PART VII
THE COPYRIGHT TRIBUNAL
Division 1—Preliminary
Interpretation
149.—(1) In this Part, unless the contrary intention appears—
- “licence” means a licence granted by or on behalf of the owner or prospective owner of the copyright in a literary, dramatic or musical work, being a licence to perform the work or an adaptation of the work in public, to broadcast the work or an adaptation of the work, to make a sound recording or cinematograph film of the work or of an adaptation of the work for the purpose of broadcasting the work or adaptation or including it in a cable programme service;
- “licence scheme” means a scheme (including anything in the nature of a scheme, whether called a scheme or tariff or called by any other name) formulated by a licensor or licensors and setting out the classes of cases in which the licensor or each of the licensors is willing, or the persons on whose behalf the licensor or each of the licensors acts are willing, to grant licences and the charges (if any) subject to payment of which, and the conditions subject to which, licences would be granted in those classes of cases;
- “licensor” means the owner or prospective owner of the copyright in the work or any body of persons (whether corporate or unincorporate) acting as agent for the owner or prospective owner in relation to the negotiation or granting of such licences;
- “member” means a member of the Tribunal, and includes the President;
- “order” includes an interim order;
- “organisation” means an organisation or association of persons whether corporate or unincorporate;
- “party” includes a person making representations to the Tribunal at an inquiry under section 157;
- “President” means the President of the Tribunal;
- “proceeding”, in relation to the Tribunal, includes an inquiry by the Tribunal under section 157.
(2) In this Part—
- (a) a reference to conditions is a reference to any conditions other than conditions relating to the payment of a charge;
- (b) a reference to giving an opportunity to a person or organisation of presenting a case is a reference to giving the person or organisation an opportunity, at the option of the person or organisation, of submitting representations in writing, or of being heard, or of submitting representations in writing and being heard;
- (c) a reference to a person who requires a licence of a particular kind includes a reference to a person who holds a licence of that kind if the person will, at the expiration of the period for which the licence was granted, require a renewal of that licence or a grant of a further licence of the same kind; and
- (d) a reference to proceedings for infringement of copyright includes a reference to proceedings brought in respect of an alleged contravention of section 136(6).
Cases to which licence schemes apply
150.—(1) For the purposes of this Part, a case shall, subject to subsection (2), be deemed to be a case to which a licence scheme applies if, in accordance with a licence scheme for the time being in operation, a licence would be granted in that case.
(2) For the purposes of this Part, where, in accordance with a licence scheme—
- (a) the licences that would be granted would be subject to conditions by virtue of which particular matters would be excepted from the licences; and
- (b) a case relates to one or more matters falling within such an exception,
that case shall be deemed not to be a case to which the scheme applies.
Division 2—Constitution of the Tribunal
Establishment of Tribunal
151.—(1) There shall be established a Tribunal, to be called the Copyright Tribunal, which shall consist of a President and of not less than two nor more than 4 other members appointed by the Minister.
(2) The President shall possess the qualifications required for a District Judge under section 9(3) of the Subordinate Courts Act (Cap. 14).
(3) There shall be paid to the members of the Tribunal who are not public officers such remuneration (whether by way of salaries or fees), and such allowances, as the Minister may determine.
(4) The Minister may appoint such officers and servants of the Tribunal as the Minister may determine.
(5) The remuneration and allowances of members of the Tribunal, the remuneration of any officers and servants appointed under subsection (4) and such other expenses of the Tribunal as the Minister may determine, shall be paid out of moneys provided by Parliament.
Tenure of office
152.—(1) Subject to the provisions of this section, the members of the Tribunal shall hold office for such period as may be determined at the time of their respective appointments; and a person who ceases to hold office as a member of the Tribunal shall be eligible for reappointment.
(2) Any member of the Tribunal may at any time by notice in writing to the Minister resign his appointment.
(3) The Minister may declare the office of any member of the Tribunal vacant on the ground of his unfitness to continue in office or incapacity to perform the duties thereof.
