(c) to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright.
\n
Exceptions to infringement of copyright in computer programs.
\n
82.—(1) It is not an infringement of the copyright in a computer program for a lawful user of a copy of the computer program to make a permanent or temporary copy of the whole or a part of the program by any means and in any form or to translate, adapt or arrange or in any other way alter the computer program where such actions are necessary for the use of the program by the lawful user in accordance with its intended purpose, including error correction.
\n
(2)It is not an infringement of the copyright in a computer program for a lawful user of a copy of the computer program to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program, where he or she does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he or she is authorised to do.
\n
Original Database Access to or use of original database.
\n
83.—It is not an infringement of the copyright in an original database for a person who has the right to use the database or any part thereof, whether under a licence to undertake any of the acts restricted by the copyright in the original database or otherwise, to undertake, in the exercise of that right, anything which is necessary for the purposes of access to or use of the contents of the database or part thereof.
\n
Typefaces Use of typefaces: printing.
\n
84.—(1) It is not an infringement of the copyright in a work which consists of the design of a typeface— (a) to use the typeface in the ordinary course of typing, composing text, typesetting or printing, (b) to possess an article for the purpose of such use, or (c) to do anything in relation to material produced by such use, and this subsection applies notwithstanding that an article is used which is an infringing copy of the work.
\n
(2)A person infringes the copyright in a work consisting of the design of a typeface where he or she, without the licence of the copyright owner— (a) makes, (b) sells, rents or lends, or offers or exposes for sale, rental or loan, exhibits in public or distributes, (c) imports into the State, or (d) has in his or her possession, custody or control, for the purpose of sale, rental or loan, or offering or exposing for sale, rental or loan, or for exhibition in public or distribution, an article specifically designed or adapted for producing material in the particular typeface, knowing or having reason to believe that the article has been or is to be used to make copies that infringe the copyright in the work, including copies which would not be infringing copies under subsection (1).
\n
Articles for producing materials in particular typefaces.
\n
85.—(1) This section applies to the copyright in a work consisting of the design of a typeface where articles specifically designed or adapted for producing material in that typeface have been marketed by or with the licence of the copyright owner.
\n
(2)After the expiration of 15 years from the end of the calendar year in which the articles referred to in subsection (1) are marketed for the first time, the work may be copied by making further such articles, or doing anything for the purpose of making such articles and anything may be done in relation to articles so made, without infringing the copyright in the work.
\n
Works in Electronic Form Transfer of copies of work in electronic form.
\n
86.—(1) This section applies where a copy of a work in electronic form has been purchased on terms which expressly or impliedly allow the purchaser to copy the work, or to adapt it or make copies of an adaptation, in connection with his or her use of the work.
\n
(2)Where there are no express terms— (a) prohibiting the transfer of the copy by the purchaser, imposing obligations which continue after a transfer, prohibiting the assignment of any licence or terminating any licence on a transfer, or (b) providing for the conditions on which a transferee may undertake the acts which the purchaser was permitted to undertake, then, any acts which the purchaser was permitted to undertake may also be undertaken by a transferee without infringement of the copyright, but any copy or adaptation or copy of an adaptation made by the purchaser which is not also transferred shall be treated as an infringing copy for those purposes and for all subsequent purposes.
\n
(3)Subsection (2) applies where the original purchased copy is no longer usable and that which is transferred is a further copy used in its place.
\n
(4)This section shall apply on a second and subsequent transfer in like manner as to the first transfer to a purchaser and references to the purchaser shall be construed as references to a second or subsequent transferee.
\n
Miscellaneous Matters Relating to Copyright Transient and incidental copies, 87.—(1) The copyright in a work is not infringed by the making of a transient and incidental copy of that work which is technically required for the viewing of or listening to the work by a member of the public to whom a copy of the work is lawfully made available.
\n
(2)Where a copy, which would otherwise be an infringing copy, is made under this section and is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be deemed to be an infringing copy for those purposes and for all subsequent purposes.
\n
Anonymous or pseudonymous works acts permitted.
\n
88.—(1) The copyright in a work is not infringed by an act undertaken when, or pursuant to arrangements made when— (a) it is not possible to ascertain the identity of the author of the work by reasonable enquiry, and (b) it is reasonable to assume that the copyright has expired.
\n
(2)Where a work is a work of joint authorship the reference in subsection (1) to the possibility of ascertaining the identity of the author shall be construed as a reference to its being possible to ascertain the identity of any of the authors.
\n
Use of notes or recordings of spoken words in certain cases.
\n
89.—(1) Subject to compliance with the conditions specified in subsection (2), where a record of spoken words is made, in writing or otherwise, for the purpose of— (a) reporting current events, or (b) broadcasting or including in a cable programme service the work or part of the work, it is not an infringement of any copyright in the words as a literary or dramatic work, or in any literary or dramatic work or recording arising from the recording of the words, to use the record or material taken from it or to copy the record, or any such material, and to use the copy for the purposes referred to in paragraph (a) or (b).
\n
(2)The conditions referred to in subsection (1) are— (a) that the record is a direct record of the spoken words and is not taken from a previous record or from a broadcast or cable programme, (b) that the making of the record was not prohibited by the speaker and, where copyright already subsisted in the work, did not infringe the copyright in the work, (c) that the use made of the record or material taken from it is not prohibited by or on behalf of the speaker or copyright owner before the record was made, and (d) that the use made of the record or material taken from it is by or with the authority of a person who is lawfully in possession of the record.
\n
Public reading or recitation of works.
\n
90.—(1) The reading or recitation in public by one person of any reasonable extract from a literary or dramatic work which has been lawfully made available to the public, where accompanied by a sufficient acknowledgement, shall not infringe the copyright in the work.
\n
(2)The copyright in a work is not infringed by the making of a fixation, or the broadcasting or inclusion in a cable programme service, of a reading or recitation which by virtue of subsection (1) does not infringe the copyright in the work.
\n
(3)Where a copy, which would otherwise be an infringing copy, is made under this section and is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be deemed to be an infringing copy for those purposes and for all subsequent purposes.
\n
Abstracts of scientific or technical articles.
\n
91.—Where an article on a scientific or technical subject is lawfully made available to the public in a periodical accompanied by an abstract indicating the contents of the article, it is not an infringement of the copyright in the abstract or in the article to copy the abstract or to make available to the public copies of the abstract or to include the abstract in any other work.
\n
Fixations of performances of works of folklore.
\n
92.—(1) A fixation of a performance of an anonymous work which has not been lawfully made available to the public may be made for the purpose of including it in an archive maintained by a designated body without infringing the copyright in the work where at the time the fixation is made— (a) the making of the fixation does not infringe any other copyright, and (b) the making of the fixation is not prohibited by any performer.
\n
(2)A copy of a fixation made under subsection (1) and included in an archive maintained by a designated body may, subject to compliance with the conditions referred to in subsection (3), be made and supplied by the archivist without infringing the copyright in the fixation or the works included in it.
\n
(3)The conditions referred to in subsection (2) are— (a) that a copy may not be supplied other than to a person who satisfies the archivist that he or she requires the copy for the purposes of research or private study and he or she will not use it for any other purpose, and (b) that a person shall not be furnished with more than one copy of the same fixation.
\n
(4)In this section, “designated body” means a body designated for the purposes of this section by order of the Minister who shall not designate a body unless he or she is satisfied that the body is not established or conducted for profit.
\n
Representation of certain artistic works on public display.
\n
93.—(1) This section applies to the copyright in— (a) buildings, and (b) sculptures, models for buildings and works of artistic craftsmanship, where permanently situated in a public place or in premises open to the public.
\n
(2)The copyright in a work to which this section applies is not infringed by— (a) making a painting, drawing, diagram, map, chart, plan, engraving, etching, lithograph, woodcut, print or similar thing representing it, (b) making a photograph or film of it, or (c) broadcasting or including in a cable programme service, an image of it.
\n
(3)The copyright in a work to which this section applies is not infringed by the making available to the public of copies of anything the making of which is not, by virtue of this section, an infringement of the copyright in the work.
\n
Advertising sale of artistic work.
\n
94.—(1) It is not an infringement of the copyright in an artistic work to copy it, or to make available to the public copies of it, for the purpose of advertising the sale of the work.
\n
(2)Where a copy which would otherwise be an infringing copy is made under this section but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an infringing copy for those purposes and for all subsequent purposes.
\n
Making of subsequent works by same artist.
\n
95.—Where the author of an artistic work is not the copyright owner, it is not an infringement of the copyright in the work to copy the work in making another artistic work, where the author does not repeat or imitate the main design of the earlier work.
\n
Reconstruction of buildings.
\n
96.—Where anything is done for the purposes of reconstructing a building it is not an infringement of the copyright in the building or in any drawings or plans in accordance with which the building was constructed by or with the licence of the copyright owner.
\n
Playing or showing of sound recordings, broadcasts and cable programmes in certain premises.
\n
97.—(1) Subject to subsection (2), it is not an infringement of the copyright in a sound recording, broadcast or cable programme to cause a sound recording, broadcast or cable programme to be heard or viewed where it is heard or viewed— (a) in part of the premises where sleeping accommodation is provided for the residents or inmates, and (b) as part of the amenities provided exclusively or mainly for residents or inmates.
\n
(2)Subsection (1) does not apply in respect of any part of premises to which subsection (1) applies where there is a discrete charge made for admission to the part of the premises where a sound recording, broadcast or cable programme is to be heard or viewed.
\n
Playing of sound recordings for clubs, societies, etc.
\n
98.—(1) Subject to compliance with the conditions specified in subsection (2), it is not an infringement of the copyright in a sound recording to play it as part of the private activities of or for the benefit of a club, society or other organisation.
\n
(2)The conditions referred to in subsection (1) are— (a) that the club, society or other organisation is not established or conducted for profit and its main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare, and (b) that the proceeds of any charge for admission to the place where the sound recording is to be heard are applied solely for the purposes of the club, society or other organisation.
\n
(3)Subsection (1) shall not apply in the case of any club, society or other organisation where a charge is made for admission to the place where the sound recording is heard and any of the proceeds of the charge are applied otherwise than for the purposes of the club, society or other organisation.
\n
Copying for purpose of broadcast or cable programme.
\n
99.—(1) Where, by virtue of a licence or assignment of copyright, a person is authorised to broadcast or include in a cable programme service a work or an adaptation of a work, he or she shall be deemed to be licensed by the owner of the copyright in the work to copy or authorise the copying of that work by means of his or her own facilities for the purposes of his or her own broadcast or cable programme.
\n
(2)It shall be a condition of a licence conferred by virtue of subsection (1) that any copy resulting from the exercise of rights granted by the licence shall not be used for any purpose other than the broadcast or cable programme and shall be destroyed within 3 months of first being used for broadcasting or included in a cable programme service.
\n
(3)A copy of a work made under this section shall be treated as an infringing copy where it is used for purposes other than broadcasting or inclusion in a cable programme service or where it is used after the expiration of 3 months from the date on which it is first used for broadcasting or included in a cable programme service.
