Copyright Enforcement
COPYRIGHT ACT
| Chapter 9
Remedies: Copyright Owner |
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| 127.—(1) An infringement of the copyright in a work is actionable by the copyright owner. | |
| (2) In an action for infringement of the copyright in a work under this section, all relief by way of damages, injunction, account of profits or otherwise is available to the plaintiff as it is available in respect of the infringement of any other property right. | |
| (3) Subject to section 139 , where in an action for infringement of the copyright in a work the defendant does not admit that the plaintiff is the owner of the copyright the court may direct that evidence in relation to ownership of the copyright be given on affidavit and the court may decide the |
| issue having considered any affidavit presented to it unless it is satisfied that any conflict of evidence between the affidavits may not be resolved other than by hearing oral testimony in which case the court may order that oral evidence may be adduced. | |
| (4) Hearsay evidence may be accepted for the purposes of any hearing under subsection (3). | |
Equitable remuneration: reference of determination of amount to Controller. |
128.—(1) The court may, in an action for infringement of copyright award such damages as, having regard to all the circumstances of the case, it considers just. |
| (2) Without prejudice to any other remedy, where, in an action for infringement of the copyright in a work, it is shown that at the time of the infringement the defendant did not know and had no reason to believe that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against the defendant. | |
| (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. | |
| 129.—In an action for infringement of the copyright in respect of the construction of a building no injunction or other order shall be made— | |
Action in respect of construction of building |
(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. | |
Infringement actionable by copyright owner. |
130.—(1) Where, in proceedings for infringement of the copyright in a work in respect of which a licence is available as of right, the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the Controller— |
| (a) no injunction shall be granted against the defendant, | |
| (b) no order for delivery up shall be made under section 131 , and | |
| (c) the amount recoverable against the defendant by way of damages or on an account of profits shall not exceed three times the amount which would have been payable by the defendant as licensee where a licence on those terms had been granted before the earliest infringement. |
| Award of damages in infringement action. | (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. |
|
| 131.—(1) Where a person— | |
| . | (a) in the course of a business, trade or profession, has in his or her possession, custody or control an infringing copy of a work, |
| (b) has in his or her possession, custody or control an article specifically designed or adapted for making copies of a copyright work, knowing or having reason to believe that it has been or is to be used to make infringing copies, or | |
| (c) has in his or her possession, custody or control a protection-defeating device, | |
Undertakings concerning licences of right. |
the owner of the copyright in the work may apply to the appropriate court for an order that the infringing copy, article or device be delivered up to him or her or to such other person as the court may direct. |
| (2) An application under subsection (1) shall not be made after the expiration of the period specified in section 144 (1) as being the limit of the period for delivery up and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order as to the disposal of the infringing copy, article or device. | |
| (3) A person to whom an infringing copy, article or device is delivered up pursuant to an order made under this section shall, where an order under section 145 as to the disposal of the infringing copy, article or device is not made, retain it pending the making of an order, or the decision not to make an order, under that section. | |
| 132.—(1) Without prejudice to section 133 , where the owner of the copyright in a work applies to the District Court, it may, where satisfied that there are reasonable grounds for believing that there are being hawked, carried about or marketed— | |
| (a) infringing copies of the work, | |
| (b) articles specifically designed or adapted for making copies of a work, knowing or having reason to believe that it has been or is to be used for making infringing copies of a work, or |
Order for delivery up. |
(c) protection-defeating devices, |
| authorise by order a member of the Garda Síochána to seize without warrant the copies, articles or devices and to bring them before the District Court. | |
| (2) On being satisfied that any copy, article or device referred to in subsection (1) is— | |
| (a) an infringing copy, | |
| (b) articles specifically designed or adapted for making copies of a work, which the person hawking, carrying about or marketing those articles, knows or has reason to believe that they have been or are to be used to make infringing copies of a work, or | |
| (c) a protection-defeating device, | |
| the District Court may order the copy, article or device to be destroyed or to be delivered up to the owner of the copyright or otherwise dealt with as the Court may think fit. | |
