Copyright, Designs and Patents Act 1988 (c. 48)

(The document as of February, 2008)

-- Back --

Page 19

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 | P.15 | P.16 | P.17 | P.18 | P.19 | P.20

26 In the [1977 c. 37.] Patents Act 1977, after section 99 (general powers of the court) insert--

" 99A Power of Patents Court to order report

(1) Rules of court shall make provision empowering the Patents Court in any proceedings before it under this Act, on or without the application of any party, to order the Patent Office to inquire into and report on any question of fact or opinion.

(2) Where the court makes such an order on the application of a party, the fee payable to the Patent Office shall be at such rate as may be determined in accordance with rules of court and shall be costs of the proceedings unless otherwise ordered by the court.

(3) Where the court makes such an order of its own motion, the fee payable to the Patent Office shall be at such rate as may be determined by the Lord Chancellor with the approval of the Treasury and shall be paid out of money provided by Parliament.

99B Power of Court of Session to order report

(1) In any proceedings before the Court of Session under this Act the court may, either of its own volition or on the application of any party, order the Patent Office to inquire into and report on any question of fact or opinion.

(2) Where the court makes an order under subsection (1) above of its own volition the fee payable to the Patent Office shall be at such rate as may be determined by the Lord President of the Court of Session with the consent of the Treasury and shall be defrayed out of moneys provided by Parliament.

(3) Where the court makes an order under subsection (1) above on the application of a party, the fee payable to the Patent Office shall be at such rate as may be provided for in rules of court and shall be treated as expenses in the cause. " .

27 For section 102 of the [1977 c. 37.] Patents Act 1977 (right of audience in patent proceedings) substitute--

" 102 Right of audience, &c. in proceedings before comptroller

(1) A party to proceedings before the comptroller under this Act, or under any treaty or international convention to which the United Kingdom is a party, may appear before the comptroller in person or be represented by any person whom he desires to represent him.

(2) No offence is committed under the enactments relating to the preparation of documents by persons not legally qualified by reason only of the preparation by any person of a document, other than a deed, for use in such proceedings.

(3) Subsection (1) has effect subject to rules made under section 281 of the Copyright, Designs and Patents Act 1988 (power of comptroller to refuse to recognise certain agents).

(4) In its application to proceedings in relation to applications for, or otherwise in connection with, European patents, this section has effect subject to any restrictions imposed by or under the European Patent Convention.

102A Right of audience, &c. in proceedings on appeal from the comptroller

(1) A solicitor of the Supreme Court may appear and be heard on behalf of any party to an appeal under this Act from the comptroller to the Patents Court.

(2) A registered patent agent or a member of the Bar not in actual practice may do, in or in connection with proceedings on an appeal under this Act from the comptroller to the Patents Court, anything which a solicitor of the Supreme Court might do, other than prepare a deed.

(3) The Lord Chancellor may by regulations--

(a) provide that the right conferred by subsection (2) shall be subject to such conditions and restrictions as appear to the Lord Chancellor to be necessary or expedient, and

(b) apply to persons exercising that right such statutory provisions, rules of court and other rules of law and practice applying to solicitors as may be specified in the regulations;

and different provision may be made for different descriptions of proceedings.

(4) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) This section is without prejudice to the right of counsel to appear before the High Court. " .

Provision of information

28 In section 118 of the [1977 c. 37.] Patents Act 1977 (information about patent applications, &c.), in subsection (3) (restriction on disclosure before publication of application: exceptions) for "section 22(6)(a) above" substitute "section 22(6) above".

Power to extend time limits

29 In section 123 of the Patents Act 1977 (rules), after subsection (3) insert--

" (3A) It is hereby declared that rules--

(a) authorising the rectification of irregularities of procedure, or

(b) providing for the alteration of any period of time,

may authorise the comptroller to extend or further extend any period notwithstanding that the period has already expired. " .

Availability of samples of micro-organisms

30 In the Patents Act 1977 after section 125 insert--

" 125A Disclosure of invention by specification: availability of samples of micro-organisms

(1) Provision may be made by rules prescribing the circumstances in which the specification of an application for a patent, or of a patent, for an invention which requires for its performance the use of a micro-organism is to be treated as disclosing the invention in a manner which is clear enough and complete enough for the invention to be performed by a person skilled in the art.

(2) The rules may in particular require the applicant or patentee--

(a) to take such steps as may be prescribed for the purposes of making available to the public samples of the micro-organism, and

(b) not to impose or maintain restrictions on the uses to which such samples may be put, except as may be prescribed.

