§ After Clause 19, insert the following new clause—
§ Proceedings in case of copyright subject to exclusive licence
§ (".—(1) The provisions of this section shall have effect as to proceedings in the case of any copyright in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.
§ (2)Subject to the following provisions of this section—
- (a) the exclusive licensee shall (except against the owner of the copyright) have the same rights of action, and be entitled to the same remedies, tinder section eighteen of this Act as if the licence had been an assignment, and those rights and remedies shall be concurrent with the rights and remedies of the owner of the copyright under that section;
- (b) the exclusive licensee shall (except against the owner of the copyright) have the same rights of action, and he entitled to the same remedies, by virtue of the last preceding section as if the licence had been an assignment: and
- (c) the owner of the copyright shall not have any rights of action, or be entitled to any remedies, by virtue of the last preceding section which he would not have had or been entitled to if the licence had been an assignment.
§ (3)Where an action is brought either by the owner of the copyright or by the exclusive licensee, and the action, in so far as it is brought tinder section eighteen of this Act, relates (wholly or partly) to an infringement in respect of which they have concurrent right; of action under that section, the owner or licensee. as the case may be, shall not be entitled, except with the leave of the court, to proceed with the action, in so far as it is brought under that section and relates to that infringement, unless the other party is either joined as a plaintiff in the action or added as a defendant:
§ Provided that this subsection shall not affect the granting of an interlocutory injunction on the application of either of them.
§ (4)In any action brought by the exclusive licensee by virtue of this section, any defence which would have been available to a defendant in the action, if this section had not been enacted and the action had been brought by the owner of the copyright, shall be available to that defendant as against the exclusive licensee.
§ (5)Where an action is brought in the circumstances mentioned in subsection (3) of this section, and the owner of the copyright and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages in respect of any such infringement as is mentioned in that subsection,—
- (a) if the plaintiff is the exclusive licensee, shall take into account any liabilities (in respect of royalties or otherwise) to which the licence is subject, and
- (b) whether the plaintiff is the owner of the copyright or the exclusive licensee, shall take into account any pecuniary remedy already awarded to the other party under section eighteen of this Act in respect of that infringement, or. as the case may require, any right of action exercisable by the other party under that section in respect thereof.
§ (6) Where an action, in so far as it is brought under section eighteen of this Act, relates (wholly or partly) to an infringement in respect of which the owner of the copyright, and the exclusive licensee have concurrent rights of action under that section, and in that action (whether they are both parties to it or not) an account of profits is directed to be taken in respect of that infringement, then, subject to any agreement of which the court is aware, whereby the application of those profits is determined as between the owner of the copyright and the exclusive licensee, the court shall apportion the profits between them as the court may consider just, and shall give such directions as the court may consider appropriate for giving effect to that apportionment.
§ (7) In an action brought either by the owner of the copyright or by the exclusive licensee,—
- (a) no judgment or order for the payment of damages in respect of an infringement of copyright shall he given or made under section eighteen of this Act, if a final judgment or order has 'peen given or made awarding an account of profits to the other party under that section in respect of the same infringement; and
- (b) no judgment or order for an account of profits in respect of an infringement of copyright shall be given or made tinder that section, if a final judgment or order has been given or made awarding either damages or an account of profits to the other party under that section in respect of the same infringement.
§ (8) Where, n an action brought in the circumstances mentioned in subsection (3) of this section, whether by the owner of the copyright or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of the action or subsequently), but is added as a defendant, he shall not be liable for any costs in the action unless he enters an appearance and takes part in the proceedings.
§ (9) In this section "exclusive licence" means a licence in writing, signed by or on behalf of an owner or prospective owner of copyright, authorising the licensee, to the exclusion of all other persons, including the grantor of the licence, to exercise a right which by virtue of this Act would (apart from the licence) be exercisable exclusively by the owner of the copyright, and "exclusive licensee" shall be construed accordingly; "the other party", in relation to the owner of the copyright, means the exclusive; licensee, and, in relation to the exclusive licensee, means the owner of the copyright; and "if the licence had been an assignment" means if, instead of the licence, there had been granted (subject to terms and conditions corresponding as nearly as may be with those subject to which the licence was 1179 granted) an assignment of the copyright in respect of its application to the doing, at the places and times authorised by the licence, of the acts so authorised.")
§ LORD MANCROFTMy Lords, this is an awful business and I apologise for it. If the noble Lord, Lord Douglas of Barloch, had been in his place I should have gone into it in elaborate detail.
§ LORD LUCAS OF CHILWORTHI am glad he is not.
§ LORD MANCROFTMy Lords, the observation of 'the noble Lord, Lord Lucas of Chilworth, which perhaps was not intended for any ears except mine, encourages me to think that your Lordships need no explanation on this new clause. It is a highly technical matter, on which the noble Lord, Lord Douglas of Barloch, made a most learned and eloquent speech which, only after I had read it very carefully four times, with a wet towel round my head, did I begin to understand. We came to the conclusion that the noble Lord had a good point on this highly technical matter and this is our attempt to meet it. Since the noble Lord is not here to pick holes in our draftsmanship (and I am quite certain he is the only person in this House who would have the slightest chance of understanding what this Amendment is about), I beg to move that this House doth agree with the Commons in the said Amendment.
§ Moved. That this House doth agree with the Commons in the said Amendment.—(Lord Mancroft.)
§ On Question, Motion agreed to.