Minister may appoint any person to act for absent member, etc
153. If any member of the Tribunal is, by reason of illness, absence or other reasonable cause, for the time being unable to perform the duties of his office, either generally or in relation to any particular proceedings, the Minister may appoint some other duly qualified person to discharge the duties of that member for any period, not exceeding 6 months at one time, or, as the case may be, in relation to those proceedings; and a person so appointed shall, during that period or in relation to those proceedings, have the same powers as the person in whose place he is appointed.
Quorum
154. If at any time there are more than two members of the Tribunal, in addition to the President, then, for the purposes of any proceedings, the Tribunal may consist of the President together with any two or more of those members.
Decision of Tribunal
155. If the members of the Tribunal dealing with any reference or application are unable to agree as to the order to be made by the Tribunal, a decision shall be taken by the votes of the majority; and, in the event of an equality of votes, the President shall be entitled to a second or casting vote.
Sittings of Tribunal
156.—(1) Sittings of the Tribunal shall be held at such places and times as the President determines.
(2) The exercise of the powers of the Tribunal shall not be affected by a vacancy or vacancies in the membership of the Tribunal.
Division 3—Inquiries by, and Applications and References to, the Tribunal
Inquiries into royalty payable in respect of records of musical works
157.—(1) This section shall apply where the Minister charged with the responsibility for trade and industry requests the Tribunal in pursuance of section 59 to hold an inquiry in relation to the royalty, or the minimum royalty, payable in respect of records generally, or in respect of records included in a particular class of records.
(2) Where such a request is made, the Tribunal shall hold the inquiry and shall give every person or organisation that the Tribunal is satisfied has a substantial interest in the matter to which the inquiry relates an opportunity of presenting a case to the Tribunal.
(3) As soon as practicable after the completion of the inquiry, the Tribunal shall make a report in writing to the Minister setting out the result of the inquiry.
Applications to Tribunal for determination of remuneration payable to owner of copyright for copies made under statutory licence
158.—(1) This section shall apply where application is made to the Tribunal in pursuance of section 52(11) or 54(10) for the determination of an equitable remuneration to be paid to the owner of the copyright in a work for the making of copies or of a handicapped reader’s copy, as the case requires, of the whole or of a part of that work.
(2) The parties to an application in relation to which this section applies are—
- (a) the owner of the copyright in a work; and
- (b) the body by which, or on behalf of which, the copies or the handicapped reader’s copy referred to in subsection (1) were or was made.
(3) Where an application in relation to which this section applies is made to the Tribunal, the Tribunal shall consider the application and, after giving the parties to the application opportunities of presenting their cases —
- (a) shall make an order determining the amount that it considers to be equitable remuneration to the owner of the copyright for the making of the copies or of the handicapped reader’s copy, as the case requires; and
- (b) may, subject to the regulations, make such order as to costs as the Tribunal thinks fit.
(4) Where the Tribunal makes, under subsection (3), an order that one party to an application pay an amount by way of costs to the other party to the application, the first-mentioned party shall pay that amount to the other party and, in default of payment, the first-mentioned party may recover that amount from the other party in a court of competent jurisdiction as a debt due to him.
Applications to Tribunal for apportionment of royalty in respect of a record
159.—(1) This section shall apply where an application is made to the Tribunal in pursuance of paragraph (b) of section 60(3) for an apportionment of an amount payable in respect of a record between the owner of the copyright in a musical work and the owner of the copyright in a literary or dramatic work.
(2) The parties to an application in relation to which this section applies are—
- (a) the owner of the copyright in the musical work; and
- (b) the owner of the copyright in the literary or dramatic work.
(3) Where an application in relation to which this section applies is made to the Tribunal, the Tribunal shall consider the application and, after giving to the parties to the application an opportunity of presenting their cases, shall make an order apportioning the amount to which the application relates between the parties in such manner as it thinks equitable.
