Database Rights
COPYRIGHT ACT
| PART V
Databases |
|
| Chapter 1
Rights in Databases |
|
Interpretation. |
320.—(1) In this Part— |
| “extraction”, in relation to the contents of a database, means the permanent or temporary transfer of all or a substantial part of the contents to another medium by any means or in any form; | |
| “insubstantial”, in relation to the contents of a database, shall be construed subject to section 324 (3); | |
| “investment” includes any investment, whether of financial, human or technical resources and cognate words shall be construed accordingly; | |
| “jointly”, in relation to the making of a database which is made jointly, shall be construed as referring to all the makers of the database; | |
| “lawful user”, in relation to a database, means any person who, whether under a licence to undertake any of the acts restricted by any database right in the database, or otherwise, has a right to use the database; | |
| “re-utilisation”, in relation to the contents of a database, means making those contents available to the public by any means; | |
| “substantial”, in relation to the investment, extraction or re-utilisation, means substantial in terms of quantity or quality or a combination of both. | |
| (2) The making of a copy of a database available for use, on terms that it is to be or may be returned after a limited period of time, otherwise than for direct or indirect economic or commercial advantage, through an establishment to which the public have access that is prescribed by the Minister for the purpose of section 58 177, shall not be taken for the purposes of this Part to constitute extraction or re-utilisation of the contents of the database. | |
| (3) Where the making of a copy of a database available through an establishment to which members of the public have access and that is prescribed by the Minister for the purpose of section 58 178gives rise to a |
177 Deleted by the Copyright and Related Rights (Amendment) Act 2007
178 Deleted by the Copyright and Related Rights (Amendment) Act 2007
| payment the amount of which does not exceed that which is necessary to cover the operating costs of the establishment there is no direct or indirect economic or commercial advantage for the purposes of subsection (2). | |
| (4) Subsection (2) shall not apply to the making of a copy of a database available for on the spot reference use. | |
| (5) Where a copy of a database has been sold within the Member States of the EEA by, or with the consent of, the owner of the database right in the database, the further sale within the Member States of the EEA of that copy for the purposes of this Part shall not be taken to constitute extraction or re- utilisation of the contents of the database. | |
| Chapter 2
Subsistence of Database Right |
|
Database right. |
321.—(1) A property right to be known and in this Part referred to as the “database right” subsists, in accordance with this Part, in a database where there has been a substantial investment in obtaining, verifying or presenting the contents of the database. |
| (2) Subject to this Act, the owner of the database right may undertake or authorise others to undertake certain acts in the State in relation to the database, being acts which are designated by this Act as acts restricted by the database right. | |
| (3) For the purposes of this section it is immaterial whether or not the database or any of its contents is a copyright work. | |
| (4) The database right shall not subsist in a database unless the requirements specified in this Part with respect to qualification are complied with. | |
| Chapter 3
Maker and Ownership: Databases |
|
Maker of database. |
322.—(1) Subject to the provisions of this section, the person who takes the initiative in obtaining, verifying or presenting the contents of a database and assumes the risk of investing in that obtaining, verification or presentation shall be regarded as the maker of, and as having made, the database. |
| (2) Where a database is made by an employee in the course of employment, his or her employer shall be regarded as the maker of the database, subject to any agreement to the contrary. | |
| (3) Subject to subsection (4), where a database is made by an officer or employee of the Government in the course of his or her duties, the Government shall be regarded as the maker of the database. |
| (4) Where a database is made by or under the direction or control of either or both of the Houses of the Oireachtas— | |
| (a) the House by whom, or under whose direction or control, the database is made shall be regarded as the maker of the database, and | |
| (b) where the database is made by or under the direction or control of both Houses, both Houses shall be regarded as the joint makers of the database. | |
| (5) For the purposes of this Part, a database is made jointly where two or more persons acting together in collaboration take the initiative in obtaining, verifying or presenting the contents of the database and assume the risk of investing in that obtaining, verification or presentation. | |
| (6) Where a database is made by an organisation prescribed by the Minister under section 196 (2), or by an officer or employee of such an organisation in the course of his or her duties, that organisation shall be regarded as the maker of the database. | |
| (7) Where the database right is conferred on a person by an enactment that person shall be regarded as the maker of the database. | |