\n
Recording for purposes of supervision and control of broadcasts and cable programmes.
\n
100.—(1) The copyright in a work is not infringed by the making or use by an authorised broadcaster or authorised cable programme service provider, for the purpose of maintaining supervision and control over programmes broadcast by them or included by them in a cable programme service, of fixations of those programmes.
\n
(2)The copyright in a work is not infringed by any use made by a body established by the State to regulate the operations of broadcasters or cable programme service providers of any fixations of broadcasts or cable programmes.
\n
Recording for purposes of time-shifting.
\n
101.—(1) The making for private and domestic use of a fixation of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at another time or place shall not infringe the copyright in the broadcast or cable programme or in any work included in such a broadcast or cable programme.
\n
(2)Subject to subsection (3), the making by an establishment for private and domestic use of a fixation of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at another time or place shall not infringe the copyright in the broadcast or cable programme or in any work included in such a broadcast or cable programme.
\n
(3)The Minister may specify by order establishments for the purposes of this section.
\n
(4)Where a fixation which would otherwise be an infringing copy is made under this section and is subsequently sold, rented or (otherwise than to a person's family member or friend for private and domestic purposes) lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be deemed to be an infringing copy for those purposes and for all subsequent purposes.
\n
Photographs of television broadcasts or cable programmes.
\n
102.—The making for private and domestic use of a photograph of the whole or any part of an image forming part of a television broadcast or cable programme, or of a copy of such a photograph, shall not infringe the copyright in the broadcast or cable programme or in any film included in it.
\n
Reception and retransmission of broadcasts in cable programmes services.
\n
103.—(1) This section applies where a broadcast made from a place in the State is, by reception and immediate retransmission, without alteration, included in a cable programme service.
\n
(2)The copyright in a broadcast to which this section applies is not infringed where— (a) the inclusion is pursuant to a statutory requirement, or (b) the broadcast is made for reception in the area in which the cable programme service is provided and it is not a satellite transmission or an encrypted transmission.
\n
(3)Without prejudice to the generality of subsection (4), the copyright in a work included in the broadcast is not infringed where— (a) the inclusion is pursuant to a statutory requirement, or (b) the broadcast is made for reception in the area in which the cable programme service is provided and it is not a satellite transmission or an encrypted transmission.
\n
(4)Where the making of a broadcast is an infringement of the copyright in a work included in the broadcast, the fact that the broadcast was retransmitted as a programme in a cable programme service shall be taken into account in assessing the damages for that infringement.
\n
Provision of modified works.
\n
104.—(1) A designated body may— (a) make a copy of a work for the purpose of modifying that copy to meet the special needs of a person who has a physical or mental disability, and (b) supply that modified copy to that person, without infringing the copyright in that work.
\n
(2)Where a copy which would otherwise be an infringing copy is made under this section, but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an infringing copy for those purposes and for all subsequent purposes.
\n
(3)In this section, “designated body” means a body designated for the purposes of this section by order of the Minister who shall not designate a body unless he or she is satisfied that the body is not established or conducted for profit.
\n
Recording for archival purposes.
\n
105.—(1) A fixation of a broadcast or a cable programme of a designated class or a copy of such a fixation may be made for the purpose of including it in an archive maintained by a designated body without infringing the copyright in the broadcast or cable programme or in any work included therein.
\n
(2)In this section— “designated body” means a body designated for the purposes of this section by order of the Minister; “designated class” means a class designated for the purposes of this section by order of the Minister.
\n
(3)The Minister shall not designate a body unless he or she is satisfied that the body is not established or conducted for profit.
\n
Adaptation of a work.
\n
106.—It is not an infringement of the copyright in a work to make an adaptation of the work by any act which may otherwise be done without infringing the copyright in a work under this Chapter.
\n
Chapter 7
\n
Copyright: Moral Rights Paternity right.
\n
107.—(1) Subject to the exceptions specified in section 108 , the author of a work shall have the right to be identified as the author and that right shall also apply in relation to an adaptation of the work.
\n
(2)Where an author uses a pseudonym, initials or other form of identification, that form shall be used to identify his or her work.
\n
(3)The right conferred by this section shall be known and in this Part referred to as the “paternity right”.
\n
Exceptions to paternity right.
\n
108.—(1) The paternity right is not infringed by anything done under section 52 , 53
\n
(5), 71 , 72 or 88 .
\n
(2)The paternity right shall not apply to anything done by or with the authority of the copyright owner where the copyright in the work originally vested in an employer under section 23 .
\n
(3)The paternity right shall not apply in relation to a work made for the purpose of reporting current events.
\n
(4)The paternity right shall not apply to a work made for the purposes of— (a) a newspaper or periodical, or (b) an encyclopaedia, dictionary, yearbook or other collective work of reference, or in relation to a work made available to the public with the licence of the author for those purposes.
\n
(5)The paternity right shall not apply in relation to a work— (a) in which Government or Oireachtas copyright subsists, or (b) in which the copyright originally vested in a prescribed international organisation, unless the author has previously been identified as the author in or on copies of the work which have been lawfully made available to the public.
\n
Integrity right.
\n
109.—(1) Subject to the exceptions and qualifications specified in sections 110 and 111 , the author of a work shall have the right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the work which would prejudice his or her reputation and that right shall also apply in relation to an adaptation of the work.
\n
(2)The right conferred by this section applies to any addition to, deletion from or alteration to or adaptation of parts of a work resulting from any previous addition to, deletion from or alteration to or adaptation of a work or parts of a work by a person other than the author, where those parts are attributed to, or are likely to be regarded as the work of, the author.
\n
(3)The right conferred by this section shall be known and in this Part referred to as the “integrity right”.
\n
Exceptions to integrity right.
\n
110.—(1) Subject to subsections (2) and (3), the integrity right shall not apply to— (a) a work made for the purpose of reporting current events; (b) a work made for the purposes of— (i) a newspaper or periodical, or (ii) an encyclopaedia, dictionary, yearbook or other collective work of reference, or to a work made available to the public with the licence of the author for such purposes; or (c) a subsequent use of a work referred to in paragraph (b) without any modification of the version made available to the public under that paragraph.
\n
(2)Subject to subsection (3), the integrity right is not infringed— (a) by an act which under section 51 or 88 would not infringe the copyright in a work, or (b) by anything done for the purposes of— (i) avoiding any contravention of civil or criminal law, (ii) complying with a duty imposed by or under an enactment, or (iii) in the case of authorised broadcasters or authorised cable programme service providers, avoiding the inclusion in a programme which is broadcast or included in a cable programme service by those broadcasters or providers, of anything which is likely to offend public morality or which is likely to encourage or incite to crime or to lead to public disorder.
\n
(3)Subsection (2)(b) shall not apply unless the author is identified at the time of the act concerned or has previously been identified in or on copies of the work which have been lawfully made available to the public and there is a sufficient disclaimer.
\n
(4)In this Part “sufficient disclaimer”, in relation to an act capable of infringing the integrity right, means a clear and reasonably prominent indication given at the time of the act, or where the author is then identified, appearing with the identification, that the work has been subjected to an action which the author has not licensed.
\n
Qualification of integrity right in certain cases.
\n
111.—(1) The integrity right shall be qualified in the manner specified in subsection (2) in respect of— (a) works in which copyright originally vested in the author's employer under section 23 , (b) works in which Government or Oireachtas copyright subsists, and (c) works in which copyright originally vested in a prescribed international organisation.
\n
(2)The integrity right shall not apply to anything done in relation to works referred to in subsection (1) by or with the licence of the copyright owner unless the author— (a) is identified at the time of the act concerned, or (b) has previously been identified in or on copies of the work which have been lawfully made available to the public, and where, in such a case, the integrity right applies, that right shall not be infringed where there is a sufficient disclaimer.
\n
Secondary infringement of integrity right: possessing or dealing.
\n
112.—A person infringes the integrity right where he or she— (a) sells, rents or lends, or offers or exposes for sale, rental or loan, (b) imports into the State, otherwise than for his or her private and domestic use, (c) in the course of a business, trade or profession, has in his or her possession, custody or control, or (d) makes available to the public, a work or a copy of a work or an adaptation thereof which has, and which he or she knows or has reason to believe has, been subjected to any distortion, mutilation or other modification or other derogatory action within the meaning of section 109 .
\n
False attribution of work.
\n
113.—(1) A person has the right not to have a work falsely attributed to him or her as author.
\n
(2)The right conferred by subsection (1) is infringed by a person where he or she— (a) sells, rents or lends, or offers or exposes for sale, rental or loan, (b) imports into the State, otherwise than for his or her private and domestic use, (c) in the course of a business, trade or profession, has in his or her possession, custody or control, or (d) makes available to the public, a work, or a copy of a work, in or on which there is a false attribution, knowing or having reason to believe that the attribution is false.
\n
(3)The right conferred by subsection (1) is infringed by a person where he or she— (a) sells, rents or lends, or offers or exposes for sale, rental or loan, (b) imports into the State, otherwise than for his or her private and domestic use, (c) in the course of a business, trade or profession, has in his or her possession, custody or control, or (d) makes available to the public, a work which has been altered as being the unaltered work of the author, or a copy of such a work as being a copy of the unaltered work of the author, knowing or having reason to believe that the work or the copy of the work has been altered.
\n
(4)This section applies where a work is falsely represented as being an adaptation of the work of a person in the same manner as it applies where a work is so represented as being the work of a person.
\n
(5)In this Part “attribution”, in relation to a work, means a statement, express or implied, as to who is the author of the work.
\n
Right to privacy in photographs and films.
\n
114.—(1) Subject to the exceptions specified in subsection (3), a person who, for private and domestic purposes, commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting work, the right not to have the work or copies of the work made available to the public.
\n
(2)Subject to subsection (3), the act of making available to the public, or authorising the making available to the public, of a work or copies of a work referred to in subsection (1) without the authority of the person who commissions the work infringes the right conferred by subsection (1).
\n
(3)The right conferred by subsection (1) shall not be infringed by an act which under section 52 , 71 , 72 , 76 or 88 would not infringe the copyright in the work.
\n
Duration of moral rights.
\n
115.—(1) The paternity right, the integrity right and the right conferred by section 114 to privacy in photographs and films shall subsist for the same period of time as the copyright in the work subsists.
\n
(2)The right conferred by section 113 in relation to a false attribution of a work shall subsist for 20 years after the death of the person on whom the right is conferred.
\n
Waiver of rights.
\n
116.—(1) Subject to subsection (3), any of the rights conferred by this Chapter may be waived.
\n
(2)A waiver made under this section shall be in writing and signed by the person waiving the right concerned.
\n
(3)A waiver made under subsection (1)— (a) may relate to a specific work, to works of a specified description or to works generally, and may relate to existing or future works, and (b) may be conditional or unconditional, and may be expressed to be subject to revocation, and where a waiver is made in favour of the owner or prospective owner of the copyright in the work or works to which it relates, that waiver shall be presumed to extend to his or her licensees, successors in title or other persons claiming under them unless a contrary intention is expressed.