Reference of proposed licence schemes to Tribunal
160.—(1) Where a licensor proposes to bring a licence scheme into operation, he may refer the scheme to the Tribunal.
(2) The parties to a reference under this section are—
- (a) the licensor referring the scheme; and
- (b) such organisations or persons (if any) as apply to the Tribunal to be made parties to the reference and, in accordance with subsection (3), are made parties to the reference.
(3) Where an organisation (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to the Tribunal to be made a party to a reference, and the Tribunal is satisfied that the organisation or person has a substantial interest in the operation of the scheme to which the reference relates, the Tribunal may, if it thinks fit, make that organisation or person a party to the reference.
(4) The Tribunal shall consider a scheme referred under this section and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order, either confirming or varying the scheme, as the Tribunal considers reasonable in the circumstances.
(5) An order (other than an interim order) of the Tribunal under this section may, notwithstanding anything contained in the licence scheme to which it relates, be made so as to be in force either indefinitely or for such period as the Tribunal thinks fit.
(6) Where a licence scheme has been referred to the Tribunal under this section, the licensor may do either or both of the following things:
- (a) bring the scheme into operation before the Tribunal makes an order in pursuance of the reference;
- (b) withdraw the reference at any time before the Tribunal makes an order in pursuance of the reference, whether the scheme has been brought into operation or not.
(7) If the scheme is not brought into operation before an order is made in pursuance of the reference, the scheme as confirmed or varied by the order comes into operation, notwithstanding anything contained in the scheme, forthwith upon the making of the order.
(8) After the making of an order in pursuance of the reference, the scheme as confirmed or varied by the order shall remain in operation, notwithstanding anything contained in the scheme, so long as the order remains in force.
Reference of existing licence schemes to Tribunal
161.—(1) Where, at any time while a licence scheme is in operation, a dispute arises with respect to the terms of the scheme between the licensor operating the scheme and—
- (a) an organisation claiming to be representative of persons requiring licences in cases included in a class of cases to which the scheme applies; or
- (b) any person claiming that he requires a licence in a case included in a class of cases to which the scheme applies,
the licensor, organisation or person concerned may refer the scheme to the Tribunal insofar as the scheme relates to cases included in that class.
(2) The parties to a reference under this section are—
- (a) the licensor, organisation or person referring the scheme;
- (b) if the reference is not made by the licensor operating the scheme—that licensor; and
- (c) such other organisations or persons (if any) as apply to the Tribunal to be made parties to the reference and, in accordance with subsection (3), are made parties to the reference.
(3) Where an organisation (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to the Tribunal to be made a party to a reference, and the Tribunal is satisfied that the organisation or person has a substantial interest in the matter in dispute, the Tribunal may, if it thinks fit, make that organisation or person a party to the reference.
(4) The Tribunal shall not begin to consider a reference under this section by an organisation unless the Tribunal is satisfied that the organisation is reasonably representative of the class of persons that it claims to represent.
(5) Subject to subsection (4), where a licence scheme is referred to the Tribunal under this section, the Tribunal shall consider the matter in dispute and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order, either confirming or varying the scheme, insofar as it relates to cases included in the class of cases to which the reference relates, as the Tribunal considers reasonable in the circumstances.
(6) An order (other than an interim order) of the Tribunal under this section may, notwithstanding anything contained in the licence scheme to which it relates, be made so as to be in force either indefinitely or for such period as the Tribunal thinks fit.
(7) A reference of a licence scheme to the Tribunal under this section may be withdrawn at any time before an order is made in pursuance of the reference.
(8) Where a licence scheme has been referred to the Tribunal under this section, the scheme shall remain in operation, notwithstanding anything contained in the scheme, until the Tribunal makes an order in pursuance of the reference.
(9) Subsection (8) shall not apply in relation to a reference with respect to any period after the reference has been withdrawn or after the Tribunal has refused to begin to consider the reference in pursuance of subsection (4).