Application to District Court for seizure of infringing copies, articles or devices. |
(3) In an application to the District Court under subsection
(1) or, in any ex parte application or interlocutory motion to a court of competent jurisdiction for an order which would permit the applicant to enter and search premises or place specified therein and take possession of material found therein on terms set out in such order, the court hearing such an application may receive hearsay evidence to the effect that the witness or deponent believes that the material may be found in a particular location. |
| (4) A witness or deponent shall not be obliged to indicate the source of the information upon which that witness formed the belief that material may be found in a particular location. | |
| (5) After the implementation of an order made under this section, the court may, on the application of a person aggrieved by it, award damages against the applicant for the order as it considers just, on being satisfied that— | |
| (a) no infringement of copyright has been established, and | |
| (b) the information on which the copyright owner applied for the order was given maliciously. | |
| 133.—(1) Where it would be impracticable for the owner of the copyright in a work to apply to the District Court for an order under section 132 , a copy, article or device referred to in section 132 (1) in respect of which the copyright owner would |
| be entitled to apply for an order for delivery up under section 131 , may be seized and detained by the copyright owner or a designated representative thereof where the copy, article or device is found being hawked, carried about or marketed. |
| (2) The right to seize and detain conferred by subsection (1) is exercisable, subject to subsections (4) to (8) of this section, and is subject to any decision of the court relating to disposal of infringing copies, articles or devices under section 145 . |
| (3) A person who seizes any infringing copies, articles or devices under this section shall apply to the District Court for an order to dispose of those copies, articles or devices within 30 days of the seizure. |
| (4) Before any infringing copies, articles or devices are seized under this section notice of the time and place of the proposed seizure shall be given to a member of the Garda Síochána in the District Court Area in which the copies, articles or devices are to be seized. |
| (5) A person exercising the right to seize and detain conferred by subsection (1) may enter premises to which members of the public have access. |
| (6) A person exercising the right to seize and detain conferred by subsection (1) may not seize anything in the possession, custody or control of a person at his or her permanent or regular place of business, trade or profession, and may not use any force. |
| (7) Without prejudice to the generality of subsection (6), a person exercising the right to seize and detain conferred by subsection (1) may make an inventory or prepare other evidence of infringement of copyright or potential infringement of copyright. |
| (8) At the time when any infringing copies, articles or devices are seized under this section there shall be given to the owner, occupier or person in charge of the place where the copies, articles or devices are seized a notice, in the prescribed form, informing the person of the right of the owner of the copies, articles or devices being seized to apply to the District Court for the return of the copies, articles or devices on the grounds that they are not— |
| (a) infringing copies of a work, |
| (b) articles that have been or are to be used to make infringing copies, or |
Right of copyright owner to seize infringing copies, articles or devices, etc. |
(c) protection-defeating devices. |
| (9) Without prejudice to the generality of subsection (8), the Minister shall prescribe the form of the notice to be given under that subsection and the form shall specify— | |
| (a) the name and the address of the person claiming to be the owner of the copyright in the work concerned, | |
| (b) the statutory authority for the seizure, | |
| (c) the grounds that the person seizing the copies, articles or devices has for such seizure, and | |
| (d) a list of that which is seized. | |
| (10) The owner of any copies, articles or devices seized under this section may apply to the District Court for the return of those copies, articles or devices. | |
| (11) Rules of court shall be made under this section and the rules shall provide for procedures to enable applications to be made and dealt with in an expeditious manner. | |
| (12) Where there has been an exercise of the right to seize and detain, conferred by subsection (1), the court may, on the application of a person aggrieved by it, award damages against a person who exercises that right as it considers just, on being satisfied that— | |
| (a) no infringement of copyright has been established, and | |
| (b) the person had no reasonable grounds for such seizure. | |
| 134.—(1) Subject to the provisions of this Act, the owner of any copyright shall be entitled to all such rights and remedies, in respect of the conversion or detention by any person of— | |
| (a) infringing copies of a work, | |
| (b) articles that have been or are to be used to make infringing copies, or | |