\n
(4)Nothing in this Chapter shall be construed as excluding the operation of the general law of contract or estoppel in relation to an informal waiver or other transaction in relation to any of the rights referred to in subsection (1).
\n
(5)It shall not be an infringement of any of the rights conferred by this Chapter for a person to undertake any act where the person entitled to the right conferred by this Chapter has consented to the use of those rights by that other person.
\n
Application of certain provisions to works of joint authorship and joint ownership.
\n
117.—(1) The paternity right or the integrity right is, in the case of a work of joint authorship, a right of each joint author.
\n
(2)A waiver made under section 116 of the paternity right or the integrity right by one joint author shall not affect the rights of the other joint authors.
\n
(3)The right conferred by section 113 in relation to false attribution is infringed by— (a) any false statement as to the authorship of a work of joint authorship, or (b) the false attribution of joint authorship in relation to a work of sole authorship, and such a false attribution infringes the right of every person to whom authorship of any description is attributed.
\n
(4)The right conferred by section 114 to privacy in photographs and films is, in the case of a work made pursuant to a joint commission, the right of each person who commissioned the making of the work and where a waiver is made by one of them under section 116 that waiver shall not affect the rights of the other persons.
\n
Moral rights not assignable or alienable.
\n
118.—The rights conferred by Chapter 7 shall be incapable of assignment or alienation.
\n
Transmission of moral rights on death.
\n
119.—(1) On the death of a person entitled to the paternity right, the integrity right, or the right conferred by section 114 to privacy in photographs and films— (a) the right passes by testamentary disposition to such person as the person entitled to the right may direct, (b) where there is no direction as to whom the right passes but the copyright in the work concerned forms part of an estate, the right passes to the person to whom the copyright passes, and (c) where the right does not pass under paragraph (a) or (b), it is exercisable by the personal representatives of the person entitled to the right.
\n
(2)Where copyright forming part of an estate passes in part to one person and in part to another, so as to apply— (a) to one or more, but not all, of the acts the copyright owner has the right to undertake or authorise, or (b) to part, but not the whole, of the period for which the copyright is to subsist, any right which passes with the copyright by virtue of subsection (1) is divided accordingly.
\n
(3)Where, under subsection (1), a right becomes exercisable by more than one person— (a) it may, in the case of the paternity right, be exercised by any of them, (b) it is, in the case of the integrity right or the right to privacy in photographs and films conferred by section 114 , a right exercisable by each of them, and (c) any waiver of the right under section 116 made by one of them shall not affect the rights of the other persons.
\n
(4)A consent or waiver binds any person to whom a right passes under subsection (1).
\n
(5)Any infringement of the right conferred by section 113 in relation to a false attribution of a work after the death of a person is actionable by the personal representatives of that person.
\n
(6)Any damages recovered by personal representatives under this section in respect of an infringement after a person's death shall devolve as part of the person's estate as if the right of action had subsisted and been vested in that person immediately before his or her death.
\n
Chapter 8
\n
Dealings with Rights in Copyright Works Assignment and licences.
\n
120.—(1) The copyright in a work is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.
\n
(2)A transmission of the copyright in a work by assignment, by testamentary disposition or by operation of law may be partial, so as to apply— (a) to one or more but not all of the acts the copyright owner has the right to undertake or authorise, and (b) to part but not the whole of the period for which the copyright in the work is to subsist.
\n
(3)An assignment of the copyright in a work, whether in whole or in part, is not effective unless it is in writing and signed by or on behalf of the assignor.
\n
(4)A licence granted by a copyright owner is binding on every successor in title to his or her interest in the copyright, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser and references in this Part to undertaking any act with or without the licence of the copyright owner shall be construed accordingly.
\n
(5)A licence granted by a prospective owner of copyright is binding on every successor in title to his or her interest (or prospective interest) in the copyright, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser and references in this Part to undertaking any act with or without the licence of the copyright owner shall be construed accordingly.
\n
Prospective ownership of copyright.
\n
121.—(1) Where, by an agreement made in relation to future copyright and signed by or on behalf of the prospective owner of the copyright, the prospective owner purports to assign the future copyright, whether in whole or in part, to another person, then, where, on the copyright coming into existence, the assignee or his or her successor in title, or another person claiming under him or her, would be entitled as against all other persons to require the copyright to be vested in him or her, the copyright shall vest in the assignee or his or her successor in title under this section or any other person claiming under him or her.
\n
(2)Where, at the time when any copyright comes into existence, the person who, if he or she were then living, would be entitled to the copyright is dead, the copyright shall devolve as if it had subsisted immediately before his or her death and he or she had then been the owner of the copyright.
\n
(3)The rights of an assignee to future copyright shall not be prejudiced by the fact that an agreement referred to in subsection (1) was made before the commencement of this section.
\n
(4)In this Part— “future copyright” means copyright which will or may come into existence in respect of a future work or class of works or on the occurrence of a future event; “prospective owner” includes a person who is prospectively entitled to copyright by virtue of an agreement made in relation to future copyright.
\n
Exclusive licences.
\n
122.—(1) In this Part, an “exclusive licence” means a licence in writing which is signed by or on behalf of an owner or prospective owner of the copyright which authorises the licensee, to the exclusion of all other persons, including the person granting the licence, to exercise a right which would otherwise be exercisable exclusively by the copyright owner and references to an exclusive licensee shall be construed accordingly.
\n
(2)An exclusive licensee has the same rights against a successor in title who is bound by the licence as he or she has against the person granting the licence.
\n
Copyright to pass under will with certain original fixations.
\n
123.—Where, under a bequest (whether specific or general), a person is entitled, beneficially or otherwise, to any material thing containing an original fixation of a work which has not been made available to the public before the death of the testator, the bequest shall be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his or her death, unless a contrary intention is indicated in the will of the testator or in a codicil to that will.
\n
Presumption of transfer of rental right in case of film production agreement.
\n
124.—(1) Without prejudice to the right of an author to receive equitable remuneration in respect of a rental right, where an agreement concerning film production is concluded between an author or a prospective author of a copyright work and a film producer, the author or prospective author shall be presumed, unless the agreement provides to the contrary, to have transferred to the film producer any rental right in relation to the film arising by virtue of the inclusion of a copy of the work of the author in the film.
\n
(2)Where a presumption of transfer of the rental right arises by virtue of subsection (1), the absence of a signature by or on behalf of the author shall not restrict the operation of section 120 or 121 .
\n
(3)The reference in subsection (1) to an agreement concluded between an author or a prospective author and a film producer includes any agreement whether made by them directly or through intermediaries.
\n
(4)The right to equitable remuneration on the transfer of the rental right applies where there is a presumed transfer under this section as in the case of an actual transfer.
\n
Right to equitable remuneration where rental right transferred.
\n
125.—(1) Without prejudice to the generality of section 124 , where an author has transferred his or her rental right he or she retains the right to equitable remuneration for the rental.
\n
(2)The right to equitable remuneration conferred by this section shall not be waived by the author and the author shall not assign the right to equitable remuneration except to a collecting society for the purpose of enabling the collecting society to exercise that right on his or her behalf.
\n
(3)The right to equitable remuneration is transmissible by way of testamentary disposition or by operation of law, as personal or moveable property and it may be further transmitted, including by assignment, by any person who legally acquires the right.
\n
(4)Equitable remuneration under this section is payable by the person to whom the rental right is transferred or any successor in title.
\n
(5)Subject to section 126 , the amount payable by way of equitable remuneration is that which has been agreed by or on behalf of the persons by and to whom it is payable.
\n
(6)An agreement is void in so far as it purports to exclude or restrict the right to equitable remuneration conferred by this section.
\n
(7)References in this Part to the transfer of the rental right by one person to another include any arrangement having that effect whether made by them directly or through intermediaries.
\n
(8)In this section, “collecting society” means a society or other organisation which has as one of its main objects the exercise of the right to collect equitable remuneration under this section on behalf of more than one author.
\n
Equitable remuneration: reference of determination of amount to Controller.
\n
126.—(1) In default of agreement as to the amount of equitable remuneration payable under section 125 , the person by or to whom it is payable may apply to the Controller for an order under subsection (4).
\n
(2)Subject to subsection (3), a person by or to whom equitable remuneration is payable under section 125 may also apply to the Controller— (a) to vary any agreement as to the amount payable, or (b) to vary any previous determination of the Controller as to the amount payable.
\n
(3)An application may not be made under subsection (2) within 12 months from the date of the previous determination except with the special leave of the Controller.
\n
(4)On an application being made under this section the Controller shall consider the matter and make such order as to the method of calculating and paying equitable remuneration as he or she may determine to be reasonable in the circumstances, having regard to the importance of the contribution of the author.
\n
(5)An order made under subsection (4) shall have effect from the date on which it is made or such later date as may be specified by the Controller.
\n
(6)Remuneration shall not be considered inequitable because it is paid by way of a single payment or at the time of transfer of the rental right.
\n
(7)An agreement is void in so far as it purports to prevent a person challenging the amount of equitable remuneration or to restrict the powers of the Controller conferred by this section.
\n
Chapter 9
\n
Remedies: Copyright Owner Infringement actionable by copyright owner.
\n
127.—(1) An infringement of the copyright in a work is actionable by the copyright owner.
\n
(2)In an action for infringement of the copyright in a work under this section, all relief by way of damages, injunction, account of profits or otherwise is available to the plaintiff as it is available in respect of the infringement of any other property right.
\n
(3)Subject to section 139 , where in an action for infringement of the copyright in a work the defendant does not admit that the plaintiff is the owner of the copyright the court may direct that evidence in relation to ownership of the copyright be given on affidavit and the court may decide the issue having considered any affidavit presented to it unless it is satisfied that any conflict of evidence between the affidavits may not be resolved other than by hearing oral testimony in which case the court may order that oral evidence may be adduced.
\n
(4)Hearsay evidence may be accepted for the purposes of any hearing under subsection (3).
\n
Award of damages in infringement action.
\n
128.—(1) The court may, in an action for infringement of copyright award such damages as, having regard to all the circumstances of the case, it considers just.
\n
(2)Without prejudice to any other remedy, where, in an action for infringement of the copyright in a work, it 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, the plaintiff is not entitled to damages against the defendant.
\n
(3)In exercising its powers under subsection (1) in addition to or as an alternative to compensating the plaintiff for financial loss, the court may award aggravated or exemplary damages or both aggravated and exemplary damages.
\n
Action in respect of construction of building.
\n
129.—In an action for infringement of the copyright in respect of the construction of a building no injunction or other order shall be made— (a) after the construction of the building has begun, so as to prevent it from being completed, or (b) so as to require the building, in so far as it has been constructed, to be demolished.
\n
Undertakings concerning licences of right.
\n
130.—(1) Where, in proceedings for infringement of the copyright in a work in respect of which a licence is available as of right, the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the Controller— (a) no injunction shall be granted against the defendant, (b) no order for delivery up shall be made under section 131 , and (c) the amount recoverable against the defendant by way of damages or on an account of profits shall not exceed three times the amount which would have been payable by the defendant as licensee where a licence on those terms had been granted before the earliest infringement.
