xmlns:atom="http://www.w3.org/2005/Atom"

Statutory Instruments

2005 No. 222

COPYRIGHT

The Copyright (Certification of Licensing Scheme for Educational Recording of Broadcasts) (Educational Recording Agency Limited) Order 2005

Made

2nd February 2005

Whereas The Educational Recording Agency Limited (company number 2423219), whose registered office is at Hanover House, 14 Hanover Square, London W1S 1HP has applied to the Secretary of State to certify, for the purposes of section 35 of, and paragraph 6 of Schedule 2 to, the Copyright, Designs and Patents Act 1988 (“the Act”)(1), a licensing scheme to be operated by it:

And whereas the Secretary of State is satisfied that the scheme enables the works to which it relates to be identified with sufficient certainty by persons likely to require licences and that it sets out clearly the charges (if any) payable and the other terms on which licences will be granted:

Now, therefore, the Secretary of State, in exercise of the powers conferred upon her by section 143 of, and paragraph 16 of Schedule 2A to, the Act, hereby makes the following Order:

1.  This Order may be cited as the Copyright (Certification of Licensing Scheme for Educational Recording of Broadcasts) (Educational Recording Agency Limited) Order 2005.

2.  The licensing scheme set out in the Schedule to this Order is certified for the purposes of section 35(2) of, and paragraph 6 of Schedule 2(3) to, the Copyright, Designs and Patents Act 1988.

3.  The certification under article 2 shall come into operation on 1st April 2005.

Sainsbury of Turville

Parliamentary Under Secretary of State for Science and Innovation

Department of Trade and Industry

2nd February 2005

Article 2

SCHEDULEThe Educational Recording Agency Limited Licensing Scheme

LICENSING SCHEMETHE EDUCATIONAL RECORDING AGENCY LIMITED

Nature of the Licence

1.  The Educational Recording Agency Limited (known as “ERA”) is authorised to operate a Licensing Scheme for the purposes of both section 35 of, and paragraph 6 of Schedule 2 to the Copyright, Designs and Patents Act 1988.

2.  “The Act” refers to the Copyright, Designs and Patents Act 1988 or any relevant law amending, modifying or re-enacting it from time to time.

3.  Set out below are the terms of the Licensing Scheme which ERA has been authorised to operate to the extent that the same has been certified for the purposes of both section 35 of the Act and paragraph 6 of Schedule 2 to the Act (“the Licensing Scheme”).

4.  These terms shall form part of licences issued under the Licensing Scheme (“the Licence”).

5.  The Licensing Scheme and Licences issued under it shall apply only to Relevant Rights when used for non-commercial educational purposes within or on behalf of an Educational Establishment. All licensees under the Licensing Scheme shall either be or represent an Educational Establishment (“Licensee”).

6.  “Educational Establishment” shall mean any school and any other description of educational establishment as may be specified by order of the Secretary of State for the purposes of section 174 of the Act.

ERA Repertoire and Licensor Members

7.  The copyright works and rights in performances relevant to a Licence granted under the Licensing Scheme (“ERA Repertoire”) are the works and performances in respect of which and to the extent which the Licensor Members of ERA (or persons represented by the Licensor Members) own or control Relevant Rights.

8.  The Licensor Members of ERA and the works and performances forming part of ERA Repertoire in respect of which the Relevant Rights are owned or controlled by such Licensors will for the purposes of Licences issued under the Licensing Scheme comprise:

9.  No recording or copying of a broadcast under any Licence shall be made except by or on behalf of an Educational Establishment and any such recording or copying shall be made either:

(a)on the premises of the Educational Establishment by or under the direct supervision of a teacher or employee of the Licensee; or

(b)at the residence of a teacher employed by the Licensee by that teacher; or

(c)at the premises of a third party authorised by the Licensee to make recordings or copies on behalf of the Licensee under written contractual terms and conditions which prevent the retention or use of any recordings or copies by that third party or any other third party unless ERA shall have expressly agreed that a specific third party may retain any recordings or copies for subsequent use only by authorised Licensees of ERA in accordance with the provisions of the Licensing Scheme.

Maintaining records

10.  Licensees shall be required to ensure that all ERA Recordings or copies comprising ERA Recordings made under a Licence provide for sufficient acknowledgement of the broadcast relevant to the ERA Recording to be given with each ERA Recording being marked with the name of the broadcaster, the date upon which the broadcast took place and the title of the recording.

11.  Licensees may be required to record and maintain at the request of ERA details of broadcasts and television or radio programmes or any part or parts of such programmes which are made as ERA Recordings and the number of copies of such recordings made under a Licence and to make available to ERA such records for inspection.