| (c) protection-defeating devices, | |
| as he or she would be entitled to if he or she were the owner of every such copy, article or device and had been the owner thereof since the time when it was made. | |
| (2) Where by virtue of section 12(2) (which relates to successive conversions or detentions) of the Statute of Limitations, 1957 , the title of the owner of the copyright to such a copy, article or device referred |
| to in subsection (1) of this section would (if he or she had been the owner of the copy, article or device) have been extinguished on the expiration of the period referred to in the said subsection (2), he or she shall not be entitled to any rights or remedies under subsection (1) of this section in respect of anything done in relation to that copy, article or device after the expiration of that period. | |
| (3) In awarding damages for conversion, the court shall take into account all the circumstances of the case and shall award such sum as it considers just. | |
| Chapter 10
Rights and Remedies: Exclusive Licensee |
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| 135.—(1) An exclusive licensee has, except as against the copyright owner, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment. | |
| (2) The rights and remedies of an exclusive licensee are concurrent with those of the copyright owner and references in sections 127 to 134 to the copyright owner shall be construed accordingly. | |
Rights of owner of copyright in respect of infringing copy. |
(3) In proceedings brought by an exclusive licensee under this section a defendant may avail of any defence which would have been available to the defendant if the action had been brought by the copyright owner. |
| 136.—(1) Where an action for infringement of the copyright in a work brought by the copyright owner or an exclusive licensee relates, whether in whole or in part, to an infringement in respect of which they have concurrent rights of action, the copyright owner or, as the case may be, the exclusive licensee, may not, without the leave of the appropriate court, proceed with the action unless the other is either joined as a plaintiff or added as a defendant. | |
| (2) A copyright owner or exclusive licensee who is added as a defendant under subsection (1) shall not be liable for any costs in an action unless he or she takes part in the proceedings. | |
| (3) Nothing in this section shall affect the granting of interlocutory relief on an application by the copyright owner or exclusive licensee. | |
| (4) Where an action for infringement of copyright is brought which relates, whether in whole or in part, to an infringement in respect of which the copyright owner and an exclusive licensee have or had | |
| concurrent rights of action, then, the following shall apply— | ||||
| (a) in assessing damages the appropriate court shall have regard to— | ||||
| (i) the terms of the licence, and | ||||
| (ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement; | ||||
Rights and remedies of exclusive licensee. |
(b) no account of profits shall be directed where an award of damages has been made, or an account of profits has been directed, in favour of one of them in respect of the infringement; | |||
| (c) the appropriate court shall, where an account of profits is directed, apportion the profits between them as the court thinks fit, subject to any agreement between the copyright owner and the exclusive licensee. | ||||
| (5) Subsection (4) shall apply whether or not the copyright owner and the exclusive licensee are both parties to the action. | ||||
Exercise of concurrent rights. |
(6) Before— | |||
| (a) applying for an order for delivery up under section 131 , | ||||
| (b) applying for an order to seize infringing copies, articles or devices under section 132 , or | ||||
| (c) exercising the right to seize and detain conferred by
section 133 , |
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| the copyright owner shall notify any exclusive licensee having concurrent rights and the court may, on the application of the licensee, make such order for delivery up, seizure of infringing copies, articles or devices or, as the case may be, prohibiting or permitting the exercise by the copyright owner of the right of seizure and detention as it thinks fit, having regard to the terms of the licence between the copyright owner and the exclusive licensee. | ||||
| Chapter 12
Presumptions |
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| 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 Oireachtas referred to in section 193 , or |
| (e) in circumstances in which the copyright in the work is conferred on another person by an enactment referred to in section 23 (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 |
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Offences. |
140.—(1) A person who, without the consent of the copyright owner— |
| (a) makes for sale, rental or loan, | |
| (b) sells, rents or lends, or offers or exposes for sale, rental or loan, | |
| (c) imports into the State, otherwise than for his or her private and domestic use, | |
| (d) in the course of a business, trade or profession, has in his or her possession, custody or control, or makes available to the public, or | |
| (e) otherwise than in the course of a business, trade or profession, makes available to the public to such an extent as to prejudice the interests of the owner of the copyright, | |
