COPYRIGHT AND RELATED RIGHTS ACT, 2000

• (i) forfeited to the rightsowner, 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 rights conferred by this Part would be adequate to compensate the person entitled to those rights and to protect his or her interests.

• (3) Provision shall be made by rules of court as to the service of notice on persons having an interest in the recordings, 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 recording, article or device, the court shall make such order as it thinks fit and may direct the recording, 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 recording, 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 recording, article or device include any person in whose favour an order may be made under this section in respect of the recording, article or device or under section 145 or under section 23 of the Trade Marks Act, 1996.

Chapter 7 Licensing Schemes: Performers' Property Rights Licensing

265. Licensing schemes and licensing bodies.

265.—(1) In this Part—

“licences” means licences to undertake or authorise the undertaking of any of the acts restricted by a performer's property rights;

“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 a performer's property rights, or as exclusive licensee or as agent for him or her, of performers' property rights licences, and whose objects

include the granting of licences relating to the performances of more than one performer;

“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 performers' property rights 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 the performances of more than one performer shall not include licences or schemes relating to—

• (a) performances recorded in a single recording, or

• (b) performances recorded in more than one recording where—

• (i) the performers giving the performances are the same, or

• (ii) the recordings are 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

266. General references.

266.—Sections 267 to 272 apply to licensing schemes which are operated by licensing bodies in relation to the performer's property rights of more than one performer, in so far as they relate to licences for any of the acts restricted by a performer's property rights under section 204 and 205.

267. Reference of proposed licensing scheme to Controller.

267.—(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 claiming 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.

268. Reference of licensing scheme to Controller.

268.—(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.

269. Further reference of scheme to Controller.

269.—(1) Where the Controller has, in respect of a licensing scheme under section 267 or 268 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 persons referred to in paragraph (b).

• (3) Where an order under section 267 or 268 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.

270. Application for grant of a licence in connection with licensing scheme.

270.—(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.

271. Review of orders made by Control- ler.

271.—(1) Where the Controller has made an order under section 270 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.

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

272.—(1) A licensing scheme which has been confirmed or varied by the Controller under section 267, 268 or 269 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 267, 268 or 269 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 a performer's property rights as if he or she had at all material times been the holder of a licence granted by the rightsowner concerned in accordance with the scheme.

• (3) 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) Where the Controller has made an order under section 270 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 a performer's property rights as if he or she had at all material times been the holder of a licence granted by the rightsowner concerned on the terms specified in the order.

References and Applications Relating to Licensing by Licensing Bodies

273. General refer- ences by licensing bodies.

273.—Sections 274 to 277 apply to licences in relation to the performer's property rights of more than one performer, 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 a performer's property rights under sections 204 and 205.

274. Reference to Controller of proposed licence.

274.—(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.

275. Reference to Controller of expiring licence.

275.—(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.

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

276.—(1) Where the Controller has made an order under section 274 or 275, 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.

277. Effect of order of Controller as to licence.

277.—(1) Where the Controller has made an order under section 274 or 275, 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 a performer's property rights as if he or she had at all material times been the holder of a licence granted by the rightsowner concerned on the terms specified in the order.

• (2) The benefit of an order made under section 274 or 275 may be assigned—

• (a) in the case of an order made under section 274, 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 275, where assignment was not prohibited under the terms of the original licence.

• (3) The Controller may direct that an order made under section 274 or 275 or an order made under section 276 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

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

278.—(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.

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

279.—Where a reference or application is made under this Chapter in relation to licensing in respect of the performer's property rights in a recording, the Controller shall take into account, in considering what charges are to be paid for a licence, any payments which the owner of the performer's property right 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 recording, or

• (b) in respect of any performance included in the recording.

Chapter 8 Registration of Licensing Bodies in Respect of Performers' Property Rights

280. Register of licens- ing bodies for performers' prop- erty rights.

280.—(1) The Controller shall establish and maintain a register of licensing bodies in respect of performers' property rights in such form and manner and containing such particulars as the Minister may prescribe to be known as the “Register of Licensing Bodies for Performers' Property Rights” and referred to in this Part as the “Register”.

