1. A person who, in a case covered by a licensing scheme, claims that the operator of the scheme has refused to grant him or procure the grant to him of a licence in accordance with the scheme, or has failed to do so within a reasonable time after being asked, may apply to the Tribunal.
2. A person who, in a claim excluded from a licensing scheme, claims that the operator of the scheme
   1. has refused to grant him a licence or procure the grant to him of a licence, or has failed to do so within a reasonable time of being asked, and that in the circumstances it is unreasonable that a licence should not be granted; or
   2. proposes terms for a licence that are unreasonable,
   may apply to the Tribunal.
3. A case shall be regarded as excluded from a licensing scheme for the purposes of subsection (1) if
   1. the scheme provides for the grant of licences subject to terms excepting matters from the licence and the case falls within such exception; or
   2. the case is so similar to those in which licences are granted under the scheme that it is unreasonable that it should not be dealt with in the same way.
4. If the Tribunal is satisfied that the claim referred to in subsection (1) is well-founded, it shall make an order declaring that, in respect of the matters specified in the order, the applicant is entitled to a licence on such terms as the Tribunal may determine to be applicable in accordance with the scheme or, as the case may be, to be reasonable in the circumstances.
5. The order referred to in subsection (1) may be of indefinite duration or may endure for such period as the Tribunal may determine.

1. Where the Tribunal has made an order under section 90 that a person is entitled to a licence under a licensing scheme, the operator of the scheme or the original applicant may apply to the Tribunal to review its order.
2. An application shall not, except with the special leave of the Tribunal, be made
   1. within twelve months from the date of the order, or of the decision on a previous application under this section; or
   2. if the order was made to be in force for fifteen months or less or, as a result of the decision on a previous application under this section, is due to expire within fifteen months of that decision, until the last three months before the expiry date.
3. The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable having regard to the terms applicable in accordance with the licensing scheme or, as the case may be, the circumstance of the case.

1. A licensing scheme that has been confirmed or varied by the Tribunal under section 87 or 88 shall be in force, or as the case may be, remain in operation so far as it relates to the description of case in respect of which the order is made, so long as the order remains in force.
2. While the order is in force, a person who is in a case of a class to which the order applies,
   1. pays to the operator of the scheme any charges payable under the scheme in respect of a licence covering the case in question or, if the amount cannot be ascertained, gives an undertaking to the operator to pay them when ascertained; and
   2. complies with the other terms applicable to such a licence under the scheme,
   shall be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question in accordance with the scheme.
3. The Tribunal may direct that the order referred to in subsection (2), so far as it varies the amount of the charges payable, shall have effect from a date before that on which it is made, not being a date earlier than the date on which the reference was made or, where the scheme came into operation after the reference was made, not being a date earlier than the date on which the scheme came into operation; but no such direction may be made where subsection (5) applies.
4. If a direction is made under subsection (3)
   1. any necessary repayments, or further payments, shall be made in respect of charges already paid; and
   2. the reference in paragraph (a) of subsection (2) to the charges payable under the scheme shall be construed as a reference to the charges so payable by virtue of the order.
5. Any order of the Tribunal under section 87 or 88 made with respect to a scheme that is certified for any purpose under section 100 has effect, so far as it varies the scheme by reducing the charge payable for licences, from the date on which the reference was made to the Tribunal.
6. Where the Tribunal makes an order under section 90 and the order remains in force, the person in whose favour the order is made shall, if he satisfies the conditions specified in subsection (7), be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.
7. The conditions referred to in subsection (6) are that the person mentioned in that subsection shall
   1. pay to the operator of the scheme any charges payable in accordance with the order or, if the amount cannot be ascertained, give an undertaking to pay the charges when ascertained; and
   2. comply with the other terms specified in the order.