| a copy of a work which is, and which he or she knows or has reason to believe is, an infringing copy of the work, shall be guilty of an offence. | |
| (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 undertaking 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 fine not exceeding £1,500 class C fine104 in respect of each infringing copy, article or device, or to imprisonment for a term not exceeding 12 months, or both, or | |
| (b) on conviction on indictment, to a fine not exceeding £100,000
€130,000105, 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 fine not exceeding £1,500 class C fine106 in respect of such offence or to imprisonment for a term not exceeding 12 months, or both, or | |
| (b) on conviction on indictment, to a fine not exceeding £100,000
€130,000107, or to imprisonment for a term not exceeding 5 years, or both. |
|
False claims of copyright |
141.—A person who, for financial gain, makes a claim to enjoy a right under this Part which is, and which he or she knows or has reason to believe is, false, shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £100,000 €130,000108, or to imprisonment for a term not exceeding 5 years, or both. |
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 |
104 Amended by the Copyright and Other Intellectual Property Provisions Act 2019
105 Amended by the Copyright and Other Intellectual Property Provisions Act 2019
106 Amended by the Copyright and Other Intellectual Property Provisions Act 2019
107 Amended by the Copyright and Other Intellectual Property Provisions Act 2019
108 Amended by the Copyright and Other Intellectual Property Provisions Act 2019
| (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. | |
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 fine not exceeding £1,500 class C fine109, or to imprisonment for a term not exceeding 12 months, or both. | |
| Chapter 14
Delivery up and Disposal |
|
| Period after | 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. |
| which remedy | |
| for delivery up | |
| is not available. | |
| (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. | |
| Order as to | 145.—(1) An application may be made to the appropriate court for an order that an infringing copy, article or device— |
| disposal of | |
| 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— |
109 Amended by the Copyright and Other Intellectual Property Provisions Act 2019
| (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 . | |
| 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 |
| Infringing | 147.—(1) The owner of the copyright in a work may give notice in writing to the Revenue Commissioners— |
| copies, articles | |
| or devices may | |
| be treated as | |
| prohibited | |
| goods. | |
| (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) Regulations, 1996 ( S.I. No. 48 of 1996 ). | |
Power of Revenue Commissioners |
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— |
| to make | |
| regulations. | |
| (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. |
District Court Rules
Intellectual Property : S.I. No. 421 Of 2010
Seizure without warrant, delivery up, forfeiture, disposal and applications for return in intellectual property cases
1. In this Order:
“the Act of 1996” means the Trade Marks Act 1996 (No. 6 of 1996);
“the Act of 2000” means the Copyright and Related Rights Act 2000 (No. 28 of 2000);
“the Act of 2001” means the Industrial Designs Act 2001 (No. 39 of 2001).
2. An application for an order permitting seizure of infringing goods, material or articles without warrant under section 25(1) of the Act of 1996, may be made ex parte at any sitting of the Court for the district in which the said infringing goods, materials or articles are for the time being.
3. (1) An application by the owner of copyright in a work for an order permitting seizure without warrant under section 132(1) of the Act of 2000 may be made ex parte at any sitting of the Court for the district wherein it is believed that infringing copies of the work or articles specifically designed or adapted for making copies of work knowing or having reason to believe that it has been or is to be used for making infringing copies of a work, or protection-defeating devices are being hawked, carried about or marketed. Such application may be grounded upon the information on oath and in writing of the owner of the copyright in the work or his or its authorised representative and the Court may receive hearsay evidence to the effect that the witness or deponent believes that the material may be found in a particular location.
(2) An application to the Court by the owner of any copies, articles or devices seized under section 133 of the Act of 2000 for the return of those copies, articles or devices shall, unless the Court otherwise permits, be made not later than 30 days after the seizure. The application shall be preceded by the issue of a notice of application in the Form 31B.10, Schedule B (to which is attached a copy of the notice given under section 133(8) of the Act of 2000). A copy of that notice shall be served personally or by prepaid registered post on (a) the person claiming to be the owner of the copyright in the work concerned, as identified in the notice given in accordance with section 133(8) of the Act of 2000 and (b) the Superintendent or an Inspector of the Garda Síochána for the district in which the seizure was made.