First ownership of database right. |
323.—The maker of a database shall be the first owner of the database right in the database. |
| Chapter 4
Restricted Acts: Databases |
|
Acts restricted by database right. |
324.—(1) Subject to the exceptions specified in Chapter 8 of this Part and to the provisions relating to licensing in Chapter 11 of this Part, the owner of the database right has the right to undertake or to authorise others to undertake all or any of the following acts in relation to all or a substantial part of the contents of a database— |
| (a) extraction, or | |
| (b) re-utilisation, | |
| and those acts shall be known and in this Part referred to as “acts restricted by the database right”. | |
| (2) The database right is infringed by a person who, without the licence of the owner of the database right, undertakes, or authorises another to undertake, either of the acts restricted by the database right. | |
| (3) For the purposes of this Part, the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database which conflicts with the normal exploitation of the database or which prejudices the interests of the maker of the database shall be deemed to be extraction or re- utilisation of a substantial part of those contents. |
| Chapter 5
Duration of Database Right |
|
Term of protection of database right. |
325.—(1) The database right shall expire 15 years from the end of the calendar year in which the making of the database was completed. |
| (2) Where a database is lawfully re-utilised before the expiration of the period referred to in subsection (1), the database right in the database shall expire 15 years from the end of the calendar year in which the database was first so re-utilised. | |
| (3) Any substantial change to the contents of a database, including a substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment shall qualify the database resulting from that investment for its own terms of protection under this section. | |
| (4) This section applies notwithstanding paragraph 45 of the First Schedule. | |
| Chapter 6
Qualification: Databases |
|
Qualification for database right. |
326.—(1) Subject to Chapter 2 of this Part, the database right shall subsist in a database where, at the material time, its maker or, where it was made jointly, one or more of its makers, is— |
| (a) a citizen or subject of, or other individual domiciled or ordinarily resident in, a Member State of the EEA, | |
| (b) a body incorporated under the law of a Member State of the EEA and which at the material time satisfied one of the conditions specified in subsection (3), or | |
| (c) a partnership or unincorporated body formed under the law of a Member State of the EEA and which at the material time satisfied the condition specified in subsection (3)(a). | |
| (2) The database right shall subsist in a database the maker of which is deemed to be the Government, or either or both of the Houses of the Oireachtas, or a prescribed international organisation, in accordance with section 322 . | |
| (3) The conditions referred to in paragraphs (b) and (c) of subsection (1)
are— |
|
| (a) that the body has its principal place of business or operations within a Member State of the EEA, | |
| (b) that the body has its registered office within a Member State of the EEA and operates in a Member State of the EEA, and |
| (c) that the body has a genuine link with the economy of the State. | |
| (4) The Government may by order extend the provisions of this section to countries, territories, states or areas outside the Member States of the EEA, where the order is made pursuant to or in conformity with an agreement of the Council of the European Communities allowing such an extension of protection on the basis that comparable protection of databases is available under the law of those countries, territories, states or areas. | |
| (5) For the purposes of this section, the material time in relation to a database shall be— | |
| (a) in the case of a database which has not been lawfully re-utilised when the database was made or, where the making of the database extended over a period, a substantial part of that period, or | |
| (b) in the case of a database which has been lawfully re-utilised when the database was first lawfully re-utilised or, where the maker had died before that time, immediately before his or her death. | |
| Chapter 7
Rights and Obligations of Lawful Users |
|
Avoidance of certain terms affecting lawful users. |
327.—(1) Without prejudice to section 324 (3), a lawful user of a database shall be entitled to extract or re-utilise insubstantial parts of the contents of the database for any purpose. |
| (2) Where, under an agreement, a person has a right to use a database, any term or condition in the agreement shall be void in so far as it purports to prevent that person from extracting or re-utilising insubstantial parts of the contents of the database for any purpose. | |
| (3) While exercising the entitlement conferred by subsection (1), a lawful user of a database shall not prejudice the owner of any right conferred by this Act in respect of works or other subject matter contained in the database. | |
| Chapter 8
Acts Permitted in Respect of Database Right |
|
Exemptions in respect of databases. |
328.—In this Part an act may be exempted under more than one category of exemption and the exemption of an act under one category of exemption shall not preclude its exemption under another category. |
