublished work Presumption of transfer of rental right in case of film production agreement Right to equitable remuneration where rental right transferred Right to equitable remuneration where rental right transferred Equitable remuneration: reference of amount to Copyright Tribunal Moral rights Moral rights not assignable Transmission of moral rights on death CHAPTER VII REMEDIES FOR INFRINGEMENT Rights and remedies of copyright owner Infringement actionable by copyright owner Provisions as to damages in infringement action Order for delivery up Right to seize infringing copies and other articles Rights and remedies of exclusive licensee Rights and remedies of exclusive licensee Exercise of concurrent rights 5
131 132 133 134 135 136 137 138 139 140 140A 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 Remedies for infringement of moral rights Remedies for infringement of moral rights Presumptions Presumptions relevant to literary, dramatic, musical and artistic works Presumptions relevant to sound recordings, films and computer programs Presumptions relevant to works subject to Crown copyright Offences Criminal liability for making or dealing with infringing articles etc. Enforcement by consumer protection authority Enforcement by inspectors designated under the Consumer Protection Act 1999 Order for delivery up in criminal proceedings Search warrants Provision for preventing importation of infringing copies Infringing copies may be treated as prohibited goods Power of Minister of Finance to make regulations Powers of customs officers and the Collector of Customs Supplementary Period after which remedy of delivery up not available Order as to disposal of infringing copy or other article Forfeiture of infringing copies, etc. Jurisdiction of magistrates court CHAPTER VIII COPYRIGHT LICENSING Licensing schemes and licensing bodies Licensing schemes and licensing bodies Licensing schemes: references and applications Licensing schemes to which the following sections apply Reference of proposed licensing scheme to Copyright Tribunal Reference of licensing scheme to Copyright Tribunal Further reference of scheme to Copyright Tribunal Application for grant of licence in connection with licensing scheme Application for review of order as to entitlement to licence Effect of order of Copyright Tribunal as to licensing scheme Licensing by licensing bodies: references and applications Licences to which following sections apply Reference to Copyright Tribunal of proposed licence Reference to Copyright Tribunal of expiring licence Application for review of order as to licence Effect of order of Copyright Tribunal as to licence 6
158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 Factors to be taken into account in certain classes of case General considerations: unreasonable discrimination Licences for reprographic copying Licences for educational establishments in respect of works included in broadcasts or cable programmes Licences to reflect conditions imposed by promoters of events Licences to reflect payments in respect of underlying rights Licences in respect of works included in re-transmissions Mention of specific matters not to exclude other relevant considerations Use as of right of sound recording in broadcasts and cable programme services Circumstances in which right available Notice of intention to exercise right Conditions for exercise of right Applications to settle payments References etc. about conditions, information and other terms Application for review of order Factors to be taken into account Power to amend sections 165 to 171 Implied indemnity in schemes or licences for reprographic copying Implied indemnity in certain schemes and licences for reprographic copying Reprographic copying by educational establishments Power to extend coverage of scheme or licence Variation or discharge of order extending scheme or licence Appeals against orders Inquiry whether new scheme or general licence required Statutory licence where recommendation not implemented Royalty or other sum payable for lending of certain works Royalty or other sum payable for lending of certain works Certification of licensing schemes Certification of licensing schemes CHAPTER IX THE COPYRIGHT TRIBUNAL The Tribunal The Copyright Tribunal Membership of the Copyright Tribunal Financial provisions Constitution for purposes of proceedings Jurisdiction and procedure Jurisdiction of the Copyright Tribunal General power to make rules 7
187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 Costs, proof of orders etc. Award of interest Appeal to the court on point of law Appeals CHAPTER X QUALIFICATION FOR AND EXTENT OF COPYRIGHT PROTECTION Qualification for copyright protection Qualification for copyright protection Qualification by reference to author Qualification by reference to country of first publication Qualification by reference to place of transmission Extent and application of this Part Application of this Part to foreign countries Denial of copyright protection to citizens of countries not giving adequate protection to Bermudian works Territorial waters Bermuda ships and aircraft Supplementary CHAPTER XI MISCELLANEOUS AND GENERAL Crown and Parliamentary copyright Crown copyright Copyright in Acts Parliamentary copyright Copyright in Bills The Legislature: supplementary provisions Other miscellaneous provisions Copyright vesting in certain international organisations Folklore etc.: anonymous unpublished works Requirement of signature Requirement of signature: application in relation to body corporate Transitional provisions and savings Transitional provisions and savings Rights and privileges under other enactments or the common law 8