\n
(2)An undertaking under subsection (1) may be given at any time before the final order in the proceedings without any admission of liability.
\n
(3)Nothing in this section shall affect the remedies available in respect of an infringement committed before a licence was available as of right.
\n
Order for delivery up.
\n
131.—(1) Where a person— (a) in the course of a business, trade or profession, has in his or her possession, custody or control an infringing copy of a work, (b) has in his or her possession, custody or control an article specifically designed or adapted for making copies of a copyright work, knowing or having reason to believe that it has been or is to be used to make infringing copies, or (c) has in his or her possession, custody or control a protection-defeating device, the owner of the copyright in the work may apply to the appropriate court for an order that the infringing copy, article or device be delivered up to him or her or to such other person as the court may direct.
\n
(2)An application under subsection (1) shall not be made after the expiration of the period specified in section 144
\n
(1)as being the limit of the period for delivery up and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order as to the disposal of the infringing copy, article or device.
\n
(3)A person to whom an infringing copy, article or device is delivered up pursuant to an order made under this section shall, where an order under section 145 as to the disposal of the infringing copy, article or device is not made, retain it pending the making of an order, or the decision not to make an order, under that section.
\n
Application to District Court for seizure of infringing copies, articles or devices.
\n
132.—(1) Without prejudice to section 133 , where the owner of the copyright in a work applies to the District Court, it may, where satisfied that there are reasonable grounds for believing that there are being hawked, carried about or marketed— (a) infringing copies of the work, (b) articles specifically designed or adapted for making copies of a work, knowing or having reason to believe that it has been or is to be used for making infringing copies of a work, or (c) protection-defeating devices, authorise by order a member of the Garda Síochána to seize without warrant the copies, articles or devices and to bring them before the District Court.
\n
(2)On being satisfied that any copy, article or device referred to in subsection (1) is— (a) an infringing copy, (b) articles specifically designed or adapted for making copies of a work, which the person hawking, carrying about or marketing those articles, knows or has reason to believe that they have been or are to be used to make infringing copies of a work, or (c) a protection-defeating device, the District Court may order the copy, article or device to be destroyed or to be delivered up to the owner of the copyright or otherwise dealt with as the Court may think fit.
\n
(3)In an application to the District Court under subsection (1) or, in any ex parte application or interlocutory motion to a court of competent jurisdiction for an order which would permit the applicant to enter and search premises or place specified therein and take possession of material found therein on terms set out in such order, the court hearing such an application may receive hearsay evidence to the effect that the witness or deponent believes that the material may be found in a particular location.
\n
(4)A witness or deponent shall not be obliged to indicate the source of the information upon which that witness formed the belief that material may be found in a particular location.
\n
(5)After the implementation of an order made under this section, the court may, on the application of a person aggrieved by it, award damages against the applicant for the order as it considers just, on being satisfied that— (a) no infringement of copyright has been established, and (b) the information on which the copyright owner applied for the order was given maliciously.
\n
Right of copyright owner to seize infringing copies, articles or devices, etc.
\n
133.—(1) Where it would be impracticable for the owner of the copyright in a work to apply to the District Court for an order under section 132 , a copy, article or device referred to in section 132
\n
(1)in respect of which the copyright owner would be entitled to apply for an order for delivery up under section 131 , may be seized and detained by the copyright owner or a designated representative thereof where the copy, article or device is found being hawked, carried about or marketed.
\n
(2)The right to seize and detain conferred by subsection (1) is exercisable, subject to subsections (4) to (8) of this section, and is subject to any decision of the court relating to disposal of infringing copies, articles or devices under section 145 .
\n
(3)A person who seizes any infringing copies, articles or devices under this section shall apply to the District Court for an order to dispose of those copies, articles or devices within 30 days of the seizure.
\n
(4)Before any infringing copies, articles or devices are seized under this section notice of the time and place of the proposed seizure shall be given to a member of the Garda Síochána in the District Court Area in which the copies, articles or devices are to be seized.
\n
(5)A person exercising the right to seize and detain conferred by subsection (1) may enter premises to which members of the public have access.
\n
(6)A person exercising the right to seize and detain conferred by subsection (1) may not seize anything in the possession, custody or control of a person at his or her permanent or regular place of business, trade or profession, and may not use any force.
\n
(7)Without prejudice to the generality of subsection (6), a person exercising the right to seize and detain conferred by subsection (1) may make an inventory or prepare other evidence of infringement of copyright or potential infringement of copyright.
\n
(8)At the time when any infringing copies, articles or devices are seized under this section there shall be given to the owner, occupier or person in charge of the place where the copies, articles or devices are seized a notice, in the prescribed form, informing the person of the right of the owner of the copies, articles or devices being seized to apply to the District Court for the return of the copies, articles or devices on the grounds that they are not— (a) infringing copies of a work, (b) articles that have been or are to be used to make infringing copies, or (c) protection-defeating devices.
\n
(9)Without prejudice to the generality of subsection (8), the Minister shall prescribe the form of the notice to be given under that subsection and the form shall specify— (a) the name and the address of the person claiming to be the owner of the copyright in the work concerned, (b) the statutory authority for the seizure, (c) the grounds that the person seizing the copies, articles or devices has for such seizure, and (d) a list of that which is seized.
\n
(10)The owner of any copies, articles or devices seized under this section may apply to the District Court for the return of those copies, articles or devices.
\n
(11)Rules of court shall be made under this section and the rules shall provide for procedures to enable applications to be made and dealt with in an expeditious manner.
\n
(12)Where there has been an exercise of the right to seize and detain, conferred by subsection (1), the court may, on the application of a person aggrieved by it, award damages against a person who exercises that right as it considers just, on being satisfied that— (a) no infringement of copyright has been established, and (b) the person had no reasonable grounds for such seizure.
\n
Rights of owner of copyright in respect of infringing copy.
\n
134.—(1) Subject to the provisions of this Act, the owner of any copyright shall be entitled to all such rights and remedies, in respect of the conversion or detention by any person of— (a) infringing copies of a work, (b) articles that have been or are to be used to make infringing copies, or (c) protection-defeating devices, as he or she would be entitled to if he or she were the owner of every such copy, article or device and had been the owner thereof since the time when it was made.
\n
(2)Where by virtue of section 12(2) (which relates to successive conversions or detentions) of the Statute of Limitations, 1957 , the title of the owner of the copyright to such a copy, article or device referred to in subsection (1) of this section would (if he or she had been the owner of the copy, article or device) have been extinguished on the expiration of the period referred to in the said subsection (2), he or she shall not be entitled to any rights or remedies under subsection (1) of this section in respect of anything done in relation to that copy, article or device after the expiration of that period.
\n
(3)In awarding damages for conversion, the court shall take into account all the circumstances of the case and shall award such sum as it considers just.
\n
Chapter 10
\n
Rights and Remedies: Exclusive Licensee Rights and remedies of exclusive licensee.
\n
135.—(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.
\n
(2)The rights and remedies of an exclusive licensee are concurrent with those of the copyright owner and references in sections 127 to 134 to the copyright owner shall be construed accordingly.
\n
(3)In proceedings brought by an exclusive licensee under this section a defendant may avail of any defence which would have been available to the defendant if the action had been brought by the copyright owner.
\n
Exercise of concurrent rights.
\n
136.—(1) Where an action for infringement of the copyright in a work brought by the copyright owner or an exclusive licensee relates, whether in whole or in part, to an infringement in respect of which they have concurrent rights of action, the copyright owner or, as the case may be, the exclusive licensee, may not, without the leave of the appropriate court, proceed with the action unless the other is either joined as a plaintiff or added as a defendant.
\n
(2)A copyright owner or exclusive licensee who is added as a defendant under subsection (1) shall not be liable for any costs in an action unless he or she takes part in the proceedings.
\n
(3)Nothing in this section shall affect the granting of interlocutory relief on an application by the copyright owner or exclusive licensee.
\n
(4)Where an action for infringement of copyright is brought which relates, whether in whole or in part, to an infringement in respect of which the copyright owner and an exclusive licensee have or had concurrent rights of action, then, the following shall apply— (a) in assessing damages the appropriate court shall have regard to— (i) the terms of the licence, and (ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement; (b) no account of profits shall be directed where an award of damages has been made, or an account of profits has been directed, in favour of one of them in respect of the infringement; (c) the appropriate court shall, where an account of profits is directed, apportion the profits between them as the court thinks fit, subject to any agreement between the copyright owner and the exclusive licensee.
\n
(5)Subsection (4) shall apply whether or not the copyright owner and the exclusive licensee are both parties to the action.
\n
(6)Before— (a) applying for an order for delivery up under section 131 , (b) applying for an order to seize infringing copies, articles or devices under section 132 , or (c) exercising the right to seize and detain conferred by section 133 , the copyright owner shall notify any exclusive licensee having concurrent rights and the court may, on the application of the licensee, make such order for delivery up, seizure of infringing copies, articles or devices or, as the case may be, prohibiting or permitting the exercise by the copyright owner of the right of seizure and detention as it thinks fit, having regard to the terms of the licence between the copyright owner and the exclusive licensee.
\n
Chapter 11
\n
Remedies: Moral Rights Remedies for infringement of moral rights.
\n
137.—(1) An infringement of a right conferred by section 107 , 109 , 113 or 114 is actionable as a breach of statutory duty owed to the person entitled to the right concerned.
\n
(2)A person may apply to the appropriate court for damages or other relief in respect of an infringement of a right conferred by section 107 , 109 , 113 or 114 .
\n
(3)In proceedings for infringement of the right conferred by section 109 , the appropriate court may grant an injunction prohibiting any act unless a sufficient disclaimer is made, on such terms and in such a manner as is approved of by the court, dissociating the person entitled to the right from the treatment of the work.
\n
Action in respect of construction of building.
\n
138.—In any proceedings for infringement of a right conferred by section 107 , 109 or 113 in respect of the construction of a building, no injunction or other order shall be made— (a) after the construction of the building has begun, so as to prevent it from being completed, or (b) so as to require the building, in so far as it has been constructed, to be demolished.
\n
Chapter 12
\n
Presumptions Presumptions.
\n
139.—(1) The presumptions specified in this section shall apply in any proceedings, whether civil or criminal, for infringement of the copyright in any work.
\n
(2)Copyright shall be presumed to subsist in a work until the contrary is proved.
\n
(3)Except as otherwise provided in this section, where the subsistence of the copyright in a work is proved or admitted, or is presumed under subsection (2), the plaintiff shall be presumed to be the owner or, as the case may be, the exclusive licensee of the copyright, until the contrary is proved.
\n
(4)Where (a) a name purporting to be that of the author of a work or of the owner or exclusive licensee of the copyright, as the case may be, appears on copies of the work, or (b) a copy of a work bears or incorporates a statement, label or other mark indicating that a person is the author of the work or the owner or exclusive licensee of the copyright, as the case may be, that name, statement, label or mark shall be admissible as evidence of the fact stated or indicated which shall be presumed to be correct, unless the contrary is proved.
