Copyright Act, 1998 (Chapter 323), Bahamas

SECTION

PART II COPYRIGHT

PART II COPYRIGHT

and copyright may subsist in a work irrespective of its quality or the purpose for which it was created.

(2) Works of authorship shall not be eligible for copyright protection unless it is fixed in writing and any reference in this Act to the time which a work is created is a reference to the time at which it is so fixed.

Copyright in general.

Category of works of authorship.

Qualification for protection: national origin.

Bahamas Government works.

(3)

The —

(a)

categories of copyright works specified by thissection include compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in whichsuch material has been used unlawfully;

(b)

copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the pre-existing material employed in the work and does not imply any exclusive right in the preexisting material;

(c)

copyright in a compilation or derivative work is independent of, and does not affect or enlargethe scope, duration, ownership or subsistence ofany copyright protection in the pre-existing material.

(4)

In no case does copyright protection for anoriginal work of authorship extend to an idea, concept, process, principle, procedure, system or discovery of things of a similar nature regardless of the form in which it isdescribed, explained, illustrated or embodied in such work.

7. (1) The works specified by subsections (1) and

(3)

of section 6 while unpublished, are subject to protection under this Act if the author is a qualified person.

(2)

The works specified by subsections (1) and (3) of section 6 when published, are subject to protection under this Act if —

(a)

on the date of first publication, one or more of the authors is a qualified person; or

(b)

the work is first published in The Bahamas or in a foreign nation that, on the date of firstpublication, is a party to the Universal Copyright Convention; or

(c)

the work is protected under the Berne Convention.

1. Copyright protection under this Act shall subsistin every work which is eligible for copyright and which is made by or under the direction or control of the Government.

1. (1) By virtue of and subject to the provisions of this Act, the owner of copyright shall have the exclusive right to do or to authorize any of the following —

1. to reproduce the copyright work in copies orphonorecords;

2. to distribute copies or phonorecords of the copyright work to the public by sale or othertransfer of ownership, or by rental or loan;

3. to prepare derivative works based upon thecopyright work;

4. in the case of a literary, musical, dramatic and choreographic, and motion pictures and other audiovisual works, to perform the copyright work publicly; and

5. in the case of a literary, musical, dramatic,choreographic, artistic works, including theindividual sequence images of a motion pictureaudiovisual work, to display the copyright work publicly.

(2) By virtue of and subject to the provisions of this Act the author of a literary, dramatic, musical, choreographic or artistic work that is a protected work shall have in respect of such work, whether or not he is theowner of copyright in the work, the moral rights specifiedin Part III.

10. (1) Subject to the provisions of this section, copyright in any work expires at the end of the period of seventy years from the end of the calendar year in which the author dies.

(2)

Where the author of a work referred to in subsection (1) is anonymous, pseudonymous or the work ismade for hire, copyright in that work expires at the end of the period of seventy years from the year of its first publication or a term of one hundred years from the year of its creation, whichever expires first.

(3)

Subsection (2) shall not apply if the identity of the author becomes known after the end of the period specified in that subsection and if before the end of such period, the identity of one or more of the authors of any anonymous or pseudonymous work is revealed in the records of the registration made for that work under subsection (1) or (4) of section 33 or in the records provided by this section, the

Nature of copyright protection: economic and moral rights.

Duration of copyright in works of authorship.

copyright in the work endures for the term specified by subsection (1) or (5), based on the life of the author orauthors whose identity has been revealed.

(4)

Any person having an interest in the copyright in any anonymous work may at any time record, in records to be maintained by the Registry for that purpose, a statementidentifying one or more of the work and the statement shall also identify the person filing it, the nature of the person’sinterest, the source of the information recorded, and the particular work affected, and shall comply in form and content with requirements that the Minister may prescribe by regulation.

(5)

In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the lastsurviving author and seventy years after such last survivingauthor’s death.

(6)

The provisions of subsections (1) to (4) shall notapply to computer-generated work, the copyright in whichexpires at the end of the period of seventy years from theend of the calendar year in which the work was created.

(7)

Where the country of origin of the work is notThe Bahamas and the author of the work is not a citizen of The Bahamas, the duration of the copyright is that to which the work is entitled in the country of origin, provided that it does not exceed the period under subsection (1).

(8)

Any person having an interest in a copyright may at any time record in the Registry a statement of the date of death of the author of the copyright work, or a statement that the author is still living on a particular date; the statement shall identify the person filing it, the natureof that person’s interest, the source of the information recorded, and shall comply in form and content withrequirements that the Minister may prescribe by regulation; the Registrar shall maintain current records of information relating to the death of authors of copyright works, based on such recorded statements and, to the extent that the registrar considers practicable, on data contained in any of the records of the Registry or in other reference sources.

(9)

After a period of seventy-five years from theyear of the first publication of a work, or a period of onehundred years from its creation, whichever expires first,

any person who obtains from the Registry a certified report that the records provided under subsection (8) disclosenothing to indicate that the author of the work is living, or died less that seventy years before, is entitled to the benefit of a presumption that the author has been dead for at least seventy years; reliance in good faith upon this presumption shall be a complete defence to any action for infringement under this Act.

PART III MORAL RIGHTS AND RELATED RIGHTS

(3)

The author of a musical work has the right to be identified as such whenever —

(a)

the work is published;

(b)

phonorecords containing a sound recording ofthe work are distributed to the public; or

(c)

a motion picture, the sound track of which includes the work, is performed publicly or copies of such motion picture are distributed to the public.

(4)

The author of an artistic work has the right to be identified as such whenever —

(a)

the work is published or displayed publicly;

(b)

a motion picture including a visual image of the work is performed in public or copies of such amotion picture are distributed to the public; or

Right to be identified as author.

Right to object to derogatory treatment of work of visual art.

(c) in the case of a work of architecture in the form of a building or a model for a building, asculpture or a work of artistic craftsmanship, copies of the work are distributed to the public.

(5)

The author of a choreographic work has the right to be justified as such whenever —

(a)

the work is published or performed publicly;

(b)

copies or phonorecords containing the work isdistributed to the public.

(6)

For the purpose of this section, any reasonable form of identification may be used.

(7)

Except as may otherwise be explicitly provided by contract, right conferred by this section shall not apply in relation to —

(a)

a computer program, the design of a typeface or a computer-generated work;

(b)

any work created as a work made for hire.

Objection to Treatment of Work of Visual Art

12. (1) Subject to subsection (3) and to such exceptions as may be specified in or pursuant to any other provision of this Act, the author of a work of visual art that is a protected work, has the right —

(a)

to prevent the use of his name as the author of the work of visual art in the event of derogatory treatment;

(b)

to prevent any destruction of his work which isof recognised stature;

(c)

not to have the work or any part thereofsubjected to derogatory treatment,

and any such right is infringed by any person who does anyof the acts specified in section 46 in the circumstances sospecified.

(2)

The author of a work of visual art shall have the rights conferred by subsection (1) in that work whether or not the author is the copyright owner; and the authors of ajoint work of visual art shall be co-owners of the rights conferred by this section.

(3)

The rights conferred by subsection (1) shall notapply in relation to —

(a)

a computer program or to a computer-generated work;

(b)

fair dealing with any work made for the purposes specified in section 60;

(c)

any work created as a work made for hire;

(d)

the modification of a work of visual art which is the result of the passage of time or the inherent nature of the material in which it is fixed;

(e)

the modification of a work of visual art which is the result of conservation of the publicpresentation including lighting and placement of the work;

(f)

any derogatory treatment of a work incorporated in or made part of a building to which the author consented to the installation of the work.

(4)

In this section —

“derogatory treatment” in relation to a work means any intentional distortion, mutilation or othermodification of that work which would be prejudicial to its author’s reputation.

Related Rights

13. (1) A person has the right —

(a)

not to have a literary, dramatic, musical, choreographic or artistic work falsely attributedto him as author; and

(b)

not to have a motion picture falsely attributed to him as director.

