COPYRIGHT AND RELATED RIGHTS ACT, 2000

• (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.

• (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.

138. Action in respect of construction of building.

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.

Chapter 12 Presumptions

139. Presumptions.

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.

• (2) Copyright shall be presumed to subsist in a work until the contrary is proved.

• (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.

• (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.

• (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(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 Oire-achtas 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(1)(d).

• (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.

• (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.

• (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.

• (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.

Chapter 13 Offences: Copyright

140. Offences.

140.—(1) A person who, without the consent of the copyright Offences. 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.

• (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.

• (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.

• (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.

• (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.

• (6) An offence shall not be committed under subsection (1) or (5) by the under-taking of an act which under this Part may be undertaken without infringing the copyright in a work.

• (7) A person guilty of an offence under subsection (1), (3) or (4) shall be liable—

• (a) on summary conviction, to a F89[class C fine] 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 F89[€130,000], or to imprisonment for a term not exceeding 5 years, or both.

• (8) A person guilty of an offence under subsection (5) shall be liable—

• (a) on summary conviction, to a F89[class C fine] 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 F89[€130,000], or to imprisonment for a term not exceeding 5 years, or both.

141. 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 F90[€130,000], or to imprisonment for a term not exceeding 5 years, or both.

142. Order for delivery up in criminal proceedings.

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.

• (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(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.

• (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.

143. Search warrants and seizure.

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.

• (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.

• (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 F91[class C fine], or to imprisonment for a term not exceeding 12 months, or both.

Chapter 14 Delivery up and Disposal

144. Period after which remedy for delivery up is not available.

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.

• (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.

• (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.

• (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.

145. Order as to disposal of infringing copy, article or device.

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.

• (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.

• (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.

• (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.

• (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.

• (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.

• (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.

146. Amendment to section 23 of Trade Marks Act, 1996.

146.—Section 23 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.”.

Chapter 15 Provision for Preventing Importation

147. Infringing copies, articles or devices may be treated as prohibited goods.

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.

• (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.

• (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.

• (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.

• (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.

• (6) In this section “prohibited goods” means counterfeit or pirated goods within the meaning of the European Communities (Counterfeit and Pirated Goods) Regula-tions, 1996 (S.I. No. 48 of 1996).

148. Power of Revenue Commis- sioners to make regulations.

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.

• (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.

• (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.

• (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.

Chapter 16 Copyright Licensing

149. Licensing schemes and licensing bodies.

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.

• (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.

References and Applications Relating to Licensing Schemes

150. General refer- ences.

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.

151. Reference of proposed licens- ing scheme to Controller.

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.

• (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.

• (3) The Controller may refuse to consider a reference under subsection (1) on the ground that the reference is premature.

• (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.

• (5) An order under subsection (4) may be made for such period as the Controller may determine.

152. Reference of licensing scheme to Controller.

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.

• (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.

• (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.

• (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.

• (5) An order under subsection (4) may be made for such period as the Controller may determine.

153. Further reference of scheme to Controller.

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.

• (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).

• (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.

• (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.

• (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.

• (6) An order under subsection (5) may be made for such period as the Controller may determine.

154. Application for grant of licence in connection with licensing scheme.

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).

• (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).

• (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.

• (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.

• (5) An order under subsection (4) may be made for such period as the Controller may determine.

155. Review of orders made by Control- ler.

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.

• (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.

• (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.

156. Effect of order of Controller as to licensing scheme.

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.

• (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.

• (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.

• (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.

• (5) A direction shall not be made under this section where subsection (6) applies.

• (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.

• (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.

References and Applications Relating to Licensing by Licensing Bodies

157. General refer- ences by licensing bodies.

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.

158. Reference to Controller of proposed licence.

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).

• (2) The Controller may refuse to consider a reference under subsection (1) on the ground that the reference is premature.

• (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.

• (4) An order under subsection (3) may be made for such period as the Controller may determine.

159. Reference to Controller of expiring licence.

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.

• (2) An application under subsection (1) may be made at any time during the last 3 months before the expiration of the licence.

• (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.

• (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.

• (5) An order under subsection (4) may be made for such period as the Controller may determine.