• (2) The Controller shall keep the Register in such form 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 265, and

• (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 to be prescribed by the Minister under subsection (5)(b) shall include 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, of the applicant;

• (e) details of the scheme;

• (f) details of the scales of charges or proposed charges to be levied by the applicant; F146[...]

• (g) the class of rightsowners represented or proposed to be represented by F147[the applicant;]

• F148[(h) 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.]

• (7) 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.

• F148[(7A) In this section and section 284—

“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 2016 Regulations, and

• (b) that the statement of compliance of the licensing body, together with the appropriate supporting evidence and any further information provided by the licensing body, satisfies the Controller that the licensing body has complied, is complying and will comply with requirements imposed on it by the 2016 Regulations.]

281. Proof that licens- ing body may act on behalf of specified classes.

281.—A certificate granted under section 280(7) shall include the particulars specified in subsection (6) 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.

282. Notification of charges.

282.—(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.

• (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.

283. Validity of certific- ates of registra- tion.

283.—(1) A certificate of registration issued under section 280(7) shall be valid for a period of 12 months from the date of registration or such lesser period as may be specified by the Controller in the certificate.

• (2) Subject to section 280(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.

• (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.

• (4) A term of renewal of a registration shall take effect from the expiration of the previous registration.

284. Refusal of applica- tion.

284.—(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 280(5).

• F149[(1A) The power conferred on the Controller by subsection (1) may not be exercised by reason of a failure by a licensing body to provide a statement of compliance or appropriate supporting evidence—

• (a) if—

• (i) the licensing body has, before the expiration of the period of validity of the certificate of registration, submitted to the Controller an applica-tion for an extension of the time within which the statement of compliance or appropriate supporting evidence is required to be provided, accompanied by a satisfactory explanation for the application,

• (ii) the Controller has granted an extension of 28 days from the expiration of that period, and

• (iii) the failure does not continue beyond the extension,

or

• (b) unless the Controller has, after the time within which the statement of compliance or appropriate supporting evidence is required to be provided, issued a written notice requiring the person to provide a statement of compliance or appropriate supporting evidence within a specified period and the Controller is satisfied that the notice has not been complied with.]

• (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.

285. Indemnity for Controller.

285.—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.

286. Obligation of collecting societ- ies to register (performers' property rights).

286.—(1) Any body operating as a licensing body within the meaning specified in section 265 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.

• (2) Any body to which the provisions of subsection (1) applies which—

• (a) fails within 6 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.

• (3) A person guilty of an offence under subsection (2) shall be liable—

• (a) on summary conviction, to a F150[class C fine], or to imprisonment for a term not exceeding 12 months, or both, or

• (b) on conviction on indictment, to a fine not exceeding F150[€130,000], or to imprisonment for a term not exceeding 5 years, or both.

Chapter 9 Qualification: Performances

287. Definition of qualifying person.

287.—In this Part, and in Part IV—

“qualifying country” means—

• (a) Ireland,

• (b) another Member State of the EEA, F151[...]

• (c) to the extent that an order under section 289 so provides, a country desig-nated under that F152[section, or]

• F153[(d) any country, territory, state or area that is a contracting party to—

• (i) the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty, adopted by the Diplomatic Conference at Geneva on December 20, 1996, or

• (ii) the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, done at Rome on October 26, 1961;]

“qualifying individual” means a citizen or subject of, or an individual domiciled or ordinarily resident in, a qualifying country; and

“qualifying person” means an Irish citizen, or an individual domiciled or ordinarily resident in the State.

288. Qualifying performance.

288.—A performance is a qualifying performance for the purposes of the provisions of this Part and Part IV if it is given by a qualifying individual or a qualifying person, or takes place in a qualifying country, territory, state or area, in accordance with this Chapter.

289. Designation of qualifying coun- tries.

289.—(1) The Government may be order designate as a qualifying country enjoying protection under this Part and Part IV any country, territory, state or area, as to which the government is satisfied that provision has been or will be made under its law giving adequate protection for Irish performances.

• (2) For the purposes of this section, an “Irish performance” means a performance—

• (a) given by an Irish citizen, or by an individual who is domiciled or ordinarily resident in the State, or

• (b) taking place in the State.

• (3) Where the law of that country, territory, state or area provides adequate protection only for certain descriptions of performance, an order under subsection (1) designating that country, territory, state or area may contain provision limiting to a corresponding extent the protection afforded by this Part or Part IV in relation to performances connected with the country, territory, state or area.

