205.—(1) Subject to subsection (2), a performer has the exclusive right to authorise or prohibit the making available to the public of copies of a recording of the whole or any substantial part of a qualifying performance and it is immaterial whether the copy is made directly or indirectly.

(2) Where a copy of a sound recording is—

(a) played in public, or

(b) included in a broadcast or cable programme service,

the right conferred by this section shall be deemed to be satisfied by the payment of equitable remuneration as specified in section 208.

(3) A reference in Parts III and IV to the making available to the public of copies of a recording shall include the making available to the public of the original recording of the live performance.

(4) There shall be a right conferred by this section which shall be known and in Parts III and IV referred to as the “making available right”.

(5) A reference in Parts III and IV to the making available to the public of copies of a recording of a qualifying performance shall include—

(a) making available to the public of copies of a recording, by wire or wireless means, in such a way that members of the public may access the recording from a place and at a time individually chosen by them, including the making available of copies of recordings through the Internet,

(b) showing or playing a copy of the recording in public,

(c) broadcasting a copy of the recording,

(d) including a copy of the recording in a cable programme service,

(e) issuing copies of the recording to the public,

(f) renting copies of the recording, or

(g) lending copies of the recording F107[…].

(6) The making available right is infringed by a person who, without the consent of the performer, undertakes or authorises another to undertake any of the acts referred to in subsection (5).

(7) Subject to subsection (8), the provision of facilities for enabling the making available to the public of copies of a recording of a performance shall not of itself constitute an act of making available to the public of copies of the recording.

(8) Without prejudice to subsection (7), where a person who provides facilities referred to in that subsection is notified by the rightsowner that those facilities are being used to infringe any of the rights conferred by Parts III and IV and that person fails to remove that infringing material as soon as is practicable thereafter, that person shall also be liable for the infringement.

(9) Without prejudice to subsection (8), the Minister may prescribe the form of the notice to be given under that subsection and the form shall specify—

(a) the name and address of the person claiming to be the owner of the rights in the recording concerned,

(b) the grounds that the person requesting the removal of material has for such removal, and

(c) a list of the material which is to be removed.

F108[(9A)(a) The rightsowner of any right conferred by Parts III and IV may, in respect of that right, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001¹ on the harmonisation of certain aspects of copyright and related rights in the information society applies.

(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction and the court shall give such directions (including, where appropriate, a direction requiring a person be notified of the application) as the court considers appropriate in all of the circumstances.]

(10) Where the making available right is infringed by a copy of a recording being played or shown in public, by means of apparatus for receiving sounds, images or data or any combination of sounds, images or data, or the representations thereof, conveyed by any means, the person by whom sounds, images or data or any combination of sounds, images or data, or the representation thereof, are sent shall not be regarded as liable for the infringement.