160. Application for review of order made by Control- ler.

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.

• (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.

• (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.

161. Effect of order of Controller as to licence.

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.

• (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.

• (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.

• (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.

Licensing: Miscellaneous

162. General consider- ations: unreason- able discrimina- tion.

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.

• (2) Subsection (1) shall not affect the obligation of the Controller in any case to have regard to all relevant circumstances.

163. Licences for reprographic copying.

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.

164. Licences to reflect payments in respect of underlying rights.

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.

165. Licences to reflect conditions imposed by promoters of events.

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.

• (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.

166. Licences in respect of works included in retransmissions.

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”).

• (2) In so far as the further transmission is to the same area as the first transmis-sion, 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 trans-mission which adequately remunerates that owner in respect of transmissions to that area.

• (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 trans-mission.

167. Implied indemnity in certain schemes and licences for reprographic copying.

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.

• (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.

168. Power to extend application of scheme or licence.

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 F92[education] 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.

• (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.

• (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.

• (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.

• (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.

• (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.

169. Variation or discharge of order extending scheme or licence.

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.

• (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.

• (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.

• (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 represent-ations, the Minister shall appoint a person to hear the representations and to report to the Minister.

• (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.

• (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.

170. Appeals against orders.

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(2).

• (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.

• (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.

• (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.

• (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.

171. Inquiry whether other provisions required.

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 F93[education] 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.

• (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.

• (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.

• (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.

• (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 avail-able.

172. Statutory licence where recom- mendation not implemented.

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 F94[education], 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.

• (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.

• (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).

• (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.

• (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.

• (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.

• (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.

• (8) In this section, “certified licensing scheme” means a licensing scheme certified under section 173 for the purposes of this section.

173. Certification of licensing schemes.

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 F95[, 57C] or 172.

• (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.

• (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 F95[, 57C] 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.

• (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.

• (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.

Cable Retransmissions

174. Collective exer- cise of certain rights in relation to cable retrans- missions.

174.—F96[(1) The owner of the copyright or the owner of a related right in a literary, dramatic, musical or artistic work, an original database, a sound recording or a film contained in a television or radio programme shall have the right to grant or refuse authorisation for cable retransmission (in this section referred to as the "cable retransmission right").]

• F97[(1A) The owner of the copyright or the owner of a related right in a work contained in a television or radio programme shall have the right to grant or refuse the authorisation for non-cable retransmission (in this section referred to as the "non-cable retransmission right").]

• (2) F98[...]

• (3) The cable retransmission right may be exercised against a cable programme service provider only through a licensing body.

• F97[(3A) The non-cable retransmission right may be exercised against the operator of the retransmission service only through a licensing body.]

• F96[(4) Where the owner of the copyright or the owner of a related right in a work has not transferred his or her cable retransmission right or non-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.]

• (5) Where more than one licensing body manages cable retransmission rights, F96[the owner of the copyright or the owner of a related right] in a work may choose which of them is deemed to be permitted to manage his or her right.

• F97[(5A) Where the owner of the copyright or the owner of a related right in a work has not transferred his or her non-cable retransmission right to a licensing body and more than one licensing body manages non-cable retransmission rights of that category, the operator of a retransmission service shall make an application to the Controller and the Controller shall determine which licensing body shall have the right to grant or refuse the non-cable retransmission right.

• (5B) An application under subsection (5A) shall be in writing and in such form as may be determined by the Controller from time to time.

• (5C) Where the identity of the owner of the non-cable retransmission right is known, the Controller shall, at least 28 days prior to making a determination under subsection (5E), give notice in writing to him or her of an application under subsection (5A) and the Controller shall invite him or her to make observations in writing, in relation to that application, not later than 14 days after the date of the notice.

• (5D) For the purposes of making a determination under subsection (5E), the Controller may by notice in writing to the applicant or to the owner of the non-cable retransmission right, require him or her to provide to the Controller, not later than 28 days after the date of the notice, such information relating to the proposed non-cable retransmission or to the non-cable retransmission right as the Controller may reasonably require.

• (5E) The Controller shall, having considered any observations received under subsection (5C) and any information provided under subsection (5D), determine which licensing body has the right to grant or refuse the non-cable retransmission right in the State.]