\n
(5)The person named or in respect of whom a statement, label or other mark appears on or is borne on or is incorporated in copies of a work in accordance with subsection (4) shall, unless the contrary is proved, be presumed not to have made the work— (a) in the course of employment referred to in section 23
\n
(1)(a), (b) in the course of employment as an officer or employee of a prescribed international organisation referred to in section 196 , (c) in the course of employment as an officer or employee of the Government or of the State referred to in section 191 , (d) under the direction or control of either or both of the Houses of the Oireachtas referred to in section 193 , or (e) in circumstances in which the copyright in the work is conferred on another person by an enactment referred to in section 23
\n
(1)(d).
\n
(6)Where a work purports to be a work of joint authorship, subsections (2), (3), (4) and (5) shall apply in relation to each person purporting to be one of the authors of the work.
\n
(7)Where no name purporting to be that of the author of the work or of the owner or exclusive licensee of the copyright, as the case may be, appears on the work or where the work does not bear or incorporate a statement, label or other mark in accordance with subsection (4) and— (a) the work qualifies for copyright protection by reference to the country, territory, state or area, in which it was first lawfully made available to the public, and (b) (i) a name purporting to be that of the person who first lawfully made available to the public the work appears on copies of the work as first so made available, or (ii) copies of the work bear or incorporate a statement, label or other mark indicating that a named person first lawfully made available to the public the work, then, that named person shall be presumed to have been the author of the work or the owner or exclusive licensee of the copyright, as the case may be, at the time when the work was first lawfully made available to the public, unless the contrary is proved.
\n
(8)Where the author of the work is dead or the identity of the author cannot be ascertained by reasonable enquiry, it shall be presumed, unless the contrary is proved— (a) that the work is an original work, and (b) that the claims made by the plaintiff as to the date on which the work was first lawfully made available to the public and as to the country, territory, state or area in which the work was first so made available are correct.
\n
(9)The presumptions set out in subsections (2) to (8) shall apply to the same extent in any actions relating to an infringement which occurred before the date on which copies of a work were first lawfully made available to the public.
\n
Chapter 13
\n
Offences: Copyright Offences.
\n
140.—(1) A person who, without the consent of the copyright owner— (a) makes for sale, rental or loan, (b) sells, rents or lends, or offers or exposes for sale, rental or loan, (c) imports into the State, otherwise than for his or her private and domestic use, (d) in the course of a business, trade or profession, has in his or her possession, custody or control, or makes available to the public, or (e) otherwise than in the course of a business, trade or profession, makes available to the public to such an extent as to prejudice the interests of the owner of the copyright, a copy of a work which is, and which he or she knows or has reason to believe is, an infringing copy of the work, shall be guilty of an offence.
\n
(2)In this section “loan” means a loan for reward and in particular does not include a loan to a family member or friend for private and domestic use, and “lends” shall be construed accordingly.
\n
(3)A person who— (a) makes, (b) sells, rents or lends, or offers or exposes for sale, rental or loan, (c) imports into the State, or (d) has in his or her possession, custody or control, an article specifically designed or adapted for making copies of a work, knowing or having reason to believe that it has been or is to be used to make infringing copies, shall be guilty of an offence.
\n
(4)A person who— (a) (i) makes, (ii) sells, rents or lends, or offers or exposes for sale, rental or loan, (iii) imports into the State, or (iv) has in his or her possession, custody or control, a protection-defeating device, knowing or having reason to believe that it has been or is to be used to circumvent rights protection measures, or (b) provides information, or offers or performs any service, intended to enable or assist a person to circumvent rights protection measures, shall be guilty of an offence.
\n
(5)Where copyright is infringed by— (a) the public performance of a literary, dramatic or musical work, (b) the playing or showing in public of a sound recording, artistic work, original database or film, or (c) broadcasting a work or including a work in a cable programme service, the person who caused the work to be so performed, played, broadcast, included in a cable programme service or shown shall be guilty of an offence where he or she knew or had reason to believe that the copyright in the work would be infringed.
\n
(6)An offence shall not be committed under subsection (1) or (5) by the undertaking of an act which under this Part may be undertaken without infringing the copyright in a work.
\n
(7)A person guilty of an offence under subsection (1), (3) or (4) shall be liable— (a) on summary conviction, to a fine not exceeding £1,500 in respect of each infringing copy, article or device, or to imprisonment for a term not exceeding 12 months, or both, or (b) on conviction on indictment, to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both.
\n
(8)A person guilty of an offence under subsection (5) shall be liable— (a) on summary conviction, to a fine not exceeding £1,500 in respect of such offence or to imprisonment for a term not exceeding 12 months, or both, or (b) on conviction on indictment, to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both.
\n
False claims of copyright 141.—A person who, for financial gain, makes a claim to enjoy a right under this Part which is, and which he or she knows or has reason to believe is, false, shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both.
\n
Order for delivery up in criminal proceedings.
\n
142.—(1) The court may, on conviction of a person or being satisfied that there is a prima facie case to answer, where the court is satisfied that at the time of the arrest or charge the person had in his or her possession, custody or control— (a) in the course of a business, trade or profession, a copy of a work, knowing or having reason to believe it to be an infringing copy, (b) an article specifically designed or adapted for making copies of a work, knowing or having reason to believe that it had been or was to be used to make infringing copies, or (c) a protection-defeating device, order that the infringing copy, article or device be delivered up to the copyright owner or to such other person as the court may direct.
\n
(2)An order may be made by the court of its own motion, or on the application of the person bringing a prosecution, and may be made whether or not the person is convicted of the offence, but shall not be made— (a) after the expiration of the period specified in section 144
\n
(3)as being the limit of the period for delivery up, or (b) where it appears to the court unlikely that any order will be made as to the disposal of the infringing copies, articles or devices.
\n
(3)A person to whom an infringing copy, article or device is delivered up pursuant to an order made under this section shall retain it pending the making of a final order or decision not to make an order, as the case may be.
\n
Search warrants and seizure.
\n
143.—(1) Where a judge of the District Court is satisfied by information on oath that there are reasonable grounds for suspecting— (a) that an offence under section 140 has been, or is about to be, committed in, on or at any premises or place, and (b) that evidence that such an offence has been, or is about to be, committed is in on or at those premises or that place, the court may issue a warrant authorising a member of the Garda Síochána, accompanied by such other members of the Garda Síochána or other person or persons as that member thinks proper, at any time or times within 28 days from the date of the issue of the warrant on production, where requested, of that warrant, to enter and search the premises or place specified in the warrant using reasonable force where necessary, and to do all or any of the following acts: (i) to seize any copies of any works, articles or devices in respect of which he or she has reasonable grounds for suspecting that an offence under section 140 has been or is about to be committed; (ii) to make an inventory or prepare other evidence of infringement of copyright or potential infringement of copyright; (iii) to seize anything found there which he or she believes on reasonable grounds may be required to be used in evidence in any proceedings brought in respect of an offence under this Act; (iv) to require any person found there to give his or her name and address.
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(2)A warrant issued under this section may authorise persons, including the copyright owner or designated representative thereof, to accompany and assist any member of the Garda Síochána in executing the warrant or in collating any inventory or other evidence.
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(3)A person who— (a) obstructs or interferes with a person acting under the authority of a warrant issued under this section, (b) is found in, on or at the premises or place specified in the warrant by a member of the Garda Síochána acting as aforesaid and who fails or refuses to give the member his or her name and address when required to do so or gives a name or address that is false or misleading, (c) obstructs the exercise of an authority conferred by a warrant under this section, or (d) fails or refuses to give information to a member of the Garda Síochána when requested to do so under this section, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500, or to imprisonment for a term not exceeding 12 months, or both.
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Chapter 14
\n
Delivery up and Disposal Period after which remedy for delivery up is not available.
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144.—(1) Subject to subsection (2), an application for an order under section 131 may not be made after the expiration of 6 years from the date on which the infringing copy, article or device was made.
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(2)Where, during the whole or any part of the period referred to in subsection (1), the copyright owner— (a) is under a disability, or (b) is prevented by fraud or concealment from discovering the facts entitling him or her to apply for an order, an application under section 131 may be made at any time before the expiration of 6 years from the date on which the applicant ceased to be under a disability, or, as the case may be, could, with reasonable diligence, have discovered those facts.
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(3)An order for delivery up in criminal proceedings under section 142 shall not, in any case, be made after the expiration of 6 years from the date on which the proceedings under that section were initiated.
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(4)Where, in any proceedings for an order for delivery up under section 131 or 142, the date of the making of the infringing copy, article or device is put into question by the defendant, the onus of proof shall be on the defendant that the infringing copy, article or device was made more than 6 years before the date on which an application for an order under section 131 was made or proceedings under section 142 were initiated.
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Order as to disposal of infringing copy, article or device.
\n
145.—(1) An application may be made to the appropriate court for an order that an infringing copy, article or device— (a) delivered up under section 131 or 142 , or (b) seized and detained under section 132 or 143 , shall be— (i) forfeited to the copyright owner, or (ii) destroyed or otherwise dealt with as the court may direct, and the court may make such an order or such other order as it thinks fit.
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(2)In considering what order, if any, should be made under subsection (1), the court shall consider whether other remedies available in an action for infringement of the copyright in a work would be adequate to compensate the copyright owner and to protect his or her interests.
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(3)Provision shall be made by rules of the court as to the service of notice on persons having an interest in the copies, articles or devices concerned, and any such person may— (a) appear in proceedings for an order under this section whether or not he or she was served with notice, or (b) appeal against any order made, whether or not he or she appeared in the proceedings concerned.
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(4)An order made under this section shall not take effect until the expiration of the period within which notice of an appeal may be given or, where before the expiration of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.
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(5)Where there is more than one person interested in a copy, article or device, the court shall make such order as it thinks fit and may direct the copy, article or device to be sold or otherwise dealt with and any proceeds divided in accordance with the direction of the court.
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(6)Where the court decides that no order shall be made under this section, the person who had the copy, article or device in his or her possession, custody or control immediately before it was delivered up or seized shall be entitled to its return.
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(7)References in this section to a person having an interest in a copy, article or device include any person in whose favour an order may be made under this section in respect of the copy, article or device or under section 264 or under section 23 of the Trade Marks Act, 1996 .
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Amendment to section 23 of Trade Marks Act, 1996.
\n
146.—
\n
Section 23
\n
of the Trade Marks Act, 1996 , is hereby amended by the substitution of the following subsection for subsection (6) of that section: “(6) References in this section to a person having an interest in goods, material or articles include references to any person in whose favour an order could have been made under sections 145 and 264 of the Copyright and Related Rights Act, 2000.”.
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Chapter 15
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Provision for Preventing Importation Infringing copies, articles or devices may be treated as prohibited goods.
\n
147.—(1) The owner of the copyright in a work may give notice in writing to the Revenue Commissioners— (a) that he or she is the owner of the copyright in the work, and (b) that he or she requests the Revenue Commissioners for a period specified in the notice to treat as prohibited goods— (i) copies of the work which are infringing copies, (ii) articles specifically designed or adapted or used for making infringing copies of the work, or (iii) protection-defeating devices.