(2)

In this section —

“attribution”, in relation to such work, means a statement, whether express or implied, as to the identity of the author or director.

(3) The right conferred by subsection (1) is infringed in the circumstances specified in section 49.

14. Subject to section 50, a person who for privateand domestic purposes commissions the taking of aphotograph or the making of audiovisual work has, wherethe resulting work is a protected in, the right not to have —

(a)

copies of the work distributed to the public;

(b)

the work displayed publicly;

(c)

the work performed publicly;

False attribution of work.

Right to privacy of photographs.

Duration of moral rights and related rights.

Consent and waiver of rights.

Application of provision of joint work.

Application of provisions to parts of work.

(d) the work reproduced in copies other than for archival purposes or for complying with the deposit requirement under section 33 of this Act.

1. The rights conferred by sections 11, 12, 13 and 14 subsists so long as copyright subsists in the work.

2. (1) A person having a right conferred under this Part may consent to the doing of any act affecting such right or may waive the rights under sections 11 and 12.

(2)

A right to which subsection (1) refers must be waived by instrument in writing signed by the person giving up the right and the waiver —

(a)

must identify the specific work, and the uses of the work, to which the waiver applies, andwaiver shall apply only to the work and usesidentified; and

(b)

may be expressed to be subject to revocation.

(3)

Where a waiver is made in favour of the owner of the copyright in the work or works to which relates, it shall be presumed to extend to his licensees and successors in title, unless a contrary intention is expressed.

17. (1) The right conferred under section 11 is, in the case of a work of a joint authorship, a right of each joint author to be identified as joint author.

(2)

The right conferred by section 12 is, in the caseof a work of a joint authorship, a right of each joint author and his right is satisfied if he consents in writing to the treatment in question.

(3)

In the case of a joint work prepared by two or more authors, a waiver of rights under section 16 made by one such author does not affect the rights of the other joint authors.

(4)

The right conferred by section 14 is, in the caseof a work made in pursuance of a joint commission, a right of each person who commissioned the making of the work, so that the right of each is satisfied if he consents in writingto the act in question.

18. The rights conferred by —

(a)

sections 11 and 14 apply in relation to the wholeor any substantial part of a work; and

(b)

sections 12 and 13 apply in relation to the wholeor any part of a work.

PART V COPYRIGHT NOTICE, DEPOSIT AND REGISTRATION

Notice copyright visually perceptible copies.

Notice copyright: phonorecords of sound recordings.

Publications incorporating Bahamas Government works.

Notice of copyright: contributions to collective works.

defendant’s defence based on innocent infringement to lessen actual or statutory damages, with the exception of actions provided for in Part VII.

29. (1) Whenever a sound recording protected under this Act is published in The Bahamas or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed publicly distributed phonorecords of the sound recording.

(2)

If a notice appears on the phonorecords, it shall consist of following three elements —

(a)

the symbol (the letter P in a circle);

(b)

the year of first publication of the sound recording; and

(c)

the name of the owner of copyright in the sound recording, or an abbreviation by which the namecan be recognised, or a generally knownalternative designation of the owner; and if theproducer of the sound recording is named on the phonorecord labels or containers, and no othername appears in conjunction with the notice, the producer’s name shall be considered a part ofthe notice.

(3)

The notice shall be placed on the surface of the phonorecord, or on the phonorecord label or container, in such manner and location as to give reasonable notice of the claim of copyright.

(4)

If a notice of copyright in the form and position specified by this section appears on the publishedphonorecord or phonorecords to which a defendant in a copyright infringement action had access, then no weightshall be given to such defendant’s defence based on innocent infringement to lessen actual or statutory damages, except as provided for in Part VII.

1. Subsection (4) of section 28 and subsection (4)of section 29 shall apply to works published in copies orphonorecords consisting predominantly of one or more works of The Bahamas Government as well as those portions of the copies or phonorecords embodying any other works protected under this Act.

2. A separate contribution to a collective work may bear its own notice of copyright, as provided by sections 28, 29 and 30; however, a single notice applicable to the

collective work as a whole is sufficient to invoke the provisions of subsection (4) of section 28 and subsection

(4) of section 29, as applicable with respect to the separate contributions it contains (not including advertisementsinserted on behalf of persons other than the owner of copyright in the collective work), regardless of theownership of copyright in contributions and whether or not they have been previously published.

32. (1) Except as provided by subsection (3), and subject to the provisions of subsection (5), the owner of copyright or of the exclusive right of publication in a work published in The Bahamas shall deposit, within three months after the date of such publication —

(a)

two complete copies of the best edition; or

(b)

if the work is a sound recording, two complete phonorecords of the best edition, together withany printed or other visually perceptible materialpublished with such phonorecords,

but neither the deposit requirement of this subsection nor the acquisition provisions of subsection (4) are conditions of copyright protection.

(2)

The required copies or phonorecords shall bedeposited in the Registry for the use or disposition of theDepartment of Archives and the Registrar shall, when requested by the depositor and upon payment of the feeprescribed by section 95, issue a receipt for the deposit.

(3)

The Minister may, by regulation, exempt anycategories of material from the deposit requirement of this section, or require deposit of only one copy or phonorecord with respect to any categories; such regulations shall provide either for complete exemption from requirement of this section, or for alternative forms of aimed at providing a satisfactory archival record of a work imposing practical or financial hardships on the depositor, where theindividual author is the owner of copyright in an artistic work and —

(a)

less than five copies of the work have beenpublished; or

(b)

the work has been published in a limited edition consisting of numbered copies, the monetary value of which would make the mandatory deposit of two copies of the best edition of thework burdensome, unfair, or unreasonable.

Deposit of copies or phonorecords for the Department of Archives.

(4)

At any time after publication of a work asprovided by subsection (1), the Registrar may make written demand for the deposit on any person obligated to makethe deposit under subsection (1) and unless the deposit is made within three months the demand is received, the person on whom the demand was is liable —

(a)

to a fine of not more than two hundred and fifty dollars for each work;

(b)

to pay into a specifically designed fund in theTreasury the total retail price of the copies orphonorecords demanded, or, if no retail price has been fixed, the reasonable cost of the Registry acquiring them; and

(c)

to pay a fine of not more than two thousanddollars, in addition to any fine or liabilityimposed under paragraphs (a) and (b), if such person wilfully or repeatedly fails or refuses to comply with such a demand.

(5)

With respect to transmission programmes that have been (fixed and transmitted to the public in The Bahamas but have not been published, the Minister may, after consulting with the Registrar and other interested organizations and officials, establish regulations governing the acquisition, through deposit or otherwise, of copies or phonorecords of such programmes for the collection of the Department of Archives, and —

(a)

the Registrar shall be permitted, under the standards and conditions set forth in such regulations, to make a fixation of a transmission programme directly from a transmission to the public and to reproduce one copy or phonorecord for such fixation for archival purposes;

(b)

such regulation shall also provide standards and procedures by which the Registrar may make written demand upon the owner of the right oftransmission in The Bahamas for the deposit of a copy or phonorecord of a specific transmissionprogramme; such deposit may, at the option of the owner of the right of transmission in The Bahamas, be accomplished by gift or loan for purposes of reproduction; the regulationsestablished under this subsection shall provide reasonable periods of not less than three monthsfor compliance with a demand, and shall allow for

extensions of such periods and adjustments in the scope of the demand or the methods forfulfilling it; as reasonably warranted by the circumstances; and wilful failure or refusal to comply with the conditions prescribed by such regulations shall subject the owner of the right of transmission in The Bahamas to liability for an amount, not to exceed the cost of reproducing and supplying the copy or phonorecord inquestion, to be paid into the Consolidated Fund;

(c)

nothing in this subsection shall be construed to require the making or retention, for purposes of deposit, of any copy or phonorecord of an unpublished transmission programme, the transmission of which occurs before the receipt of a specific written demand as provided by paragraph (b);

(d)

no activity undertaken in compliance with regulations prescribed under paragraph (a) or (b) shall result in liability if intended solely to assistin the acquisition of copies or phonorecordsunder this subsection.