208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 PART II RIGHTS IN PERFORMANCES PRELIMINARY Index of defined expressions Expressions having same meaning as in copyright provisions Rights conferred on performers and persons having recording rights Performers rights Qualifying performances Consent required for recording or transmission of live performance Consent required for copying of recording Consent required for issue of copies to the public Consent required for rental or lending of copies to public Right to equitable remuneration for exploitation of sound recording Infringement of performer s rights by use of recording made without consent Infringement of performer s rights by importing, possessing or dealing with illicit recording Rights of person having recording rights Exclusive recording contracts and persons having recording rights Consent required for recording of performance subject to exclusive contract Infringement of recording rights by use of recording made without consent Infringement of recording rights by importing, possessing or dealing with illicit recording Exceptions to rights conferred Acts permitted notwithstanding rights conferred by this Part Power of tribunal to give consent on behalf of performer in certain cases Duration of rights Duration of rights Performers property rights Performers property rights Assignment and licences Prospective ownership of a performer s property rights Exclusive licences Performer s property right to pass under will with unpublished original recording Presumption of transfer of rental right in case of film production agreement Right to equitable remuneration where rental right transferred Equitable remuneration: reference of amount to Copyright Tribunal Infringement actionable by rights owner Provisions as to damages in infringement actions Rights and remedies for exclusive licensee Exercise of concurrent rights Non-property rights 9
238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 Performers non-property rights Transmissibility of rights of person having recording rights Consent Remedies for infringement Infringement actionable as breach of statutory duty Order for delivery up Right to seize illicit recordings Meaning of illicit recording Delivery up or seizure of illicit recordings Offences Criminal liability for making, dealing with or using illicit recordings Enforcement by consumer protection authority Enforcement by inspectors designated under the Consumer Protection Act 1999 Order for delivery up in criminal proceedings Search warrants False representation of authority to give consent Supplementary provisions with respect to delivery up and seizure Period after which remedy of delivery up not available Order as to disposal of illicit recording Forfeiture of illicit recordings Jurisdiction of magistrates court Licensing of performers property rights Jurisdiction of Copyright Tribunal Qualifying countries, individuals and persons Countries enjoying reciprocal protection Territorial waters Bermuda ships and aircraft PART III DATABASE RIGHT DATABASE RIGHT Interpretation Database right The maker of a database First ownership of database right Acts infringing database right Term of protection Qualification for database right Avoidance of certain terms affecting lawful users Exceptions to database right Acts permitted on assumption as to expiry of database right Presumptions relevant to database right 10
271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 Application of copyright provisions to database right Licensing of database right Database right: jurisdiction of Copyright Tribunal Savings and transitional provisions General rule General savings Saving for copyright in certain existing databases Database right: term applicable to certain existing databases PART IV MISCELLANEOUS AND GENERAL DEVICES DESIGNED TO CIRCUMVENT COPY PROTECTION Devices designed to circumvent copy-protection Avoidance of certain terms Computer programs Databases Avoidance of certain terms relating to databases Fraudulent reception of transmission Offence of fraudulently receiving programmes Unauthorised decoders Search warrants Forfeiture of unauthorised decoders Rights and remedies in respect of apparatus, etc. for unauthorised reception of transmissions Supplementary provisions as to fraudulent reception PART V DESIGN RIGHT CHAPTER 1 DESIGN RIGHT IN ORIGINAL DESIGNS Interpretation Index of defined expressions Minor definitions Construction of references to design right owner Joint designs Application of provisions to articles in kit form Design right The designer Ownership of design right Duration of design right Introductory 11