Fair dealing: research or private study. |
329.—(1) The database right in a non-electronic database which has been re-utilised is not infringed by fair dealing with a substantial part of its contents by a lawful user of the database where that part is extracted for the
purposes of research education, research179 or private study. |
| (2) For the purposes of this Part “fair dealing” means the extraction of the contents of a database by a lawful user to an extent which will not unreasonably prejudice the interests of the rightsowner. | |
| Education | |
Exception for educational establishments. |
330.—(1) The database right in a database is not infringed by fair dealing with a substantial part of its contents by a lawful user of the database where that part is extracted for the purposes of illustration in the course of instruction or of preparation for instruction education or of preparation for education180 and where— |
| (a) the extraction is done by or on behalf of a person giving or receiving instruction education,181 and | |
| (b) the source is indicated. | |
| (2) For the purposes of this section “lawful user” includes an educational establishment. | |
Cultural Heritage Institutions – databases |
330A. (1) The database right in a database is not infringed by a cultural heritage institution making available, for non-commercial purposes, out-of- commerce works or other subject matter that are permanently in its collections, where – |
| (a) no collective management organisation exists that fulfils the conditions set out in Regulation 8(1)(a) of the European Union (Copyright and Related Rights in the Digital Single Market) Regulations 2021 in relation to that database right, | |
| (b) it is accompanied by sufficient acknowledgment, and | |
| (c) such work is only made available on non-commercial websites. | |
| (2) The owner of a database right may exclude his or her work from the use referred to in subsection (1) at any time by notifying the relevant cultural heritage institution by electronic or other means and by including the following in the notice: | |
| (a) notification that the owner is asserting his or her right pursuant to this section; | |
| (b) sufficient details of the work to enable it to be identified and removed from public display. | |
| (3) Upon receipt of a written request in accordance with subsection (2), a cultural heritage institution shall terminate its use of the work or works referred to in that written request within 4 weeks of receiving it. |
180 Amended by the Copyright and Other Intellectual Property Provisions Act 2019
| 4) This section shall not apply to sets of out-of-commerce works or other subject matter if, on the basis of the reasonable effort referred to in subsection (5), there is evidence that such sets predominantly consist of – | |
| (a) works, other than cinematographic or audiovisual works, first published or, in the absence of publication, first broadcast in a third country, | |
| (b) cinematographic or audiovisual works, of which the producers have their headquarters or habitual residence in a third country, or | |
| (c) works of third country nationals, where after a reasonable effort no Member State or third country could be determined pursuant to paragraphs (a) and (b). | |
| (5) At least 6 months before the work used under subsection (1) is distributed, communicated to the public or made available to the public, cultural heritage institutions, collective management organisations and library authorities, within the meaning of section 32 of the Local Government Act 1994, shall provide the following information on the Out-of-Commerce Works Portal established by the European Union Intellectual Property Office: | |
| (a) the title, where possible, the author, and a brief summary of the contents of the out-of-commerce work that is proposed to be used in accordance with subsection (1), | |
| (b) the information about the options available to rightholders under this section, and | |
| (c) as soon as it is available and where relevant, information on the parties to the licence, the territories covered and the uses authorised under the license. | |
| (6) For the purposes of subsection (1), a work can be considered to be permanently in the collections of a cultural heritage institution where it is owned or permanently held by that institution, for example as a result of a transfer of ownership or a licence agreement, legal deposit obligations or permanent custody arrangements.182 | |
Public Administration |
|
| 331.—The database right in a database is not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purpose of reporting those proceedings. | |
Parliamentary or judicial proceedings. |
332.—(1) The database right in a database is not infringed by anything done for the purposes of a statutory inquiry or for the purpose of reporting any such inquiry. |
182 Inserted by European Union (Copyright and Related Rights in the Digital Single Market) Regulations 2021
Statutory inquiries. |
(2) The database right in a database is not infringed by the making available of copies of a report of a statutory inquiry containing the contents of the database. |
333.—All or a substantial part of the contents of a database which are comprised in records which are open to public inspection may be extracted or re-utilised without infringing the database right in the database. |
|
Copying of material in public records. |
