STATUTORY INSTRUMENTS
2003 No. 187
COPYRIGHT
The Copyright (Certification of Licensing Scheme for Educational Recording of Broadcasts) (Open University)
Order 2003
Made -
Coming intoforce -
30th January 2003
lst April 2003
Whereas Open University Worldwide Limited (company number 01260275 previously named Open University Educational Enterprises Limited) has applied to the Secretary of State to certify for the purposes of section 35 of the Copyright, Designs and Patents Act 1988(a) ("the Act") a new licensing scheme to replace the licensing scheme set out in the Schedule to the Copyright (Certification ofLicensing Scheme for Educational Recording of Broadcasts) (Open University Educational Enterprises Limited) Order 1993(b)("the 1993Order");
And whereas the Secretary of State is satisfied that the new scheme enables the works to which it relates to be identified with sufficientcertainty 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 143of 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) (Open University) Order 2003 and shall come into force on lst April 2003.
2. The licensing scheme set out in the Schedule to this Order is certified for the purposes of section 35 of the Act (recording by educational establishments of broadcasts and cable programmes).
3. The certification under article 2 above shall for the purposes of section 35 of the Act come into operation on Ist April 2003.
4. The 1993Order and the Copyright (Certification of Licensing Scheme for Educational Recording of Broadcasts) (Open University Educational Enterprises Limited) (Amendment) Order 1996(c) are hereby revoked.
5. Nothing in this Order shall affect the operation of licences granted under the 1993 scheme and in force at the coming into force of this Order.
30th January 2003
(a) 19~~ c. 4~. (b) S.l. 1993/2755, as amended by S.l. 1996/190. (c) S.l. 1996/190.
Melanie Johnson. Parliamentary Under-Secretary of State for
Competition, Consumers and Markets, Department of Trade and Industry
SCHEDULE Article2
OPEN UNIVERSITY LICENSING SCHEME
Open University Worldwide Limited holds an exclusive right under copyright to licence the recording off air of all Open University television programmesin the United Kingdom by Educational Establishments and operates a licensing schemefor the offair recording of designated television programmes.
The scheme set out hereunder is operated for the purposes of section 35 of the Copyright, Designs and Patents Act 1988 ("the Act") in respect of recording of broadcasts by Educational Establishments and replaces the scheme scheduled to theCopyright(Certification of Licensing Scheme for Educational Recor- ding of Broadcasts) (Open University Educational EnterprisesLimited) Order 1993 ("the 1993 Scheme").
The charges payable under the licences are set out:
(a) in respect of Schools, in AppendixA to the licensing scheme;
(b) in respect of Educational Institutions, in Appendix B to the licensing scheme.
The Open University Licensed Off Air Recording Scheme for Educational Establishments
Licences shall be issued in accordance with the terms set out below.
DEFINITIONS
In the Scheme and the Appendices the following expressions have the meaningsset opposite them:
School: Any schoolas defined in section 174 of the Act.
Educational Institution: Anyeducationalestablishment specified byorder of the Secretaryof State under section 174(1)(b) of the Act.
Licence Fee: The fee payable by Schoolscalculated in accordance with Open Univer- sity Worldwide Limited's scaleof fees set out in AppendixA for the use of Designated Programmes in accordance with the terms of the Licence for a period of up to twelve months fromthe date of the Licence as origi- nally granted or renewed unless or until the Licence is terminated pur- suant to Clauses2 or 6 thereof.
Programme Fee: The fee payableby EducationalInstitutionscalculatedin accordancewith Open University Worldwide Limited'sscaleof programme fees as set out in Appendix Bfor the useof a Designated Programmein accordancewith the termsof the Licence for a period of up to twelve months from the date of its recording unless or until the Licence is terminated pursuant to Clau- ses2 or 6 thereof.
Designated Programmes: The television programmesbroadcast by the British BroadcastingCorpo- ration or other broadcasting organisation(s)on behalf of the Open Uni- versity. The expressions "recordings of the Designated Programmes" or "recorded Designated Programmes" includes Additional Copies.
Record offair: To record by the use of video tape, videocompact disc or any available recording and/or playback device whether available now or invented in the future,a transmission bybroadcast or diffusion of television program- mes to be received by television or similar receiving device.
EducationalPurposes: The showing of recordings of Designated Programmes exclusively in teaching, training or study as part of a formal or informal course of instruction undertaken or carried out by the Licensee for non profit makingpurposesand where no charge ismade on any person for the pur- posesof viewing the Designated Programmes, includingthe loan ofrecor- dings to bona fide students for such purposes.
AdditionalCopies: Copiesmade by the Licensee of Designated Programmes recorded by it.
Business Day: Any day except Saturday, Sunday, a Bank Holiday, Christmas Day or Good Friday.
Educational Establishment: An educational establishment as defined in section 174of the Act.