296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 Qualifications for design right protection Qualifying individuals and qualifying persons Qualification by reference to designer Qualification by reference to commissioner or employer Qualification by reference to first marketing Power to make further provision as to qualification Dealings with design right Assignment and licences Prospective ownership of design right Assignment of right in registered design presumed to carry with it design right Exclusive licences CHAPTER II RIGHTS OF DESIGN RIGHT, OWNER AND REMEDIES Infringement of design right Primary infringement of design right Secondary infringement: importing or dealing with infringing article Meaning of infringing article Remedies for infringement Rights and remedies of design right owner Order for delivery up Order as to disposal of infringing articles, etc. Jurisdiction of magistrates court Innocent infringement Rights and remedies of exclusive licensee Exercise of concurrent rights CHAPTER III EXCEPTIONS TO RIGHTS OF DESIGN RIGHT OWNERS Infringement of copyright Infringement of copyright Availability of licences of right Licences available in last five years of design Undertaking to take licence of right in infringement proceedings General Power to provide for further exceptions CHAPTER IV JURISDICTION OF THE REGISTRAR-GENERAL AND THE COURT Jurisdiction of the Registrar-General Jurisdiction to decide matters relating to design right Application to settle terms of licence of right 12
321 322 323 324 325 326 327 328 329 330 331 332 333 334 Settlement of terms where design right owner unknown Appeals as to terms of licence of right Rules Jurisdiction of the court References and appeals on design right matters CHAPTER V MISCELLANEOUS AND GENERAL Miscellaneous Remedy for groundless threats of infringement proceedings Licensee under licence of right not to claim connection with design right owner Requirement of signature: application in relation to body corporate Extent of operation of this Part Countries enjoying reciprocal protection Territorial waters Bermuda ships and aircraft PART VI GENERAL AND SUPPLEMENTARY OFFENCES BY BODY CORPORATE Offence by body corporate: liability of officers Final provisions Crown application Consequential amendment and repeal Short title and commencement WHEREAS it is expedient to restate the law of copyright with amendments; to make fresh provisions with respect to the rights of performers and others in performances; to make provision with respect to devices designed to circumvent copy protection of works in electronic form; to make fresh provision penalising the fraudulent reception of transmissions; to make fresh provision with respect to database rights; to confer a design right in original designs; and for connected purposes: Be it enacted by The Queen s Most Excellent Majesty, by and with the advice and consent of the Senate and the House of Assembly of Bermuda, and by the authority of the same, as follows: 13
PART I COPYRIGHT CHAPTER I PRELIMINARY Index of defined expressions 1 The following Table shows provisions defining or otherwise explaining expressions used in this Part (other than provisions defining or explaining an expression used only in the same section) accessible copy section 49(3) acts restricted by copyright section 27(1) adaptation section 33(5) approved body section 45(12) archivist (in sections 56 to 63) section 56(5) article (in a periodical) section 2 artistic work section 11(1) author sections 18 and 19(4) broadcast (and related expressions) section 14 building section 11(2) business section 2 cable programme, cable programme section 16 service (and related expressions) collective work section 2 commencement (in Schedule 1) paragraph 1(2) of that Schedule commercial publication section 6(2) computer-generated section 2 copy and copying section 28 copyright (generally) section 7 copyright (in Schedule 1) paragraph 2(2) of that Schedule copyright owner sections 4 and 129(2) Copyright Tribunal section 181 copyright work section 7(2) country section 2 country of origin section 26 the Crown section 2 Crown copyright sections 198(2) and 199(3) database section 10(1) dramatic work section 9(1) educational establishment section 5(1) electronic and electronic form section 2 employed, employee, employer and section 2 employment exclusive licence section 118 (1) 14
existing works (in Schedule 1) paragraph 1(3) of that Schedule facsimile copy section 2 film section 13 future copyright section 117(2) general licence (in sections 177 and section 177(7) 178) graphic work section 11(2) infringing copy section 39 international organisation section 2 issue of copies to the public section 29 joint authorship (work of) sections 19 judicial proceedings section 2 lawful user (in sections 71 to 73) section 71(2) lending section 30 (2) to (6)] librarian (in sections 56 to 63) section 56(5) licence (in sections 154 to 157) section 153 licence of copyright owner sections 4, 116(4) and 117(3) licensing body (in Chapter VIII) section 145(2) licensing scheme (generally) section 145(1) licensing scheme (in sections 147 to section 146(1) 152) literary work section 9(1) made (in relation to a literary, section 9(2) dramatic or musical work musical work section 9(1) needletime section 165(5) the new copyright provisions in paragraph 1(1) of that Schedule Schedule 1 the 1911 Act (in Schedule 1) paragraph 1(1) of that Schedule the 1956 Act (in Schedule 1) paragraph 1(1) of that Schedule on behalf of (in relation to an section 5(4) educational establishment) original (in relation to a database) section 10(2) Parliamentary copyright sections 200(2) and 201(5) performance section 31(2) photograph section 11(2) prescribed conditions (in sections 57 section 56(1) to 63) prescribed library or archive (in section 56(1) sections 57 to 63) producer (in relation to a sound section 2 recording or film) programme (in the context of section 14(3) broadcasting) prospective owner (of copyright) section 117(2) publication and related expressions section 6 15