(3) An application to the Court by the owner of any copies, articles or devices seized under section 133 of the Act of 2000 or other person aggrieved by such seizure for damages in accordance with section 133(12) of the Act of 2000 shall be preceded by the issue of a notice of application in the Form 31B.10, Schedule B (to which is attached a copy of the notice given under section 133(8) of the Act of 2000). A copy of that notice of application shall be served personally or by prepaid registered post on the person claiming to be the owner of the copyright in the work concerned, as identified in the notice given in accordance with section 133(8) of the Act of 2000.
4. An application by the registered proprietor of a design for an order authorising seizure without warrant under section 62(1) of the Act of 2001 may be made ex parte at any sitting of the Court for the district wherein it is believed that infringing products or articles are being hawked, carried about or marketed. Such application may be grounded upon the information on oath and in writing of the owner of the registered design or his or its authorised representative and the Court may receive hearsay evidence to the effect that the witness or deponent believes that the material may be found in a particular location.
5. (1) An application by the owner of the rights in a recording of a performance conferred by Part III of the Act of 2000 for an order authorising seizure without warrant under section 256(1) of the Act of 2000 may be made ex parte at any sitting of the Court for the district wherein it is believed that illicit recordings of the performance, articles specifically designed or adapted for making recordings of a performance which the person hawking, carrying about or marketing those articles knows or has reason to believe have been or are to be used to make illicit recordings of a performance, or protection-defeating devices are being hawked, carried about or marketed. Such application may be grounded upon the information on oath and in writing of the owner of the rights in the recording of the performance conferred by Part III of the Act of 2000 or by his or its authorised representative. The Court hearing such application may receive hearsay evidence to the effect that the witness or deponent believes that the material may be found in a particular location.
(2) An application to the Court by the owner of any recordings, articles or devices seized under section 257 of the Act of 2000 for the return of those recordings, articles or devices shall, unless the Court otherwise permits, be made not later than 30 days after the seizure. The application shall be preceded by the issue of a notice of application in the Form 31B.11, Schedule B (to which is attached a copy of the notice given under section 257(8) of the Act of 2000). A copy of that notice shall be served personally or by prepaid registered post on (a) the person claiming to be the owner of the rights in the recording concerned, as identified in the notice given in accordance with section 257(8) of the Act of 2000 and (b) the Superintendent or an Inspector of the Garda Síochána for the district in which the seizure was made.
(3) An application to the Court by the owner of any recordings, articles or devices seized under section 257 of the Act of 2000 or other person aggrieved by such seizure for damages in accordance with section 257(12) of the Act of 2000 shall be preceded by the issue of a notice of application in the Form 31B.11, Schedule B (to which is attached a copy of the notice given under section 257(8) of the Act of 2000). A copy of that notice of application shall be served personally or by prepaid registered post on the person claiming to be the owner of the rights in the recording concerned, as identified in the notice given in accordance with section 257(8) of the Act of 2000.
6. (1) An Order made on an application authorising or permitting seizure without warrant under rule 2, 3(1), 4 or 5(1) shall be in the Form 31B.1, 31B.2, 31B.3, or 31B.4 , Schedule B, as appropriate.
(2) An Order made on an application under rule 3(2), 3(3), 5(2) or 5(3) shall be in the Form 31B.12 or 31B.13, Schedule B, as appropriate.
7. (1) An order may be made for the delivery up of an infringing copy, article or device under section 142 or of an illicit recording, article or device under section 260 of the Act of 2000 or of an infringing product or article under section 69 of the Act of 2001 by the Court, of its own motion or on the application of the person bringing the prosecution, at any convenient time during such proceeding, provided that the Court is satisfied that there is a prima facie case to answer, or following the determination of such proceeding.
(2) An order for the delivery up of an infringing copy, article or device to the copyright owner or to such other person as the Court may direct under section 142 of the Act of 2000 shall be in the Form 31B.5, Schedule B.
(3) An order for the delivery up of an illicit recording, article or device to the rightsowner or to such other person as the Court may direct under section 260 of the Act of 2000 shall be in the Form 31B.6, Schedule B.