(10) After the making of an order in pursuance of the reference, the scheme as confirmed or varied by the order shall remain in operation, notwithstanding anything contained in the scheme, so long as the order remains in force.
Further reference of licence schemes to Tribunal
162.—(1) Where the Tribunal has made an order (other than an interim order) under section 160 or 161 with respect to a licence scheme, then, subject to subsection (2), at any time while the order remains in force—
- (a) the licensor operating the scheme;
- (b) any organisation claiming to be representative of persons requiring licences in cases included in the class of cases to which the order applies; or
- (c) any person claiming that he requires a licence in a case included in that class,
may refer the scheme again to the Tribunal insofar as it relates to cases included in that class.
(2) A licence scheme shall not, except with the leave of the Tribunal, be referred again to the Tribunal under subsection (1) at a time earlier than—
- (a) where the order concerned was made so as to be in force indefinitely or for a period exceeding 15 months—the expiration of the period of 12 months commencing on the date on which the order was made; or
- (b) where the order concerned was made so as to be in force for a period not exceeding 15 months—the commencement of the period of 3 months ending on the date of expiration of the order.
(3) The parties to a reference under this section are—
- (a) the licensor, organisation or person referring the scheme;
- (b) if the reference is not made by the licensor operating the scheme—that licensor; and
- (c) such other organisations or persons (if any) as apply to the Tribunal to be made parties to the reference and, in accordance with the provisions applicable in that behalf by virtue of subsection (5), are made parties to the reference.
(4) Subject to subsection (5), where a licence scheme is referred to the Tribunal under this section, the Tribunal shall consider the matter in dispute and, after giving to the parties to the reference an opportunity of presenting their cases, shall make such order in relation to the scheme as previously confirmed or varied, insofar as it relates to cases included in the class of cases to which the reference relates, whether by way of confirming, varying or further varying the scheme, as the Tribunal considers reasonable in the circumstances.
(5) Section 161(3), (4) and (6) to (10) inclusive shall apply for the purposes of this section.
(6) Subsections (1) to (5) shall have effect in relation to orders made under this section in like manner as they have effect in relation to orders made under either section 160 or 161.
(7) Nothing in this section shall prevent a licence scheme in respect of which an order has been made under section 160 or 161 from being again referred to the Tribunal under that section—
- (a) insofar as the scheme relates to cases included in a class of cases to which the order does not apply—at any time; and
- (b) insofar as the scheme relates to cases included in the class of cases to which the order applied while it was in force—after the expiration of the order.
Application to Tribunal in relation to licences
163.—(1) A person who claims, in a case to which a licence scheme applies, that the licensor operating the scheme has refused or failed to grant him a licence in accordance with the scheme, or to procure the grant to him of such a licence, may apply to the Tribunal under this section.
(2) A person who claims, in a case to which a licence scheme applies, that he requires a licence but that the grant of a licence in accordance with the scheme would, in that case, be subject to the payment of charges, or to conditions, that are not reasonable in the circumstances of the case may apply to the Tribunal under this section.
(3) A person who claims that he requires a licence in a case to which a licence scheme does not apply (including a case where a licence scheme has not been formulated or is not in operation) and—
- (a) that a licensor has refused or failed to grant the licence, or to procure the grant of the licence, and that in the circumstances it is unreasonable that the licence should not be granted; or
- (b) that a licensor proposes that the licence should be granted subject to the payment of charges, or to conditions, that are unreasonable,
may apply to the Tribunal under this section.
(4) An organisation that claims that it is representative of persons requiring licences in cases to which a licence scheme does not apply (including cases where a licence scheme has not been formulated or is not in operation) and—
- (a) that a licensor has refused or failed to grant the licences, or to procure the grant of the licences, and that in the circumstances it is unreasonable that the licences should not be granted; or
- (b) that a licensor proposes that the licences should be granted subject to the payment of charges, or to conditions, that are unreasonable,
may apply to the Tribunal under this section.