290. Territorial waters and Continental Shelf.

290.—For the purposes of this Part and Part IV—

• F154[(a) acts undertaken in, or, under or over—

• (i) the waters in the portion of the sea which comprise the territorial sea of the State,

• (ii) the waters in all areas of the sea to which the internal or inland waters of the State are extended by section 8 of the Maritime Jurisdiction Act 2021, and

• (iii) the waters in any area which is for the time being a designated area within the meaning of the Maritime Jurisdiction Act 2021,]

and

• (b) acts undertaken on an Irish ship, aircraft or hovercraft registered under the laws of the State,

shall be deemed to have been undertaken in the State.

Chapter 10 Duration of Rights in Performances

291. F155[Duration of rights.

291.—(1) The rights conferred by this Part shall expire 50 years after the date of the performance.

• (2) Notwithstanding subsection (1)—

• (a) if a recording of the performance is lawfully made available to the public within the period referred to in subsection (1), the rights shall expire 50 years from the date the recording is first so made available, and

• (b) notwithstanding paragraph (a) but subject to subsection (3), if a sound recording of the performance is lawfully made available to the public within the period referred to in subsection (1), the rights shall expire 70 years from the date the recording is first so made available.

• (3) Subsection (2)(b) applies to a sound recording—

• (a) in regard to which the rights of the performer and the producer would still have been protected on 1 November 2013, had the European Union (Term of Protection of Copyright and Certain Related Rights) (Directive 2011/77/EU) Regulations 2013 not come into operation on that date, or

• (b) that is created on or after 1 November 2013.

• (4) The terms provided for in subsections (1) and (2) shall be calculated from the first day of January of the year following the event that gives rise to them.]

Chapter 11 Performers' Property Rights

292. Performers' prop- erty rights.

292.—(1) The rights conferred on a performer by sections 204, 205, 206 and 207 are property rights and shall be known and in Parts III and IV referred to as “performers' property rights”.

• (2) Where different persons are (whether in consequence of a partial assignment or otherwise) entitled to different aspects of a performer's property rights in relation to a performance, the rightsowner for the purposes of Parts III and IV is the person who is entitled to the aspect of those rights relevant for those purposes.

• (3) Where a performer's property rights (or any aspect of them) are owned jointly by more than one person, references in this Part to the rightsowner shall include references to all those owners, such that, in particular, any requirement of the licence of the rightsowner requires the licence of all of them.

• (4) References in Parts III and IV to the consent of a performer shall be construed in relation to the performer's property rights as references to the consent of the rightsowner.

Chapter 12 Transmission of Performers' Property Rights

293. Assignment and licences.

293.—(1) A performer's property rights are transmissible by assignment, by test-amentary disposition or by operation of law, as personal or moveable property.

• (2) A transmission of a performer's property rights 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 a performer has the right to authorise or prohibit, or

• (b) to part but not the whole of the period for which the rights in the performance are to subsist.

• (3) An assignment of a performer's property rights, whether in whole or in part, is not effective unless it is in writing and signed by or on behalf of the assignor.

• (4) A licence granted by the owner of a performer's property rights is binding on every successor in title to his or her interest in the rights, 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 rightsowner shall be construed accordingly.

• (5) A licence granted by a prospective owner of a performer's property rights is binding on every successor in title to his or her interest (or prospective interest) in the rights, 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 rightsowner shall be construed accordingly.

294. Prospective ownership of performers' prop- erty rights.

294.—(1) Where, by an agreement made in relation to a performer's property rights in respect of a future performance and signed by or on behalf of the performer, the performer purports to assign his or her rights in such a performance, whether in whole or in part, to another person, then where, on the rights 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 rights to be vested in him or her, the rights shall vest in the assignee or his or her successor in title under this section or any other person claiming under him or her.

• (2) Where, at the time when any performer's property right comes into existence, the person who, if he or she were then living, would be entitled to the right is dead, the right shall devolve as if it had existed immediately before his or her death and he or she had then been the owner of the right.

• (3) The rights of an assignee in a future performance shall not be prejudiced by the fact that the agreement referred to in subsection (1) was made before the commencement of this section.