Licenses to which sections 94 to 97 apply

93. Sections 94 to 97 apply to the following descriptions of licence granted by a licensing body otherwise than in pursuance of a licensing scheme:

1. licences relating to the copyright in literary, dramatic, musical or artistic works or films, or film sound track when accompanying a film, which cover works of more than one author, so far as they authorise
   1. copying the work;
   2. performing, playing or showing the work in public; or
   3. broadcasting the work or including it in a cable programme service;
2. any licence relating to the copyright in a sound recording other than a film sound track when accompanying a film, broadcast or cable programme, or the typographical arrangement of a published edition; and
3. all licences in relation to the copyright in sound recordings, films or computer programmes so far as they relate to the rental of copies to the public.

Reference to Tribunal of proposed licence

1. The terms on which a licensing body proposes to grant a licence may be referred to the Tribunal by the prospective licensee.
2. The Tribunal shall first decide whether to entertain the reference referred to in subsection (1), and may decline to do so on the ground that the reference is premature.
3. If the Tribunal decides to entertain the reference it shall consider the terms of the proposed licence and make such order, either confirming or varying the terms, as it may determine to be reasonable in the circumstances.
4. The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

Reference to Tribunal of expiring licence

1. A licensee under a licence which is due to expire by effluxion of time or as a result of notice given by the licensing body, may apply to the Tribunal on the grounds that it is unreasonable in the circumstances that the licence should cease to be in force.
2. Such an application may not be made until the last three months before the licence is due to expire.
3. A licence in respect of which a reference has been made to the Tribunal shall remain in operation until proceedings on the reference are concluded.
4. If the Tribunal finds the application well-founded, it shall make an order declaring that the licensee shall continue to be entitled to the benefit of the licence on such terms as the Tribunal may determine to be reasonable in the circumstances.
5. An order of the Tribunal under this section may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

1. Where the Tribunal has made an order under section 94 or 95, the licensing body or the person entitled to the benefit of the order may apply to the Tribunal to review its order.
2. An application shall not, except with the special leave of the Tribunal, be made
   1. within twelve months from the date of the order referred to in subsection (1) or of the decision on a previous application under this section; or
   2. if the order was made so as to be in force for fifteen months or less or, as a result of the decision on a previous application under this section, is due to expire within fifteen months of that decision, until the last three months before the expiry date.
3. The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable in the circumstances.

Effect of order of Tribunal

1. Where the Tribunal makes an order under section 94 or 95 and the order remains in force, the person entitled to the benefit of the order shall, if he satisfies the conditions specified in subsection (2), be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.
2. The conditions referred to in subsection (1) are that the person mentioned in that subsection shall
   1. pay to the licensing body any charges payable in accordance with the order or, if the amount cannot be ascertained, give an undertaking to pay the charges when ascertained; and
   2. comply with the other terms specified in the order.
3. The benefit of the order may be assigned
   1. in the case of an order under section 94, if assignment is not prohibited under the terms of the Tribunal order; and
   2. in the case of an order under section 95, if assignment was not prohibited under the terms of the original licence.
4. The Tribunal may direct that an order under section 94 or 95, or an order under section 96 varying such an order, so far as it varies the amount of charges payable, shall not have effect from a date
   1. before that on which it was made, not being a date earlier than the date on which the reference or application was made; or
   2. where a licence was granted or was due to expire after the reference was made, not being a date earlier than the date on which the licence was granted or, as the case may be, was due to expire.
5. If a direction referred to in subsection (4) is made
   1. any necessary repayments, or further payments, shall be made in respect of charges already paid; and
   2. the reference in paragraph (a) of subsection (1) to the charges payable in accordance with the order shall be construed, where the order is varied by a later order, as a reference to the charges so payable by virtue of the later order.

98. Regulations made under section 148 may prescribe the matters that the Tribunal shall take into account on a reference or application under this Part in respect of any class or classes of case.

1. An application to settle the royalty or other sum payable in pursuance of section 77 may be made to the Tribunal by the copyright owner or the person claiming to be treated as licensed by him.
2. The Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.
3. Either party may subsequently apply to the Tribunal to vary the order and the Tribunal shall consider the matter and make such order confirming or varying the original order as it may determine to be reasonable in the circumstances.
4. An application under subsection (3) shall not, except with the special leave of the Tribunal, be made within twelve months from the date of the original order or of the order on a previous application under that subsection.
5. An order under subsection (3) has effect from the date on which it is made or such later date as may be specified by the Tribunal.