(5) Where an organisation (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to the Tribunal to be made a party to an application under subsection (1), (2), (3) or (4), and the Tribunal is satisfied that the organisation or person has a substantial interest in the matter in dispute, the Tribunal may, if it thinks fit, make that organisation or person a party to the application.
(6) Where an application is made to the Tribunal under subsection (1), (2), (3) or (4), the Tribunal shall give to the applicant, to the licensor concerned and to every other party (if any) to the application an opportunity of presenting their cases and, if the Tribunal is satisfied that the claim of the applicant is well-founded, the Tribunal shall make an order specifying, in respect of the matters specified in the order—
- (a) in the case of an application under subsection (1)—the charges, if any, and the conditions, that the Tribunal considers to be applicable in accordance with the licence scheme in relation to the applicant;
- (b) in the case of an application under subsection (2) or (3)—the charges, if any, and the conditions, that the Tribunal considers reasonable in the circumstances in relation to the applicant; or
- (c) in the case of an application under subsection (4)—the charges, if any, and the conditions, that the Tribunal considers reasonable in the circumstances in relation to persons, or to persons included in classes of persons,
specified in the order, being persons who were represented by the applicant or were parties to the application.
(7) A reference in this section to a failure to grant a licence, or to procure the grant of a licence, shall be read as reference to a failure to grant the licence, or to procure the grant of the licence, as the case may be, within a reasonable time after a request to do so.
Effect of licence schemes being continued in operation pending order of Tribunal
164.—(1) Where a licence scheme is in operation by virtue of this Part pending the making of an order on a reference under this Part and a person, in a case to which the scheme applies, does anything that, apart from this subsection, would be an infringement of a copyright but would not be such an infringement if he were the holder of a licence granted in accordance with the scheme insofar as the scheme relates to cases to which the reference relates, that person shall, if he has complied with the relevant requirements, be in the like position, in any proceedings for infringement of that copyright, as if he had at the material time been the holder of such a licence.
(2) For the purposes of subsection (1), the relevant requirements are—
- (a) that, at all material times, the person concerned has complied with the conditions that, in accordance with the licence scheme, would be applicable to a licence in respect of the case concerned; and
- (b) where, in accordance with the scheme, any charges are payable in respect of such a licence—that, at the material time, he had paid those charges to the licensor operating the scheme, or, if at that time the amount payable could not be ascertained, he had given an undertaking in writing to the licensor to pay the charges when ascertained.
(3) A person who does anything in relation to which subsection (1) applies shall be liable to pay to the licensor operating the licence scheme concerned the amount of any charges that would be payable if he were the holder of a licence granted in accordance with the scheme insofar as the scheme relates to the doing of that thing and the licensor may recover that amount in a court of competent jurisdiction from the person as a debt due to the licensor.
Effect of order of Tribunal in relation to licences
165.—(1) Where an order made on a reference under this Part with respect to a licence scheme is for the time being in force and a person, in a case to which the scheme as confirmed or varied by the order applies, does anything that, apart from this subsection, would be an infringement of copyright but would not be such an infringement if he were the holder of a licence granted in accordance with the scheme, as confirmed or varied by the order, insofar as the scheme relates to cases to which the order applies, that person shall, if he has complied with the relevant requirements, be in the like position, in any proceedings for infringement of that copyright, as if he had at the material time been the holder of such a licence.
(2) For the purposes of subsection (1), the relevant requirements are—
- (a) that, at all material times, the person concerned has complied with the conditions that, in accordance with the licence scheme as confirmed or varied by the order, would be applicable to a licence in respect of the case concerned; and
- (b) where, in accordance with the scheme as so confirmed or varied, any charges are payable in respect of such a licence—that, at the material time, he had paid those charges to the licensor operating the scheme, or, if at that time the amount payable could not be ascertained, he had given an undertaking in writing to the licensor to pay the charges when ascertained.