(3) The rules may provide that, in such cases as may be prescribed, samples need only be made available to such persons or descriptions of persons as may be prescribed; and the rules may identify a description of persons by reference to whether the comptroller has given his certificate as to any matter.

(4) An application for revocation of the patent under section 72(1)(c) above may be made if any of the requirements of the rules cease to be complied with. " .

Section 301.

SCHEDULE 6 Provisions for the Benefit of the Hospital for Sick Children

Interpretation

1 (1) In this Schedule--

"the Hospital" means The Hospital for Sick Children, Great Ormond Street, London,
"the trustees" means the special trustees appointed for the Hospital under the [1977 c. 49.] National Health Service Act 1977; and
"the work" means the play "Peter Pan" by Sir James Matthew Barrie.

(2) Expressions used in this Schedule which are defined for the purposes of Part I of this Act (copyright) have the same meaning as in that Part.

Entitlement to royalty

2 (1) The trustees are entitled, subject to the following provisions of this Schedule, to a royalty in respect of any public performance, commercial publication, broadcasting or inclusion in a cable programme service of the whole or any substantial part of the work or an adaptation of it.

(2) Where the trustees are or would be entitled to a royalty, another form of remuneration may be agreed.

Exceptions

3 No royalty is payable in respect of--

(a) anything which immediately before copyright in the work expired on 31st December 1987 could lawfully have been done without the licence, or further licence, of the trustees as copyright owners; or

(b) anything which if copyright still subsisted in the work could, by virtue of any provision of Chapter III of Part I of this Act (acts permitted notwithstanding copyright), be done without infringing copyright.

Saving

4 No royalty is payable in respect of anything done in pursuance of arrangements made before the passing of this Act.

Procedure for determining amount payable

5 (1) In default of agreement application may be made to the Copyright Tribunal which shall consider the matter and make such order regarding the royalty or other remuneration to be paid as it may determine to be reasonable in the circumstances.

(2) Application may subsequently be made to the Tribunal to vary its 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.

(3) An application for variation 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 for variation.

(4) A variation order has effect from the date on which it is made or such later date as may be specified by the Tribunal.

Sums received to be held on trust

6 The sums received by the trustees by virtue of this Schedule, after deduction of any relevant expenses, shall be held by them on trust for the purposes of the Hospital.

Right only for the benefit of the Hospital

7 (1) The right of the trustees under this Schedule may not be assigned and shall cease if the trustees purport to assign or charge it.

(2) The right may not be the subject of an order under section 92 of the [1977 c. 49.] National Health Service Act 1977 (transfers of trust property by order of the Secretary of State) and shall cease if the Hospital ceases to have a separate identity or ceases to have purposes which include the care of sick children.

(3) Any power of Her Majesty, the court (within the meaning of the [1960 c. 58.] Charities Act 1960) or any other person to alter the trusts of a charity is not exercisable in relation to the trust created by this Schedule.

Section 303(1).

SCHEDULE 7 Consequential amendments: general

British Mercantile Marine Uniform Act 1919 (c. 62)

1 For section 2 of the British Mercantile Marine Uniform Act 1919 (copyright in distinctive marks of uniform) substitute--

" 2 Right in registered design of distinctive marks of uniform

The right of the Secretary of State in any design forming part of the British mercantile marine uniform which is registered under the Registered Designs Act 1949 is not limited to the period prescribed by section 8 of that Act but shall continue to subsist so long as the design remains on the register. " .

Chartered Associations (Protection of Names and Uniforms) Act 1926 (c. 26)

2 In section 1(5) of the Chartered Associations (Protection of Names and Uniforms) Act 1926 for "the copyright in respect thereof" substitute "the right in the registered design".

Patents, Designs, Copyright and Trade Marks (Emergency) Act 1939 (c. 107)

3 (1) The Patents, Designs, Copyright and Trade Marks (Emergency) Act 1939 is amended as follows.

(2) In section 1 (effect of licence where owner is enemy or enemy subject)--

(a) in subsection (1) after "a copyright" and "the copyright" insert "or design right";

(b) in subsection (2) after "the copyright" insert "or design right" and for "or copyright" substitute ", copyright or design right".

(3) In section 2 (power of comptroller to grant licences)--

(a) in subsection (1) after "a copyright", "the copyright" (twice) and "the said copyright" insert "or design right" and for "or copyright" (twice) substitute ", copyright or design right";

(b) in subsections (2) and (3) for ", or copyright" substitute ", copyright or design right";

(d) in subsection (8)(c) for "or work in which copyright subsists" substitute "work in which copyright subsists or design in which design right subsists".