• (4) In this Part—

“future performance” means any performance which will or may take place at some date in the future;

“prospective owner”, in relation to a performer's property rights, includes a person who is prospectively entitled to those rights by virtue of an agreement referred to in subsection (1).

295. Exclusive licences.

295.—(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 a performer's property rights authorising 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 rightsowner and references to an exclusive licensee shall be construed accordingly.

• (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.

296. Performers' prop- erty rights to pass under will with certain original record- ings.

296.—Where, under a bequest (whether specific or general), a person is entitled, beneficially or otherwise, to any material thing containing an original recording of a performance which had not been made available to the public before the death of the testator, the bequest shall be construed as including any performer's property rights in relation to the recording in so far as the testator was the owner of the rights 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.

297. Presumption of transfer of rental right in case of film production agreement.

297.—(1) Without prejudice to the right of a performer to receive equitable remuneration in respect of a rental right, where an agreement concerning film production is concluded between a performer and a film producer, the performer shall be presumed, unless the agreement provides to the contrary, to have trans-ferred to the film producer any rental right in relation to the film arising by virtue of the inclusion of a recording of his or her performance in the film.

• (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 performer shall not restrict the operation of section 293 or 294.

• (3) The reference in subsection (1) to an agreement concluded between a performer and a film producer includes any agreement whether made by them directly or through intermediaries.

• (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.

298. Right to equitable remuneration where rental right is trans- ferred.

298.—(1) Without prejudice to the generality of section 297, where a performer has transferred his or her rental right he or she retains the right to equitable remuneration for the rental.

• (2) The right to equitable remuneration conferred by this section shall not be waived by the performer and the performer 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.

• (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.

• (4) Equitable remuneration under this section is payable by the person to whom the rental right is transferred or any successor in title.

• (5) Subject to section 299, 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.

• (6) An agreement is void in so far as it purports to exclude or restrict the right to equitable remuneration conferred by this section.

• (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.

• (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 remu-neration under this section on behalf of more than one performer.

299. Equitable remu- neration: refer- ence of determin- ation of amount to Controller.

299.—(1) In default of agreement as to the amount of equitable remuneration payable under section 298, the person by or to whom it is payable may apply to the Controller for an order under subsection (4).

• (2) Subject to subsection (3), a person by or to whom equitable remuneration is payable under section 298 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.

• (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.

• (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 performer.

• (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.

• (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.

• (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 under this section.

299A. F156[Termina- tion of assign- ment agreement.

299A.—(1) If, in relation to a sound recording of a performance—

• (a) the performer has made an assignment agreement with the producer,

• (b) a period of at least 50 years has elapsed after the sound recording was first lawfully made available to the public,

• (c) the producer does not offer copies of the sound recording for sale in suffi-cient quantities, or does not make it available to the public, by wire or wireless means, in such a way that members of the public may access it from a place and time chosen by them,

the performer may, in writing, notify the producer of the performer’s intention to terminate the assignment agreement referred to in paragraph (a).

• (2) If, not later than one year from the date of notification by the performer of his or her intention to terminate the assignment agreement, the producer has not offered copies of the sound recording for sale, or made it available to the public, as described in subsection (1)(c), the performer may terminate the assignment agreement by notice in writing to the producer.

• (3) Upon the termination of the assignment agreement in accordance with subsection (2), all rights of the producer in the sound recording shall expire and the rights transferred or assigned to the producer by the performer under the assignment agreement shall revert to the performer.

• (4) An agreement is void in so far as it purports to exclude or restrict the right to terminate an assignment agreement conferred by this section.

• (5) Where the performance of more than one performer is captured in a sound recording and more than one assignment agreement has been made in relation to that sound recording, subsection (3) shall not take effect until the last of the existing assignment agreements in relation to that sound recording has been terminated in accordance with subsection (2).

• (6) In this section and in sections 299B to 299E—

"assignment agreement" means an agreement between the performer and the producer by which the performer transfers or assigns one or more of the transmiss-ible rights conferred on him or her by this Part to the producer;

"producer" means the person for the time being entitled to the copyright in the sound recording.]

299B. F157[Annual supplementary remuneration.