33. (1) At any time during the subsistence of any copyright which was secured before the appointed day and during the subsistence of any copyright secured on or after the appointed day, the owner of copyright or of anyexclusive right in the work may obtain registration of the copyright claim by delivering to the Registry the deposit specified by this section, together with the application andfee specified by 34 and 95; and such registration shall notbe a condition of copyright protection.

(2) Except as provided by subsection (3), thematerial deposited for registration shall include —

(a)

in the case of an unpublished work, onecomplete copy or phonorecord;

(b)

in the case of a published work, two copies orphonorecords of the best edition;

(c)

in the case of a work first published outside TheBahamas, one complete copy or phonorecord asso published;

(d)

in the case of a contribution to a collective work, one complete copy or phonorecord of the best edition of the collective work,

Copyright registration in general.

and copies or phonorecords deposited for the Departmentof Archives under section 32 may be used to satisfy the deposit provisions of this section, if they are accompanied by the prescribed application and fee, and by anyadditional identifying material that the Minister may by regulation, require; the Minister may also prescribe regulations establishing requirements under which copiesor phonorecords acquired for Department of Archives under subsection (4) of section 32 otherwise than bydeposit, may be used to satisfy the deposit provisions of section.

(3)

The Minister may specify by regulation theadministrative classes into which works are to be placedfor purposes of deposit registration, and the nature of the copies or phonorecords to be deposited in the variousclasses specified; the regulations may require permit, forparticular classes, the deposit of identifying materials instead of copies or phonorecords, the deposit of only one copy or phonorecord where two would normally be required, or a single registration for a group of relatedworks; and this administrative classification of works has no significance with respect to the category of eligible works or the exclusive rights provided by this Act.

(4)

Without prejudice to the general authority provided under subsection (3), the Minister may establish regulations specifically permitting a single registration fora group of works by the same individual author, all first published as contributions to periodicals, includingnewspapers, within a twelve month period, on the basis of a single deposit, application, and registration fee, under the following conditions —

(a)

if the deposit consists of one copy of the entireissue of the periodical, or the entire section inthe case of the entire issue of the periodical or of the entire section in the case of a newspaper, in which each contribution was published; and

(b)

if the application identifies each work separately, including the periodical containing it and its date of first publication.

(5)

The Minister may also establish, by regulation, formal procedures for the filing of an application for supplementary registration, to correct an error in a copyright registration or to amplify the information given in a registration; such application shall be accompanied by

the fee prescribed by section 95 and shall clearly identify the registration to be corrected or amplified. The information contained in a supplementary registrationaugments but does not supersede that contained in the earlier registration.

(6) Registration for the first published edition of awork previously registered in unpublished form may bemade even though the work as published is substantially the same as the unpublished version.

34. The application for copyright registration shallbe made on a form prescribed by the Minister and shall include —

(a)

the name and address of the claimant;

(b)

in the case of a work other than an anonymous or pseudonymous work, the name and nationality or domicile of the author or authors, and, if one or more of the authors is dead, the dates of their deaths;

(c)

if the work is anonymous or pseudonymous thenationality of the authors;

(d)

in the case of a work made for hire, a statement to this effect;

(e)

if the copyright claimant is not the author, a brief statement of how the claimant obtained ownership of the copyright;

(f)

the title of the work, together with any previousor alternative titles under which the work can be identified;

(g)

the year in which creation of the work was completed;

(h)

if the work has been published, the date and country of its first publication;

(i)

in the case of a compilation or derivative work,an identification of any pre-existing work orworks that it is based on or incorporates and a brief general statement of the additional material covered by the copyright claim being registered;

(j)

any other information regarded by the Minister as being relative to the preparation or identification of the work or the existence, ownership or duration of the copyright.

Application for copyright registration.

Registration of claim and issuance of certificate.

Registration and infringement actions.

35. (1) When, after examination, the Registrardetermines that, in accordance with provisions of this Act, the material constitutes copyrightable subject matter and that the other legal and formal requirements of this Act have been met, the Registrar shall register the claim andissue to the applicant a certificate of registration under theseal of the Registry; and the certificate shall contain the information given in the application, together with the number and effective date of registration.

(2)

In any case in which the Registrar determines that, in accordance the provisions of this Act, the materialdeposited does not constitute copyrightable subject matter or that the claim is invalid for any other reason, the Registrar shall refuse registration and shall notify the applicant in writing of the reasons for such refusal.

(3)

In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facieevidence of the validity of the copyright and of the facts stated in the certificate and the evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.

(4)

The effective date of a copyright registration is the day on which application, deposit, and fee, aredelivered to the Registrar.

36. (1) Where the deposit application and fee required for registration have been delivered to theRegistrar in proper form and registration has been refused, the applicant in an action for infringement of the copyright work may serve notice thereof with a copy of thecomplaint on the Registrar, and the Registrar may become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such notice, but the Registrar’s failure to become a party shall not deprive the court to determine that issue.

(2) In the case of a work consisting of sounds,images, or both, the first fixation of which is madesimultaneously with its transmission, the copyright owner may, either before or after such fixation takes place, institute an action for infringement under section 40, fully subject to the remedies provided by section 41 and 42, if, in accordance with the requirements that the Minister may prescribe by regulation, the copyright owner —

(a)

serves notice upon the infringer, not less thanten or more than thirty days before such fixation, identifying the work and the specific time and source of its first transmission and declaring an intention to secure copyright in the work; and

(b)

makes registration for the work, if required by subsection (1), within three months of its first transmission.

37. In an action brought for a violation of the rightsof an author under section 11 or an action instituted under subsection (2) of section 36, or in any other action for infringement, registration shall not be a prerequisite to suchaction.

PART VI INFRINGEMENT OF RIGHTS

(i)

he knew or had reason to believe that the machine or device was likely to be so used as to infringe copyright; or

(ii)

in the case of a machine or device whosenormal use involves a public performancehe did not believe on reasonable groundsthat it would not be so used as to infringecopyright;

Remedies for Copyright Owner

41. (1) An infringement of copyright shall be actionable at the suit of the copyright owner; and subject to the provision of this section, any action for suchinfringement all such relief by way of damages, injunctions, accounts or otherwise, shall be available to the plaintiff as is available in respect of the infringement of other proprietary rights.

(2) Except as otherwise provided by this Act, aninfringer of copyright is liable for either —

(a)

the copyright owner’s actual damages and any additional profits of the infringer, as provided in subsection (3)(a); or

(b)

statutory damages, as provided in subsection (3)(b).

Action owner of copyright.

(3) The damages referred to in subsection (2) are asfollows —

(a)

the copyright owner is entitled to recover the actual damages suffered by him as a result of the infringement, and any profits of the infringer that are attributable to the infringement and not taken into account in computing the actual damages; and in establishing the infringer’sprofits, the copyright owner is required topresent proof only of the infringer’s grossrevenue, and the infringer is required to prove his deductible expenses and the elements ofprofit attributable to factors other than the copyright work;

(b)

except as provided by paragraph (c), thecopyright owner may elect, at any time beforefinal judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, forwhich any one infringer is liable individually, or for which any two or more infringers are liablejointly and severally, in a sum of not less than one thousand dollars or not more than twenty thousand dollars as the court considers just; and for the purposes of this subsection, all the parts of a compilation or derivative work constitute one work;

(c)

in a case where the copyright owner sustains the burden of proof and the court finds thatinfringement was committed wilfully, the court in its discretion may increase the award of statutory damages to a sum of not more than fifty thousand dollars; and in a case where the infringer sustains the burden of proof and thecourt finds that such infringer was not aware andhad no reason to believe that his acts constituted an infringement of copyright, the court in itsdiscretion may reduce the award of statutory damages to a sum of not less than five hundred dollars;

(d)

the court shall remit statutory damages in anycase where an infringer believed that his use of the copyright work was a fair dealing undersection 60, if the infringer was an employee or

agent of a non-profit educational establishment, public library, or Department of Archives acting within the scope of his employment who, or such institution, library, or archives itself which, infringed by reproducing the work in copies orphonorecords.