published edition (in the context of section 17 copyright in the typographical arrangement) pupil section 5(3) rental section 30(2) to (6) rental right section 2 reprographic copies and section 2 reprographic copying reprographic process section 2 sculpture section 11(2) signed section 205 sound recording sections 12 and 165(5) sufficient acknowledgement section 2 sufficient disclaimer section 2 teacher section 5(3) telecommunications system section 2 terms of payment section 165(5) typeface section 2 unauthorised (as regards things done section 2 in relation to a work) unknown (in relation to the author of section 18(5) a work) unknown authorship (work of) section 18(4) visually impaired persons section 49(9) wireless telegraphy section 2 work (in Schedule 1) paragraph 2(1) of that Schedule work of more than one author (in section 145(4) Chapter VIII) writing and written section 2 Minor definitions 2 In this Part article, in the context of an article in a periodical, includes an item of any description; Bermudian status has the meaning given in the Bermuda Immigration and Protection Act 1956; business includes a trade or profession; collective work means a work of joint authorship; or a work in which there are distinct contributions by different authors or in which works or parts of works of different authors are incorporated; computer-generated, in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work; 16
copyright owner shall be construed in accordance with section 4; country includes any territory; the Crown means the Crown in right of Her Majesty s Government in Bermuda; electronic means actuated by electric, magnetic, electro-magnetic, electrochemical or electro-mechanical energy, and in electronic form means in a form usable only by electronic means; employed, employee, employer and employment refer to employment under a contract of service or of apprenticeship; facsimile copy includes a copy which is reduced or enlarged in scale; international organisation means an organisation the members of which include one or more states; judicial proceedings includes proceedings before any court, tribunal or person having authority to decide any matter affecting a person s legal rights or liabilities; Minister means the Minister responsible for intellectual property; premises includes land, buildings, fixed or moveable structures, vehicles, vessels, aircraft and hovercraft; producer, in relation to a sound recording or a film, means the person by whom the arrangements necessary for the making of the sound recording or film are undertaken; rental right means the right of a copyright owner to authorise or prohibit the rental of copies of the work; reprographic copy and reprographic copying refer to copying by means of a reprographic process; reprographic process means a process for making facsimile copies; or involving the use of an appliance for making multiple copies; and includes, in relation to a work held in electronic form, any copying by electronic means, but does not include the making of a film or sound recording; sufficient acknowledgement means an acknowledgement identifying the work in question by its title or other description, and identifying the author unless in the case of a published work, it is published anonymously; in the case of an unpublished work, it is not possible for a person to ascertain the identity of the author by reasonable inquiry; 17
sufficient disclaimer, in relation to an act capable of infringing the right conferred by section 106 (right to object to derogatory treatment of work), means a clear and reasonably prominent indication given at the time of the act; and if the author or director is then identified, appearing along with the identification; that the work has been subjected to treatment to which the author or director has not consented; telecommunications system means a system for conveying visual images, sounds or other information by electronic means; typeface includes an ornamental motif used in printing; unauthorised, as regards anything done in relation to a work, means done otherwise than by or with the licence of the copyright owner; or if copyright does not subsist in the work, by or with the licence of the author or, in a case where section 20(2) would have applied, the author s employer or, in either case, persons lawfully claiming under him; or in pursuance of section 68 (copying etc. of certain material by the Crown); wireless telegraphy