(4) In section 5 (effect of war on international arrangements)--

(a) in subsection (1) for "section twenty-nine of the Copyright Act 1911" substitute "section 159 or 256 of the Copyright, Designs and Patents Act 1988 (countries enjoying reciprocal copyright or design right protection)";

(b) in subsection (2) after "copyright" (four times) insert "or design right" and for "the Copyright Act 1911" (twice) substitute "Part I or III of the Copyright, Designs and Patents Act 1988".

(5) In section 10(1) (interpretation) omit the definition of "copyright", and for the definitions of "design", "invention", "patent" and "patentee" substitute--

" "design" has in reference to a registered design the same meaning as in the Registered Designs Act 1949, and in reference to design right the same meaning as in Part III of the Copyright, Designs and Patents Act 1988;

"invention" and "patent" have the same meaning as in the Patents Act 1977. " .

Crown Proceedings Act 1947 (c. 44)

4 (1) In the Crown Proceedings Act 1947 for section 3 (provisions as to industrial property) substitute--

" 3 Infringement of intellectual property rights

(1) Civil proceedings lie against the Crown for an infringement committed by a servant or agent of the Crown, with the authority of the Crown, of--

(a) a patent,

(b) a registered trade mark or registered service mark,

(d) design right, or

(e) copyright;

but save as provided by this subsection no proceedings lie against the Crown by virtue of this Act in respect of an infringement of any of those rights.

(2) Nothing in this section, or any other provision of this Act, shall be construed as affecting--

(a) the rights of a government department under section 55 of the Patents Act 1977, Schedule 1 to the Registered Designs Act 1949 or section 240 of the Copyright, Designs and Patents Act 1988 (Crown use of patents and designs), or

(b) the rights of the Secretary of State under section 22 of the Patents Act 1977 or section 5 of the Registered Designs Act 1949 (security of information prejudicial to defence or public safety). " .

(2) In the application of sub-paragraph (1) to Northern Ireland--

(a) the reference to the Crown Proceedings Act 1947 is to that Act as it applies to the Crown in right of Her Majesty's Government in Northern Ireland, as well as to the Crown in right of Her Majesty's Government in the United Kingdom, and

(b) in the substituted section 3 as it applies in relation to the Crown in right of Her Majesty's Government in Northern Ireland, subsection (2)(b) shall be omitted.

Patents Act 1949 (c. 87)

5 In section 47 of the Patents Act 1949 (rights of third parties in respect of Crown use of patent), in the closing words of subsection (1) (which relate to the use of models or documents), after "copyright" insert "or design right".

Public Libraries (Scotland) Act 1955 (c. 27)

6 In section 4 of the Public Libraries (Scotland) Act 1955 (extension of lending power of public libraries), make the existing provision subsection (1) and after it add--

" (2) The provisions of Part I of the Copyright, Designs and Patents Act 1988 (copyright) relating to the rental of copies of sound recordings, films and computer programs apply to any lending by a statutory library authority of copies of such works, whether or not a charge is made for that facility. " .

London County Council (General Powers) Act 1958 (c.xxi)

7 In section 36 of the London County Council (General Powers) Act 1958 (power as to libraries: provision and repair of things other than books) for subsection (5) substitute--

" (5) Nothing in this section shall be construed as authorising an infringement of copyright. " .

Public Libraries and Museums Act 1964 (c. 75)

8 In section 8 of the Public Libraries and Museums Act 1964 (restrictions on charges for library facilities), after subsection (5) add--

" (6) The provisions of Part I of the Copyright, Designs and Patents Act 1988 (copyright) relating to the rental of copies of sound recordings, films and computer programs apply to any lending by a library authority of copies of such works, whether or not a charge is made for that facility. " .

Marine, &c., Broadcasting (Offences) Act 1967 (c. 41)

9 In section 5 of the Marine, &c., Broadcasting (Offences) Act 1967 (provision of material for broadcasting by pirate radio stations)--

(a) in subsection (3)(a) for the words from "cinematograph film" to "in the record" substitute "film or sound recording with intent that a broadcast of it"; and

(b) in subsection (6) for the words from "and references" to the end substitute "and "film", "sound recording", "literary, dramatic or musical work" and "artistic work" have the same meaning as in Part I of the Copyright, Designs and Patents Act 1988 (copyright)".

Medicines Act 1968 (c. 67)

10 (1) Section 92 of the Medicines Act 1968 (scope of provisions restricting promotion of sales of medicinal products) is amended as follows.

(2) In subsection (1) (meaning of "advertisement") for the words from "or by the exhibition" to "service" substitute "or by means of a photograph, film, sound recording, broadcast or cable programme,".