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1. GRANT
The School or the Educational Institution (hereinafterreferred to as "the Licensee") shall warrant that it isa Schoolor Educational Institution, as the casemay be, and Open University Worldwide Limited shall grant to the Licensee on the terms set out belowa non-exclusive Licence to Record off air Designated Programmesfor Educational Purposes.
2. TERM
The Licence shallcontinue from thedate of issuefor a period of twelve months and shallbe automatically renewed for further periods of twelve months unless or until terminated in accordance with Clause 6, or by either side giving to the other not less than one calendar month's notice in writing, in the case of Educational Institutions, to expireon the date of the anniversaryof any twelve month period.
3. WARRANTIES AND OBLIGATIONS OF OPEN UNIVERSITY WORLDWIDE LIMITED
(I) Warranties
Open University Worldwide Limitedwarrants that it isduly appointed by the relevant copyright ownersand/or broadcasting organisations to act as Licensoron their behalf and it has full powerand authority to grant the rights set out herein.
(2) Obligations
Open University Worldwide Limited shall make available to the Licensee information about the transmissionschedules of the Designated Programmes.
4. OBLIGATIONS OF THE LICENSEE The Licensee shall:
(I) ensure that all RecordingotTairismade bya lecturer, instructor, teacheror other suitablyqualified person appointed for the purpose by the Licensee;
(2) ensure that recordings of the Designated Programmes are not edited, cut or amended in any way including by digital manipulation without prior written permission of Open University Worldwide Limited and are not shown or disclosed or passed into the possession of any third party and are not removed from the direct control of the Licensee;
(3) ensure that the recorded DesignatedProgrammes are used for Educational Purposesonly and the Licensee shall not itselfor through its employees or agents, sell, lend, hire or otherwiseuse or dispose of recordingsof Designated Programmesother than in accordance with the terms of the Licence and shall prevent any third party from duplicating, selling, lending, hiring or otherwise using or disposing of recordingsof the Designated Programmes;
(4) where the Licensee is an Educational Institution, make up, retain and keepmade up such detailed and accurate records as may be required by Open University Worldwide Limited of the Designated Programmesrecordedand in particular shall complete the log sheetsprovided by or approved in writing by Open University Worldwide Limited;
(5) affix to each recording in a prominent placeand shall not obscure, remove, alter or deface a label which shall includethe title of the Designated Programmeand the date upon which it was recorded;
(6) wherethe Licensee is an Educational Institution, return to Open UniversityWorldwideLimitedall duly completed log sheets on dates specified by Open University Worldwide Limited to a maximum number of three timesin each twelve month licence period and on termination of the Licence;
(7) subject to paragraph (8) below, erase any and all recordings of the Designated Programmes in existence at the expiration of the licence period or upon termination of the Licence whichever shall be the sooner and shall supply to Open University Worldwide Limited a certificateof erasure within 28 days of such expiration or termination;
(8) if the licence period is automaticallycontinued without interruption for a further period of twelve months pursuant to Clause2 the Licensee may at its option and subjectto paragraph (7) retain recordings of Designated Programmes:
(a) wherethe Licensee isa School, for the following twelve month period and subject alwaysto the proper Licence fee therefor being paid;
(b) where the Licensee is an Educational Institution, provided such programmes remain entered into the log for the following twelve month period and subject always to the proper recording fees therefor being paid.
(9) in the event that the Licensee makes Additional Copies, report the making of such copies immediately to Open University Worldwide Limited. Upon receipt of suchinformation fromthe Licensee, Open University Worldwide Limited will invoice the Licensee for the copies made and will maintain a record of the copiesmade.
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5. CONSIDERATION In consideration for the Licence:
(I) where the Licensee is a School. (a) the Licensee shall pay Open University Worldwide Limited the fees set out in Appendix A plus
VAT whereapplicable. (b) Licence Feespayable under paragraph II )(a) shall be paid within thirty days of the date of the
invoice whenever sent to the Licensee by Open University Worldwide Limited;
(2) where the Licensee is an Educational Institution. (a) the Licensee shall pay Open University Worldwide Limitedthe fees set out in Appendix Bplus
VAT whereapplicable; (b) fees payable underparagraph (2)(a) shall becalculatedby Open University WorldwideLimited
annually and shall be paid within thirty days of the date of the invoice whenever sent to the Licensee by Open University Worldwide Limited;
(c) the Licensee shall permit its records and accounts to be examined upon reasonable notice in writing from Open University Worldwide Limited by Open University Worldwide Limited's properlyappointed representative at Open University WorldwideLimited'sexpense to verify the recordsand payments for which provision is made in the Licence.
NOTE Discounted fees to cover groups of licensees may be negotiated at the discretion of Open University Worldwide Limited.