Ministerial order in relation to licensing scheme

1. On the application of any person operating or proposing to operate a licensing scheme for the purposes of sections 57, 77 and such other provisions as may be prescribed, the Minister shall by order certify the scheme if he is satisfied that it
   1. enables the works to which it relates to be identified with sufficient certainty by persons likely to require licences; and
   2. sets out clearly the charges (if any) payable and the other terms on which licences will be granted.
2. The scheme shall be scheduled to the order and the scheme shall come into operation for the purposes of sections 57, 77 or such other provisions as may be prescribed
   1. on such date, being not less than eight weeks after the order is made, as may be specified in the order; or
   2. if the scheme is the subject of a reference under section 87, any later date on which the order of the Tribunal under that section comes into force or the reference is withdrawn.
3. A variation of the scheme is not effective unless the order is amended by the Minister; and the Minister shall make the amendment in the case of a variation ordered by the Tribunal on a reference under section 87, 88 or 89 and may do so in any other case if he thinks fit.
4. The Minister may, by order revoke an order made under subsection (1) if it appears to him that the scheme to which the order relates is no longer being operated according to its terms, and shall revoke the order if the scheme ceases to be operated.

PART VII : THE COPYRIGHT TRIBUNAL

Establishment of the Copyright Tribunal

1. The Copyright Tribunal, in this Act referred to as the "Tribunal" is hereby established for the purposes of this Act.
2. The Tribunal shall comprise three persons, one of whom shall be an attorney-at-law of at least ten years standing.
3. The members of the Tribunal shall be appointed by the Minister for a period of not more than three years, and are eligible for re-appointment.
4. Subject to this section, the provisions of the Administrative Appeals Tribunal Act (Cap. 109A) apply for the purpose of giving effect to this section notwithstanding that that Act is not in force.
5. The members of the Tribunal shall receive such remuneration as the Minister determines.

Jurisdiction of Tribunal

1. The functions of the Tribunal are
   1. to hear and determine
      1. any matter referred to it pursuant to any provision of Part VI relating to a licensing scheme;
      2. an application under section 99 to settle the royalty or other sum payable for rental of a sound recording, film or computer programme;
   2. to keep under review the prescribed rate of royalty payable to a performer in connection with an adaptation of an original recording of his performance; and
   3. to make recommendations to the Minister on the rate of royalties or other payments payable in respect of the use or presentation in such national cultural event as he may by order designate, of any works or performance in which copyright or other rights subsist.
2. In relation to its functions under subsection (1)(b), the Tribunal may on its own initiative and shall, on a request made in writing by the Minister, enquire into the appropriateness of such rate and make such recommendations to the Minister with respect thereto as the Tribunal thinks fit.

1. The Minister may make regulations respecting the proceedings before the Tribunal.
2. Without affecting subsection (1), regulations made under this section shall
   1. prohibit the Tribunal from entertaining a reference under section 87, 88 or 89 by a representative organisation unless the Tribunal is satisfied that the organisation is reasonably representative of the class of the persons it claims to represent;
   2. specify the parties to any proceedings and enable the Tribunal to join as a party to the proceedings any person or organisation that the Tribunal is satisfied has a substantial interest in the matter; and
   3. require the Tribunal to give the parties to proceedings an opportunity to state their cases, in writing or orally as the regulations may provide.
3. The regulations may prescribe any matter incidental to or consequential upon any appeal from the Tribunal under section 104.
4. Regulations made under this section are subject to negative resolution.

Appeal on point of law

1. An appeal lies on any point of law arising from a decision of the Tribunal to the High Court.
2. The Tribunal may, by way of case stated, refer a question of law to the High Court for its opinion.
3. The decision of the High Court, whether on an appeal or on a case stated, shall be final.
4. Regulations made under section 103 may limit the time within which an appeal may be brought.