(3) In subsection (2) (exception for the spoken word)--

(a) in paragraph (a) omit the words from "or embodied" to "film"; and

(b) in paragraph (b) for the words from "by way of" to the end substitute "or included in a cable programme service".

(4) For subsection (6) substitute--

" (6) In this section "film", "sound recording", "broadcast", "cable programme", "cable programme service", and related expressions, have the same meaning as in Part I of the Copyright, Designs and Patents Act 1988 (copyright). " .

Post Office Act 1969 (c. 48)

11 In Schedule 10 to the Post Office Act 1969 (special transitional provisions relating to use of patents and registered designs), in the closing words of paragraphs 8(1) and 18(1) (which relate to the use of models and documents), after "copyright" insert "or design right".

Merchant Shipping Act 1970 (c. 36)

12 In section 87 of the Merchant Shipping Act 1970 (merchant navy uniform), for subsection (4) substitute--

" (4) Where any design forming part of the merchant navy uniform has been registered under the Registered Designs Act 1949 and the Secretary of State is the proprietor of the design, his right in the design is not limited to the period prescribed by section 8 of that Act but shall continue to subsist so long as the design remains registered. " .

Taxes Management Act 1970 (c. 9)

13 In section 16 of the Taxes Management Act 1970 (returns to be made in respect of certain payments)--

(a) in subsection (1)(c), and

(b) in subsection (2)(b),

for "or public lending right" substitute ", public lending right, right in a registered design or design right".

Tribunals and Inquiries Act 1971 (c. 62)

14 In Part I of Schedule 1 to the Tribunals and Inquiries Act 1971 (tribunals under direct supervision of Council on Tribunals) renumber the entry inserted by the [1984 c. 35.] Data Protection Act 1984 as "5B" and before it insert--

" Copyright

5A The Copyright Tribunal. "

Fair Trading Act 1973 (c. 41)

15 In Schedule 4 to the Fair Trading Act 1973 (excluded services), for paragraph 10 (services of patent agents) substitute--

" 10 The services of registered patent agents (within the meaning of Part V of the Copyright, Designs and Patents Act 1988) in their capacity as such. " ;

and in paragraph 10A (services of European patent attorneys) for "section 84(7) of the Patents Act 1977" substitute "Part V of the Copyright, Designs and Patents Act 1988".

House of Commons Disqualification Act 1975 (c. 24)

16 In Part II of Schedule 1 to the House of Commons Disqualification Act 1975 (bodies of which all members are disqualified), at the appropriate place insert "The Copyright Tribunal".

Northern Ireland Assembly Disqualification Act 1975 (c. 25)

17 In Part II of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (bodies of which all members are disqualified), at the appropriate place insert "The Copyright Tribunal".

Restrictive Trade Practices Act 1976 (c. 34)

18 (1) The Restrictive Trade Practices Act 1976 is amended as follows.

(2) In Schedule 1 (excluded services) for paragraph 10 (services of patent agents) substitute--

" 10 The services of registered patent agents (within the meaning of Part V of the Copyright, Designs and Patents Act 1988) in their capacity as such. " ;

and in paragraph 10A (services of European patent attorneys) for "section 84(7) of the Patents Act 1977" substitute "Part V of the Copyright, Designs and Patents Act 1988".

(3) In Schedule 3 (excepted agreements), after paragraph 5A insert--

" Design right

5B (1) This Act does not apply to--

(a) a licence granted by the owner or a licensee of any design right,

(b) an assignment of design right, or

if the licence, assignment or agreement is one under which no such restrictions as are described in section 6(1) above are accepted, or no such information provisions as are described in section 7(1) above are made, except in respect of articles made to the design; but subject to the following provisions.

(2) Sub-paragraph (1) does not exclude a licence, assignment or agreement which is a design pooling agreement or is granted or made (directly or indirectly) in pursuance of a design pooling agreement.

(3) In this paragraph a "design pooling agreement" means an agreement--

(a) to which the parties are or include at least three persons (the "principal parties") each of whom has an interest in one or more design rights, and

(b) by which each principal party agrees, in respect of design right in which he has, or may during the currency of the agreement acquire, an interest to grant an interest (directly or indirectly) to one or more of the other principal parties, or to one or more of those parties and to other persons.

(4) In this paragraph--

"assignment", in Scotland, means assignation; and
"interest" means an interest as owner or licensee of design right.

(5) This paragraph applies to an interest held by or granted to more than one person jointly as if they were one person.

(6) References in this paragraph to the granting of an interest to a person indirectly are to its being granted to a third person for the purpose of enabling him to make a grant to the person in question. " .

