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INTELECTUAL PROPERTY RIGHTS

NATIONAL LEGISLATION - BARBADOS

Copyright and Related Rights Laws and Treaties
Copyright Act, 1998


Duration and Transmission of Rights in Performances: Consent

Duration of rights in performance

  1. The rights conferred by this Part in respect of a performance exist for the fifty calendar years after the end of the year in which the performance occurred.

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Transmission of rights in performances

  1.  
  1. The rights conferred by this Part may be assigned or transmitted in accordance with this section.
  2. On the death of a person entitled to performer's rights
    1. the rights pass to such person as he may by testamentary disposition specifically direct; and
    2. if, or to the extent that there is no such direction, the rights are exercisable by his personal representative.
  3. References in this Part to the performer, in the context of the person having performer's rights, shall be construed as references to the person for the time being entitled to exercise those rights.
  4. Where by virtue of paragraph (a) of subsection (2) a right is exercisable by more than one person, it is exercisable by each of them independently of the other or others.
  5. Subsections (1), (2) and (3) are without prejudice to any rights conferred by this Act on a person to whom has been assigned the benefit of an exclusive recording contract or licence to make recording of a performance.
  6. Any damages recovered by personal representatives by virtue of this section in respect of an infringement after a person's death shall devolve as part of his estate as if the right of action had subsisted and been vested in him immediately before his death.

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Consent

  1.  
  1. Consent for the purposes of this Part, may be given in relation to a specific performance, a specified description of performances, or performances generally, and may relate to past or future performances.
  2. A person having recording rights in a performance is bound by any prior consent given by a person through whom the first-mentioned person derives his rights under the exclusive recording contract or licence in question, in the same way as if the consent had been given by the first-mentioned person.
  3. Where a right conferred by this Part passes to another person, any consent binding on the person previously entitled binds the person to whom the right passes in the same way as if the consent had been given by the person to whom the right passes.

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Remedies for Infringement of Rights in Performances

Infringement actionable as breach of statutory duty

  1.  
  1. Any person whose rights under this Part are in imminent danger of being infringed, are being infringed or have been infringed, may institute proceedings in the High Court
    1. for an injunction to prevent the infringement or to prohibit the continuation of the infringement; or
    2. for recovery of damages for the infringement.
  2. The grant of an injunction under subsection (1) does not deprive a person of any damages that may be awarded to him for loss sustained by him as a result of the infringement of his rights under this Part.
  3. The remedies provided by this section are in addition to any other sanctions contained in this Part and any other power of the Court.

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Delivery up of illicit recording: civil proceedings

  1.  
  1. Where a person has in his possession, custody or control in the course of a business an illicit recording of a performance, a person having performer's rights or recording rights under this Part in relation to the performance may apply to the court for an order that the recording be delivered up to him or to such other person as the court may direct.
  2. An application shall not be made after the end of the period specified in section 136; and the court shall not make an order under this section unless it also makes an order under section 135 for the disposal of the recording, or it is of the opinion that there are grounds on which an order under that section could be made.
  3. A person to whom a recording is delivered up in pursuance of an order under this section shall, if an order under section 135 is not made, retain it pending the making of an order, or the decision not to make an order under that section.
  4. Nothing in this section affects any other power of the court.

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Offences

Making, dealing with or using illicit recordings


  1.  
    1. A person commits an offence who, without sufficient consent,
      1. makes for sale or hire; or
      2. imports into Barbados otherwise than for his private and domestic use; or
      3. possesses in the course of business with a view to doing any act infringing the rights conferred by this Part; or
      4. in the course of business
        1. sells or lets for hire, or
        2. offers or exposes for sale or hire, or
        3. distributes
        a recording which is, and which he knows or has reason to believe is, an illicit recording.
    2. A person is guilty of an offence who causes a recording of a performance made without sufficient consent to be
      1. shown or played in public; or
      2. broadcast or included in a cable programme service,
      thereby infringing any of the rights conferred by this Part, if he knows or has reason to believe that those rights are thereby infringed.
    3. In subsections (1) and (2) "sufficient consent" means
      1. in the case of a qualifying performance that is not subject to an exclusive recording contract, the consent of the performer; and
      2. in the case of a performance that is subject to an exclusive recording contract, the consent of the person having recording rights.
    4. Reference in this section to the person having recording rights is to the person having those rights at the time the consent is given or, if there is more than one such person, to all of them.
    5. No offence is committed under subsection (1) or (2) by the doing of an act which, by virtue of any provision of this Part, may be done without infringing the rights conferred by this Part.
    6. A person guilty of an offence under subsection (1) or (2) is liable
      1. on summary conviction to a fine of fifty thousand dollars or to imprisonment for two years or both; or
      2. on conviction on indictment to a fine of two hundred and fifty thousand dollars or to imprisonment for five years, or both.