(4)

Where in an action for infringement of copyrightit is shown that at the time of the infringement the defendant did not know and had no reason to believe that copyright subsisted in the work to which the action relates, then, the plaintiff is not entitled to statutory damagesagainst him, but without prejudice to any other remedy.

(5)

In any civil action under this Act; the court in itsdiscretion may allow the recovery of full costs by or against any party other than by or against the Governmentor any officer thereof.

(6)

In any civil action under this Act, the court in its discretion may award reasonable counsel and attorney’s feeto the prevailing party as part of the cost granted by thecourt under subsection (5).

42. (1) Subject to the provisions of this section and subsection (5) of section 44, where a person —

(a)

in the course of his business has an infringing copy or phonorecord of a work in his possession, custody or control; or

(b)

has in his possession, custody or control amachine or device specifically designed or adapted for reproducing copies or phonorecordsof a particular protected work, knowing orhaving reason to believe that it has been or isbeing used to make infringing copies or phonorecords,

the copyright owner may apply to the court for an order that the copy, phonorecord, machine or device be delivered up to or to such other person as the court may direct.

(2) An application under subsection (1) shall not bemade after the end of the period specified in subsection (1) of section 122; order shall be made unless the court also makes, or it appears to the court that there are grounds for making an order under section 121 for the disposal of the infringing copy, phonorecord, machine or device, as the case may be.

Order for delivery up in civil proceedings.

Infringement of rights of exclusive licensee.

Infringement where rights concurrent.

Infringement of right to be identified as the author.

Remedies of Exclusive Licensee

1. An exclusive licensee has, except as against the copyright owner, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment.

2. (1) The rights and remedies of an exclusive licensee are concurrent with those of the copyright owner and references in the relevant provisions of this Act to thecopyright owner shall be construed accordingly.

(2)

In an action brought by an exclusive licensee byvirtue of this section, a defendant may avail himself of any defence which would have been available to him if the action had been brought by copyright owner.

(3)

Where an action for infringement of copyright is brought by the copyright owner or by an exclusivelicensee, and the action relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the copyright owner or the exclusive licensee, as the case may be, shall not be entitled, except with the leave of the court, to proceed with the action,unless the other party is either joined as a plaintiff in the action or added as a defendant; but this section shall not affect the granting of an interlocutory injunction on theapplication of either of them.

(4)

A copyright owner or exclusive licensee who isadded as a defendant in pursuance of subsection (2) is not liable for any costs in the action unless he takes part in the proceedings.

(5)

A copyright owner shall notify any licenseehaving concurrent rights before applying under section 42 for an order for the delivery up of infringing copies or phonorecords of a work, and the court may, on the application of the licensee, having regard to the terms of the licence, make such order under section 42 as he thinks fit.

Infringement of Moral Rights and Related Rights

45. (1) Subject to subsection (2), the right conferred by section 11 is infringed by any person who fails toidentify the author of a work whenever any action specifiedin that section occurs in relation to that work.

(2) The following acts shall not constitute aninfringement of the right conferred by section 11 in relation to a work to the extent that such acts are permitted under Part VII in relation to the work —

(a)

fair dealing with the work for the purposes ofcriticism, review or the reporting of current events;

(b)

the incidental inclusion of the work in copies orphonorecords;

(c)

the use of the work for examination purposes;

(d)

acts done for the purposes of Parliamentary or judicial proceedings or proceedings of statutoryinquiry;

(e)

acts permitted in relation to anonymous or pseudonymous works on the assumption that copyright in the work has expired or that theauthor is dead.

46. (1) The right conferred on an author of visual artby section 12 to object to derogatory treatment of his work is infringed where acts described in subsection (2) are done in relation to that work; and for the purposes of this Part, “derogatory treatment” has the same meaning as thatspecified in subsection (4) of section 12.

(2) In the case of a work of visual art, the right is infringed by a person who —

(a)

publishes or displays publicly a derogatorytreatment of the work; or

(b)

intentionally or through gross negligencedestroys a protected work of visual art of recognised stature.

47. The right conferred by section 12 is alsoinfringed by a person who —

(a)

possesses in the course of a business;

(b)

sells or lets for hire or offers or exposes for saleor hire;

(c)

in the course of business, displays publicly or distributes; or

(d)

distributes otherwise than in the course of a business, so as to affect prejudicially the honour or reputation of the author;

Infringement of right to object to derogatory treatment of work.

Infringement by possession of infringing work of visual art.

Acts not infringing section

12.

False attribution of work: infringement of right.

a work of visual art which is, and which he knows or has reason to believe is an infringing copy.

48. (1) The right conferred by section 12 is notinfringed by any act done for the purpose of —

(a)

avoiding the commission of an offence;

(b)

complying with a duty imposed by or under any written law,

so, however, that, where the author of a work of visual art is identified at the time of the relevant act or has previouslybeen identified in or on published copies, there shall be asufficient disclaimer.

(2) In subsection (1), “sufficient disclaimer” meansa clear and reasonably prominent indication —

(a)

given at the time of the act; and

(b)

if the author is then identified, appearing alongwith the identification,

that the work has been subjected to treatment to which the author has not consented.

49. (1) Subject to the provisions of this section, theright conferred on a person by section 13 not to have aliterary, dramatic, musical, choreographic or artistic workfalsely attributed to him as author or a motion picture or other audiovisual work falsely attributed to him as director, is infringed by a person who —

(a)

distributes to the public copies or phonorecordsof a work of any of those descriptions in or onwhich there is a false attribution;

(b)

displays publicly an artistic work or a reproduction of an artistic work in or on whichthere is a false attribution.

(2)

The right is also infringed by a person who —

(a)

in the case of literary, dramatic choreographic or musical work, performs the work publicly;

(b)

in the case of a motion picture or other audiovisual work, performs it publicly,

knowing or having reason to believe that the attribution is false.

(3)

The right is also infringed by any person who distributes to the public or displays publicly any materialcontaining a false attribution in connection with any act referred to in subsection (1) or (2).

(4)

The right is also infringed by a person who, inthe course of business —

(a)

possesses or deals with a copy or phonorecord ofa work referred to in subsection (1) in or on which there is a false attribution; or

(b)

in the case of an artistic work, possesses or dealswith the work itself when there is a false attribution in or on it,

knowing or having reason to believe that there is an attribution and that it is false.

(5) In the case of an artistic work, the right is alsoinfringed by a person who in the course of business —

(a)

deals with a work which has been altered after the author parted with possession of it as beingthe unaltered work of the author; or

(b)

deals with the copy of such a work as being acopy of the unaltered work of the author,

knowing or having reason to believe that such is not the case.

(6)

References in this section to dealing are references to selling or letting for hire, offering or exposing for sale or hire, displaying in public or distributing.

(7)

This section applies where a work is falsely represented as being a derivative of the work of a person as it applies where the work is falsely attributed to a person asauthor.

1. The right conferred by section 14 in relation to acommissioned photograph or audiovisual work is infringed by a person who does or authorizes the doing of any actmentioned in that section in relation to that work; but the right is not infringed by any act which, pursuant to Part VII, would not infringe copyright in the work.

2. It is not an infringement of any right conferred under section 11, 12, 13 or 14 to do any act which theperson entitled to the right has consented pursuant to section 16 or in respect of which he has given a written waiver pursuant to subsection (2) of that section.

Infringement of privacy right respecting photographs, etc.

Effect of consent and waiver of rights.

Remedies for infringing moral rights, etc.

Penalties in respect of dealings which infringe copyright.

Remedies for Infringement of Moral Rights and Related Rights

52. (1) The infringement of a right conferred under section 11 or 12 is actionable as a breach of statutory duty owned to the person entitled to the right.

(2)

The infringement of a right conferred under section 13 or 14 is actionable as a breach of statutory duty owed to a person entitled to the right, if, thirty days after notification by such person by registered mail, the infringer has failed to cure the infringement.