means the sending of electro-magnetic energy over paths not provided by a material substance constructed or arranged for that purpose, but does not include the transmission of microwave energy between terrestrial fixed points; writing includes any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded, and written shall be construed accordingly. ["Minister" deleted and substituted by BR 5/2011 para.5 effective 25 February 2011] General provisions as to construction of this Part 3 (1) This Part restates and amends the law of copyright, that is, the provisions of the Copyright Act 1956 of the United Kingdom as amended (as extended to Bermuda by the Copyright (Bermuda) Order 1962). (2) A provision of this Part which corresponds to a provision of the previous law shall not be construed as departing from the previous law merely because of a change of expression. (3) Decisions under the previous law may be referred to for the purpose of establishing whether a provision of this Part departs from the previous law, or otherwise for establishing the true construction of this Part. 18
Construction of references to copyright owner 4 (1) Where different persons are (whether in consequence of a partial assignment or otherwise) entitled to different aspects of copyright in a work, the copyright owner for any purpose of this Part is the person who is entitled to the aspect of copyright relevant for that purpose. (2) Where copyright (or any aspect of copyright) is owned by more than one person jointly, references in this Part to the copyright owner are to all the owners, so that, in particular, any requirement of the licence of the copyright owner requires the licence of all of them. Meaning of educational establishment and related expressions 5 (1) In this Part educational establishment means any school, within the meaning of the Education Act 1996; and any other description of educational establishment specified for the purposes of this Part, or that provision, by order of the Minister. (2) An order under subsection (1) may specify a description of educational establishment by reference to the instruments from time to time in force under any enactment specified in the order. (3) In relation to an educational establishment the expressions teacher and pupil in this Part include, respectively, any person who gives and any person who receives instruction. (4) References in this Part to anything being done on behalf of an educational establishment are to its being done for the purposes of that establishment by any person. (5) An order made under this section is subject to negative resolution procedure. Meaning of publication and commercial publication 6 (1) In this Part publication, in relation to a work means the issue of copies to the public, and includes, in the case of a literary, dramatic, musical or artistic work, making it available to the public by means of an electronic retrieval system; and related expressions shall be construed accordingly. (2) In this Part commercial publication, in relation to a literary, dramatic, musical or artistic work means issuing copies of the work to the public at a time when copies made in advance of the receipt of orders are generally available to the public; or making the work available to the public by means of an electronic retrieval system; and related expressions shall be construed accordingly. 19
(3) In the case of a work of architecture in the form of a building, or an artistic work incorporated in a building, construction of the building shall be treated as equivalent to publication of the work. (4) The following do not constitute publication for the purposes of this Part and references to commercial publication shall be construed accordingly in the case of a literary, dramatic or musical work the performance of the work; or the broadcasting of the work or its inclusion in a cable programme service (otherwise than for the purposes of an electronic retrieval system); in the case of an artistic work the exhibition of the work; the issue to the public of copies of a graphic work representing, or of photographs of, a work of architecture in the form of a building or a model for a building, a sculpture or a work of artistic craftsmanship; the issue to the public of copies of a film including the work; or the broadcasting of the work or its inclusion in a cable programme service (otherwise than for the purposes of an electronic retrieval system); in the case of a sound recording or film the work being played or shown in public; or the broadcasting of the work or its inclusion in a cable programme service. (5) References in this Part to publication or commercial publication do not include publication which is merely colourable and not intended to satisfy the reasonable requirements of the public. act. (6) (i) (ii) (i) (ii) (iii) (iv) (i) (ii) No account shall be taken for the purposes of this section of any unauthorised CHAPTER II SUBSISTENCE, OWNERSHIP AND DURATION OF COPYRIGHT Introductory Copyright and copyright works 7 (1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work original literary, dramatic, musical or artistic works; 20
