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10 1963

COPYRIGHT ACT, 1963

PART V.

Jurisdiction of the Controller of Industrial and Commercial Property.

Definitions for purposes of Part V.

29. —(1) In this Part of this Act—

licence” means a licence granted by or on behalf of the owner, or prospective owner, of the copyright in a literary, dramatic or musical work, or in a sound recording or a television broadcast, being—

(a) in the case of a literary, dramatic or musical work, a licence to perform in public, or to broadcast, or to record for the purpose of broadcasting, the work or an adaptation thereof, or to cause the work or an adaptation thereof to be transmitted to subscribers to a diffusion service;

(b) in the case of a sound recording, a licence to cause it to be heard in public, or to broadcast it, or to transmit it to subscribers to a diffusion service;

(c) in the case of a television broadcast, a licence to cause it, in so far as it consists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public.

(2) In this Part of this Act “licensing body”—

(a) in relation to such licences as are mentioned in paragraph (a) of the preceding subsection of this section, means a society or other organisation which has as its main object, or one of its main objects, the negotiation or granting of such licences, either as owner or prospective owner of copyright or as agent for the owners or prospective owners thereof;

(b) in relation to such licences as are mentioned in paragraph (b) of the preceding subsection of this section means any owner or prospective owner of copyright in sound recordings, or any person or body of persons acting as agent for any owners or prospective owners of copyright in relation to the negotiation or granting of such licences; and

(c) in relation to such licences as are mentioned in paragraph (c) of the precedng subsection of this section, means Radio Éireann or any organisation appointed by Radio Éireann for the purposes of negotiating or granting licences in respect of the copyright in television broadcasts in so far as the copyright relates to the acts specified in paragraph (c) of subsection (5) of section 19 of this Act.

(3) Paragraph (a) of subsection (2) of this section shall not apply to an organisation by reason that its objects include the negotiation or granting of individual licences, each relating to a single work or the works of a single author, if they do not include the negotiation or granting of general licences, each extending to the works of several authors.

(4) In this Part of this Act “licence scheme”, in relation to licences of any description, means a scheme made by one or more licensing bodies, setting out the classes of cases in which they, or the persons on whose behalf they act, are willing to grant licences of that description, and the charges (if any), and the terms and conditions, subject to which licences would be granted in those classes of cases; and in this subsection “scheme” includes anything in the nature of a scheme, whether described therein as a scheme or a tariff or by any other name.

(5) In this Part of this Act—

(a) references to terms and conditions are references to terms and conditions other than those relating to the amount of a charge for a licence; and

(b) references to giving an opportunity to a person of presenting his case are references to giving him an opportunity, at his option, of submitting representations in writing, or of being heard, or of submitting representations in writing and being heard.

General provisions as to jurisdiction of the Controller.

30. —Subject to the provisions of this Part of this Act, the Controller shall have jurisdiction to determine disputes arising between licensing bodies and persons requiring licences, or organisations claiming to be representative of such persons, either—

(a) on the reference of a licence scheme to the Controller, or

(b) on the application of a person requiring a licence either in accordance with a licence scheme or in a case not covered by a licence scheme.

Determination by the Controller of certain matters relating to royalties under section 13 and remuneration under sections 17 and 48.

31. —(1) Where a dispute arises between the manufacturer and the owner of the copyright in a musical work regarding the amount of the royalty payable by the manufacturer under paragraph (d) of subsection (1) of section 13 of this Act in respect of the recording of the work, the dispute may be referred by either party to the Controller who shall consider the case and either determine the amount of the royalty so payable, or refer the case to an arbitrator in pursuance of the provisions of section 41 of this Act, for such determination.

(2) Where a royalty payable under section 13 of this Act falls to be apportioned under subsection (3.) or (5) of that section, the Controller shall, in default of agreement among the persons entitled to the royalty, consider the case and either determine the proportions in which the royalty shall be so apportioned, or refer the case to an arbitrator in pursuance of the provisions of section 41 of this Act, for such determination.