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(2)The period specified in a notice given under subsection (1) shall not exceed 5 years and in any case shall not extend beyond the period for which copyright is to subsist.
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(3)The owner of the copyright in a work may give notice in writing to the Revenue Commissioners— (a) that he or she is the owner of the copyright in the work, (b) that infringing copies, articles or devices referred to in subsection (1)(b) are expected to arrive in the State at a time and a place specified in the notice, and (c) that he or she requests the Revenue Commissioners to treat those copies, articles or devices as prohibited goods.
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(4)When a notice given under subsection (1) is in force the importation of goods to which the notice relates, other than copies of a work imported by a person for his or her private and domestic use, is prohibited.
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(5)Notwithstanding subsection (4) or anything contained in the Customs Acts, a person is not, by reason of the prohibition, liable to any penalty under the Customs Acts other than forfeiture of the prohibited goods.
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(6)In this section “prohibited goods” means counterfeit or pirated goods within the meaning of the European Communities (Counterfeit and Pirated Goods) Regulations, 1996 ( S.I. No. 48 of 1996 ).
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Power of Revenue Commissioners to make regulations.
\n
148.—(1) The Revenue Commissioners may prescribe the form in which notice is to be given under section 147 and require a person giving notice— (a) to furnish the Revenue Commissioners with such evidence as may be prescribed, either on giving notice or when the goods are imported, or at both these times, and (b) to comply with such other conditions as may be prescribed.
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(2)Regulations made under this section may require a person giving a notice under section 147 — (a) to pay such fees in respect of the notice as may be specified by the Revenue Commissioners from time to time, (b) to give such security as may be specified by the Revenue Commissioners in respect of any liability or expense which the Revenue Commissioners may incur in consequence of the notice given by reason of the detention of any infringing copy, article or device or anything done to any infringing copy, article or device detained, and (c) to indemnify the Revenue Commissioners against any such liability or expense whether security has been given or not.
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(3)Regulations made under this section may make different provisions in respect of different classes of case to which they apply and may include such incidental and supplementary provisions as the Revenue Commissioners consider expedient from time to time.
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(4)Any fees paid pursuant to regulations made under this section shall be accounted for in such manner as shall be prescribed by the Minister for Finance.
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Chapter 16
\n
Copyright Licensing Licensing schemes and licensing bodies.
\n
149.—(1) In this Part— “licences” means licences to undertake or authorise the undertaking of any of the acts restricted by copyright; “licensing body” means a society or other organisation which has as its main object, or one of its main objects, the negotiating or granting, either as owner or prospective owner of copyright, or as exclusive licensee, or as agent for him or her, of copyright licences, and whose objects include the granting of licences relating to works of more than one copyright owner; “licensing scheme” means a scheme specifying— (a) the classes of case in which the operator of the scheme, or the person on whose behalf that operator acts, is willing to grant copyright licences, and (b) the terms on which licences would be granted in those classes of case, and for this purpose a “scheme” includes anything in the nature of a scheme, whether described as a scheme or as a tariff or by any other name.
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(2)References in this Part to licences or licensing schemes relating to works of more than one copyright owner shall not include licences or schemes relating to— (a) a single collective work, or collective works of which the authors are the same, or (b) works made by, or by employees of or commissioned by, a single individual, firm, company or group of companies, including holding companies and their subsidiaries.
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References and Applications Relating to Licensing Schemes General references.
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150.—Sections 151 to 156 apply to licensing schemes which are operated by licensing bodies in relation to the copyright in works of more than one copyright owner, in so far as they relate to licences for any of the acts restricted by copyright under section 37 .
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Reference of proposed licensing scheme to Controller.
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151.—(1) The terms of a licensing scheme proposed to be operated by a licensing body may be referred to the Controller by an organisation which claims to be representative of persons who claim that they require licences in cases of a description to which the scheme would apply.
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(2)The Controller shall not consider a reference by an organisation under subsection (1) unless the Controller is satisfied that the organisation is representative of the class of persons that it claims to represent.
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(3)The Controller may refuse to consider a reference under subsection (1) on the ground that the reference is premature.
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(4)Where the Controller decides to consider a reference under subsection (1), he or she shall consider the subject matter of the reference and make an order, either confirming or varying the proposed scheme, as the Controller may determine to be reasonable in the circumstances.
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(5)An order under subsection (4) may be made for such period as the Controller may determine.
\n
Reference of licensing scheme to Controller.
\n
152.—(1) Where a licensing scheme is in operation and a dispute arises with respect to the scheme between the operator of the scheme and— (a) a person claiming that he or she requires a licence in a case of a description to which the scheme applies, or (b) an organisation claiming to be representative of such persons, that operator, person or organisation may refer the scheme to the Controller in so far as it relates to cases of that description.
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(2)The Controller shall not consider a reference by an organisation under subsection (1) unless the Controller is satisfied that the organisation is representative of the class of persons that it claims to represent.
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(3)A scheme which has been referred to the Controller under subsection (1) shall remain in operation until proceedings in relation to the reference are concluded.
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(4)The Controller shall consider the matter referred to him or her and shall make an order, confirming or varying the scheme, as the Controller may determine to be reasonable in the circumstances.
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(5)An order under subsection (4) may be made for such period as the Controller may determine.
\n
Further reference of scheme to Controller.
\n
153.—(1) Where the Controller has, in respect of a licensing scheme under section 151 or 152 or under this section, made an order in respect of a scheme, and the order remains in force, the persons to whom this section applies may refer the scheme to the Controller in so far as it relates to cases of that description.
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(2)This section applies to— (a) the operator of the scheme, (b) a person claiming that he or she requires a licence in a case of the description to which the order applies, and (c) an organisation claiming to be representative of the persons referred to in paragraph (b).
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(3)Where an order under section 151 or 152 or this section is in force, the licensing scheme in respect of which the order is made shall not, except with the special leave of the Controller, be referred to the Controller in respect of the same description of cases— (a) within 12 months from the date of the order in respect of the previous reference, or (b) where the order was made so as to be in force for 15 months or less, until the last 3 months before the expiration of the order.
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(4)A scheme which has been referred to the Controller under subsection (1) shall remain in operation until proceedings in relation to the reference are concluded.
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(5)The Controller shall consider the matter referred to him or her and shall make an order, confirming, varying or further varying the scheme, as the Controller may determine to be reasonable in the circumstances.
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(6)An order under subsection (5) may be made for such period as the Controller may determine.
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Application for grant of licence in connection with licensing scheme.
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154.—(1) A person who claims, in a case to which a licensing scheme relates, that the operator of the scheme has refused to grant or to procure the grant to him or her of a licence in accordance with the scheme, or has failed to do so within a reasonable period, may apply to the Controller for an order under subsection (4).
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(2)A person who claims, in a case excluded from a licensing scheme, that the operator of the scheme— (a) has refused to grant or to procure the grant to him or her of a licence, or has failed to do so within a reasonable period and that in the circumstances it is unreasonable that a licence should not be granted, or (b) proposes terms for a licence that are unreasonable, may apply to the Controller for an order under subsection (4).
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(3)A case shall be regarded as being excluded from a licensing scheme for the purposes of subsection (2) where— (a) the scheme provides for the grant of licences, subject to terms excepting matters from the licence and the case is within such an exception, or (b) the case is so similar to those in which licences are granted under the scheme that it is unreasonable that it should not be dealt with in the same way.
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(4)Where the Controller is satisfied that a claim under this section is well-founded, he or she shall make an order declaring that in respect of the matters specified in the order, the applicant is entitled to a licence on such terms as the Controller may determine to be applicable in accordance with the scheme, or as the case may be, to be reasonable in the circumstances.
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(5)An order under subsection (4) may be made for such period as the Controller may determine.
\n
Review of orders made by Controller.
\n
155.—(1) Where the Controller has made an order under section 154 that a person is entitled to a licence under a licensing scheme, the operator of the scheme or the original applicant may apply to the Controller for a review of that order.
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(2)An application under subsection (1) shall not be made except with the special leave of the Controller— (a) within 12 months from the date of the order or of the decision on a previous application under this section, or (b) where— (i) the order was made so as to be in force for 15 months or less, or (ii) as a result of the decision on a previous application under this section the order is due to expire within 15 months of that decision, until the last 3 months before the expiration date.
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(3)The Controller shall, on an application for review, confirm or vary his or her order as the Controller may determine to be reasonable, having regard to the terms applicable in accordance with the licensing scheme or, as the case may be, the circumstances of the case.
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Effect of order of Controller as to licensing scheme.
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156.—(1) A licensing scheme which has been confirmed or varied by the Controller under section 151 , 152 or 153 shall be in operation or, as the case may be, remain in operation, in so far as it relates to the description of case in respect of which the order was made, for such period as the order remains in force.
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(2)Where an order made by the Controller under section 151 , 152 or 153 confirming or varying a licensing scheme is in force (in this section referred to as “an order to which this section applies”), a person who, in a case of a class to which the order applies— (a) pays to the operator of the scheme any charges payable under the scheme in respect of a licence applying to the case concerned or, where the amount cannot be ascertained, gives an undertaking to the operator to pay the charges when ascertained, and (b) complies with the other terms applicable to the licence under the scheme, is in the same position as regards infringement of copyright as if he or she had at all material times been the holder of a licence granted by the owner of the copyright concerned in accordance with the scheme.
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(3)Subject to subsection (4), the Controller may direct that an order to which this section applies, in so far as it varies the amount of charges payable, has effect from a date before that on which it was made, but not earlier than the date on which the reference was made, or where later, the date on which the scheme came into operation.
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(4)Where a direction is made under subsection (3)— (a) any necessary repayments or further payments shall be made in respect of charges already paid, and (b) the reference in subsection (2)(a) to the charges payable under the scheme shall be construed as a reference to the charges so payable by virtue of the order.
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(5)A direction shall not be made under this section where subsection (6) applies.
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(6)An order of the Controller made under section 152 or 153 in relation to a scheme which is certified for any purpose under section 173 has effect, in so far as it varies the scheme by reducing the charges payable for licences, from the date on which the reference was made to the Controller.
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(7)Where the Controller has made an order under section 154 and the order remains in force, the person in whose favour the order is made, where he or she— (a) pays to the operator of the scheme any charges payable in accordance with the order or, where the amount cannot be ascertained, gives an undertaking to the operator to pay the charges when ascertained, and (b) complies with the other terms specified in the order, is in the same position as regards infringement of copyright as if he or she had at all material times been the holder of a licence granted by the owner of the copyright concerned on the terms specified in the order.
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References and Applications Relating to Licensing by Licensing Bodies General references by licensing bodies.
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157.— Sections 158 to 161 apply to licences in relation to the copyright in works of more than one copyright owner, granted by a licensing body otherwise than pursuant to a licensing scheme, in so far as the licences relate to any of the acts restricted by copyright under section 37 .
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Reference to Controller of proposed licence.
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158.—(1) The terms on which a licensing body proposes to grant a licence may be referred to the Controller by the prospective licensee for an order under subsection (3).
