Page:Copyright Act 2021.pdf/115

116 Permitted uses may go beyond scope of copyright or protection of performances

185. An act that is a permitted use—
 * (a) is not necessarily comprised in a copyright; and
 * (b) would not necessarily constitute an infringing use of a protected performance if the act were not a permitted use.

Permitted uses may be excluded or restricted by reasonable contract term

186.—(1) Subject to this section and section 187, a rights owner may, by contract with a person, exclude or restrict the application of a permitted use to that person.

(2) A contract term between the rights owner and another person (called in this section the counterparty) is valid for the purposes of subsection (1) only if—
 * (a) the contract is individually negotiated; and
 * (b) the term is fair and reasonable, having regard to the circumstances that are, or ought reasonably to be, known to or in the contemplation of the parties when the contract is made.

(3) For the purposes of subsection (2)(b), relevant matters in deciding whether a term of a contract is fair and reasonable include—
 * (a) the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the counterparty’s requirements could have been met;
 * (b) whether the counterparty received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term;