sound recordings, films, broadcasts or cable programmes; and the typographical arrangement of published editions. (2) In this Part copyright work means a work of any of those descriptions in which copyright subsists. (3) Copyright does not subsist in a work unless the requirements of this Part with respect to qualification for copyright protection are met. Rights subsisting in copyright works 8 (1) The owner of the copyright in a work of any description has the exclusive right to do the acts specified in Chapter III (Rights of Copyright Owner) as the acts restricted by the copyright in a work of that description. (2) In relation to certain descriptions of copyright work the following rights conferred by Chapter V (moral rights) subsist in favour of the author, director or commissioner of the work, whether or not he is the owner of the copyright section 103 (right to be identified as author or director); section 106 (right to object to derogatory treatment of the work); and section 111 (right to privacy of certain photographs and films). Literary, dramatic and musical works 9 (1) In this Part Descriptions of work and related provisions literary work means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes (d) a table or compilation, other than a database; a computer program; preparatory design material for a computer program; and a database; dramatic work includes a work of dance or mime; and musical work means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music. (2) Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded. (3) It is immaterial for the purposes of subsection (2) whether the work is recorded by or with the permission of the author; and where it is not recorded by the author, nothing in that subsection affects the question whether copyright subsists in the record as distinct from the work recorded. 21
Databases 10 (1) In this part database means a collection of independent works, data or other materials which are arranged in a systematic or methodical way; and are individually accessible by electronic or other means. (2) For the purposes of this Part, a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database it constitutes the author s own intellectual creation. Artistic works 11 (1) In this Part artistic work means (2) a graphic work, photograph, sculpture or collage, irrespective of artistic quality; a work of architecture, being a building or a model for a building; or a work of artistic craftsmanship. In this Part building includes any fixed structure and a part of a building or fixed structure; graphic work includes any painting, drawing, diagram, map, chart or plan; and any engraving, etching, lithograph, woodcut or similar work; photograph means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film; sculpture includes a cast or model made for the purposes of sculpture. Sound recordings 12 (1) In this Part sound recording means a recording of sounds, from which the sounds may be reproduced; or a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be reproduced; regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced. (2) Copyright does not subsist in a sound recording which is, or to the extent that it is, a copy taken from a previous sound recording. 22
Films 13 (1) In this Part film means a recording on any medium from which a moving image may by any means be produced. (2) The sound track accompanying a film shall be treated as part of the film for the purposes of this Part. (3) applies Without prejudice to the generality of subsection (1), where that subsection references in this Part to showing a film include playing the film sound track to accompany the film; and references to playing a sound recording do not include playing the film sound track to accompany the film. (4) Copyright does not subsist in a film which is, or to the extent that it is, a copy taken from a previous film. (5) Nothing in this section affects any copyright subsisting in a film sound track as a sound recording. Broadcasts 14 (1) In this Part a broadcast means a transmission by wireless telegraphy of visual images, sounds or other information which is capable of being lawfully received by members of the public; or is transmitted for presentation to members of the public; and references to broadcasting shall be construed accordingly. (2) An encrypted transmission shall be regarded as capable of being lawfully received by members of the public only if decoding equipment has been made available to members of the public by or with the authority of the person making the transmission or the person providing the contents of the transmission. (3) References in this Part to the person making a broadcast, broadcasting a work, or including a work in a broadcast are to the person transmitting the programme, if he has responsibility to any extent for its contents; and to any person providing the programme who makes with the person transmitting it the arrangements necessary for its transmission; and references in this Part to a programme, in the context of broadcasting, are to any item included in a broadcast. (4) For the purposes of this Part, the place from which a broadcast is made is the place where, under the control and responsibility of the person making the broadcast, the programme-carrying signals are introduced into an uninterrupted chain of communication 23