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(2)The Controller may refuse to consider a reference under subsection (1) on the ground that the reference is premature.
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(3)Where the Controller decides to consider a reference under subsection (1), he or she shall consider the terms of the proposed licence and make an order, confirming or varying the terms, as the Controller may determine to be reasonable in the circumstances.
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(4)An order under subsection (3) may be made for such period as the Controller may determine.
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Reference to Controller of expiring licence.
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159.—(1) A licensee under a licence which is due to expire with the passage of time or as a result of notice given by the licensing body may apply to the Controller on the ground that it is unreasonable in the circumstances that the licence should cease to be in force.
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(2)An application under subsection (1) may be made at any time during the last 3 months before the expiration of the licence.
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(3)A licence in respect of which a reference has been made to the Controller under subsection (1) shall remain in force until proceedings in relation to the reference are concluded.
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(4)Where the Controller is satisfied that an application made under subsection (1) is well-founded, he or she shall make an order declaring that the licensee shall continue to be entitled to the benefit of the licence on such terms as the Controller may determine to be reasonable in the circumstances.
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(5)An order under subsection (4) may be made for such period as the Controller may determine.
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Application for review of order made by Controller.
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160.—(1) Where the Controller has made an order under section 158 or 159 , the licensing body or the person entitled to the benefit of the order may apply to the Controller for a review of that order.
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(2)An application under subsection (1) shall not be made except with the special leave of the Controller— (a) within 12 months from the date of the order or of the decision on a previous application under this section, or (b) where— (i) the order was made so as to be in force for 15 months or less, or (ii) as a result of the decision on a previous application under this section, the order is due to expire within 15 months of that decision, until the last 3 months before the expiration date.
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(3)The Controller shall, on an application for review, confirm or vary his or her order as the Controller may determine to be reasonable in the circumstances.
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Effect of order of Controller as to licence.
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161.—(1) Where the Controller has made an order under section 158 or 159 , and the order remains in force, the person entitled to the benefit of the order, where he or she— (a) pays to the licensing body any charges payable in accordance with the order or, where the amount cannot be ascertained, gives an undertaking to the operator to pay the charges when ascertained, and (b) complies with the other terms specified in the order, is in the same position as regards infringement of copyright as if he or she had at all material times been the holder of a licence granted by the owner of the copyright concerned on the terms specified in the order.
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(2)The benefit of an order made under section 158 or 159 may be assigned— (a) in the case of an order made under section 158 , where assignment is not prohibited under the terms of the order of the Controller, and (b) in the case of an order made under section 159 , where assignment was not prohibited under the terms of the original licence.
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(3)The Controller may direct that an order made under section 158 or 159 or an order made under section 160 varying such an order, in so far as it varies the amount of charges payable, has effect from a date before that on which it was made, but not earlier than the date on which the reference or application was made or, where later, the date on which the licence was granted or, as the case may be, was due to expire.
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(4)Where a direction is given under subsection (3)— (a) any necessary repayments or further payments shall be made in respect of charges already paid, and (b) the reference in subsection (1)(a) to the charges payable in accordance with the order shall be construed, where the order is varied by a further order, as a reference to the charges so payable by virtue of that further order.
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Licensing: Miscellaneous General considerations: unreasonable discrimination.
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162.—(1) In determining what is reasonable, on a reference or application under this Chapter relating to a licensing scheme or licence, the Controller shall have regard to— (a) the availability of other schemes, or the granting of other licences, to other persons in similar circumstances, and (b) the terms of those schemes or licences, and shall exercise his or her powers so as to ensure that there is no unreasonable discrimination between licensees, or prospective licensees, under the scheme or licence to which the reference or application relates and licensees under other schemes operated by, or other licences granted by, the same person.
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(2)Subsection (1) shall not affect the obligation of the Controller in any case to have regard to all relevant circumstances.
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Licences for reprographic copying.
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163.— Where a reference or application is made to the Controller under this Chapter relating to the licensing of reprographic copying of literary, dramatic, musical or artistic works, original databases, or of the typographical arrangement of published editions, which have been lawfully made available to the public, the Controller shall have regard to— (a) the extent to which copies of the works concerned are otherwise available, (b) the proportion of the work to be copied, and (c) the nature of the use to which the copies are likely to be put.
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Licences to reflect payments in respect of underlying rights.
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164.—Where a reference or an application is made under this Chapter in relation to licensing of the copyright in a work, the Controller shall take into account, in considering what charges are to be paid for a licence, any payments which the owner of the copyright is liable to make pursuant to the granting of the licence, or pursuant to the acts authorised by the licence— (a) to owners of the copyright in works included in the work, or (b) in respect of any performance, included in the work.
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Licences to reflect conditions imposed by promoters of events.
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165.—(1) Where a reference or an application is made under this Chapter relating to licensing in respect of the copyright in sound recordings, films, broadcasts or cable programmes which include, or are to include, any entertainment or other event, the Controller shall have regard to any conditions imposed by the promoters of the entertainment or other event, and in particular the Controller shall not consider a refusal or failure to grant a licence to be unreasonable where it could not have been granted in a manner which is consistent with those conditions.
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(2)Nothing in this section shall require the Controller to have regard to any conditions where those conditions— (a) purport to regulate the charges to be imposed in respect of the grant of licences, or (b) relate to payments to be made to the promoters of any event in consideration of the grant of facilities for making the sound recording, film, broadcast or cable programme.
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Licences in respect of works included in retransmissions.
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166.—(1) This section applies to references or applications under this Chapter relating to licences to include a work in a broadcast or cable programme service, where one broadcast or cable programme (in this section referred to as the “first transmission”) is, by reception and immediate retransmission without alteration, to be further broadcast or included in a cable programme service (in this section referred to as the “further transmission”).
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(2)In so far as the further transmission is to the same area as the first transmission, the Controller shall, in considering what charges, if any, are to be paid for licences for either transmission, have regard to the extent to which the copyright owner has already received, or is entitled to receive, payment for the other transmission which adequately remunerates that owner in respect of transmissions to that area.
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(3)In so far as the further transmission is to an area outside that to which the first transmission was made, the Controller shall disregard all further transmission in considering what charges, if any, are to be paid for licences for the first transmission.
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Implied indemnity in certain schemes and licences for reprographic copying.
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167.—(1) This section applies to— (a) schemes for licensing reprographic copying of literary, dramatic, musical or artistic works, original databases, or of the typographical arrangement of published editions, lawfully made available to the public, and (b) licences granted by licensing bodies for such copying, where the scheme or licence concerned does not specify the works to which it applies with sufficient particularity so as to enable licensees to determine whether a work is within the scheme or licence by inspection of the scheme or licence and the work.
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(2)There is implied in every scheme or licence to which this section applies— (a) an undertaking by the operator of the scheme to indemnify a person granted a licence under the scheme, and (b) an undertaking by the licensing body to indemnify a licensee, against any liability incurred by a person or licensee by reason of his or her having infringed copyright by making or authorising the making of reprographic copies of a work in circumstances within the apparent scope of the licence.
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Power to extend application of scheme or licence.
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168.—(1) This section applies to— (a) a licensing scheme to which sections 151 to 156 apply, in so far as they provide for the grant of licences, or (b) a licence to which sections 158 to 161 apply, in so far as the scheme provides for the grant of licences, or the licence is a licence which authorises the making by or on behalf of educational establishments for the purposes of instruction of reprographic copies of literary, dramatic, musical or artistic works, original databases or of the typographical arrangement of published editions; which have been lawfully made available to the public.
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(2)Where it appears to the Minister with respect to a scheme or licence to which this section applies that— (a) works of a description similar to those covered by the scheme or licence are unreasonably excluded from it, and (b) making those works subject to a licensing scheme or general licence would not conflict with the normal exploitation of the works or prejudice the interests of the owner of the copyright, the Minister may by order provide that the scheme or licence shall extend to those works.
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(3)Where the Minister proposes to make an order under subsection (2), he or she shall give notice of the proposal to— (a) the owner of the copyright, (b) the licensing body concerned, and (c) such persons or organisations representative of educational establishments, and such other persons or organisations, as the Minister thinks fit.
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(4)Where the identity of a person, body or organisation required to be given notice under subsection (3) cannot be ascertained by reasonable enquiry, an advertisement published by the Minister in Iris Oifigiúil and at least two newspapers circulating in the State specifying details of the proposal to extend the scheme or licence shall be deemed to be notice for the purposes of that subsection.
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(5)A notice given under subsection (3) shall inform the persons referred to in that subsection of their right to make oral or written representations to the Minister concerning the proposal within 6 months from the date of the notice, and where any of those persons wishes to make oral representations, the Minister shall appoint a person to hear the representations and to report to the Minister.
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(6)In considering whether to make an order under subsection (2), the Minister shall take into account any representations made to him or her under subsection (5) and such other matters as appear to the Minister to be relevant.
\n
Variation or discharge of order extending scheme or licence.
\n
169.—(1) The owner of the copyright in a work in respect of which an order is in force under section 168 may apply to the Minister for the variation or discharge of the order, stating his or her reasons for making the application.
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(2)The Minister shall not consider an application made within 2 years of the making of the original order, or of the making of an order on a previous application under this section, unless it appears to the Minister that the circumstances are exceptional.
\n
(3)The Minister may confirm the order concerned and where the Minister refuses to confirm the order, he or she shall give notice of the application to— (a) the licensing body concerned, and (b) such persons or organisations representative of educational establishments, and such other persons or organisations, as the Minister thinks fit.
\n
(4)A notice given under subsection (3) shall inform the persons referred to in that subsection of their right to make written or oral representations to the Minister concerning the application under subsection (1) within 2 months from the date of the notice, and where any of those persons wishes to make oral representations, the Minister shall appoint a person to hear the representations and to report to the Minister.
\n
(5)In considering an application under subsection (1), the Minister shall take into account the reasons for the application, any representations made to him or her under subsection (4) and such other matters as appear to the Minister to be relevant.
\n
(6)The Minister may make such order as he or she thinks fit confirming or discharging the order or, as the case may be, the order as previously varied, or varying or further varying the order so as to exclude works from it.
\n
Appeals against orders.
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170.—(1) The owner of the copyright in a work which is the subject of an order made under section 168 may appeal to the High Court which may confirm or discharge the order, or vary it so as to exclude works from it, as it thinks fit, having regard to the matters referred to in section 168
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(2).
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(2)Where the Minister has made an order under section 169 — (a) the person who applied for the order, or (b) any person or organisation representative of educational establishments, or any other persons or organisations as the Minister thinks fit, who were given notice of the application for the order and who made representations under subsection (4) of that section, may appeal to the High Court, which may confirm, vary or discharge the order.
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(3)An appeal under this section shall be brought within 6 weeks of the making of the order, or such further period as the High Court may allow.
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(4)An order made under section 168 or 169 shall not come into force until the expiration of 6 weeks from the making of the order or, where an appeal is brought before the expiration of that period, until the appeal proceedings are disposed of or withdrawn.