(3) Where a dispute arises between a person who causes a sound recording, or any reproduction thereof, to be heard in public, or to be broadcast, and the owner of the copyright subsisting in the recording regarding the equitable remuneration payable under paragraph (b) of subsection (4) of section 17 of this Act in respect of the recording, the dispute may be referred by either party to the Controller who shall consider the case and either determine the amount of the remuneration so payable, or refer the case to an arbitrator in pursuance of the provisions of section 41 of this Act, for such determination.

(4) Where a dispute arises between the owner of the right to broadcast a musical work incorporated in a cinematograph film and Radio Éireann, as to the equitable remuneration payable under subsection (2) of section 48 of this Act in respect of the work, the dispute may be referred by either party to the Controller who shall consider the case and either determine the amount of the remuneration so payable, or refer the case to an arbitrator in pursuance of the provisions of section 41 of this Act, for such determination.

Reference of licence schemes to the Controller.

32. —(1) Where, at any time while a licence scheme is in operation, a dispute arises with respect to the scheme between the licensing body operating the scheme and—

(a) an organisation claiming to be representative of persons requiring licences in cases of a class to which the scheme applies, or

(b) any person claiming that he requires a licence in a case of a class to which the scheme applies,

the organisation or person in question may refer the scheme to the Controller in so far as it relates to cases of that class.

(2) The parties to a reference of a licence scheme to the Controller under this section shall be—

(a) the organisation or person at whose instance the reference is made;

(b) the licensing body operating the scheme to which the reference relates; and

(c) such other organisations or persons (if any) as apply to the Controller to be made parties to the reference and, in accordance with the next following subsection of this section, are made parties thereto.

(3) Where an organisation (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to the Controller to be made a party to a reference, and the Controller is satisfied that the organisation or person has a substantial interest in the matter in dispute, he may, if he thinks fit, make that organisation or person a party to the reference.

(4) The Controller shall not entertain a reference of a licence scheme to him under this section by an organisation unless he is satisfied that the organisation is reasonably representative of the class of persons which it claims to represent.

(5) Subject to the immediately preceding subsection of this section, the Controller, on any reference under this section, shall consider the matter in dispute, and, after giving to the parties to the reference an opportunity of presenting their cases respectively, shall make such order, either confirming or varying the scheme, in so far as it relates to cases of the class to which the reference relates, as the Controller may determine to be reasonable in the circumstances.

(6) An order of the Controller under this section may, notwithstanding anything contained in the licence scheme to which it relates, be made so as to be in force either indefinitely or for such period as the Controller may determine.

(7) Where a licence scheme has been referred to the Controller under this section, then, notwithstanding anything contained in the scheme, but subject to the next following subsection—

(a) the scheme shall remain in operation until the Controller has made an order in pursuance of the reference, and

(b) after such an order has been made, the scheme shall remain in operation, in so far as it relates to the class of cases in respect of which the order was made, so long as the order remains in force.

(8) The immediately preceding subsection of this section shall not apply in relation to a reference as respects any period after the reference has been withdrawn, or has been discharged by virtue of subsection (4) of this section.

Further reference of scheme to the Controller.

33. —(1) Where the Controller has made an order under the immediately preceding section with respect to a licence scheme, then, subject to the next following subsection of this section, at any time while the order remains in force—

(a) the licensing body operating the scheme, or

(b) any organisation claiming to be representative of persons requiring licences in cases of the class to which the order applies, or

(c) any person claiming that he requires a licence in a case of that class,

may refer the scheme again to the Controller in so far as it relates to cases of that class.

(2) A licence scheme shall not, except with the special leave of the Controller, be referred again to him under the immediately preceding subsection of this section at a time earlier than—

(a) the end of the period of twelve months beginning with the date on which the order in question was made, in the case of an order made so as to be in force indefinitely or for a period exceeding fifteen months, or

(b) the beginning of the period of three months ending with the date of expiry of the order, in the case of an order made so as to be in force for fifteen months or less.

(3) The parties to a reference under this section shall be—

(a) the licensing body, organisation or person at whose instance the reference is made;

(b) the licensing body operating the scheme to which the reference relates, if the reference is not made at their instance; and

(c) such other organisation or persons (if any) as apply to the Controller to be made parties to the reference and, in accordance with the provisions applicable in that behalf by virtue of subsection (5) of this section, are made parties thereto.