299B.—(1) If, in relation to a sound recording of a performance—

• (a) the performer has made an assignment agreement that gives the performer the right to claim a non-recurring remuneration, and

• (b) the minimum period specified in section 299A(1)(b) has elapsed,

the performer shall have the right to obtain an annual supplementary remuneration from the producer for each full year immediately following the fiftieth year after the sound recording was first lawfully made available to the public.

• (2) The right of the performer to obtain an annual supplementary remuneration in accordance with this section shall not be waived by the performer and an agreement is void in so far as it purports to exclude or restrict that right.

• (3) The overall amount to be set aside, at least once a year, by a producer for payment of annual supplementary remuneration pursuant to this section shall correspond to 20% of the gross revenue that the producer has derived for the preceding full year referred to in subsection (1).

• (4) The right of a performer referred to in subsection (1) to obtain an annual supplementary remuneration in accordance with this section shall be administered by a collecting society on his or her behalf as follows:

• (a) the producer shall pay the annual supplementary remuneration referred to in subsection (1) to which the performer is entitled to a collecting society within one month of its having been set aside;

• (b) the collecting society shall then distribute the annual supplementary remu-neration referred to in paragraph (a) to the performer.

• (5) For the purposes of this section, the producer or the former producer of a sound recording shall, if requested by the performer in writing, inform the performer in writing as soon as may be, and in any event not more than 40 days after receipt of the said request, of any information in the possession of the producer or former producer that may be necessary for the performer in order to secure payment of that remuneration.

• (6) If the producer or the former producer fails to supply the information specified in subsection (5) within the period specified in that subsection, the performer may seek an injunction from the High Court requiring the producer or former producer to provide the information.

• (7) The "gross revenue" referred to in subsection (3) means the revenue, before deducting costs, derived by the producer from the exclusive rights of distribution, reproduction and making available of the sound recording.]

299C. F158[Recurring payments.

299C.—If, in relation to a sound recording of a performance—

• (a) an assignment agreement gives the performer the right to claim recurring payments, and

• (b) the period specified in section 299A(1)(b) has elapsed,

neither advance payments nor any contractually defined deductions shall be deducted from the payments made to the performer after the period referred to in paragraph (b) has elapsed.]

299D. F159[Application of sections 299A to 299C.

299D.—Sections 299A to 299C shall apply to assignment agreements in relation to sound recordings—

• (a) in regard to which the rights of the performer and the producer would still have been protected on 1 November 2013, had the European Union (Term of Protection of Copyright and Certain Related Rights) (Directive 2011/77/EU) Regulations 2013 not come into operation on that date, or

• (b) that are created on or after 1 November 2013.]

299E. F160[Deemed continuation in force and modific- ation of assign- ment agree- ments.

299E.—(1) Where an assignment agreement was made before 1 November 2013, it shall be deemed to continue in force, unless it clearly indicates otherwise, until the expiration of the rights of the performer under this Act that were transmitted pursuant to the assignment agreement, or until the assignment agreement is terminated pursuant to section 299A.

• (2) An assignment agreement that entitles a performer to recurring payments and which was concluded before 1 November 2013 may be modified for the benefit of the performer once the period specified in section 299A(1)(b) has elapsed until the expiration of the rights of the performer under this Act that were transmitted pursuant to the assignment agreement, or until the assignment agreement is terminated pursuant to section 299A.]

Chapter 13 Transmission of Recording Rights and Performers' Non-Property Rights

300. Performers' non- property rights.

300.—(1) The rights conferred on a performer by sections 203, 209 and 212 are non-property rights and shall be known and in Parts III and IV referred to as “performers' non-property rights”.

• (2) A performer's non-property rights are not assignable or transmissible, except to the extent provided for in subsection (3).

• (3) On the death of a person entitled to a performer's non-property rights—

• (a) the rights pass by testamentary disposition to such person as the person entitled to the right may direct, and

• (b) where there is no such direction, the right is exercisable by the personal representatives of the person entitled to the right.

• (4) References in Parts III and IV to the performer, in the context of the person having any right referred to in subsection (1), shall be construed as references to the person for the time being entitled to exercise those rights.

• (5) Where, under subsection (3)(a), a right becomes exercisable by more than one person, it is exercisable by each of them.

• (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.

301. Transmissibility of rights of person having recording rights.

301.—(1) The rights conferred by this Part on a person having recording rights in relation to a performance are not assignable or transmissible.