(including, in the case of a satellite transmission, the chain leading to the satellite and down towards the earth). (5) Subsections (3) and (4) have effect subject to section 15 (safeguards in cases of certain satellite broadcasts). (6) References in this Part to the reception of a broadcast include reception of a broadcast relayed by means of a telecommunications systems. (7) Copyright does not subsist in a broadcast which infringes, or to the extent that it infringes, the copyright in another broadcast or in a cable programme. Safeguards in case of certain satellite broadcasts 15 (1) This section applies where the place from which a broadcast by way of satellite transmission is made is located in a country other than Bermuda and the law of that country fails to provide at least the following level of protection exclusive rights in relation to broadcasting equivalent to those conferred by section 32 (infringement by broadcasting) on the authors of literary, dramatic, musical and artistic works, films and broadcasts; a right in relation to live broadcasting equivalent to that conferred on a performer by section 212(1) (consent required for live broadcast of performance); and a right for authors of sound recordings and performers to share in a single equitable remuneration in respect of the broadcasting of sound recordings. (2) Where the place from which the programme-carrying signals are transmitted to the satellite ( the uplink station ) is located in Bermuda that place shall be treated as the place from which the broadcast is made; and the person operating the uplink station shall be treated as the person making the broadcast. (3) Where the uplink station is not located in Bermuda but a person who is established in Bermuda has commissioned the making of the broadcast Cable programmes 16 (1) In this Part that person shall be treated as the person making the broadcast; and the place in which he has his principal establishment in Bermuda shall be treated as the place from which the broadcast is made. cable programme means any item included in a cable programme service; and cable programme service means a service which consists wholly or mainly in sending visual images, sounds or other information by means of a 24
telecommunications system, otherwise than by wireless telegraphy, for reception (2) at two or more places (whether for simultaneous reception or at different times in response to requests by different users); or for presentation to members of the public; and which is not, or so far as it is not, excepted by or under the following provisions of this section. The following are excepted from the definition of cable programme service (d) (e) a service or part of a service of which it is an essential feature that while visual images, sounds or other information are being conveyed by the person providing the service there will or may be sent from each place of reception, by means of the same system or (as the case may be) the same part of it, information (other than signals sent for the operation or control of the service) for reception by the person providing the service or other persons receiving it; a service run for the purposes of a business where (i) (ii) (iii) no person except the person carrying on the business is concerned in the control of the apparatus comprised in the system; the visual images, sounds or other information are conveyed by the system solely for purposes internal to the running of the business and not by way of rendering a service or providing amenities for others; and the system is not connected to any other telecommunications system; a service run by a single individual where (i) (ii) (iii) all the apparatus comprised in the system is under his control; the visual images, sounds or other information conveyed by the system are conveyed solely for domestic purposes of his; and the system is not connected to any other telecommunications system; services where (i) (ii) all the apparatus comprised in the system is situated in, or connects, premises which are in single occupation; and the system is not connected to any other telecommunications system; other than services operated as part of the amenities provided for residents or inmates of premises run as a business; services which are, or to the extent that they are, run for persons providing broadcasting or cable programme services or providing programmes for such services. 25