(3)

Where in any action an infringement of a rightreferred to in subsection (1) or (2) is proved or admitted, the occur may order the defendant to publish such correction in such terms and in such manner as the court may direct.

53. (1) Any person who at a time when copyright in a work subsists by virtue of this Act —

(a)

reproduces for sale or rent;

(b)

in the course of a business sells or rents, offers or exposes for sale or rent, displays publicly or distributes;

(c)

imports into The Bahamas for purposes other than his private and domestic use; or

(d)

distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

a copy or phonorecord which he knows or has reason to believe is an infringing copy or phonorecord of that work,commits an offence.

(2) Any person who, at the time when copyrightsubsists in a work by virtue of this Act, makes or has in his possession a machine or device designed or adapted for reproducing copies or phonorecords of that work, knowingthat it is to be used to reproduce infringing copies orphonorecords for sale or hire or for use in the course ofbusiness, commits an offence.

(3)

Any person who causes —

(a)

a literary, dramatic, choreographic or musical work to be performed publicly; or

(b)

a sound recording, motion picture or other audiovisual work to be performed publicly,

knowing or having reason to believe that copyright subsistsin the work and that the performance constitutes an infringement of copyright, commits an offence.

(4)

Any person who is guilty of an offence undersubsection (1) shall be liable —

(a)

on summary conviction to a fine of fifty thousand dollars or to imprisonment for two years or to both such fine and imprisonment;

(b)

on conviction on information to a fine of one hundred thousand dollars or to imprisonment forfour years or to both such fine and imprisonment.

(5)

Any person who is guilty of an offence underthis section, other than an offence under subsection (1), shall be liable —

(a)

on summary conviction to a fine of twenty-fivethousand dollars or to imprisonment for one year or to both such fine and imprisonment;

(b)

on conviction on information to a fine of fifty thousand dollars or to imprisonment for two years or to both such fine and imprisonment.

54. (1) Subject to subsection (2), the court beforewhich proceedings are brought against a person for anoffence under section 53 may, if it is satisfied that at the time of his arrest or charge —

(a)

he had in his possession, custody or control in the course of business an infringing copy or phonorecord of a protected work; or

(b)

he had in his possession, custody or control a machine or device specifically designed or adapted for reproducing copies or phonorecordsof a particular protected work knowing orhaving reason to believe that it had been or was to be used to make infringing copies or phonorecords,

order that the infringing copies or phonorecords ormachine or device be delivery up to the copyright owner or to such other person as the court may direct.

(2) An order may be made by the court of its own motion or on the application of the prosecution and may be made whether or not the person is convicted of the offence, so however, that the court shall not make an order —

Order to delivery up in criminal proceedings.

Application of provisions as to entry and search.

Provision for restricting importation of infringing phonorecords or copies.

Ch. 293.

Ch. 293.

(a)

after the time specified in section 123; or

(b)

if it appears to the court unlikely that any order will be made under this section 122.

(3)

An appeal shall lie to the Court of Appeal froman order made under this section by a Magistrate’s Court.

(4)

A person to whom an infringing copy orphonorecord or machine or device is delivered up in pursuance of an order under this section shall retain it pending the making of an order or the decision not to make an order under section 122.

Supplementary

1. For the purpose of this Part, the provisions of sections 124 and 125 shall apply in respect of the entry andsearch of any premises.

1. (1) The owner of the copyright in any published literary, dramatic, choreographic, artistic or musical work may give notice in writing to the Comptroller of Customs —

1. that he is the owner of the copyright in the work;and

2. that he request the Comptroller to treat asprohibited goods under the Customs Management Act, during a period specified in the notice, copies of such work which are infringing copies.

(2)

The period specified in a notice given under subsection (1) shall not exceed five years and shall not extend beyond the end of the period for which thecopyright may subsist.

(3)

The owner of the copyright in a sound recording or motion picture or other audiovisual work may givenotice in writing to the Comptroller of Customs —

(a)

that he is the owner of the copyright in the work;

(b)

that infringing copies or phonorecords of thework are expected to arrive in The Bahamas at a time and a place specified in the notice; and

(c)

that he requests the Comptroller to treat suchcopies or phonorecords as prohibited goodsunder the Customs Management Act.

(4)

Subject to subsection (5), where a notice has been given in accordance with this section, the importationinto The Bahamas of goods to which the notice relates is prohibited; but notwithstanding anything contained in the Customs Management Act, a person is not liable to any penalty under that Act other than forfeiture of the goods by reason that any goods are treated as prohibited goods by virtue of this section.

(5)

The importation of any machine, device, copy or phonorecord by a person for his private and domestic use is not prohibited under subsection (4).

(6)

A person giving notice under this section shall —

(a)

comply with such conditions as the Minister, after consultation with the Comptroller ofCustoms, may by regulation prescribe; and

(b)

satisfy such requirements as may be so prescribed in connection with the giving of thenotice, including any requirement relating to —

(i)

the form of the notice;

(ii)

the furnishing of evidence, whether ongiving notice, or on the importation of thegoods, or at both such times;

(iii) the payment of fees in respect of the notice;

(iv)

the giving of security in respect of any liability or expense which the Comptroller of Customs may incur in consequence of the notice by reason of, the detention ofcopies, phonorecords, machine, device or article or anything done to copies,phonorecords, machine, device or article detained;

(v)

the indemnification of the Comptroller ofCustoms against any such liability or expenses whether security has been, given or not;

(vi)

any incidental or supplementary matters,

and the regulations may make different provisions as respect different classes of cases.

Ch. 293.

Definition of “sufficient acknowledgement”.

Research and private study and teaching.

Criticism, review and reporting.

Determining fair dealing.

PART VII

PART VIII THE COPYRIGHT ROYALTY TRIBUNAL

(2)

The provisions of the Schedule shall have effectas to the constitution of the Tribunal and otherwise in relation thereto.

87. (1) The functions of the Tribunal shall be —

(a)

to keep under revie

w the prescribed rate ofroyalty payable to the copyright owner inconnection with subsection (2)(b) of section 80 so as to —

(i)

afford the copyright owner a fair return forhis creative work;

(ii)

maximize the availability of creative work to the public;

(iii) to minimize any disruptive impact on the structure of the industries involved and on generally prevailing practices of thoseindustries;

(b)

to make recommendations to the Minister on the rate of royalties or other payments payable in respect of the use or presentation in suchnational cultural event as he may by order designate, or any works or performance in which copyright or other rights subsist;

(c)

to receive, allocate and distribute royalties under paragraph (d) of section 83.

Organization and general responsibilities of the Copyright Registry.

Copyright Registry regulations.

Effective date of actions in Registry.

PART IX THE COPYRIGHT REGISTRY

and the Minister, after consultation with the Registrar, may prescribe fees for preparing copies of Registry’s records,whether or not such copies are certified, on the basis of the cost of such preparation.

(2) The Minister may by order vary any feeprescribed under subsection (1).

Registry’s fees.

Reproduction for use of the blind and physically handicapped.

Conferment of rights in live performances.

(3)

The fees prescribed by or under this section are applicable to any work of the Bahamas Government but theRegistrar may waive the requirement of this subsection inrespect of the Government.

(4)

All fees received under this section shall be paid into the Consolidated Fund.

(5) The Registrar may, in accordance with

regulations prescribed by the Minister, refund any sum paid by mistake or in excess of the fee required undersubsection (1).

96. The Minister, after consultation with the Registrar, may prescribe standardised forms and procedures by which, at the time applications covering certain specified categories of non-dramatic literary works

are submitted for registration under section 33, the copyright owner may voluntarily grant to the Registry a licence to reproduce the copyright work by means of Braille or similar tactile symbols, or by fixation of areading of the work in a phonorecord, or both, and to distribute the resulting copies or phonorecords solely for the use of the blind and physically handicapped and under limited conditions to be specified in the standardised forms.

