PART IV.

Remedies for Infringement of Copyright.

22. —(1) Subject to the provisions of this Act infringements of copyright shall be actionable at the suit of the owner of the copyright.

(2) In any action by the owner of a copyright for an infringement thereof all such relief, by way of damages, injunction, accounts or otherwise shall be available to the plaintiff as is available in any corresponding proceedings in respect of infringement of other proprietary rights.

(3) Where in an action for infringement of copyright it is proved or admitted—

(a) that an infringement was committed, but

(b) that at the time of the infringement the defendant was not aware, and had no reasonable grounds for suspecting, that copyright subsisted in the work or other subject-matter to which the action relates,

the plaintiff shall not be entitled under this section to any damages against the defendant in respect of the infringement, but shall be entitled to an account of profits in respect of the infringement whether any other relief is granted under this section or not.

(4) Where in an action under this section an infringement of copyright is proved or admitted, and the court, having regard (in addition to all other material considerations) to—

(a) the flagrancy of the infringement, and

(b) any benefit shown to have accrued to the defendant by reason of the infringement,

is satisfied that effective relief would not otherwise be available to the plaintiff, the court, in assessing damages for the infringement, shall have power to award such additional damages by virtue of this subsection as the court may consider appropriate in the circumstances.

(5) In an action for infringement of copyright in respect of the construction of a building, no injunction or other order shall be made—

(a) after the construction of the building has been 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.

(6) In this Part of this Act “action” includes a counterclaim, and references to the plaintiff and to the defendant shall be construed accordingly.

23. —(1) In any action for infringement of copyright commenced and heard in the High Court—

(a) where any relief (other than damages) claimed is within the jurisdiction of the Circuit Court and, if damages are claimed, the amount of the damages recovered by the plaintiff is not more than six hundred pounds, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the action had been brought in the Circuit Court, unless the judge hearing the action grants a special certificate under this section, and

(b) where the only relief claimed is damages and the amount of the damages recovered by the plaintiff is not more than fifty pounds, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the action had been brought in the District Court, unless the judge hearing the action grants a special certificate under this section.

(2) In any action referred to in subsection (1) of this section the judge hearing the action may, on the application of the plaintiff, grant a special certificate in writing that, in the opinion of the judge, it was reasonable, owing to the substantial or important nature of the action or the importance of any question of law involved therein that the action should have been commenced in the High Court.

(3) The reference in subsection (3) of section 12 (which limits the amount of plaintiffs' costs in certain actions in the High Court) of the Courts of Justice Act, 1936 , to a restriction imposed by that section shall be construed as including a reference to the restrictions imposed by this section on the amount of costs recoverable by plaintiffs in the actions referred to in subsection (1) of this section.

24. —(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 an infringing copy, or of any plate used or intended to be used for making infringing copies, as he would be entitled to if he were the owner of every such copy or plate and had been the owner thereof since the time when it was made.

(2) Where by virtue of subsection (2) of section 12 (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 or plate as is mentioned in subsection (1) of this section would (if he had been the owner of the copy or plate) have been extinguished at the end of the period mentioned in the said subsection (2), he 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 or plate after the end of that period.

(3) A plaintiff shall not be entitled by virtue of this section to any damages or to any other pecuniary remedy (except costs) if it is proved or admitted that, at the time of the conversion or detention in question—

(a) the defendant was not aware, and had no reasonable grounds for suspecting, that copyright subsisted in the work or other subject-matter to which the action relates, or

(b) where the articles converted or detained were infringing copies, the defendant believed, and had reasonable grounds for believing, that they were not infringing copies, or

(c) where the article converted or detained was a plate used or intended to be used for making any articles, the defendant believed, and had reasonable grounds for believing, that the articles so made or intended to be made were not, or (as the case may be) would not be, infringing copies.

(4) In this Part of this Act—

“infringing copy”—

(a) in relation to a literary, dramatic, musical or artistic work, or to such a published edition as is mentioned in section 20 of this Act, means a reproduction otherwise than in the form of a cinematograph film,

(b) in relation to a sound recording, means a record embodying that recording,

(c) in relation to a cinematograph film, means a copy of the film, and

(d) in relation to a television broadcast or a sound broadcast, means a copy of a cinematograph film of it or of part of it or a photograph of part of it or a record embodying a sound recording of it,

being (in any such case) an article the making of which constituted an infringement of the copyright in the work, edition, recording, film or broadcast, or, in the case of an imported article, would have constituted an infringement of that copyright if the article had been made in the State;

“plate” includes any stereotype, stone, block, mould, matrix, transfer, negative or other appliance.