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(5)Where an appeal is brought on or before the expiration of the period specified in subsection (4), any decision of the High Court on the appeal shall not affect the validity of anything done in reliance on the order before that decision takes effect.
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Inquiry whether other provisions required.
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171.—(1) The Minister may appoint a person to inquire whether other provisions are required (whether by way of a licensing scheme or general licence) to authorise the making by or on behalf of educational establishments for the purposes of instruction of reprographic copies of literary, dramatic, musical or artistic works, original databases, or of the typographical arrangement of published editions, which— (a) have been lawfully made available to the public, and (b) are of a description which appears to the Minister— (i) not to be regulated by an existing licensing scheme or general licence, and (ii) not to be within the power conferred by section 168 .
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(2)The Minister may prescribe procedures for the establishment and conduct of an inquiry under this section and without prejudice to the generality of the aforesaid may prescribe that— (a) notice be given to persons or organisations appearing to the Minister to represent the owners of the copyright in works of that description, (b) notice be given to persons or organisations appearing to the Minister to represent educational establishments, or (c) written or oral representations may be made by those persons.
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(3)Where procedures are prescribed under subsection (2), they shall not affect the rights of any other person to be given notice of such inquiries or the making of representations by other persons or organisations.
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(4)The person appointed to hold an inquiry under this section shall not recommend the making of other provisions unless he or she is satisfied that— (a) it would be of advantage to educational establishments to be authorised to make reprographic copies of the works concerned, and (b) making those works subject to a licensing scheme or general licence would not conflict with the normal exploitation of the works or prejudice the interests of the owner of the copyright.
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(5)Where a person appointed to hold an inquiry under this section recommends the making of other provisions, he or she shall specify any terms, other than terms as to the charges payable, on which licences under those provisions shall be available.
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Statutory licence where recommendation not implemented.
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172.—(1) The Minister may, within one year of the making of a recommendation under section 171 , by order provide, that where the provision to which subsection (2) applies has not been made pursuant to the recommendation, the making by or on behalf of an educational establishment, for the purposes of instruction, of reprographic copies of the works to which the recommendation relates, shall be deemed to be licensed by the owners of the copyright in the works.
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(2)For the purposes of subsection (1), provision shall be regarded as having been made pursuant to the recommendation where— (a) a certified licensing scheme has been established under which a licence is available to the establishment concerned, or (b) a general licence has been— (i) granted to or for the benefit of that establishment, (ii) referred by or on behalf of that establishment to the Controller under section 158 , or (iii) offered to or for the benefit of that establishment and refused without such a reference, and the terms of the scheme or licence accord with the recommendation.
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(3)An existing licence authorising the making of the copies referred to in subsection (1) (not being a licence granted under a certified licensing scheme or a general licence) shall cease to have effect to the extent that it is more restrictive or more onerous than the licence provided for by an order made under subsection (1).
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(4)An order made under subsection (1) shall provide that the licence be free of any charge and, in relation to other matters, shall be subject to any terms specified in the recommendation and to such other terms as the Minister may think fit.
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(5)Where a copy which would otherwise be an infringing copy is made pursuant to a licence provided for by an order made under subsection (1) and is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an infringing copy for those purposes and for all subsequent purposes.
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(6)An order made under subsection (1) shall come into operation not less than 6 months after it is made and, subject to subsection (7), the order may be varied from time to time.
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(7)An order made under subsection (1) shall not be varied so as to include works other than those to which the recommendation relates or to remove any terms specified in the recommendation.
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(8)In this section, “certified licensing scheme” means a licensing scheme certified under section 173 for the purposes of this section.
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Certification of licensing schemes.
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173.—(1) A person operating or proposing to operate a licensing scheme may apply to the Minister to certify the scheme for the purposes of section 56 , 57 or 172 .
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(2)The Minister may by order certify a licensing scheme where he or she is satisfied that— (a) the licensing body in charge of the scheme is representative of a substantial number of rightsholders in the category of works to which the scheme is designed to apply, and (b) the scheme sets out clearly the charges payable and the other terms and conditions on which licences are to be granted.
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(3)The scheme shall be set out in an order made under subsection (2) and the certification shall come into operation for the purposes of section 56 , 57 or 172 as the case may be— (a) on a date, specified in the order, not less than 8 weeks after the order is made, or (b) where the scheme is the subject of a reference under section 151 , on any later date on which the order of the Controller under that section comes into force, or the reference is withdrawn.
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(4)A variation of the scheme to which this section applies is not effective unless a corresponding amendment of the order is made and the Minister shall make such an amendment in the case of a variation ordered by the Controller on a reference under section 151 , 152 or 153 and may do so in any other case where the Minister thinks fit.
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(5)An order made under subsection (2) shall be revoked where the scheme ceases to operate and may be revoked where it appears to the Minister that the scheme is no longer being operated in accordance with the terms of the order.
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Cable Retransmissions Collective exercise of certain rights in relation to cable retransmissions.
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174.—(1) The owner of the copyright in a literary, dramatic, musical or artistic work, an original database, a sound recording or a film shall have the right to grant or refuse authorisation for cable retransmission of a broadcast or cable programme from another Member State of the EEA in which the work is included.
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(2)The right conferred by this section shall be known and in this section referred to as the “cable retransmission right”.
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(3)The cable retransmission right may be exercised against a cable programme service provider only through a licensing body.
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(4)Where the owner of the copyright in a work has not transferred his or her cable retransmission right to a licensing body, the licensing body which manages rights of the same category shall be deemed to be permitted to manage his or her right.
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(5)Where more than one licensing body manages cable retransmission rights, the owner of the copyright in a work may choose which of them is deemed to be permitted to manage his or her right.
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(6)The owner of the copyright in a work to whom subsection (4) or (5) applies has the same rights and obligations resulting from any relevant agreement between the cable programme service provider and the licensing body as copyright owners who have transferred their cable retransmission right to that licensing body.
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(7)Any rights to which the owner of the copyright in a work may be entitled under subsection (6) shall be exercised within the period of 3 years commencing on the date of the cable retransmission concerned.
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(8)This section shall not affect any rights exercisable by the maker of a broadcast, whether in relation to the broadcast or a work included therein.
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(9)In this section, “cable retransmission” means the reception and immediate retransmission without alteration by way of a cable programme service of a broadcast or of a cable programme initially transmitted from another Member State of the EEA.
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Chapter 17
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Registration of Copyright Licensing Bodies Register of copyright licensing bodies.
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175.—(1) The Controller shall establish and maintain a register of copyright licensing bodies in such form and manner and containing such particulars as the Minister may prescribe to be known as the “Register of Copyright Licensing Bodies” and referred to in this Part as the “Register”.
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(2)The Controller shall keep the Register in such form so that the Register is capable of being used to make a copy of any entry in the Register.
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(3)The Register shall be kept at such place as may be prescribed by the Minister and, subject to the payment of such fee as may be prescribed by the Minister with the consent of the Minister for Finance— (a) the Register shall be made available for inspection by a person at such times and in such manner as may be prescribed by the Minister, and (b) where a request is made to the Controller for a certified or uncertified copy of, or extract from, an entry in the Register, the Controller shall issue a copy of the entry or extract to the applicant.
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(4)An application for registration or renewal of a registration of a licensing body shall be made to the Controller in such form and manner as may be prescribed by the Minister and shall be subject to the payment of such fee as may be prescribed by the Minister with the consent of the Minister for Finance.
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(5)The Controller shall register an applicant or renew a registration where the Controller is satisfied that— (a) the applicant complies with the definition of a licensing body specified in section 38 or 149, and (b) the applicant has provided such information and satisfied such conditions as may be prescribed by the Minister for the purposes of registration.
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(6)The information prescribed under paragraph (b) of subsection (5) and supplied by the applicant for registration shall be placed on the Register, and applicants may apply to the Controller to have such information revised from time to time as circumstances may require.
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(7)The information to be prescribed by the Minister under subsection (5)(b) shall include, as appropriate, the following— (a) the name of the applicant; (b) the address of the applicant; (c) the names of the chairperson and other members of the board or officers, or names of partners, as the case may be, of the applicant; (d) a copy of the memorandum and articles of association, or partnership agreement, as the case may be, of the applicant; (e) details of the scheme; (f) details of the scales of charges or proposed charges to be levied by the applicant; (g) the class of rightsowners represented or proposed to be represented by the applicant; and (h) in the case of a licensing body within the meaning specified in section 38 , the names of the rightsholder or rightsholders in respect of whom the body concerned claims entitlement to receive payments under that section.
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(8)On the registration or renewal of a registration of a licensing body, the Controller shall issue to the applicant a certificate of registration in such form as the Controller shall determine.
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Proof that licensing body may act on behalf of specified classes.
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176.—A certificate granted under section 175
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(8)shall include the particulars specified in subsection (7) of that section and the certificate shall be evidence of the right of the licensing body, until the contrary is proved, to act on behalf of the classes of rightsowners for whom it claims representation rights or on behalf of the rightsowners who have assigned rights to it, or exclusively licensed it, as specified in that certificate.
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Notification of charges.
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177.—(1) A licensing body registered under this Part which proposes to impose a charge, otherwise than in accordance with the scales of charges included in an application for registration or for renewal of a registration, shall provide the Controller in writing with details of the proposed charge not less than one month before the charge comes into effect.
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(2)The registration of a licensing body which fails to comply with subsection (1) is deemed to be cancelled from the date on which the proposed charge comes into effect.
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Validity of certificates of registration.
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178.—(1) A certificate of registration issued under section 175
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(8)shall be valid for 12 months from the date of registration or such lesser period as may be specified by the Controller in the certificate.
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(2)Subject to section 175
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(4), a licensing body registered under this Part may apply for renewal of its registration for further periods each of which shall not exceed 12 months.
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(3)An application for renewal of a registration shall be made not less than one month before the expiration of the period of validity of the certificate of registration.
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(4)A term of renewal of a registration shall take effect from the expiration of the previous registration.
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Refusal of application.
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179.—(1) The Controller may refuse an application for renewal of a registration by a licensing body registered under this Part or cancel the registration of a licensing body where the body no longer fulfils the requirements specified in section 175
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(5).
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(2)The Controller shall remove a licensing body from the Register where its application for renewal of its registration is refused or its registration is cancelled.
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Indemnity for Controller.
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180.—No action or other proceedings shall lie or be maintainable against the Controller (except in the case of wilful neglect of duty) in respect of anything done or omitted to be done by him or her in the bona fide exercise of any functions, powers or duties conferred or imposed by or under this Chapter.
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Obligation of collecting societies to register (copyright).
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181.—(1) Any body operating as a licensing body within the meaning specified in section 38 or 149 shall be obliged to register in accordance with the provisions of this Chapter, and to remain registered for so long as it continues to operate in this capacity.
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(2)Any body to which the provisions of subsection (1) applies which— (a) fails within six months of the commencement of this Chapter to register under the terms of this Chapter, (b) fails within 2 months of its establishment in the case of a body established after the commencement of this Chapter, to register under the terms of this Chapter, or (c) continues to operate as such a body having been removed from the Register for any reason. shall be guilty of an offence.