PART X RIGHTS IN LIVE PERFORMANCES

(2) The rights conferred by this Part are independent of —

(a)

any copyright in or moral rights relating to any work used or performed in the performance; and

(b)

any other right or obligation arising otherwise than under this Part.

Performer’s Rights

98. A performer’s rights are infringed by a person who, without his consent —

(a)

reproduces in copies or phonorecords otherwise than for his private or domestic use, the whole or any substantial part of a qualifying performance; or

(b)

performs publicly the whole or any substantial part of a qualifying performance.

1. A performer’s rights are infringed by a person who, without his consent, displays or performs publicly thewhole or any substantial part of a qualifying performance by means of a copy or phonorecord which was fixed without the performer’s consent and that person knows or has reason to believe that it was so fixed.

2. (1) A performer’s rights are infringed by a person who, without his consent and payment of royalty (which is to be negotiated by the two parties), uses a copy or phonorecord of a qualifying performance (whetherauthorized or not) for the purpose of preparing a derivativework of the copy or phonorecord.

(2) In subsection (1), “preparing a derivative work” means a copy or phonorecord in which the performance is accompanied by lyrics or music or performances notcontained in the copy or phonorecord in which theperformance was first fixed.

101. (1) A performer’s rights are infringed by a person who, without his consent —

(a)

imports into The Bahamas otherwise than for his private and domestic use; or

(b)

in the course of a business, possesses, sells orlets for hire, offers or exposes for sale or hire, or distributes,

a copy or phonorecord of a qualifying performance which is, and which that person knows or has reason to believe isan illicit copy or phonorecord.

(2) Where in an action for infringement of performer’srights brought by virtue of this section a defendant shows thatthe illicit copy or phonorecord was innocently acquired by him or a predecessor in title of his, the remedy

Consent required for recording and/or live transmission of live perfor- mances.

Infringement of performer’s rights by use of copy or phonorecord fixed without consent.

Consent and royalty required for preparing a derivative work of the performance.

Infringement of performer’s rights by importing, possessing etc. illicit copy or phonorecord.

Consent required for fixation of live performance subject to exclusive contract.

Infringement of recording rights by use of copy or phonorecord fixed without consent.

Infringement of recording rights by importing and possessing illicit recording.

in damages available against him in respect of the infringement is an amount not exceeding a reasonable payment in respect of the act complained of.

(3) In subsection (2), “innocently acquired” means that the person acquiring the copy or phonorecord did not know or had no reason to believe that it was an illicit copy or phonorecord.

Rights of Person Having Recording Rights

1. A person infringes the rights of a person having recording rights in relation to a live performance who, without his consent, fixes the whole or substantial part of the performance otherwise than for his private anddomestic use.

2. (1) A person infringes the rights of a person having recording rights in relation to a performance who,without his consent, displays or performs publicly thewhole or any substantial part of the performance by meansof a copy or phonorecord which was, and which that person knows or has reason to believe was, made without the appropriate consent.

(2) The reference in subsection (1) to the “appropriate consent” is to the consent of the person who at the time consent was given had recording rights in relation to the performance.

104. (1) A person infringes the rights of a person having recording rights in relation to a performance who,without his consent —

(a)

imports into The Bahamas otherwise than for his private and domestic use; or

(b)

in the course of business, possesses, sells or lets for hire, offers or exposes for sale or hire, ordistributes, a copy or phonorecord of theperformance which is, and which that person knows or has reason to believe is, an illicit copy or phonorecord.

(2) Where in an action for infringement of performer’srights brought by virtue of this section a defendant shows thatthe illicit copy or phonorecord was innocently acquired by him or a predecessor in title of his, the remedy in damages available against him in respect of the infringement is an amount not exceeding a reasonable payment in respect of the act complained of.

(3) In subsection (2), “innocently acquired” means that the person acquiring the copy or phonorecord did not know and had no reason to believe that it was an illicit copy or phonorecord.

Exceptions to Infringement

1. Notwithstanding the rights in performancesconferred in this Part, any act done in relation to a copy orphonorecord in circumstances specified hereunder does not constitute an infringement of the rights.

1. Fair dealing with a copy or phonorecord of aperformance —

1. for the purpose of criticism or review of that or another copy or phonorecord of a performance, or of a work; or

2. for the purpose of reporting current events,

does not infringe any of the rights conferred by this Part,and the provisions of section 60 shall, with the necessarymodifications, apply in determining whether or not an act constitutes fair dealing.

107. The rights conferred by this Part are notinfringed —

(a)

by the incidental inclusion in sound recordings,motion pictures or other audiovisual works, of aperformance or copy or phonorecord thereof;

(b)

by anything done in relation to copies orphonorecords or by the public display orperformance of anything whose marking was not an infringement of those rights, by virtue of paragraph (a),

and for the purposes of this section, copies or phonorecords of a performance so far as it consists of music or wordsspoken or sung with music, shall not be regarded as incidentally included in a sound recording, motion picture or other audiovisual work if it is deliberately included.

Permitted acts in relation to performances.

Fair dealing for criticism, etc.

Incidental inclusion of a performance or copy or phonorecord thereof.

Reproduction of transmission by educational establishment.

Acts done to performance or copy or phonorecord for Parliamentary proceedings.

Transfer of copy or phonorecord of performance.

108. (1) Whenever a live performance is transmitted to the public, a reproduction of no more than a single copy or phonorecord may be made by or on behalf of an educational establishment without thereby infringing any of the rights conferred by this Part.

(2)

Where a recording which would otherwise be anillicit copy or phonorecord is reproduced in accordance with this section but is subsequently dealt with, it shall betreated as an illicit copy or phonorecord for the purposes of that dealing and if that dealing infringes any right conferred by this Part, for all subsequent purposes.

(3)

In subsection (2), “dealt with” means sold or let for hire, or offered or exposed for sale or hire.

109. The rights conferred by this Part are notinfringed by anything done for the purposes of —

(a)

Parliamentary or judicial proceedings or the reporting of such proceedings;

(b)

the proceedings of a statutory inquiry or thereporting of such proceedings held in public.

110. (1) Where a copy or phonorecord of a liveperformance has been purchased on terms which, expressly or impliedly or by virtue of any rule of law, allow the purchaser to reproduce further copies in connection with his use of the copy or phonorecord, then, in the absence any express terms —

(a)

prohibiting the transfer of the copy or phonorecord by the purchaser;

(b)

imposing obligations which continue after a transfer;

(c)

prohibiting the assignment of any consent;

(d)

terminating any consent on a transfer; or

(e)

providing for the terms on which a transfereemay do the things which the purchaser was permitted to do,

anything which the purchaser was allowed to do may also be done by a transferee without infringement of the rights conferred by this Part, but any copy reproduced by thepurchaser which is not also transferred shall be treated as an illicit recording for all purposes after the transfer.

(2)

Subsection (1) applies where the original purchased copy is no longer usable and what is transferred is a further copy used in its place.

(3)

This section also applies on a subsequenttransfer, with the substitution for references in subsection

(1)

to the purchaser of references to the subsequent transferor.

(4)

This section does not apply in relation to a copypurchased before the commencement of this Act.

1. The rights conferred by this Part are notinfringed by the reproduction or use by a prescribedbroadcasting organization for the purpose of maintaining supervision and control over programmes transmitted by that organization, of copies or phonorecords of those programmes.

2. (1) Subject to the provision of this section, theMinister may, by order, provide that the rights conferred by this Part are not infringed by the doing of such acts in relation to the live performances as are specified in the order, where such acts are done in the circumstances so specified.

(2)

The Minister shall not make an order under subsection (1) unless he is satisfied that the acts specifiedin the order —

(a)

are necessary in the public interest in connectionwith an event of national importance;

(b)

would not conflict with the normal exploitation of the live performance; and

(c)

would not unreasonably prejudice the legitimateinterest of the performer or any person having rights in the performance.

(3)

An order made under subsection (1) shall make provision for the payment of equitable remuneration to any person having rights conferred by this Part.