• F96[(6) The owner of the copyright or the owner of a related right in a work to whom subsection (4), (5) or (5A) applies has the same rights and obligations resulting from any relevant agreement between the cable programme service provider or the operator of a retransmission service, as the case may be, and the licensing body, as an owner who has transferred their cable retransmission right or their non-cable retransmission right, as the case may be, to that licensing body.

• (7) Any rights to which the owner of the copyright or the owner of a related right 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 or the non-cable retransmission concerned.

• (8) This section shall not apply to any cable retransmission right or non-cable retransmission right exercisable by a broadcasting organisation in respect of its own transmission, including where the rights concerned are owned by the broad-casting organisation or have otherwise been transferred to it by other rightholders.

• (8A) A broadcasting organisation and an operator of a retransmission service shall conduct negotiations for the authorisation of a non-cable retransmission in good faith.

• (8B) Where no agreement is concluded between a broadcasting organisation and an operator of a retransmission service or between a licensing body and an operator of a retransmission service regarding the cable retransmission right or the non-cable retransmission right, as the case may be, the parties may engage in mediation within the meaning of the Mediation Act 2017 and that Act shall apply to any such medi-ation subject to the modification referred to in subsection (8C) and any other necessary modifications.

• (8C) The modification mentioned in subsection (8B) is the substitution of the following subsection for subsection (4) of section 8 of the Mediation Act 2017:

• "(4) The mediator may make proposals to the parties to resolve the dispute and any such proposals shall be deemed to have been accepted if the parties do not object to the proposals within 3 months after the date of the proposals."

• (9)
• (a) In this section—

"cable retransmission" means the simultaneous, unaltered and unabridged retransmission by way of a cable programme service of an initial transmis-sion from another Member State, by wire or over the air, including that by satellite, of television or radio programmes intended for reception by the public, regardless of how the operator of a cable retransmission service obtains the programme-carrying signals from the broadcasting organisation for the purpose of retransmission;

"non-cable retransmission" means any simultaneous, unaltered and unabridged retransmission, other than cable retransmission, intended for reception by the public, of an initial transmission from another Member State, by wire or over the air, including that by satellite, but not by online transmission, of television or radio programmes intended for reception by the public provided—

• (i) the retransmission is carried out by a party other than the broadcasting organisation which made the initial transmission or under whose control and responsibility that initial transmission was made, regardless of how the party carrying out the retransmission obtains the programme-carrying signals from the broadcasting organisation for the purpose of retransmis-sion, and

• (ii) where the retransmission is over an internet access service (within the meaning of Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015³), it is carried out in an environment in which the operator of the retransmission service provides a secure retransmission to authorised users.

• (b) In this section, a reference to a licensing body shall be construed as including a reference to a collective management organisation.]

Chapter 17 Registration of Copyright Licensing Bodies

175. Register of copy- right licensing bodies.

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”.

• (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.

• (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.

• (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.

• (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

^3OJ No. L310, 26.11.2015, p.1

• (b) the applicant has provided such information and satisfied such conditions as may be prescribed by the Minister for the purposes of registration.

• (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.

• (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; F99[...]

• (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 F100[that section;]

• F101[(i) in the case of a licensing body in relation to which any provisions of the European Union (Collective Rights Management) (Directive 2014/26/EU) Regulations 2016 (referred to in this section as “Regulations of 2016”) apply, a statement of compliance and appropriate supporting evidence.]

• F101[(7A) In this section and section 179—

“statement of compliance” means a document, in electronic form and signed by a person authorised by the licensing body, stating that the licensing body has complied, is complying and will comply with the requirements imposed on it by the Regulations of 2016 to the extent specified in the document;

“appropriate supporting evidence” means information supporting the statements made in the statement of compliance.

• (7B) The conditions referred to in subsection (5)(b) shall include, in the case of a licensing body in relation to which any provisions of the Regulations of 2016 apply—

• (a) that the licensing body has provided such further information as the Controller may require (in addition to that contained in the statement of compliance and provided as part of the appropriate supporting evidence) for ascertaining whether the licensing body has complied, is complying and will comply with requirements imposed on it by the Regulations of 2016, and