HL Deb 02 November 1988 vol 501 cc284-5

93 Clause 96, page 39, line 14, leave out subsections (2) and (3) and insert— '(2) His rights and remedies are concurrent with those of the copyright owner; and references in the relevant provisions of this Part to the copyright owner shall be construed accordingly.'.

94 Clause 97, page 39, line 39, leave out 'This section does' and insert 'The above provisions do'.

95 Page 39, line 40, at end insert—

'(4) Where an action for infringement of copyright is brought which relates (wholly or partly) to an infringement in respect of which the copyright owner and an exclusive licensee have or had concurrent rights of action—

  1. (a) the court shall in assessing damages take into account—
    1. (i) the terms of the licence, and
    2. (ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement;
    2. 285
  2. (b) no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement; and
  3. (c) the court shall if an account of profits is directed apportion the profits between them as the court considers just, subject to any agreement between them;
and these provisions apply whether or not the copyright owner and the exclusive licensee are both parties to the action.

(5) The copyright owner shall notify any exclusive licensee having concurrent rights before applying for an order under section 94 (order for delivery up) or exercising the right conferred by section 95 (right of seizure); and the court may on the application of the licensee make such order under section 94 or, as the case may be, prohibiting or permitting the exercise by the copyright owner of the right conferred by section 95, as it thinks fit having regard to the terms of the licence.'.

96 Leave out Clause 98.

Lord Young of Graffham

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 93 to 96 en bloc. It will be convenient also to consider Amendments Nos. 175, 214, 215 and 241. Clause 96 provides that the rights of a copyright owner and an exclusive licensee are concurrent except in matters of delivery up and seizure where the exclusive licensee's rights are in place of the copyright owner's. The rationale behind this was that only one person can seize an infringing copy or have such a copy delivered up. However, this provision could be damaging to the copyright owner if, for whatever reason, the exclusive licensee did not act against infringing copies.

Amendment No. 94 will give the copyright owner and exclusive licensee concurrent rights for all purposes. Amendment No. 95 restructures the tail end of Clause 97 by adding the substance of Clause 98 and a new provision requiring the copyright owner to notify any exclusive licenses before applying for an order for delivery up or exercising the right of seizure. The licensee would then be able to claim priority over the owner in delivery up or seizure of infringing copies. This will mean that the copyright owner is not impotent, as under the provisions in Clause 96 as it left your Lordships' House, but that the position of the exclusive licensee is preserved. The other amendments in the group make corresponding amendments in Parts II and III.

Moved, That the House do agree with the Commons in their Amendments Nos. 93 to 96 en bloc.—(Lord Young of Graffham.)

On Question, Motion agreed to.