25. —(1) The provisions of this section shall have effect as to proceedings in the case of any copyright in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.

(2) Subject to the following provisions of this section—

(a) the exclusive licensee shall (except as against the owner of the copyright) have the same rights of action, and be entitled to the same remedies, under section 22 of this Act as if the licence had been an assignment, and those rights and remedies shall be concurrent with the rights and remedies of the owner of the copyright under that section;

(b) the exclusive licensee shall (except against the owner of the copyright) have the same rights of action, and be entitled to the same remedies, by virtue of section 24 of this Act as if the licence had been an assignment; and

(c) the owner of the copyright shall not have any rights of action or be entitled to any remedies, by virtue of section 24 of this Act which he would not have had or been entitled to if the licence had been an assignment.

(3) Where an action is brought either by the owner of the copyright or by the exclusive licensee, and the action in so far as it is brought under section 22 of this Act, relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action under that section, the owner or licensee, as the case may be, shall not be entitled, except with the leave of the court, to proceed with the action, in so far as it is brought under that section and relates to that infringement, unless the other party is either joined as a plaintiff in the action or added as a defendant.

(4) The immediately preceding subsection of this section shall not affect the granting of an interlocutory injunction on the application of either of the parties referred to in the subsection.

(5) In any action brought by the exclusive licensee by virtue of this section, any defence which would have been available to a defendant in the action, if this section had not been enacted and the action had been brought by the owner of the copyright, shall be available to that defendant as against the exclusive licensee.

(6) Where an action is brought in the circumstances mentioned in subsection (3) of this section, and the owner of the copyright and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages in respect of any such infringement as is mentioned in that subsection—

(a) if the plaintiff is the exclusive licensee, shall take into account any liabilities (in respect of royalties or otherwise) to which the licence is subject, and

(b) whether the plaintiff is the owner of the copyright or the exclusive licensee, shall take into account any pecuniary remedy already awarded to the other party under section 22 of this Act in respect of that infringement, or, as the case may require, any right of action exercisable by the other party under that section in respect thereof.

(7) Where an action, in so far as it is brought under section 22 of this Act, relates (wholly or partly) to an infringement in respect of which the owner of the copyright and the exclusive licensee have concurrent rights of action and in that action (whether they are both parties to it or not) an account of profits is directed to be taken in respect of that infringement, then, subject to any agreement of which the court is aware, whereby the application of those profits is determined as between the owner of the copyright and the exclusive licensee, the court shall apportion the profits between them as the court may consider just, and shall give such directions as the court may consider appropriate for giving effect to that apportionment.

(8) In an action brought either by the owner of the copyright or by the exclusive licensee—

(a) no judgment or order for the payment of damages in respect of an infringement of copyright shall be given or made under section 22 of this Act, if a final judgment or order has been given or made awarding an account of profits to the other party under that section in respect of the same infringement; and

(b) no judgment or order for an account of profits in respect of an infringement of copyright shall be given or made under the said section 22, if a final judgment or order has been given or made awarding either damages or an account of profits to the other party under that section in respect of the same infringement.

(9) Where, in an action brought in the circumstances mentioned in subsection (3) of this section, whether by the owner of the copyright or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of that action or subsequently), but is added as a defendant, he shall not be liable for any costs in the action unless he enters an appearance and takes part in the proceedings.

(10) In this section—

“exclusive licence” means a licence in writing, signed by or on behalf of an owner or prospective owner of copyright, authorising the licensee, to the exclusion of all other persons, including the grantor of the licence, to exercise a right which by virtue of this Act would (apart from the licence) be exercisable exclusively by the owner of the copyright, and “exclusive licensee” shall be construed accordingly;

“the other party” in relation to the owner of the copyright means the exclusive licensee, and, in relation to the exclusive licensee means the owner of the copyright; and

“if the licence had been an assignment” means if, instead of the licence, there had been granted (subject to terms and conditions corresponding as nearly as may be with those subject to which the licence was granted) an assignment of the copyright in respect of its application to the doing, at the places and times authorised by the licence, of the acts so authorised.

26. —(1) In any action brought by virtue of this Part of this Act—

(a) copyright shall be presumed to subsist in the work or other subject-matter to which the action relates, if the defendant does not put in issue the question whether copyright subsists therein, and

(b) where the subsistence of the copyright is proved or admitted, or is presumed in pursuance of the preceding paragraph, the plaintiff shall be presumed to be the owner of the copyright, if he claims to be the owner of the copyright and the defendant does not put in issue the question of his ownership thereof.