12.  Licensees shall undertake that if and when any ERA Recordings are communicated to the public by a person situated within the premises of an Educational Establishment under the Licence suitable password, and other digital rights management or technological protection systems are operated and applied by the Licensee to ensure that such communication is not received or receivable by persons situated outside the premises of the licensed Educational Establishment.

13.  Licensees may be required to maintain further records and answer questionnaires or surveys as ERA may reasonably require for the proper operation of the Licensing Scheme.

14.  ERA shall be entitled to inspect and Licensees shall provide for ERA to have access to all records that Licensees and licensed Educational Establishments are required to maintain under the above provisions, and further to have access to all ERA Recordings however stored under the terms of a Licence, in order to inspect the same to check compliance with the Licence.

Period of Licence and Fees

15.  Licences shall be made in consideration of payment of the agreed Licence fees and may be granted for such period or periods as may from time to time be specified by or agreed with ERA.

16.  The Licence fee shall be calculated by reference to the period for which the Licence is granted and to the tariff applicable in respect of that period.

17.  The annual tariff shall be calculated on a full-time or full-time equivalent per head basis by category of student in an Educational Establishment. For Licences taking effect on or after 1st April 2005 the annual tariff shall be:

Students in Primary schools (including Educational Establishments known as Preparatory Schools)29p per head
Students in Secondary schools50p per head
Students in Educational Establishments of Further Education (including former Sixth Form Colleges)95p per head
Students in Educational Establishments of Higher Education (including Higher Education Colleges, Theological Colleges and Universities)£1.50 per head
Students in Educational Establishments not listed above specified from time to time by the Secretary of State under section 174 of the Act£1.50 per head
Discounted rates may be negotiated at ERA’s discretion to cover groups of Educational Establishments.

18.  Licence fees for Licences running for a period of less than one year shall be calculated on a pro-rata basis against the applicable annual tariff.

19.  Licensees shall pay agreed Licence fees together with any VAT and any other Government tax which may be applicable from time to time in addition to such Licence Fee on such a date or dates as may from time to time be required by ERA in the Licence and within 28 days of invoice.

Termination

20.  ERA shall be entitled to terminate Licences granted:

(a)if Licence Fees are not paid when due; or

(b)for any other substantial breach of the conditions of the Licence,

provided that ERA shall have given to the Licensee written notice identifying the nature of late payment or the nature of the breach.

The termination will become effective twenty eight days after receipt of the written notice unless during the relevant period of twenty eight days the Licensee makes payment of outstanding fees or remedies the breach.

21.  Licences will automatically terminate:

(a)if and when an administrator, receiver, administrative receiver or other encumbrancer takes possession of, or is appointed over, the whole or any substantial part of the assets of a Licensee;

(b)if the Licensee enters into an arrangement or composition with or for the benefit of its creditors (including any voluntary arrangement under the Insolvency Act 1986);

(c)if a petition is presented for the purpose of considering a resolution for the making of an administration order, the winding-up or dissolution of the Licensee.

22.  If punctual payment of agreed Licence Fees is not made, ERA shall be entitled to charge interest on amounts unpaid at the rate of statutory interest prescribed under section 6 of the Late Payment of Commercial Debts (Interest) Act 1998.

23.  Upon expiry of a Licence without renewal or when a Licence is terminated by ERA it shall be entitled to require a Licensee to delete all ERA Recordings or copies made by the Educational Establishment to which the Licence related.

24.  If a Licensee is in breach of the terms of a Licence and ERA incurs costs and expenses either in monitoring and discovering any breach of the terms of a Licence or in enforcing the conditions of any Licence, the Licensee shall be required to indemnify ERA in respect of any such costs and expenses so incurred.

25.  Licensees shall be required to take all reasonable steps to ensure that rights granted by a Licence are not exceeded or abused by teachers, employees, pupils or other persons.

26.  Licences issued shall be governed and interpreted in accordance with the laws of England and Wales.

Explanatory Note

(This note is not part of the Order)

Under section 35 of the Copyright, Designs and Patents Act 1988 recordings of broadcasts may be made by or on behalf of educational establishments without thereby infringing copyright. Similar provision is made by paragraph 6 of Schedule 2 to that Act in relation to performances. These provisions do not, however, apply if and to the extent that there is a licensing scheme certified for the purposes of the relevant provision providing for the grant of licences.

This Order certifies the licensing scheme to be operated by the Educational Recording Agency Limited (effective from 1st April 2005) for the granting of licences to educational establishments for the recording by them of broadcasts, other than television programmes broadcast on behalf of the Open University which are the subject of a separate licensing scheme (SI 2003/187).

(2)

Amended by SI 2003/2498.

(3)

Amended by SI 2003/2498.