334.—(1) Without prejudice to the generality of section 333 , where the contents of a database are open to public inspection pursuant to a statutory requirement, or are on a statutory register, the database right in the database is not infringed by the extraction of all or a substantial part of the contents, for a purpose which does not involve re-utilisation of all or a substantial part of the contents as contains factual information of any description, by or with the authority of the person required to make the contents of the database open to public inspection or, as the case may be, the person maintaining the register. |
Material open to public inspection or on statutory register. |
(2) Where the contents of a database are open to public inspection pursuant to a statutory requirement, or are on a statutory register, the database right in the database is not infringed by the extraction or re-utilisation of all or a substantial part of the contents for the purpose of enabling the contents of the database to be inspected at another time or place, or otherwise facilitating the exercise of any right for the purpose of which the requirement is imposed, by or with the authority of the person required to make the contents of the database open to public inspection or, as the case may be, the person maintaining the register. |
| (3) Where all or a substantial part of the contents of a database are re- utilised under this section the person granting access to the contents of the database shall ensure that those contents bear a mark clearly indicating that they are provided for the purpose of inspection and that no other use of the contents of the database may be made without the licence of the owner of the database right. | |
| (4) All or a substantial part of the contents of a database may not be provided under this section unless the person granting access to the contents of the database has first obtained from the person requesting the contents of the database a declaration, in such form as may be prescribed, indicating that the contents of the database are required for the sole purpose of enabling the contents of the database to be inspected at another time or place or to otherwise facilitate the exercise of the right of public inspection. | |
| (5) Where the contents of a database which are open to public inspection pursuant to a statutory requirement, or are on a statutory register, contain information about matters of general, scientific, technical, commercial or economic interest, the database right in the database is not infringed by the extraction or re-utilisation of all or a substantial part of the contents for the purpose of disseminating that information, by or with the authority of the person required to make the contents of the database open to public inspection or, as the case may be, the person maintaining the register. |
| (6) The Minister may prescribe the conditions which are to be complied with before the contents of a database are made available to the public. | |
| (7) The Minister may by order provide that subsections (1) to (5) apply— | |
| (a) to the contents of a database made open to public inspection by— | |
| (i) an international organisation specified in the order, or | |
| (ii) a person specified in the order who has functions in the State under an international agreement to which the State is a party, | |
| or | |
| (b) to a register maintained by an international organisation specified in the order, | |
| as they apply in relation to the contents of a database open to public inspection pursuant to a statutory requirement, or on a statutory register. | |
| 335.—(1) Where the contents of a database have been communicated to the Government or either or both of the Houses of the Oireachtas for any purpose, by or with the licence of the owner of the database right, and any fixation or any thing containing the contents of the database is owned by, or is in the custody, possession or control of the Government or either or both of the Houses of the Oireachtas, the Government or either or both of the Houses of the Oireachtas may extract or re-utilise all or a substantial part of the contents, for the purpose for which the contents of the database were communicated to them, or for any related purpose which could reasonably have been anticipated by the owner of the database right, without infringing the database right in the database. | |
Databases communicated to Government or Oireachtas. |
(2) The Government or either or both of the Houses of the Oireachtas shall not re-utilise all or a substantial part of the contents of a database or cause the contents to be extracted or re-utilised, by virtue of this section, where the contents have previously been lawfully re-utilised otherwise than under this section. |
| 336.—(1) Where the undertaking of a particular act is specifically authorised by an enactment then, unless the enactment provides otherwise, the undertaking of that act shall not infringe the database right in a database. | |
Acts done under statutory authority. |
(2) Nothing in this section shall be construed as excluding any defence available under any enactment. |
| Anonymous or Pseudonymous Database | |
| 337.—(1) The database right in a database is not infringed by the extraction or re-utilisation of all or a substantial part of the contents of the database when, or pursuant to arrangements made when— | |
| (a) it is not possible by reasonable inquiry to ascertain the identity of the maker of the database, and |