Duration and Transmission of Rights in Live Performances: Consent

1. The rights conferred by this Part continue to subsist in relation to a performance until the end of the period of seventy years from the end of the calendar year in which the live performance takes place.

2. (1) The rights conferred by this Part are not assignable or transmissible, except to the extent that performer’s rights are transmissible as provided in this section.

Recordings for supervision and control of programmes.

Order excepting acts from infringing right under this Part.

Duration of rights in live performances.

Transmission of rights in live performances.

Consent.

(2) On the death of a person entitled to performer’s rights —

(a)

the rights pass to such person as he may by testamentary disposition specifically direct; and

(b)

if, or to the extent that there is no such direction, the rights are exercisable by his personalrepresentative,

and references in this Part to the performer, in the context of the person having performer’s rights, shall be construed as references to the person for the time being entitled to exercise those rights.

(3) Where by virtue of paragraph (a) of subsection

(2)

a right becomes exercisable by more than one person, it is exercisable by each of them independently of the others.

(4)

Subsections (1), (2) and (3) are without prejudice to any rights conferred by this Act on a person to whom has been assigned the benefit of an exclusive recording contract or licence to fix copies or phonorecords of a performance.

(5)

Any damages recovered by a personalrepresentative by virtue of this section in respect of an infringement after a person’s death shall devolve as a part of his estate as if the right of action had subsisted and been vested in him immediately before his death.

115. (1) Consent, for the purposes of this Part, shall be by instrument in writing and may be given in relation to a specific live performance, a specified description of live performances, or performances generally; and may relate to past or future performances.

(2)

A person having recording rights in a liveperformance is bound by any consent given by a person through whom he derives his rights under the exclusive recording contract or licence in question, in the samemanner as if the consent had been given by him.

(3)

Where a right conferred by this Part passes toanother person, any consent binding on the personpreviously entitled binds the person to whom the right passes in the same way as if the consent had been given by him.

Remedies for Infringement of Rights in Live Performances

1. An infringement of any of the rights conferred by this Part is actionable by the person entitled to the right as a breach of statutory duty.

2. (1) Where a person has in his possession, custody or control, in the course of a business, an illicit recording of a live performance, a person havingperformer’s rights or recording rights under this Part in relation to the performance may apply to the court for an order, that the recording be delivered up to him or to such other person as the court may direct.

(2)

An application shall not be made after the end of the period specified in section 122; and the court shall not make an order under this section unless it also makes an order under section 121 for the disposal of the copy or phonorecord, or it is of the opinion that there are grounds on which an order under this section could be made.

(3)

A person to whom a copy or phonorecord isdelivered up in pursuance of an order under this sectionshall, if an order under section 121 is not made, retain it pending the making of an order, or the decision not to make an order under that section.

(4)

Nothing in this section affects any other power of the court.

Offences

118. (1) A person commits an offence who without sufficient consent —

(a)

reproduces for sale or hire;

(b)

imports into The Bahamas otherwise than for his private and domestic use;

(c)

possesses in the course of a business with a view to doing any act infringing the rights conferred by this Part;

(d)

in the course of a business —

(i)

sells or lets for hire;

(ii)

offers or exposes for sale or hire; or

(iii) distributes,

a copy or phonorecord which is, and which he knows orhas reason to believe is an illicit copy or phonorecord.

Infringement actionable as breach of statutory duty.

Order for delivery up of illicit recordings in civil proceedings.

Criminal liability.

Order for delivery up of illicit copy or phonorecord in criminal proceedings.

(2)

A person commits an offence, who causes a copy or phonorecord of a live performance fixed without sufficient consent to be displayed or performed publicly thereby infringing the rights conferred by this Part, if heknows or has reason to believe that those rights are thereby infringed.

(3)

In subsections (1) and (2), “sufficient consent” means —

(a)

in the case of a qualifying performance that is not subject to an exclusive recording contract, the consent of the performer; and

(b)

in the case of a performance that is subject to anexclusive recording contract, the consent of the person having recording rights.

(4)

References in this section to persons having recording rights are to the person having those rights at the time the consent is given or, if there is more than one such person, to all of them.

(5) No offence is committed under subsection (1) or

(2)

by the doing of an act which, by virtue of any provision of this Part, may be done without infringing the rights conferred by this Part.

(6)

A person who is guilty of an offence undersubsection (1) or (2) shall be liable —

(a)

on summary conviction to a fine of twenty-fivethousand dollars or to imprisonment for one year;

(b)

on conviction on information to a fine of fifty thousand dollars or to imprisonment for two years.

119. (1) The court before which proceedings are brought against a person for an offence under section 118 may, if satisfied that at the time of arrest or charge he had in his possession, custody or control, in the course of a business, an illicit recording of a performance, order that itbe delivered up to a person having performer’s rights or recording rights in relation to the performance or to suchother person as the court may direct.

(2)

An order may be made by the court of its own motion or on the application of the prosecution and may bemade whether or not the person is convicted of the offence,but shall not be made —

(a)

after the end of the period specified in section 122; or

(b)

if it appears to the court unlikely that any order will be made under section 121.

(3)

An appeal shall lie to the Court of Appeal froman order under this section.

(4)

A person to whom an illicit copy or phonorecordis delivered up in pursuance of an order under this section shall retain it pending the making of an order, or the decision not to make an order, under section 121.

120. (1) It is an offence for a person, without written authorization, to represent falsely that he is authorized by any person to give consent for the purposes of this Part inrelation to a performance.

(2) A person who is guilty of an offence under this section is liable on summary conviction to a fine of twenty-five thousand dollars or to imprisonment for one year or to both such fine and imprisonment.

PART XI GENERAL

(c) a decision that no order under paragraph (a) or

(b) should be made.

False representation of authority to give consent.

Order for disposal of infringing copy or phonorecord or illicit recording.

(2)

In considering what order (if any) should be made, the court shall have regard to all the circumstances of the case and, in particular —

(a)

where the infringement relates to copyright in awork, whether other remedies available in an action for infringement of copyright would beadequate to compensate the copyright owner and to protect his interest;

(b)

where the infringement relates to rights conferred under Part X, whether other remedies available in an action for infringement of thoserights would be adequate to compensate thepersons 1entitled to the rights and to protect their interests.

(3)

Provision shall be made by regulations as to the service of notice on persons having an interest in theinfringing copy or phonorecord, or as the case may be, theillicit copy or phonorecord and any such person is entitled —

(a)

to appear in proceedings for an order under this section, whether or not he was served with notice; and

(b)

to appeal against any order made, whether or not he appeared,

and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.

(4)

Where there is more than one person interested in any infringing copy or phonorecord, or as the case may be, an illicit copy or phonorecord, the court shall make such order as it thinks just and may, in particular, direct that such copy or phonorecord or illicit copy or phonorecord be sold, or otherwise dealt with, and theproceeds divided.

(5)

If the court decides that no order should be made under this section, the person in whose possession, custody or control the copy or phonorecord or, as the case may be, the recording was before being delivered up or seized, is entitled to its return.

(6)

References in this section to a person having aninterest in a copy or phonorecord or a recording include

any person in whose favour an order could be made in respect of the copy, phonorecord or, as the case may be, recording under this section.

122. (1) Subject to subsection (2), an application for an order under section 42 or 117 may not be made after the end of the period of three years from the date on which the infringing copy or phonorecord or, as the case may be, theillicit recording in question was made.

(2) If during the whole or any part of that period aperson entitled to apply for an order —

(a)

is under a disability; or —

(b)

is prevented by fraud or concealment from discovering the facts entitling him to apply,

an application may be made by him at any time before the end of the period of three years from the date on which he ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts.

1. No prosecution for an offence under this Actshall be commenced after the expiration of six years after the commission of the offence.