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Order for delivery up of illicit recording: criminal proceedings

  1.  
  1. The Court before which proceedings are brought against a person for an offence under section 132 may, if satisfied that at the time he was arrested or charged he had in his possession, custody or control in the course of business an illicit recording of a performance, order that it be delivered up to a person having performer's rights or recording rights in relation to the performance, or to such other person as the Court may direct.
  2. The Court may, on its own motion or on the application of the prosecution make an order, and an order may be made whether or not the person is convicted of the offence.
  3. The Court may not make an order under this section
    1. after the end of the period specified in section 136; or
    2. if it appears to the Court unlikely that any order will be made under section 135.
  4. An appeal lies to the Court of Appeal from an order made under this section.
  5. A person to whom an illicit recording is delivered up in pursuance of an order under this section shall retain it pending the making of an order, or the decision not to make an order, under section 135.

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False representation of authority to give consent

  1.  
  1. It is an offence for a person to represent falsely that he is authorised by any person to give consent for the purposes of this Part in relation to a performance, unless he believes on reasonable grounds that he is so authorised.
  2. A person guilty of an offence under this section is liable on summary conviction to a fine of five thousand dollars or to imprisonment for six months or both.

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PART IX : GENERAL

Order for disposal of infringing copy of illicit recording

  1.  
  1. An application may be made to the Court for
    1. an order that an infringing copy or article be delivered up in pursuance of an order under sections 33 and 47 shall be
      1. forfeited to the copyright owner, or
      2. destroyed or otherwise dealt with as the Court may direct;
    2. an order that an illicit recording of a performance be delivered up in pursuance of an order under section 131 or 133 shall be
      1. forfeited to such person having performer's rights or recording rights in relation to the performance as the court may direct, or
      2. destroyed or otherwise dealt with as the court thinks fit; or
    3. a decision that no order under paragraph (a) or (b) should be made.
  2. In considering what order, if any, should be made, the Court shall have regard to all the circumstances of the case and, in particular
    1. where the infringement relates to copyright in a work, whether other remedies available in an action for infringement of copyright would be adequate to compensate the copyright owner and to protect his interest; and
    2. where the infringement relates to rights conferred under Part VIII, whether other remedies available in an action for infringement of those rights would be adequate to compensate the person or persons entitled to the rights and to protect their interests.
  3. The Minister may by regulations make provision respecting the service of notice on persons having an interest in an infringing copy or other articles or an illicit recording, as the case may be, and any such person is entitled
    1. to appear in proceedings for an order under this section, whether or not he was served with notice; and
    2. to appeal against any order made, whether or not he appeared.
  4. An order made under this section shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.
  5. Where there is more than one person interested in an infringing copy or other article, or as the case may be, an illicit recording, the court shall make such order as it thinks just and may, in particular, direct that such copy, article or recording be sold, or otherwise dealt with, and the proceeds divided.
  6. If the Court decides that no order should be made under this section, the person in whose possession, custody or control the copy or article or, as the case may be, the recording was before being delivered up or seized is entitled to its return.
  7. References in this section to a person having an interest in a copy or other articles or recording include any person in whose favour an order could be made in respect of the copy, article or, as the case may be, recording under this section.

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Period after which remedy of delivery up not available

  1.  
  1. Subject to subsection (2), an application for an order under section 33 or 131 may not be made after the end of the period of six years from the date on which the infringing copy or article or, as the case may be, or the illicit recording in question was made.
  2. Where during the whole or any part of the period specified in subsection (1) a person entitled to apply for an order
    1. is under a disability; or
    2. is prevented by fraud or concealment from discovering the facts entitling him to apply,
    an application may be made by him at any time before the end of the period of six years after the date on which he ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts.

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Time limited for prosecution

  1. No prosecution for an offence under this Act shall be commenced after the expiration of five years after the commission of the offence or one year after the discovery thereof, whichever date last occurs.