Anonymous or pseudonymous databases: acts permitted. |
|
| (b) it is reasonable to assume that the database right has expired. | |
| (2) In the case of a database made jointly, the reference in subsection (1), to the possibility of ascertaining the identity of the maker of the database shall be construed as a reference to its being possible to ascertain the identity of any of its makers. | |
| Chapter 9
Application of Copyright Provisions to Database Right |
|
| 338.—Sections 120 , 121 , 122 , 123 , 127 , 128 , 130 , 131 , 132 , 133 , 135
and 136 shall apply in relation to the database right and databases in which that right subsists as they apply in relation to copyright and copyright works. |
|
Application of copyright provisions to database right. |
Chapter 10
Presumptions |
| 339.—(1) The presumptions specified in this section shall apply in proceedings, whether civil or criminal, for infringement of the database right in any database. | |
Presumptions relevant to database right. |
(2) (a) The database right shall be presumed to subsist in a database unless the contrary is proved. |
| (b) Except as otherwise provided in this section, where the subsistence of the database right in a database is proved or admitted, or is presumed under paragraph (a), the plaintiff shall be presumed to be the owner or, as the case may be, the exclusive license of the database right, unless the contrary is proved. | |
| (3) Where— | |
| (a) a name purporting to be that of the maker of a database or of the owner or exclusive licensee of the database right, as the case may be, appears on copies of the database, or | |
| (b) a copy of a database bears or incorporates a statement, label or other mark indicating that a person is the maker of the database or the owner or exclusive licensee of the database right, 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. | |
| (4) 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 database in |
| accordance with subsection (3) shall be presumed not to have made the database— | |
| (a) in the course of employment referred to in section 322 (2), | |
| (b) in the course of employment as an officer or employee of a prescribed international organisation referred to in section 322 (6), | |
| (c) in the course of employment as an officer or employee of the Government referred to in section 322 (3), | |
| (d) under the direction or control of either or both of the Houses of the Oireachtas referred to in section 322 (4), or | |
| (e) in circumstances in which the database right is conferred on another person by an enactment referred to in section 322 (7). | |
| (5) Where a database purports to be a database made jointly, subsections (2), (3) and (4) shall apply in relation to each person purporting to be one of the makers of the database. | |
| Chapter 11
Database Right: Licensing |
|
| 340.—(1) In this Part— | |
Licensing schemes and licensing bodies. |
“licences” means licences to extract or re-utilise all or a substantial part of the contents of a database or to authorise others to do so; |
| “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 database right, or as exclusive licensee, or as agent for him or her, of database right licences, and whose objects include the granting of licences relating to the databases of more than one database right owner; | |
| “licensing scheme” means a scheme specifying— | |
| (a) the classes of case in which the operator of the scheme, or the person on whose behalf that operator acts, is willing to grant database right 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 databases of more than one database right owner shall not include licences or |
| schemes relating to databases 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 | |
| 341.—Sections 342 to 347 apply to licensing schemes which are operated by licensing bodies in relation to the database right in databases of more than one database right owner, in so far as they relate to licences for the extraction or re-utilisation of all or a substantial part of the contents of a database. | |
General references. |
342.—(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. |
Reference of proposed licensing scheme to Controller. |
(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. | |
| 343.—(1) Where a licensing scheme is in operation and a dispute arises with respect to the scheme between the operator of the scheme and— | |
Reference of licensing scheme to Controller. |
(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. | |
| 344.—(1) Where the Controller has, in respect of a licensing scheme under section 342 or 343 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. | |
Further reference of scheme to Controller. |
(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 such persons. | |
| (3) Where an order made under section 342 or 343 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. | |
| 345.—(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). |
Application for grant of licence in connection with licensing scheme. |
(2) A person who claims, in 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. | |
| 346.—(1) Where the Controller has made an order under section 345 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. | |
Review of orders made by Controller. |
(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. | |
| 347.—(1) A licensing scheme which has been confirmed or varied by the Controller under section 342 , 343 or 344 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. | |