1. (1) Subject to subsection (3) of this section andsection 125, a member of the Police Force of or above the rank of Inspector may, if he is satisfied that there is reasonable cause to believe that an offence against this Actis being committed, give directions to any police officerauthorizing him to —

1. enter and search any premises or place;

2. stop, board and search any vessel (other than aship of war) or any aircraft (other than a military aircraft); or

3. stop and search any vehicle, in which the policeofficer reasonably suspects there is an infringingcopy of a work or an illicit recording or any article used or intended to be used for making infringing copies or illicit recordings; and

4. seize, remove or detain —

(i) any article which appears to the policeofficer to be an infringing copy or an illicitrecording or any other article whichappears to him to be intended for use for making such copies or recording, and

Period after which remedy of delivery up not available.

Time limited for prosecution.

Powers of members of Police Force.

Restrictions on the entry and search of domestic premises.

(ii) anything which appears to him to be or to contain, or to be likely to be or to contain, evidence of an offence under this Act.

(2)

A police officer to whom directions have been given under subsection (1) may —

(a)

break open any outer or inner door of any place which he is authorized by this section to enter and search;

(b)

forcibly board any vessel, aircraft or vehiclewhich he is authorized under this Act to stop, board and search;

(c)

remove by force any person or thing obstructing him in the exercise of any power conferred on him by this Act;

(d)

detain any person found in any place which he is authorized under this section to search until such place has been searched;

(e)

detain any vessel or aircraft which he isauthorized under this section to stop, board and search, and prevent any person from approaching or boarding such vessel or aircraftuntil it has been searched;

(f)

detain any vehicle which he is authorized under this Act to stop and search until it has beensearched.

(3)

It shall be the duty of any police officer in theexecution of any directions given under subsection (1) to produce the instrument containing the directions to the owner or occupier of any premises, place, vessel or aircraftentered or vehicle stopped, pursuant to such directions if required by such owner or occupier to do so.

125. (1) No domestic premises shall be entered and searched pursuant to section 124 unless a magistrate has issued a warrant under subsection (2).

(2)

A magistrate may, if he is satisfied byinformation on oath that there is reasonable ground forsuspecting that there is in any domestic premises any article which may be seized, removed or detained under any provision of this Act, issue a warrant authorizing a member of the Police Force not below the rank of Sergeant to enter and search the premises and such member may call upon any police officer to assist him in entering and searching the premises.

(3)

In this section “domestic premises” means any premises or any part thereof, used exclusively or mainly asa dwelling.

126. (1) Without prejudice to any other written law, any person who —

(a)

wilfully obstructs a member of the Police Force in the exercise of his powers or the performanceof his duties under this Act;

(b)

wilfully fails to comply with any requirement properly made to him by any such member; or

(c)

without reasonable excuse, fails to give suchmember any other assistance which he may reasonably require to be given for the purpose ofexercising his powers or performing his duties under this Act,

is liable on summary conviction to a fine of ten thousand dollars or to imprisonment for one year.

(2)

A person who, when required to giveinformation to a member of the Police Force in the exercise of his powers or the performance of his duties under thisAct, knowingly gives false or misleading information to any such member is liable on summary conviction to a fine of five thousand dollars or to imprisonment for six months.

(3)

Nothing in this section shall be construed asrequiring any person to give any information which may incriminate him.

1. Where an offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he, as well as the body corporate, is guilty of that offence and is liable to be proceeded against and punished accordingly.

2. (1) If it appears to the Minister that the laws of a country fail to give adequate protection to Bahamian worksor Bahamian performances or fail to give adequateprotection in the case of one or more classes of such works or performances, (whether the lack of protection relates tothe nature of the work or performance or the nationality, citizenship or country of its author or performer or all of

Obstruction of members of Police Force.

Offences by bodies corporate.

Denial of copyright or rights in performance.

Application to Bahamian ships and aircraft.

those matters) the Minister may, by order, make provision in relation to that country in accordance with subsection (2).

(2)

An order made for the purposes of this sectionshall designate the country concerned and may provide either generally or in relation to such classes of cases as are specified in the order, that copyright shall not subsist in works first published, or, as the case may be, that rights in performances shall not subsist in performances first given, after a date specified in the order (which may be a date before the commencement of this Act) if; at the time of the first publication of those works or the giving of the first performance, as the case may be, the authors of the works or the performers were or are —

(a)

citizens of that country, not being at that timepersons whose habitual residence is in TheBahamas or other country (excluding the country concerned); or

(b)

in the case of works, bodies incorporated orestablished under the laws of that country.

(3)

The Minister shall in making an order under this section, have regard to the nature and extent of the lack of protection for Bahamian works or Bahamian performancesin consequence of which the order is being made.

(4)

This section applies to literary, dramatic, musical, choreographic, and artistic works, sound recording and motion pictures and other audiovisual works, and for the purposes of this section —

“Bahamian performances” means —

(a)

performances given by individuals who are citizens or habitual residents of The Bahamas; or

(b)

performances that take place in The Bahamas;

“Bahamian works” means —

(a)

works created by individuals who are citizens or habitual residents of The Bahamas; or

(b)

works which are created in The Bahamas.

129. (1) This Act applies to things done on a Bahamian ship or Bahamian aircraft as it applies to thingsdone in The Bahamas.

(2) in this section “Bahamian ship” and “Bahamian aircraft” means respectively, a ship or aircraft registered inThe Bahamas.

130. This Act binds the Crown.

1. The Minister may make regulations prescribing such matters as are required or permitted by this Act to be prescribed or as are necessary or desirable to be prescribedfor giving effect to this Act.

2. Nothing in the Act shall affect the operation ofany rule of equity relating to breaches in trust or confidence.

1. (1) Where immediately prior to the appointed day copyright subsists in The Bahamas in any work by virtue of the former Copyright Act ¹, such copyright shallcontinue to subsist and the person entitled thereto by virtue of that Act shall be the owner thereof under and subject tothis Act and in particular —

1. the duration of such copyright;

2. the acts comprised within the exclusive rights attaching to such copyright; and

3. the effect upon the ownership of such copyright of any event or transaction occurring or of any contract or agreement made on or after the appointed day, shall be governed by this Act.

(2)

Where, on the appointed day copyright subsistsin The Bahamas by virtue of subsection (1) of section 19 of the former Copyright Act in any record, perforated roll or other contrivance by virtue of which sounds may bemechanically produced, such copyright shall continue —

(a)

to subsist for the remainder of the period forwhich it would have subsisted if this Act had not been passed; and

(b)

in relation to any such record, perforated roll or contrivance, to have the meaning and effect it would have had if this Act had not been passed.

(3)

No act done before the appointed day isactionable by virtue of the conferment of the rights specified in Part III.

(4)

The right conferred by section 11 to be identified as the author of a work, and the right conferred by section

¹ Ch. 298 in the 1987 edition of The Statute Law of The Bahamas.

Act binds Crown. Regulations.

Savings.

Transitional.

12 to object to derogatory treatment of such work, shall not apply —

(a)

in relation to a literary, dramatic, musical, choreographic or artistic work of which theauthor died before the appointed day; or

(b)

in relation to motion picture or other audiovisual work created before the appointed day.

(5)

The rights in relation to a literary, dramatic, musical, choreographic or artistic work existing before the appointed day do not apply —

(a)

where copyright first vested in the author, toanything which, by virtue of an assignment ofcopyright made or licence granted before the appointed day, may be done without infringing copyright;

(b)

where copyright first vested in a person otherthan the author, to anything done by or with thelicence of the copyright owner.

(6)

The right to privacy conferred by section 14 in respect of photographs and audiovisual works does notapply to photographs or audiovisual works created, before the appointed day.

(7)

Where an act done before the appointed day wasan infringement of copyright but is not an infringement of copyright under this Act, then, proceedings in respect ofthat act may be taken as if this Act had not been passed.

(8)

An act done before the appointed day shall not be an infringement of copyright or right in performancesconferred by this Act if that act would not, but for the passing of this Act, have constituted an infringement.

(9)

Proceedings for infringement of copyrightinstituted but not disposed of before the appointed dayshall be disposed of as if this Act had not been passed.

(10)

Proceedings under this Act for infringement may be taken notwithstanding that the alleged infringementoccurred before the appointed day.