PART VIII : RIGHTS IN PERFORMANCE

Conferment of rights in performance

1. Subject to this Part,
   1. a performer has the exclusive right to prevent any person, without the consent of the performer, from exploiting his performance and
   2. a person who has recording rights in relation to a performance, has the exclusive right to prevent any person, without his consent, from making a recording of that performance.
2. The rights conferred by this Part are independent of
   1. any copyright in or moral rights relating to any work used or performed in the performance; and
   2. any other right or obligation arising otherwise than under this Part.

Performers' Rights

1. A performer's rights are infringed by a person who without his consent,
   1. makes a recording of the whole or any substantial part of a qualifying performance; or
   2. broadcasts live, or includes live in a cable programme service, the whole or any substantial part of a qualifying performance.
2. In an action for infringement of a performer's rights brought by virtue of this section, damages shall not be awarded against a defendant who shows that at the time of the infringement he believed on reasonable grounds that consent had been given.

107. A performer's rights are infringed by a person who, without the performer's consent,
     1. shows or plays in public the whole or any substantial part of a qualifying performance; or
     2. broadcasts or includes in a cable programme service the whole or any substantial part of a qualifying performance,
     by means of a recording which was made without the performer's consent and which the person knows or has reason to believe was so made.

1. A performer's rights are infringed by a person who, without his consent and payment of royalty at the prescribed rate, uses an original recording of a qualifying performance, whether authorised or not, for the purpose of making an adaptation of the recording.
2. In subsection (1) "an adaptation of the recording" means a recording in which the performance is accompanied by lyrics or music not contained in the original recording.

1. A performer's rights are infringed by a person who, without his consent,
   1. imports into Barbados otherwise than for his private and domestic use; or
   2. in the course of business possesses, sells or lets for hire, offers or exposes for sale or hire, or distributes,
   a recording of a qualifying performance which is, and which that person knows or has reason to believe is an illicit recording.
2. Where in an action for infringement of a performer's rights brought by virtue of this section a defendant shows that the illicit recording was innocently acquired by him or his predecessor in title the court may award to the performer such amount by way of damages that is reasonable compensation for the act complained of.
3. In subsection (2) "innocently acquired" means that the person acquiring the recording did not know and had no reason to believe that it was an illicit recording.

Remuneration

1. Where any phonogram the original sound recording of which was lawfully made in Barbados is used
   1. by way of being made available for commercial purposes to the public;
   2. by way of a broadcast; or
   3. by way of any other communication to the public,
   the user of the phonograms shall pay to the producer of the phonogram remuneration for the producer and any performer whose performance constitutes any of the aural effects of the phonogram.
2. When more than one performer is entitled to share the remuneration paid to the producer under subsection (1) for the performer, the amount paid by the producer shall be divided equally among those performers or in the manner and shares agreed among the performers.

Person Having Recording Rights

1. A person infringes the rights of a person having recording rights in relation to a performance who, without his consent, makes a recording of the whole or any substantial part of the performance otherwise than for his private and domestic use.
2. In an action for infringement of those rights referred to in subsection (1), damages shall not be awarded against a defendant who shows that at the time of the infringement he believed on reasonable grounds that consent had been given.

1. A person infringes the rights of a person having recording rights in relation to a performance who, without his consent,
   1. shows or plays in public the whole or any substantial part of the performance, or
   2. broadcasts or includes in a cable programme service the whole or any substantial part of the performance,
   by means of a recording which was, and which that person knows or has reason to believe was, made without the appropriate consent.
2. The reference in subsection (1) to the "appropriate consent" is to the consent of the person who at the time the consent was given had recording rights in relation to the performance, or, if there was more than one such person, of all of them.