Effect of order of Controller as to licensing scheme. |
(2) Where an order made by the Controller under section 342 , 343 or 344 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 the database right as if he or she had at all material times been the holder of a licence granted by the owner of the database right 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 345 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 the database right as if he or she had at all material times been the holder of a licence granted by the owner of the database right concerned on the terms specified in the order. | |
| References and Applications Relating to Licensing by Licensing Bodies | |
| 348.—Sections 349 to 352 apply to licences in relation to the database right in databases of more than one database right owner, granted by a licensing body otherwise than pursuant to a licensing scheme, in so far as the licences relate to the extraction or re-utilisation of all or a substantial part of the contents of a database. | |
General reference by licensing bodies. |
349.—(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). |
Reference to Controller of proposed licence. |
(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. | |
| 350.—(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. | |
Reference to Controller of expiring licence. |
(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. | |
| 351.—(1) Where the Controller has made an order under section 349 or 350 , the licensing body or the person entitled to the benefit of the order may apply to the Controller for a review of that order. |
Application for review of order made by Controller. |
(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. | |
| 352.—(1) Where the Controller has made an order under section 349 or 350 , and the order remains in force, the person entitled to the benefit of the order, where he or she— | |
Effect of order of Controller as to licence. |
(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 Controller 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 the database right as if he or she had at all material times been the holder of a licence granted by the owner of the database right concerned on the terms specified in the order. | |
| (2) The benefit of an order made under section 349 or 350 may be assigned— | |
| (a) in the case of an order made under section 349 , 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 350 , where assignment was not prohibited under the terms of the original licence. | |
| (3) The Controller may direct that an order made under section 349 or 350 or an order made under section 351 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 | |
| 353.—(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— | |
General considerations: unreasonable discrimination. |
(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. | |
| 354.—Where a reference or application is made under this Chapter in relation to licensing in respect of the database right in a database, the Controller shall take into account, in considering what charges are to be paid for a licence, any payments which the owner of the database right is liable to make pursuant to the granting of the licence, or pursuant to the acts authorised by the licence— | |
Licences to reflect payments in respect of underlying rights. |
(a) to owners of the copyright in works included in the database, or |
| (b) in respect of any performance included in the database. | |
| Chapter 12
Registration of Licensing Bodies in Respect of Database Right |
|
| 355.—(1) The Controller shall establish and maintain a register of licensing bodies in respect of database 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 Database Rights” and referred to in this Part as the “Register”. |
Register of licensing bodies for database right. |
(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 340 , 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; and | |
| (g) the class of rightsowners represented or proposed to be represented by the applicant. |
| (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. | |
| 356.—A certificate granted under section 355 (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. | |
Proof that licensing body may act on behalf of specified classes. |
357.—(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. |
Notification of charges. |
(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. |
| 358.—(1) A certificate of registration issued under section 355 (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. | |
Validity of certificates of registration. |
(2) Subject to section 355 (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. | |
| 359.—(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 355 (5). | |
Refusal of application. |
(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. |
| 360.—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. | |
Indemnity for Controller. |
361.—(1) Any body operating as a licensing body within the meaning specified in section 340 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. | |
Obligation of collecting societies to register (database rights). |
(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 fine not exceeding £1,500 class C fine183, 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
€130,000184, or to imprisonment for a term not exceeding 5 years, or both. |