(4) An order for the delivery up of an infringing product or article to the registered proprietor or to such other person as the Court may direct under section 69 of the Act of 2001 shall be in the Form 31B.7, Schedule B.
(5) An order made by the Court under section 142 or section 260 of the Act of 2000 or under section 69 of the Act of 2001 shall be served personally or by prepaid registered post on the accused and on any person to whom it is ordered that any infringing copy, article, or protection-defeating device, or illicit recording, article or protection-defeating device or infringing product or article be delivered up. On the hearing by the Court of an application by the person bringing the prosecution for such an order, or where the Court makes such order of its own motion, the Court may additionally direct the person bringing the prosecution to make and serve notice of an application for forfeiture or disposal (as provided for in rule 8) under section 145 or section 264 of the Act of 2000 or, as the case may be, under section 72 of the Act of 2001 on notice to the known or reputed copyright owner or rightsowner or registered proprietor and to any other person directed by the Court to be served with such notice.
8. (1) An application in a criminal proceeding for the forfeiture or disposal of an infringing copy, article or device under section 145 of the Act of 2000 or of an illicit recording, article or device under section 264 of the Act of 2000 or of an infringing product or article under section 72 of the Act of 2001 shall be in the Form 31B.8, Schedule B and shall be served by the applicant personally or by prepaid registered post on (a) any person heard or represented on any previous application for the delivery up of the same infringing article, copy or device under section 142 or illicit recording, article or device under section 260 of the Act of 2000 or of the same infringing product or article under section 69 of the Act of 2001, (b) any other person appearing to have an interest in the recording, copy, article, device or product concerned and (c) any other person directed by the Court to be served.
(2) An order of the Court on such application shall be in the Form 31B.9, Schedule B.
9. (1) Notice of an application under this Order shall, if served personally, be served not less than seven days before the date of the sitting of the Court to which it is returnable and, if served by prepaid registered post, be served not less than fourteen days before the date of the sitting of the Court to which it is returnable.
(2) The original of any notice of application under this Order shall be lodged with the Clerk not less than four days before the date of the sitting of the Court to which it is returnable.
Intellectual Property
1 Definitions
1. In this Order, unless the context or subject matter otherwise requires—
the “1992 Act” means the Patents Act 1992 (No. 1 of 1992);
the “1996 Act” means the Trade Marks Act 1996 (No. 6 of 1996);
the “2000 Act” means the Copyright and Related Rights Act 2000 (No. 28 of 2000);
the “2001 Act” means the Industrial Designs Act 2001 (No. 39 of 2001).
the “2019 Act” means the Copyright and Other Intellectual Property Law Provisions Act 2019 (No. 19 of 2019);
“intellectual property claim” has the same meaning as in section 2 of the 2000 Act.
2 Requirements of this Order additional to Order 40
2. (1) The provisions of this Order apply to intellectual property claims in the Court.
(2) The requirements of this Order are additional to the requirements of Order 40 as regards claim notices.
3 Additional particulars required in claim notice in intellectual property claim
3. (1) An intellectual property claim notice must:
(i) state the registered number of any registered intellectual property right to which the claim relates;
(ii) set out full particulars of the ownership of any unregistered intellectual property right concerned in the proceedings, or of the right of the claimant to claim infringement;
(iii) include particulars of the nature and extent of any intellectual property right relied upon by the claimant (including the capacity in which the claimant sues if not the registered proprietor or proprietor of the intellectual property right concerned);
(iv) include particulars of the nature and extent of the alleged infringement of any intellectual property right relied on by the claimant;
(v) set out the material facts relied on in support of the intellectual property claim;
(vi) state specifically the relief sought against each respondent and every provision or rule of law relied on in support of each such relief and, where relief under the 1992 Act, 1996 Act, 2000 Act and/or 2001 Act is sought, the particular provisions under which relief is sought and the grounds for each such relief;
(vii) set out clearly the basis upon which the Court has jurisdiction to hear and determine the intellectual property claim;
(viii) set out the appropriate costs in the Schedule of Costs payable if the claimant’s claim is settled before appearance and defence.