(2) Subject to the preceding subsection of this section, where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that of the author appeared on copies of the work as published, or in the case of an artistic work, appeared on the work when it was made, the person whose name so appeared (if it was his true name or a name by which he was commonly known) shall, in any action brought by virtue of this Part of this Act be presumed, unless the contrary is proved—

(a) to be the author of the work, and

(b) to have made the work in circumstances not falling within subsection (2), subsection (3) or subsection (4) of section 10 of this Act.

(3) In the case of a work alleged to be a work of joint authorship, subsection (2) of this section shall apply in relation to each person alleged to be one of the authors of the work, as if references in that subsection to the author were references to one of the authors.

(4) Where in an action brought by virtue of this Part of this Act with respect to a literary, dramatic, musical or artistic work, subsection (2) of this section does not apply, but it is established—

(a) that the work was first published in the State, and was so published within the period of fifty years ending with the beginning of the year in which the action was brought, and

(b) that a name purporting to be that of the publisher appeared on copies of the work as first published,

then, unless the contrary is shown, copyright shall be presumed to subsist in the work and the person whose name so appeared shall be presumed to have been the owner of that copyright at the time of the publication.

(5) For the purposes of subsection (4). of this section a fact shall be taken to be established if it is proved or admitted, or if it is presumed in pursuance of the subsequent provisions of this section.

(6) Where in an action brought by virtue of this Part of this Act with regard to a literary, dramatic, musical or artistic work it is proved or admitted that the author is dead—

(a) the work shall be presumed to be an original work unless the contrary is proved, and

(b) if it is alleged by the plaintiff that a publication specified in the allegation was the first publication of the work, and that it took place in a country and on a date so specified, that publication shall be presumed, unless the contrary is proved, to have been the first publication of the work, and to have taken place in that country and on that date.

(7) Paragraphs (a) and (b) of subsection (6) of this section shall apply where a work has been published, and—

(a) the publication was anonymous, or was under a name alleged by the plaintiff to have been a pseudonym, and

(b) it is not shown that the work has ever been published under the true name of the author or under a name by which he was commonly known, or that it is possible for a person without previous knowledge of the facts to ascertain the identity of the author by reasonable inquiry,

as those paragraphs apply in a case where it is proved that the author is dead.

(8) In any action brought by virtue of this Part of this Act with respect to copyright in a sound recording, if records embodying that recording or part thereof have been issued to the public, and at the time when those records were so issued they or their containers bore a label or other mark comprising any one or more of the following statements, that is to say—

(a) that a person named on the label or mark was the maker of the sound recording;

(b) that the recording was first published in a year specified on the label or mark;

(c) that the recording was first published in a country specified on the label or mark,

that label or mark shall be sufficient evidence of the facts as stated except in so far as the contrary is proved.

27. —(1) Any person who, at a time after the commencement of this section when copyright subsists in a work—

(a) makes for sale or hire, or

(b) sells or lets for hire, or by way of trade offers or exposes for sale or hire, or

(c) by way of trade exhibits in public, or

(d) imports into the State, otherwise than for his private and domestic use,

any article which he knows to be an infringing copy of the work, shall be guilty of an offence under this subsection.

(2) Any person who, at a time after the commencement of this section when copyright subsists in a work, distributes, either—

(a) for purposes of trade, or

(b) for other purposes, but to such an extent as to affect prejudicially the owner of the copyright,

articles which he knows to be infringing copies of the work, shall be guilty of an offence under this subsection.

(3) Any person who, at a time after the commencement of this section when copyright subsists in a work, makes or has in his possession a plate, knowing that it is to be used for making infringing copies of the work, shall be guilty of an offence under this subsection.

(4) The District Court, upon the application of the owner of the copyright in any work, may act as follows: If satisfied by evidence that there is reasonable ground for believing that infringing copies of the work are being hawked, carried about, sold, or offered for sale, may by order authorise a member of the Garda Síochána to seize the copies without warrant and to bring them before the court, and the court, on proof that the copies are infringing copies, may order them to be destroyed, or to be delivered up to the owner of the copyright or otherwise dealt with as the court may think fit.

(5) If the District Court is satisfied by information on oath that there is reasonable ground for suspecting that an offence under subsection (1), (2) or (3) of this section is being committed on any premises, the court may grant a search warrant authorising a member of the Garda Síochána not below the rank of Inspector, accompanied by such other members of the Garda Síochána as that member thinks proper, to enter the premises between the hours of 6 a.m. and 9 p.m., if need be by force, and to seize any copies of any work or any plates in respect of which he has reasonable ground for suspecting that an offence under any of the said subsections is being committed.