(3) A person who does anything in relation to which subsection (1) applies shall be liable to pay to the licensor operating the licence scheme concerned the amount of any charges that would be payable if he were the holder of a licence granted in accordance with the scheme, as confirmed or varied by the order, insofar as the scheme relates to the doing of that thing and the licensor may recover that amount in a court of competent jurisdiction from the person as a debt due to the licensor.
(4) Where the Tribunal has made an order on an application under section 163(1), (2) or (3) specifying charges, if any, and conditions, in relation to the applicant, in respect of the matters specified in the order, then if—
- (a) the applicant has complied with the conditions specified in the order; and
- (b) in a case where the order specifies any charges—he has paid those charges to the licensor or, if the amount payable could not be ascertained, has given to the licensor an undertaking in writing to pay the charges when ascertained,
the applicant shall be in the like position, in any proceedings for infringement of copyright relating to any of those matters, as if he had at all material times been the holder of a licence granted by the owner of the copyright concerned on the conditions, and subject to payment of the charges (if any), specified in the order.
(5) Where the Tribunal has made an order on an application under section 163(4) specifying charges (if any) and conditions, in relation to the persons, or to persons included in the classes of persons, specified in the order, in respect of matters specified in the order, then, if—
- (a) any such person has complied with the conditions specified in the order; and
- (b) in the case where the order specifies any charges—the person has paid those charges to the licensor or, if the amount payable could not be ascertained, has given to the licensor an undertaking in writing to pay the charges when ascertained,
that person shall be in the like position, in any proceedings for infringement of copyright relating to any of those matters, as if he had at all material times been the holder of a licence granted by the owner of the copyright concerned on the conditions, and subject to payment of the charges (if any), specified in the order.
(6) Where a person in relation to whom an order referred to subsection (4) or (5) applies does, in relation to any of the matters specified in that order, anything that, apart from that subsection, would be an infringement of copyright but would not be such an infringement if he were the holder of a licence in respect of the doing of that thing granted by the owner of the copyright concerned on the conditions and subject to payment of the charges (if any) specified in the order, that person shall be liable to pay to the owner of the copyright the amount of any charges that would be payable if he were the holder of such a licence and the owner of the copyright may recover that amount in a court of competent jurisdiction from the person as a debt due to the owner of the copyright.
Attorney-General may make application for suspension order
166.—(1) Subject to subsection (2), upon application made to it by the Attorney-General, the Tribunal may, in its discretion, make an order suspending the application of section 52(1) and (2) in relation to the body administering an educational institution, being a body that has been convicted of two or more offences against the regulations in relation to the retention of records or declarations relating to copies of the whole or parts of works made in reliance on section 52.
(2) The Tribunal shall not make an order under subsection (1) if it is satisfied that the body in relation to which the order is sought has taken all reasonable steps to ensure that no further contravention of the regulations referred to in subsection (1) will occur in relation to the retention of records or declarations relating to copies made or to be made by or on behalf of the body.
(3) For the purposes of subsection (1), a conviction of the custodian in charge of the copying records of an educational institution for a contravention of the regulations referred to in subsection (1), not being a conviction for a contravention in relation to which the body administering the educational institution has also been convicted, shall be taken to be a conviction of the body administering the educational institution.
(4) The parties to an application under subsection (1) in relation to a body administering an educational institution are—
- (a) the Attorney-General; and
- (b) that body.
Application to revoke suspension orders
167.—(1) The body administering an educational institution may, at any time, make application to the Tribunal for the revocation of an order under section 166 suspending the application of section 52(1) in relation to it.
(2) Where the Tribunal is satisfied, upon application made under subsection (1), that the body making the application has taken all reasonable steps to ensure that no further contravention of the regulations referred to in section 166(1) will occur in relation to the retention of records or declarations relating to copies made or to be made in reliance on section 52, the Tribunal may revoke the order to which the application relates.
(3) The parties to an application under subsection (1) for the revocation of an order made in relation to the body administering an institution are—
- (a) that body; and
- (b) the Attorney-General.