6. TERMINATION Open University Worldwide Limited shallat its option be entitled by notice in writing to the Licensee to terminate the Licence forthwith in any of the following events that is to say if the Licensee shall:
(I) fail promptly to account and make payments hereunder or fail to perform any other obligation required of it hereunderand the Licensee shallnot havecuredor remedied suchfailurewithin 14(fourteen) days of a request from Open University Worldwide Limited (time being of the essence);
(2) adopt a resolution for its winding up (otherwise than for the purpose of and followed by an amalgamation or reconstruction) or if a petition is presentedfor the appointment of an administrator or if a receiver or an administrative receiver isappointed in respect of, or an encumbrancertakes possession of, the wholeor any part of its undertaking or assets or if the Licensee is unable to pay its debts within the meaningof section 123 of the Insolvency Act 1986;
(3) cease to carryon the business or function as a School or an Educational Institution. as the case may be.
7. ALTERATIONSTO AGREEMENT Anyalteration or variationto the Licence shallnot be validor enforceable unless recordedin writingand signed by an authorised signatory of each party.
8. ASSIGNMENT The Licence is specific to the Licensee and the Licensee shall not assign the benefits or the obligations of the Licence.
9. EXPENSES Saveas otherwise expressed all expenses of and incidental to the fulfilment of the Licence shall be borne by the party incurringsuch expense.
10. FORCE MAJEURE Neitherparty to the Licence shall beliable in any way for any delaysor failureto perform its obligations thereunder resultingfrom any cause beyond its reasonable control.
11. SERVICEOFNOTICES
(I) Notices and other communications mustbe sentbyfirstclasspost. faxor e-mailwhetheror not they are required to be in writing. They must be addressed to the recipient at the postal address, fax number or e-mail address specified in the Licence unless the parties have agreed an alternative address.
(2) Noticeby post will be deemed served on the third Business Day after it was posted.
(3) Noticeby fax or e-mail will onlybedeemed served if an automatic confirmationof correct sending is received by the sender. Then, if the notice is transmitted before 4 p.m. on a Business Day, it will be deemed served on that day. otherwise it will be deemed served on the next Business Day.
12. INDEMNITY The Licensee willindemnify and at all times keep Open University Worldwide Limited fully indemnified against all actions. proceedings. claims, costsand damageswhatsoever made against or incurred by Open University Worldwide Limited in consequence of any breach or non-performance by the Licensee. its employees or agents of any of the covenantscontained in the Licence.
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£28 per annum £78 per annum
13. LAW OF ENGLAND The law of Englandshall govern the Licence.
APPENDIX A
THE OPEN UNIVERSITY LICENSED OFF AIR RECORDING SCHEME SCALEOF LICENCE FEES FOR SCHOOLS
VATis payable in addition to all fees shown
CATEGOR Y IA: Primary Schools CATEGOR Y IB: SecondarySchools
ADDITIONAL COPIES (CATEGORY IA and CATEGORY IB)
The Licence fees shown above include the recording of any Designated Programmeand up to four (4) Additional Copies thereof.
Where the Licensee makesmore than four (4)AdditionalCopies, the fees charged will be:
5-10 Additional Copies of any single Designated Programme
11-20AdditionalCopiesof any single Designated Programme
21-plus Additional Copies of any single Designated Programme
£30 for each Additional Copy
£20 for each Additional Copy
£10 for each Additional Copy
APPENDIX B
THE OPEN UNIVERSITY LICENSED OFF AIR RECORDING SCHEME
VAT is payable in addition to all fees shown
1. SCALE OF PROGRAMME FEES FOR EDUCATIONAL INSTITUTIONS
Numberof Feeper Annum or Part Unit Cost per Additional Recordings thereof Recording
Under 5 recordings will be charged at £19.36 per recording 5 £96.80
6-9 £19.36 10 £155.25
11-14 £15.48 15 £212.55
16-24 £14.20 25 £322.65
26-49 £12.90 50 £594.75
51-74 £11.88 75 £865.75
76-99 £11.50 100 £1,128.50
101-124 £11.30 125 £1,355.40
126-149 £10.86 150 £1,552.50
151-199 £10.38 200 £1,934.60
201-249 £9.68 250 £2,328.70
251-299 £9.30 300 £2.651.10
301-399 £8.88 400 £3,290.00
401-499 £8.22 500 £3.869.20 £7.15
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Please note that the FEES relate to EACH EPISODE of a series. Thus a series of six programmes will attract six programme fees. Thesefees apply to those programmeswhich are retained for use. A FREE 28day period for PREVIEW purposesONLY is allowed to assess suitability.
2. SCALEOF FEES FOR ADDITIONAL COPIES
ADDITIONAL COPIES The Programme fees shown in I. above include the recording of any Designated Programme and up to four (4) Additional Copies thereof.
Wherethe Licensee makes more than four (4)Additional Copies, the fees charged will be:
5-10 Additional Copies of any single £30 each Designated Programme
11-20Additional Copiesof any single £20 each Designated Programme
21-plus Additional Copies of any £10 each single Designated Programme
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