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Powers of members of Police Force

  1.  
  1. Subject to subsection (3), a member of the Police Force, hereinafter referred to as an officer, to whom a warrant is issued pursuant to section 139 may,
    1. enter and search any premises or place;
    2. stop, board and search any vessel, other than a ship of war, or any aircraft, other than a military aircraft; or
    3. stop and search any vehicle, in which the officer reasonably suspects there is an infringing copy of a work or an illicit recording or any article used or intended to be used for making infringing copies or illicit recording; and
    4. seize, remove or detain
      1. any article which appears to the officer to be an infringing copy of an illicit recording or any other article which appears to him to be intended for use for making such copies or recordings; and
      2. anything which appears to him to be or to contain, or to be likely to be or to contain, evidence of an offence under this Act.
  2. An officer to whom a warrant has been issued under section 139 may, with such assistance as is necessary,
    1. break open any outer or inner door of any place which he is authorised by this section to enter and search;
    2. forcibly board any vessel, aircraft or vehicle which he is authorised under this Act to stop, board and search;
    3. remove by force any person or thing obstructing him in the exercise of any power conferred on him by this Act;
    4. detain any person found in any place which he is authorised under this section to search until each place has been searched;
    5. detain any vessel or aircraft which he is authorised under this section to stop, board and search, and prevent any person from approaching or boarding such vessel or aircraft until it has been searched;
    6. detain any vehicle which he is authorised under this Act to stop and search until it has been searched.
  3. It shall be the duty of any officer in the execution of any directions given under subsection (1) to produce the warrant containing the directions to the owner or occupier of any premises, place, vessel or aircraft entered or vehicle stopped, pursuant to such directions if required by such owner or occupier to do so.

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Restrictions on entry and search

  1. A magistrate may, if he is satisfied by proof upon oath that there is reasonable ground for believing that there is in any building, ship, boat, aircraft, vehicle, box, receptacle or other structure or place, hereinafter called the "premises" any article which may be seized, removed or detained under any provision of this Act, issue a warrant authorising a member of the Police Force not below the rank of Sergeant, with such assistance as may be necessary, to enter and search the premises.

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Obstruction of member of Police Force

  1.  
  1. Without prejudice to any other written law, any person who
    1. wilfully obstructs a member of the Police Force in the exercise of his powers or the performance of his duties under this Act;
    2. wilfully fails to comply with any requirement properly made to him by any such member, or
    3. without reasonable excuse, fails to give such member any other assistance which he may reasonably require to be given for the purpose of exercising his powers or performing his duties under this Act,
    is liable on summary conviction to a fine of ten thousand dollars or to imprisonment for a term not exceeding one year or both.
  2. A person who, when required to give information to a member of the Police Force in the exercise of his powers or the performance of his duties under this Act, knowingly gives false or misleading information to any such member is liable on summary conviction to a fine of five thousand dollars or to imprisonment for six months or both.
  3. Nothing in this section shall be construed as requiring any person to give any information that may incriminate him.

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Offences by bodies corporate

  1. Where an offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who purported to act in any such capacity, he, as well as the body corporate, is guilty of that offence and is liable to be proceeded against and punished accordingly.

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Reciprocity

  1.  
  1. Subject to this section, the Minister may, by order, provide for reciprocal treatment to be given to any country that provides protection in respect of Barbados
    1. in relation to persons who are citizens or permanent residents of that country as they apply to persons who are citizens or permanent residents of Barbados;
    2. in relation to bodies incorporated or established under the laws of that country as they apply in relation to bodies incorporated or established under the laws of Barbados;
    3. in relation to literary, dramatic, musical or artistic works, sound recordings, films and editions first published in that country as they apply in relation to such work, sound recordings, films and editions first published in Barbados;
    4. in relation to broadcasts made from or cable programmes sent from that country as they apply in relation to broadcasts made from or cable programmes sent from Barbados;
    5. in relation
      1. to performances taking place in that country or given by an individual who is a citizen or habitual resident of that country;
      2. to performances incorporated in a phonogram which is protected by Article 5 of the Rome Convention; or
      3. to performances, not being fixed on a phonogram, that are carried by a broadcast which is protected by Article 6 of the Rome Convention, as they apply in relation to performances taking place in Barbados or given by an individual who is a citizen or habitual resident of Barbados.
  2. An order made under subsection (1) may apply any provision of this Act in relation to any country
    1. without exception or modification or subject to such exceptions and modifications as may be specified in the order;
    2. generally or in relation to such classes of works or other classes of case as may be so specified.
  3. An order shall not be made under subsection (1) in relation to any country unless
    1. the country is a Convention country; or
    2. a country as to which the Minister is satisfied that provision has been or will be made under its law in respect of the class of works or, as the case may be, the performances, to which the order relates, giving adequate protection to the owner of copyright under this Act or, as the case may be, to Barbadian performances as defined in section 143(4).
  4. In this section "Convention country" means a country that is party to a Convention relating to copyright or performers' rights, as the case may be, to which Barbados is also a party.