Interim orders
168. Where an application or reference is made to the Tribunal under this Act, the Tribunal may make an interim order having effect until the final decision of the Tribunal on the application or reference.
Reference of questions of law to the High Court
169.—(1) The Tribunal may, of its own motion or at the request of a party, refer a question of law arising in proceedings before it for determination by the High Court.
(2) A question shall not be referred to the High Court by virtue of subsection (1) in pursuance of a request made after the date on which the Tribunal gave its decision in the proceedings unless the request is made before the expiration of 14 days of the Tribunal giving its decision.
(3) If the Tribunal, after giving its decision in any proceedings, refuses a request to refer a question to the High Court, the party by whom the request was made may, within 14 days of the refusal, apply to the High Court for an order directing the Tribunal to refer the question to the High Court.
(4) Where a reference is made to the High Court under this section with respect to any proceedings before the Tribunal, and where an application is made under subsection (3) with respect to any such proceedings, every party to the proceedings before the Tribunal shall be entitled to appear and to be heard.
(5) Where, after the Tribunal has given its decision in any proceedings, the Tribunal refers to the High Court under this section a question of law that arose in the course of the proceedings, and the High Court decides that the question was erroneously determined by the Tribunal—
- (a) the Tribunal shall reconsider the matter in dispute and, if it considers it necessary to do so for the purpose of giving effect to the decision of the High Court, shall give to the parties to the proceedings a further opportunity of presenting their cases; and
- (b) if it appears to the Tribunal to be appropriate, and in conformity with the decision of the High Court, to do so, the Tribunal shall make such order revoking or modifying any order previously made by it in the proceedings, or, in the case of proceedings under section 163 where the Tribunal refused to make an order, shall make such order under that section, as the Tribunal considers to be appropriate.
(6) A reference of a question by the Tribunal to the High Court under this section shall be by way of stating a case for the opinion of the High Court; and the decision of the Court on any such reference shall be final.
(7) For the purposes of this section, a question of law shall not include a question whether there is sufficient evidence to justify a finding of fact by the Tribunal.
(8) This section shall not apply in relation to an inquiry by the Tribunal under section 157.
Agreements or awards not affected
170. Nothing in this Part shall affect the operation of any agreement or of any award made by an arbitrator, whether the agreement or award was made before, or is made after, the commencement of this Act.
Division 4—Procedure and Evidence
Proceedings to be in public except in special circumstances
171.—(1) Subject to this section, the hearing of proceedings before the Tribunal shall be in public.
(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may—
- (a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; or
- (b) give directions prohibiting or restricting the publication of evidence given before the Tribunal (whether in public or in private) or of matters contained in documents produced to the Tribunal.
Application may be made to Tribunal by the agent of the copyright owner
172.—(1) An owner of copyright may make an application to the Tribunal under this Act by his agent.
(2) Two or more owners of copyright may jointly make a single application to the Tribunal by the same agent against the same person or body.
Procedure
173. In proceedings before the Tribunal—
- (a) the procedure of the Tribunal shall, subject to this Act and the regulations, be within the discretion of the Tribunal;
- (b) the Tribunal shall not be bound by the rules of evidence; and
- (c) the proceedings shall be conducted with as little formality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Tribunal permit.
Mistakes or errors in orders of Tribunal
174. The Tribunal may correct, in any order of the Tribunal, a clerical mistake or an error arising from an accidental slip or omission.
Regulations as to procedure
175.—(1) The regulations may make provision for or in relation to the procedure in connection with the making of references and applications to the Tribunal and the regulation of proceedings before the Tribunal and may prescribe the fees payable in respect of those references and applications and the fees and expenses of witnesses in those proceedings.