(6) All copies of any work and plates seized under subsection (5) of this section shall be brought before the District Court, and if proved to be infringing copies or plates intended to be used for the printing or reproduction of infringing copies shall be destroyed or delivered up to the owner of the copyright in question or otherwise dealt with as the court thinks fit.

(7) The preceding subsections of this section shall apply in relation to copyright subsisting in any subject-matter by virtue of Part III of this Act, as they apply in relation to copyright subsisting by virtue of Part II of this Act.

(8) Any person who after the commencement of this section causes a literary, dramatic or musical work to be performed in public, knowing that copyright subsists in the work and that the performance constitutes an infringement of the copyright, shall be guilty of an offence under this subsection.

(9) A person guilty of an offence under subsection (1) or subsection (2) of this section shall on summary conviction—

(a) if it is his first conviction of an offence under this section, be liable to a fine not exceeding five pounds for each article to which the offence relates;

(b) in any other case, be liable to such a fine, or to imprisonment for a term not exceeding six months:

so, however, that a fine imposed by virtue of this subsection shall not exceed one hundred pounds in respect of articles comprised in the same transaction.

(10) A person guilty of an offence under subsection (3) or subsection (8) of this section shall, on summary conviction—

(a) if it is his first conviction of an offence under this section, be liable to a fine not exceeding one hundred pounds;

(b) in any other case, be liable to such a fine, or to imprisonment for a term not exceeding six months.

(11) The court before which a person is charged with an offence under this section may, whether he is convicted of the offence or not, order that any article in his possession which appears to the court to be an infringing copy, or to be a plate used or intended to be used for making infringing copies, shall be destroyed or delivered up to the owner of the copyright in question or otherwise dealt with as the court may think fit.

(12) An appeal shall lie to the Circuit Court from any order under subsection (4), (5), (6) or (11) of this section.

28. —(1) The owner of the copyright in any published literary, dramatic or musical work or sound recording may give notice in writing to the Revenue Commissioners (in this section referred to as the Commissioners)—

(a) that he is the owner of the copyright in the work or the recording, and

(b) that he requests the Commissioners, during a period specified in the notice, to treat as prohibited goods copies of the work or the recording to which this section applies;

so, however, that the period specified in a notice under this subsection shall not exceed five years and shall not extend beyond the end of the period for which the copyright is to subsist.

(2) This section applies—

(a) in the case of a work, to any printed copy and

(b) in the case of a sound recording, to any copy,

made outside the State which, if it had been made in the State, would be an infringing copy of the work or the recording.

(3) Where a notice has been given under this section in respect of a work or a recording, and has not been withdrawn, the importation into the State, at a time before the end of the period specified in the notice, of any copy of the work or the recording to which this section applies shall, subject to the subsequent provisions of this section, be prohibited.

(4) The immediately preceding subsection of this section shall not apply to the importation of any article by a person for his private and domestic use.

(5) The Commissioners may make regulations prescribing the form in which notices are to be given under this section, and requiring a person giving such a notice, either at the time of giving the notice or at the time when the goods in question are imported, or at both those times, to furnish the Commissioners with such evidence, or to comply with such other conditions (if any) as may be specified in the regulations: and any such regulations may include such incidental and supplementary provisions as the Commissioners may consider expedient for the purposes of this section.

(6) Without prejudice to the generality of the immediately preceding subsection of this section, regulations made under that subsection may include provision for requiring a person who has given a notice under subsection (1) of this section, or a notice purporting to be a notice under that subsection—

(a) to pay to the Commissioners such fees in respect of the notice as may be prescribed by the regulations;

(b) to give to the Commissioners such security as may be so prescribed, in respect of any liability or expense which they may incur in consequence of the detention, at any time during the period specified in the notice, of any copy of the work or the recording to which the notice relates, or in consequence of anything done in relation to a copy so detained;

(c) whether any such security is given or not, to keep the Commissioners indemnified against any such liability or expense as is mentioned in paragraph (b) of this subsection.

(7) Any fees paid in pursuance of regulations under this section shall be accounted for in such manner as shall be prescribed by the Minister for Finance.

(8) The Public Offices Fees Act, 1879, shall not apply in respect of any fees payable in pursuance of regulations under this section.

(9) Notwithstanding anything contained in the Customs Acts, a person shall not be liable to any penalty under those Acts (other than forfeiture of the goods) by reason that any goods are treated as prohibited goods by virtue of this section.