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Denial of copyright or rights in performances

  1.  
  1. The Minister may, by order, make provision in relation to a country whose laws
    1. do not give adequate protection to Barbadian works to which this section applies or to Barbadian performances, or
    2. do not give adequate protection in the case of one or more classes of such works or performances,
    whether the lack of protection relates to the nature of the work or performance or the nationality, citizenship or country of its author or performer or all of those matters.
  2. An order made shall designate the country concerned and may provide either generally or in relation to such classes of case as are specified in the order, that copyright shall not subsist in works first published, or as the case may be, that rights in performances shall not subsist in performances first given, after a date specified in the order, which may be a date before the commencement of this Act if, at the time of the first publication of those works or the giving of the performance, as the case may be, the authors of the works or the performers were or are
    1. citizens or nationals of that country, not being at that time persons whose permanent residence is in Barbados or a specified country, excluding the country concerned; or
    2. in the case of works, bodies incorporated or established under the laws of that country.
  3. The Minister shall, in making an order under this section, have regard to the nature and extent of the lack of protection for Barbadian works or Barbadian performances in consequence of which the order is being made.
  4. This section applies to literary, dramatic, musical and artistic works, sound recordings and films, and for the purposes of this section
    • "Barbadian performances" means
      1. performances given by individuals who are citizens or permanent residents of Barbados; or
      2. performances that take place in Barbados;
    • "Barbadian works" means works of which the author was a qualified person at the material time within the meaning of section 7(3).
  5. This section does not apply to citizens or nationals of a country that is a member of the Berne Union.

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International organisations

  1.  
  1. This section applies to international organisations as to which the Minister by order has declared that it is expedient that this section should apply.
  2. Where an original literary, dramatic, musical or artistic work is first published by or under the direction or control of an international organisation to which this section applies in such circumstances that copyright would not, except by virtue of this subsection, subsist in the work immediately after the first publication thereof, and
    1. the work is so published in pursuance of an agreement with the author which does not reserve to the author the copyright, if any, in the work; or
    2. the work was made in such circumstances that, if it had been first published in Barbados, the organisation would have been entitled to the copyright in the work,
    then, copyright shall subsist in the work by virtue of this section and the organisation shall be first owner of that copyright.
  3. Copyright of which an international organisation is first owner by virtue of this section shall subsist for fifty calendar years immediately following the year in which the work was made or such longer period as may be specified by the Minister, by order, for the purpose of complying with the international obligations of Barbados.
  4. An organisation to which this section applies that does not have and has never had the legal capacity of a body corporate conferred upon it shall have, and shall be deemed at all material times to have had, the legal capacity of a body corporate for the purpose of holding, dealing with and enforcing copyright, and in connection with all legal proceedings relating to copyright.

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Territorial waters and exclusive economic zone

  1.  
  1. For the purposes of this Act, the territorial sea and the exclusive economic zone of Barbados shall be treated as part of Barbados.
  2. This Act applies to things done in the exclusive economic zone as it applies to things done in Barbados.
  3. In this section
    • "exclusive economic zone" means the marine zone established by section 3 of the Marine Boundaries and Jurisdiction Act (Cap. 387);
    • "territorial waters" means the territorial waters of Barbados defined in section 3 of the Barbados Territorial Waters Act (Cap. 386).

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Act applies to Barbadian ships, aircraft

  1.  
  1. This Act applies to things done on a Barbadian ship or Barbadian aircraft as it applies to things done in Barbados.
  2. In this section,
    1. "Barbadian ship" means a vessel registered under Part I of the Shipping Act (Cap. 296);
    2. "Barbadian aircraft" means an aircraft registered under the Civil Aviation (Air Navigation) Regulations, 1984 (S.I. 1984, No. 25).

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Crown bound

  1. The Crown is bound by this Act.

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Regulations

  1. The Minister may make regulations
    1. prescribing anything that is by this Act authorised or required to be prescribed; and
    2. prescribing anything that is necessary for the purpose of giving effect to this Act.

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Repeals

  1. The Copyright Act (Cap. 300) is repealed.

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Equity

  1. Nothing in this Act shall affect the operation of any rule of equity relating to breaches of trust or confidence.

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Transitional

  1. Any copyright or other rights similar to those described in this Act that were vested in any person immediately before the commencement of this Act continue to be vested in him and are enforceable by him in the same manner as other rights under this Act.

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Commencement

  1. This Act shall come into operation on a date to be fixed by proclamation.