(3) The Minister may by order, amend subsection (2) so as to add or remove exceptions, subject to such transitional provision as appears to him to be appropriate. (4) An order made under this section is subject to affirmative resolution procedure. (5) References in this Part to the inclusion of a cable programme or work in a cable programme service are to its transmission as part of the service; and references to the person including it are to the person providing the service. (6) Copyright does not subsist in a cable programme if it is included in a cable programme service by reception and immediate re-transmission of a broadcast; or if it infringes, or to the extent that it infringes, the copyright in another cable programme or in a broadcast. Published editions 17 (1) In this Part published edition, in the context of copyright in the typographical arrangement of a published edition, means a published edition of the whole or any part of one or more literary, dramatic or musical works. (2) Copyright does not subsist in the typographical arrangement of a published edition if, or to the extent that, it reproduces the typographical arrangement of a previous edition. Authorship and ownership of copyright Authorship of work 18 (1) In this Part author, in relation to a work, means the person who creates it. (2) That person shall be taken to be (d) (e) in the case of a sound recording, the producer; in the case of a film, the producer and the principal director; in the case of a broadcast, the person making the broadcast or, in the case of a broadcast which relays another broadcast by reception and immediate re-transmission, the person making that other broadcast; in the case of a cable programme, the person providing the cable programme service in which the programme is included; in the case of the typographical arrangement of a published edition, the publisher. (3) In the case of a literary, dramatic, musical or artistic work which is computergenerated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken. 26
(4) For the purposes of this Part a work is of unknown authorship if the identity of the author is unknown or, in the case of a work of joint authorship, if the identity of none of the authors is known. (5) For the purposes of this Part the identity of an author shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry; but if his identity is once known it shall not subsequently be regarded as unknown. Works of joint authorship 19 (1) In this Part a work of joint authorship means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors. (2) A film shall be treated as a work of joint authorship unless the producer and the principal director are the same person. (3) A broadcast shall be treated as a work of joint authorship in any case where more than one person is to be taken as making the broadcast. (4) References in this Part to the author of work shall, except as otherwise provided, be construed in relation to a work of joint authorship as references to all the authors of the work. First ownership of copyright 20 (1) The author of a work is the first owner of any copyright in it, subject to the following provisions. (2) Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary. (3) This section does not apply to Crown copyright, Parliamentary copyright or to copyright which subsists by virtue of section [203] (copyright of certain international organisations). Duration of copyright Duration of copyright in literary, dramatic, musical or artistic works 21 (1) The following provisions have effect with respect to the duration of copyright in a literary, dramatic, musical or artistic work. (2) Copyright expires at the end of the period of 70 years from the end of the calendar year in which the author dies, subject as follows. (3) If the work is of unknown authorship, copyright expires at the end of the period of 70 years from the end of the calendar year in which the work was made; or 27
subject as follows. if during that period the work is made available to the public, at the end of the period of 70 years from the end of the calendar year in which it is first so made available; (4) Subsection (2) applies if the identity of the author becomes known before the end of the period specified in paragraph or of subsection (3). (5) For the purposes of subsection (3), making available to the public includes in the case of a literary, dramatic or musical work (i) (ii) performance in public; or being broadcast or included in a cable programme service; in the case of an artistic work exhibition in public; a film including the work being shown in public; or being included in a broadcast or cable programme service; but in determining generally for the purposes of that subsection whether a work has been made available to the public no account shall be taken of any unauthorised act. (6) Where the country of origin of the work is not Bermuda and the author of the work does not possess Bermudian status, the duration of copyright is that to which the work is entitled in the country of origin, provided that does not exceed the period which would apply under subsections (2) to (5). (7) If the work is computer-generated the above provisions do not apply and copyright expires at the end of the period of 50 years from the end of the calendar year in which the work was made. (8) The provisions of this section are adapted as follows in relation to a work of joint authorship (i) (ii) (iii) the reference in subsection (2) to the death of the author shall be construed (i) (ii) if the identity of all the authors is known, as a reference to the death of the last of them to die; and if the identity of one or more of the authors is known and the identity of one or more others is not, as a reference to the death of the last whose identity is known; the reference in subsection (4) to the identity of the author becoming known shall be construed as a reference to the identity of any of the authors becoming known; 28