(2) A claim notice in an intellectual property claim must be in accordance with Form 40.01 Schedule C with the modifications necessitated by this rule.
4 Service of claim notice
4. A claim notice in an intellectual property claim must name as respondent, and must be served on, every person against whom relief is sought.
5 Civil application for delivery up
5. (1) An application to the Court in or by way of a civil proceeding for the delivery up of:
(i) infringing goods, material or articles under section 20 of the 1996 Act; or
(ii) an infringing article, copy, or device under section 131 of the 2000 Act; or
(iii) an illicit recording, article or device under section 255 of the 2000 Act; or
(iv) an infringing product or article under section 61 of the 2001 Act
may be made ex parte to any sitting of the Court for the Court District wherein it is believed that the infringing matter concerned is or are in the possession, custody of control of any person.
(2) The application may be grounded upon an information on oath and in writing by or on behalf of the proprietor of the registered trade mark concerned, or the copyright owner or a person having rights conferred by Part III of the 2000 Act or the registered proprietor or his or its authorised representative, as the case may be.
(3) Where an application has been made, and remains undetermined, in a criminal proceeding, for the delivery up of some or all of the same article(s), copies, devices or products, an application under this rule shall not be determined until the determination of the application in the criminal proceeding.
6 Court may direct service of notice of application for delivery up
6. (1) The Court may adjourn an application under rule 5 and direct that person against whom relief is sought be served with notice of the application, in the Form 40F.01, Schedule C, by personal service or by prepaid registered post, on the respondent thereto and on any other person directed by the Court to be served with such notice.
(2) If served personally, the notice must be served at least seven days before the date of the sitting of the Court to which it is returnable; if served by prepaid registered post, the notice must be served at least 14 days before the date of the sitting of the Court to which it is returnable.
7 Form of order for delivery up
7. An order made on an application under rule 5, whether ex parte or inter partes, may be in the Form 40F.02, Schedule C.
8 Civil application for erasure etc of offending sign or for forfeiture or disposal
8. (1) Subject to sub-rule (4), an application to the Court in or by way of a civil proceeding for:
(i) an order to cause an offending sign to be erased, removed or obliterated from any infringing goods, material or articles, or to secure the destruction of infringing goods, materials or articles under section 19 of the 1996 Act, or
(ii) an order for the destruction or forfeiture of infringing goods, material or articles under section 23 of the 1996 Act, or
(iii) an order for the forfeiture or disposal of an infringing copy, article or, device under section 145 of the 2000 Act, or
(iv) an order for the forfeiture or disposal of an illicit recording, article or device under section 264 of the 2000 Act, or
(v) an order for the forfeiture or disposal of an infringing product or article under section 72 of the 2001 Act,
must be in the Form 40F.03, Schedule C, and must be served by the applicant, by personal service or by prepaid registered post:
(a) on the respondent thereto,
(b) on any other person appearing to have an interest in the goods, materials, articles, copies, devices or products concerned, and
(c) on any other person directed by the Court to be served.
(2) If served personally, the notice must be served at least seven days before the date of the sitting of the Court to which it is returnable; if served by prepaid registered post, the notice must be served at least 14 days before the date of the sitting of the Court to which it is returnable.
(3) Where an application has been made, and remains undetermined, in a criminal proceeding, for the delivery up of some or all of the same article(s), copies, recordings, devices or products, an application under this rule shall not be determined until the determination of the application in the criminal proceeding.
(4) Notwithstanding sub-rules (1), (2) and (3), the Court may, where it has determined an intellectual property claim, determine an application under section 19 of the 1996 Act made orally to the Court concerning infringing goods, material or articles which were the subject of that intellectual property claim, without the necessity for the issue of a further notice of application, provided that the Court is satisfied that all persons having an interest in the infringing goods, material or articles are before the Court and have had an opportunity to be heard.
9 Form of order for erasure etc of offending sign or for forfeiture or disposal
9. An Order of the Court on an application under rule 8 may be in the Form 40F.04, Schedule C.