• (2) Subsection (1) shall not affect the operation of section 215(2)(b) or section 215(3)(b) in so far as those provisions confer rights under this Part on a person to whom the benefit of a contract or licence is assigned.

302. Consent.

302.—(1) For the purposes of this Part and Part IV, consent by a person having a performer's non-property rights, or by a person having recording rights, may be given in relation to a specific performance, a specified description of performances or performances generally, and may relate to past or future performances.

• (2) A person having recording rights in relation to a performance shall be bound by any consent given by a person through whom he or she derives his or her rights under the exclusive recording contract or licence concerned, in the same way as if the consent had been given by him or her.

• (3) Where a performer's non-property right passes to another person, any consent binding on the person previously entitled to the right binds the person to whom the right passes in the same way as if the consent had been given by him or her.

Chapter 14 Remedies: Owner of Performers' Property Rights

303. Infringement actionable by rightsowner.

303.—(1) An infringement of a performer's property rights is actionable by the rightsowner.

• (2) In an action for infringement of a performer's property rights under this section all relief by way of damages, injunctions, account of profits or otherwise is available to the plaintiff as it is available in respect of the infringement of any other property right.

• (3) Where, in an action for infringement of a performer's property rights, the defendant does not admit that the plaintiff is owner of the performer's property rights, the court may direct that evidence in relation to ownership of the performer's property rights be given on affidavit and the court may decide the issue on consideration of 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.

• (4) Hearsay evidence may be accepted for the purposes of any hearing under subsection (3).

304. Award of damages in infringement action.

304.—(1) The court may, in an action for infringement of a performer's property right award such damages as, having regard to all the circumstances of the case, it considers just.

• (2) Without prejudice to any other remedy, where, in an action for infringement of a performer's property rights, it is shown that at the time of the infringement the defendant did not know and had no reason to believe that the rights subsisted in the recordings to which the action relates, the plaintiff is not entitled to damages against the defendant.

• (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.

305. Undertakings concerning licences of right.

305.—(1) Where, in proceedings for infringement of a performer's property rights 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 255, 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.

• (2) An undertaking under subsection (1) may be given at any time before the final order in the proceedings without any admission of liability.

• (3) Nothing in this section shall affect the remedies available in respect of an infringement committed before a licence was available as of right.

Chapter 15 Rights and Remedies: Exclusive Licensee

306. Rights and remedies of exclusive licensee.

306.—(1) An exclusive licensee has, except as against the owner of the performer's property rights, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment.

• (2) The rights and remedies of an exclusive licensee are concurrent with those of the rightsowner and references in sections 255, 256, 303, 304 and 305 to the rightsowner shall be construed accordingly.

• (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 rightsowner.

307. Exercise of concurrent rights.

307.—(1) Where an action for infringement of a performer's property rights brought by the rightsowner 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 rightsowner 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 plaintiff or added as a defendant.

• (2) A rightsowner 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.

• (3) Nothing in this section shall affect the granting of interlocutory relief on an application by the rightsowner or exclusive licensee.

• (4) Where an action for infringement of a performer's property rights is brought which relates, whether in whole or in part, to an infringement in respect of which the rightsowner and an exclusive licensee have or had concurrent rights of action—

• (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; and

• (c) the appropriate court shall, where an account of profits is directed, apportion the profits between them as the appropriate court thinks fit, subject to any agreement between the rightsowner and the exclusive licensee.

• (5) Subsection (4) shall apply whether or not the rightsowner and the exclusive licensee are both parties to the action.

• (6) Before—

• (a) applying for an order for delivery up under section 255,

• (b) applying for an order to seize illicit recordings, articles or devices under section 256, or

• (c) exercising the right to seize and detain conferred by section 257,

the rightsowner shall notify any exclusive licensee having concurren rights and the appropriate court may, on the application of the licensee, make such order for delivery up, seizure of illicit recordings, articles or devices or, as the case may be, prohibiting or permitting the exercise by the rightsowner of the right to seize and detain, as it thinks fit, having regard to the terms of the licence between the rightsowner and the exclusive licensee.