Resale Prices Act 1976 (c. 53)

19 In section 10(4) of the Resale Prices Act 1976 (patented articles: articles to be treated in same way), in paragraph (a) after "protected" insert "by design right or".

Patents Act 1977 (c. 37)

20 In section 57 of the Patents Act 1977 (rights of third parties in respect of Crown use of patent), in the closing words of subsection (1) (which relate to the use of models or documents), after "copyright" insert "or design right".

21 In section 105 of the Patents Act 1977 (privilege in Scotland for communications relating to patent proceedings), omit "within the meaning of section 104 above", make the existing text subsection (1) and after it insert--

" (2) In this section--

"patent proceedings" means proceedings under this Act or any of the relevant conventions, before the court, the comptroller or the relevant convention court, whether contested or uncontested and including an application for a patent; and
"the relevant conventions" means the European Patent Convention, the Community Patent Convention and the Patent Co-operation Treaty. " .

22 In section 123(7) of the Patents Act 1977 (publication of case reports by the comptroller)--

(a) for "and registered designs" substitute "registered designs or design right",

(b) for "and copyright" substitute ", copyright and design right".

23 In section 130(1) of the Patents Act 1977 (interpretation), in the definition of "court", for paragraph (a) substitute--

" (a) as respects England and Wales, the High Court or any patents county court having jurisdiction by virtue of an order under section 287 of the Copyright, Designs and Patents Act 1988; " .

Unfair Contract Terms Act 1977 (c. 50)

24 In paragraph 1 of Schedule 1 to the Unfair Contract Terms Act 1977 (scope of main provisions: excluded contracts), in paragraph (c) (contracts relating to grant or transfer of interest in intellectual property) after "copyright" insert "or design right".

Judicature (Northern Ireland) Act 1978 (c. 23)

25 In section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self-incrimination in certain proceedings relating to intellectual property), in subsection (5) (meaning of "intellectual property") after "copyright" insert "or design right".

Capital Gains Tax Act 1979 (c. 14)

26 In section 18(4) of the Capital Gains Tax Act 1979 (situation of certain assets for purposes of Act), for paragraph (h) (intellectual property) substitute--

" (ha) patents, trade marks, service marks and registered designs are situated where they are registered, and if registered in more than one register, where each register is situated, and rights or licences to use a patent, trade mark, service mark or registered design are situated in the United Kingdom if they or any right derived from them are exercisable in the United Kingdom,

(hb) copyright, design right and franchises, and rights or licences to use any copyright work or design in which design right subsists, are situated in the United Kingdom if they or any right derived from them are exercisable in the United Kingdom, " .

British Telecommunications Act 1981 (c. 38)

27 In Schedule 5 to the British Telecommunications Act 1981 (special transitional provisions relating to use of patents and registered designs), in the closing words of paragraphs 9(1) and 19(1) (which relate to the use of models and documents), after "copyright" insert "or design right".

Supreme Court Act 1981 (c. 54)

28 (1) The Supreme Court Act 1981 is amended as follows.

(2) In section 72 (withdrawal of privilege against self-incrimination in certain proceedings relating to intellectual property), in subsection (5) (meaning of "intellectual property") after "copyright" insert ", design right".

(3) In Schedule 1 (distribution of business in the High Court), in paragraph 1(i) (business assigned to the Chancery Division: causes and matters relating to certain intellectual property) for "or copyright" substitute ", copyright or design right".

Broadcasting Act 1981 (c. 68)

29 (1) The Broadcasting Act 1981 is amended as follows.

(2) In section 4 (general duties of IBA as regards programmes) for subsection (7) substitute--

" (7) For the purpose of maintaining supervision and control over the programmes (including advertisements) broadcast by them the Authority may make and use recordings of those programmes or any part of them. " .

(3) In section 20(9), omit paragraph (a).

Cable and Broadcasting Act 1984 (c. 46)

30 (1) The Cable and Broadcasting Act 1984 is amended as follows.

(2) In section 8, omit subsection (8).

(3) In section 49 (power of Secretary of State to give directions in the public interest), for subsection (7) substitute--

" (7) For the purposes of this section the place from which a broadcast is made is, in the case of a satellite transmission, the place from which the signals carrying the broadcast are transmitted to the satellite. " .

(4) In section 56(2) (interpretation) omit the definition of "the 1956 Act".

Companies Act 1985 (c. 6)

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9 | P.10 | P.11 | P.12 | P.13 | P.14 | P.15 | P.16 | P.17 | P.18 | P.19 | P.20

-- Back --

Stat