1. A person infringes the rights of a person having recording rights in relation to a performance who, without his consent,
   1. imports into Barbados otherwise than for his private and domestic use; or
   2. in the course of a business, possesses, sells or lets for hire, offers or exposes for sale or hire, or distributes,
   a recording of the performance which is, and which that person knows or has reason to believe is, an illicit recording.
2. Where in an action for infringement of those rights referred to in subsection (1), a defendant shows that the illicit recording was innocently acquired by him or his predecessor in title, the Court may award to the person whose rights were infringed such amount by way of damages that is reasonable compensation for the act complained of.
3. In subsection (2) "innocently acquired" means that the person acquiring the recording did not know and had no reason to believe that it was an illicit recording.

Exceptions to Infringement

114. Notwithstanding the rights in performances conferred by this Part,
     1. any act done in relation to a performance or recording in the circumstances specified in sections 115 to 126 does not constitute an infringement of the rights; and
     2. the Tribunal may give consent on behalf of a performer in the circumstances specified in section 126.

Fair dealing for criticism, etc.

115. Fair dealing with a performance or recording
     1. for the purpose of criticism or review of that or another performance or recording, or of a work; or
     2. for the purpose of reporting current events,
     does not infringe any of the rights conferred by this Part, and the provisions of section 53 shall, with the necessary modifications, apply in determining whether or not an act constitutes fair dealing.

Incidental inclusion of performance or recording

1. The rights conferred by this Part are not infringed
   1. by the incidental inclusion in a sound recording, film, broadcast or cable programme of a performance or recording;
   2. by anything done in relation to copies of, or the playing, showing, broadcasting or inclusion in a cable programme service of, anything whose making was not an infringement of those rights, by virtue of paragraph (a).
2. For the purposes of this section, a performance or recording so far as it consists of music, or words spoken or sung with music, shall not be regarded as incidentally included in a sound recording, broadcast or cable programme if it is deliberately included.

1. The rights conferred by this Part are not infringed
   1. by the copying of a recording of a performance in the course of instruction, or of preparation for instruction, in the making of films or film sound tracks, if the person by whom the copying is done is the person giving or receiving instruction;
   2. by the copying of a recording of a performance for the purposes of setting or answering the questions in an examination; or
   3. by anything done for the purposes of an examination by way of communicating the questions to the candidates.
2. Where a recording that would otherwise be an illicit recording is made in accordance with this section or section 118 but is subsequently dealt with, it shall be treated as an illicit recording for the purposes of that dealing, and if that dealing infringes any right conferred by this Part, it shall be treated as an illicit recording for all subsequent purposes.
3. For the purposes of subsection (3), "dealt with" means sold or let for hire, or offered or exposed for sale or hire.

118. A recording of a broadcast or cable programme or a copy of such recording, may be made by or on behalf of an educational establishment for the educational purposes of that establishment without thereby infringing any of the rights conferred by this Part in relation to any performance or recording included in it.

119. The rights conferred by this Part are not infringed by anything done for the purposes of
     1. parliamentary or judicial proceedings or the reporting of such proceedings; or
     2. the proceedings of a statutory inquiry or the reporting of such proceedings.

1. Where a recording of a performance in electronic form has been purchased on terms that, expressly or impliedly or by virtue of any rule of law, allow the purchaser to make further recordings in connection with his use of the recording, then, in the absence of any express terms
   1. prohibiting the transfer of the recording by the purchaser;
   2. imposing obligations that continue after a transfer;
   3. prohibiting the assignment of any consent;
   4. terminating any consent on a transfer; or
   5. providing for the terms on which a transferee may do the things that the purchaser was permitted to do,
   anything that the purchaser was allowed to do may also be done by a transferee without infringement of the rights conferred by this Part, but any recording made by the purchaser that is not also transferred shall be treated as an illicit recording for all purposes after the transfer.
2. Subsection (1) applies where the original purchased recording is no longer usable and what is transferred is a further copy used in its place.
3. This section also applies on a subsequent transfer, with the substitution for references in subsection (1) to the purchaser of references to the subsequent transferor.
4. This section does not apply in relation to a recording purchased before the commencement of this Act.