(2) The regulations may include provision—
- (a) for requiring notice of an intended inquiry by the Tribunal under section 157 or an intended reference to the Tribunal under section 160, 161 or 162 to be advertised in accordance with the regulations;
- (b) for requiring notice of an intended application to the High Court under section 169(3) to be given to the Tribunal and to the other parties to the proceedings, and for limiting the time within which any such notice is to be given;
- (c) for suspending, or authorising or requiring the Tribunal to suspend, the operation of orders of the Tribunal in cases where, after giving its decision, the Tribunal refers a question of law to the High Court;
- (d) for modifying, in relation to orders of the Tribunal the operation of which is suspended, the operation of any provisions of this Part as to the effect of orders made under this Part;
- (e) for the publication of notices, or the doing of any other things, to ensure that persons affected by the suspension of an order of the Tribunal will be informed of its suspension; and
- (f) for regulating or prescribing any other matters incidental to or consequential upon any request, application, order or decision under section 169.
Power to take evidence on oath
176.—(1) The Tribunal may take evidence on oath or affirmation, and for that purpose a member may administer an oath or affirmation.
(2) A member may summon a person to appear before the Tribunal to give evidence and to produce such documents and articles (if any) as are referred to in the summons.
Evidence in form of written statement
177. The Tribunal may, if it thinks fit, permit a person appearing as a witness before the Tribunal to give evidence by tendering, and verifying by oath or affirmation, a written statement, which shall be filed with the Secretary to the Tribunal.
Representation
178. In proceedings before the Tribunal—
- (a) a party other than a body corporate or an unincorporated body of persons may appear in person or be represented by an employee of the party approved by the Tribunal;
- (b) a party being a body corporate may be represented by a director or other officer, or by an employee, of the party approved by the Tribunal;
- (c) a party being an unincorporated body of persons or a member of such a body may be represented by a member, or by an officer or employee, of the body approved by the Tribunal; and
- (d) any party may be represented by an advocate and solicitor.
Division 5—Miscellaneous
Protection of members and witnesses
179.—(1) A member shall have, in the performance of his duty as a member, the same protection and immunity as a judge of the High Court.
(2) A person shall, to appear before the Tribunal as a witness shall have the same protection, and is, in addition to the penalties provided by this Act, be subject to the same liabilities, in any civil or criminal proceedings as a witness in proceedings in the High Court.
Disobedience to summons, etc
180.—(1) A person who has been summoned to appear as a witness before the Tribunal shall not, without lawful excuse, and after tender of reasonable expenses, fail to appear in obedience to the summons.
(2) A person who has been summoned to produce a document or article to the Tribunal shall not, without lawful excuse, and after tender of reasonable expenses, fail to produce the document or article.
(3) A person who appears before the Tribunal shall not, without lawful excuse, refuse to be sworn or to make an affirmation, or to produce documents or articles, or to answer questions, that he is required by the Tribunal to produce or answer.
(4) Any person who contravenes any of the provisions of this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 3 months.
Contempt of Tribunal, etc
181.—(1) A person shall not—
- (a) insult or disturb a member in the exercise of his powers or functions as a member;
- (b) interrupt the proceedings of the Tribunal;
- (c) use insulting language towards a member;
- (d) create a disturbance or take part in creating or continuing a disturbance in or near a place where the Tribunal is sitting;
- (e) contravene or fail to comply with a direction of the Tribunal given under paragraph (b) of section 171(2); or
- (f) do any other act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court.
(2) Any person who contravenes any of the provisions of this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 3 months.
Cost of Proceedings
182.—(1) The Tribunal may order that the costs of any proceedings before it incurred by any party, or a part of those costs, shall be paid by any other party and may tax or settle the amount of the costs to be so paid, or specify the manner in which they are to be taxed.
(2) Costs directed by the Tribunal to be paid to a party may be recovered by that party in any court of competent jurisdiction.
(3) This section shall apply in relation to an inquiry by the Tribunal under section 157.
Proof of orders of Tribunal
183. Without prejudice to any other method available by law for the proof of orders of the Tribunal, a document purporting to be a copy of such an order, and to be certified by the Secretary to the Tribunal to be a true copy of the order, shall be admitted in any proceeding, as evidence of the order.