Chapter 16 Remedies: Owner of Performers' Non-Property Rights and Person Having Recording Rights

308. Infringement actionable as a breach of stat- utory duty.

308.—(1) An infringement of—

• (a) a performer's non-property rights, or

• (b) any right conferred by this Part on a person having recording rights,

is actionable as a breach of statutory duty owed to the person entitled to the right.

• (2) A person may apply to the appropriate court for damages or other relief in respect of an infringement of a right referred to in subsection (1).

PART IV Performers' Moral Rights

309. Paternity right.

309.—(1) Subject to the exceptions specified in section 310, a performer shall, where practicable, have the right to be identified as the performer of his or her performance.

• (2) Where a performer uses a pseudonym, initials or other form of identification that form shall be used to identify his or her performance.

• (3) The right conferred by this section shall be known and in this Part referred to as the “paternity right”.

310. Exceptions to paternity right.

310.—(1) The paternity right shall not be infringed by anything done under section 222, 223(2), 237 or 238.

• (2) The paternity right shall not apply in relation to a performance or a recording of a performance made for the purpose of reporting current events.

311. Integrity right.

311.—(1) Subject to the exceptions specified in section 312, a performer shall have the right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his or her performance or a recording thereof, which would prejudice his or her reputation.

• (2) The right conferred by this section shall be known and in this Part referred to as the “integrity right”.

312. Exceptions to integrity right.

312.—(1) Subject to subsection (2), the integrity right shall not apply in relation to a performance or a recording of a performance made for the purpose of reporting current events.

• (2) The integrity right is not infringed by anything done for the purposes of—

• (a) avoiding any contravention of civil or criminal law,

• (b) complying with a duty imposed by or under an enactment, or

• (c) 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 offends public morality or which is likely to encourage or incite to crime or to lead to public disorder.

• (3) Subsection (2) shall not apply unless the performer is identified at the time of the act concerned or has previously been identified in or on recordings of the performance which have been lawfully made available to the public and there is a sufficient disclaimer.

• (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 performer is then identified, appearing along with the identification, that the recording has been subjected to an action to which the performer has not consented.

313. Secondary infringement of integrity right: possessing or dealing.

313.—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 recording of a performance 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 311.

314. False attribution of performances.

314.—(1) A person has the right not to have a performance falsely attributed to him or her as performer.

• (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 recording of a performance, in or on which there is a false attribution, knowing or having reason to believe that the attribution is false.

• (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 recording of a performance which has been altered as being a recording of the unaltered performance, knowing or having reason to believe that the recording has been altered.

• (4) In this Part, “attribution”, in relation to a performance, means a statement, express or implied, as to who is the performer.

315. F161[Duration of moral rights.

315.—(1) The rights conferred by this Part shall expire 50 years after the date of the performance.

• (2) Notwithstanding subsection (1)—

• (a) if a recording of the performance is lawfully made available to the public within the period referred to in subsection (1), the rights shall expire 50 years from the date the recording is first so made available, and

• (b) notwithstanding paragraph (a) but subject to subsection (3), if a sound recording of the performance is lawfully made available to the public within the period referred to in subsection (1), the rights shall expire 70 years from the date the recording is first so made available.

• (3) Subsection (2)(b) applies to a sound recording—

• (a) in regard to which the rights of the performer and the producer would still have been protected on 1 November 2013, had the European Union (Term of Protection of Copyright and Certain Related Rights) (Directive 2011/77/EU) Regulations 2013 not come into operation on that date, or

• (b) that is created on or after 1 November 2013.

• (4) The terms provided for in subsections (1) and (2) shall be calculated from the first day of January of the year following the event that gives rise to them.]

316. Waiver of rights.

316.—(1) Subject to subsection (3), any of the rights conferred by this Part may be waived.

• (2) A waiver made under this section shall be in writing and signed by the person waiving the right.

• (3) A waiver made under subsection (1)—

• (a) may relate to a specific performance or a recording thereof, to performances or recordings thereof of a specified description or to performances or recordings there of generally, and may relate to existing or future performances or recordings thereof, 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 rights in the performance or recording thereof, or performances or recordings thereof, 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.

• (4) Nothing in this Part 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).

• (5) It shall not be an infringement of any of the rights conferred by this Part for a person to undertake any act where the person entitled to the right conferred by this Part has consented to the use of those rights by that other person.