Use of recordings of spoken words

1. Where a recording of the reading or recitation of a literary work is made for the purpose of
   1. reporting current events; or
   2. broadcasting or including in a cable programme service the whole or part of the reading or recitation,
   it is not an infringement of the rights conferred by this Part to use the recording or to copy the recording and use the copy, for that purpose, if the conditions specified in subsection (2) are met.
2. The conditions referred to in subsection (1) are that
   1. the recording is a direct recording of the reading or recitation and is not taken from a previous recording or from a broadcast or cable programme;
   2. the making of the recording was not prohibited by or on behalf of the person giving the reading or recitation;
   3. the use made of the recording is not of a kind prohibited by or on behalf of that person before the recording was made; and
   4. the use is by or with the authority of a person who is lawfully in possession of the recording.

122. It is not an infringement of any right conferred by this Part to play a sound recording as part of the activities of, or for the benefit of, a club, society or other organisation if
     1. the organisation is not established or conducted for profit and its main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare; and
     2. the proceeds of any charge for admission to the place where the recording is to be heard are applied solely for the purposes of the organisation.

1. Subject to subsection (2), a person who proposes to broadcast a recording of a performance, or to include a recording of a performance in a cable programme service, in circumstances that do not infringe the rights conferred by this Part, shall be treated as having consented for the purposes of this Part to the making of a further recording for the purposes of the broadcast or cable programme.
2. The consent given under subsection (1) is subject to the following conditions:
   1. the further recording shall not be used for any other purpose; and
   2. such recording shall be destroyed within twenty-eight days of being first used for broadcasting the performance or including it in a cable programme service.
3. A recording made in accordance with this section shall be treated as an illicit recording
   1. if it is used for any purpose contrary to the condition mentioned in paragraph (a) of subsection (2);
   2. for all purposes after that condition or the condition mentioned in paragraph (b) of subsection (2) is breached.

124. The rights conferred by this Part are not infringed
     1. by the making or use by a prescribed broadcasting organisation for the purpose of maintaining supervision and control over programmes broadcast by that organisation, of recordings of those programmes; or
     2. by the making or use of recordings by the Broadcasting Authority in connection with and for the purpose of carrying out its functions under the Broadcasting Act.

1. A recording of a broadcast or cable programme of a designated class, or copy of such recording, may be made for the purpose of being placed in the Archives Department or an archive maintained by a designated body without thereby infringing any right conferred by this Part in relation to a performance or recording included in the broadcast or cable programme.
2. In this section "designated" has the meaning assigned to that expression in section 81.

Tribunal may consent on behalf of performer

1. Subject to this section, the Tribunal may, on the application of a person who wishes to make a recording from a previous recording of a performance, give consent in a case where
   1. the identity or whereabouts of a performer cannot be ascertained by reasonable inquiry; or
   2. a performer unreasonably withholds his consent.
2. Consent given by the Tribunal has effect as consent of the performer for the purposes of
   1. the provisions of this Part relating to performers' rights; and
   2. paragraph (a) of subsection (3) of section 132,
   and such consent may be given subject to such conditions as the Tribunal may specify in the order.
3. The Tribunal shall not give consent
   1. under paragraph (a) of subsection (1) except after the service or publication of such notices as may be required by regulations made under section 103 or as the Tribunal may in any particular case direct; or
   2. under paragraph (b) of subsection (1) unless it is satisfied that the performer's reasons for withholding consent do not include the protection of any legitimate interest of his; but it shall be for the performer to show what his reasons are for withholding consent, and in default of evidence as to his reasons the Tribunal may draw such inferences as it thinks fit.
4. In any case the Tribunal shall take into account the following factors:
   1. whether the original recording was made with the performer's consent and is lawfully in the possession or control of the person proposing to make the further recording; and
   2. whether the making of the further recording is consistent with the obligations of the parties to the arrangements under which, or is otherwise consistent with the purposes for which, the original recording was made.
5. Where the Tribunal gives consent under this section it shall, in default of agreement between the applicant and the performer, make such order as it thinks fit as to the payment to be made to the performer in consideration of consent being given.

Continuation: Duration and Transmission of Rights in Performances: Consent