(4) Subject to the said subsection (5), the Controller, on any reference under this section, shall consider the matter in dispute, and, after giving to the parties to the reference an opportunity of presenting their cases respectively, shall make such order in relation to the scheme as previously confirmed or varied, in so far as it relates to cases of the class in question, either by way of confirming, varying, or further varying the scheme, as the Controller may determine to be reasonable in the circumstances.

(5) Subsections (3), (4), (6) and (7) of the immediately preceding section of this Act shall apply for the purposes of this section.

(6) The preceding provisions of this section shall have effect in relation to orders made under this section as they have effect in relation to orders made under the immediately preceding section of this Act.

(7) Nothing in this section shall be construed as preventing a licence scheme, in respect of which an order has been made under the immediately preceding section of this Act, from being again referred to the Controller under that section, either—

(a) at any time, in so far as the scheme relates to cases of a class to which the order does not apply, or

(b) after the expiration of the order, in so far as the scheme relates to cases of the class to which the order applied while it was in force.

Applications to the Controller.

34. —(1) For the purposes of this Part of this Act a case shall, subject to the provisions of subsection (2) of this section, be taken to be covered by a licence scheme if, in accordance with a licence scheme for the time being in operation, licences would be granted in cases of the class to which that case belongs.

(2) Where, in accordance with the provisions of a licence scheme—

(a) the licences which would be so granted would be subject to terms and conditions whereby particular matters would be excepted from the licences, and

(b) the case in question relates to one or more matters falling within such an exception,

the case shall be taken not to be covered by the scheme.

(3) Any person who claims, in a case covered by a licence scheme, that the licensing body operating the scheme have refused or failed to grant him a licence in accordance with the provisions of the scheme, or to procure the grant to him of such a licence, may apply to the Controller under this section.

(4) Any person who claims that he requires a licence in a case not covered by a licence scheme, and either—

(a) that a licensing body have refused or failed to grant the licence, or to procure the grant thereof, and that in the circumstances it is unreasonable that the licence should not be granted, or

(b) that any charges, terms or conditions subject to which a licensing body propose that the licence should be granted are unreasonable,

may apply to the Controller under this section.

(5) Where an organisation (whether claiming to be representative of persons requiring licences or not) or a person (whether requiring a licence or not) applies to the Controller to be made a party to an application under the preceding provisions of this section, and the Controller is satisfied that the organisation or person has a substantial interest in the matter in dispute, the Controller may, if he thinks fit, make that organisation or person a party to the application.

(6) On any application under subsection (3) or subsection (4) of this section the Controller shall give to the applicant and the licensing body in question and to every other party (if any) to the application an opportunity of presenting their cases respectively; and if the Controller is satisfied that the claim of the applicant is well-founded, the Controller 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 and conditions, and subject to the payment of such charges (if any) as—

(a) in the case of an application under subsection (3) of this section, the Controller may determine to be applicable in accordance with the licence scheme, or

(b) in the case of an application under subsection (4) of this section, the Controller may determine to be reasonable in the circumstances.

(7) Any reference in this section to a failure to grant or procure the grant of a licence shall be construed as a reference to a failure to grant it, or to procure the grant thereof, within a reasonable time after being requested to do so.

Rules of procedure.

35. —(1) The Minister may make rules in relation to the proceedings before the Controller in the case of references and applications made to the Controller under this Act.

(2) Rules under this section may relate to such proceedings generally or to proceedings on a reference or application made to the Controller under any particular provision or provisions of this Act specified in the rules.

(3) The proceedings aforesaid shall be conducted in accordance with the relevant rules (if any) under this section.

Fees.

36. —(1) There shall be charged by the Controller and paid in respect of references and applications made to him under any of the provisions of this Act, and in respect of other matters relating thereto, such fees as may from time to time be prescribed by rules made by the Minister with the consent of the Minister for Finance.

(2) All fees charged by the Controller under this section shall be collected and accounted for in such manner as shall be prescribed by rules made by the Minister, with the consent of the Minister for Finance.

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

Power of the Controller to award costs.

37. —The Controller shall, in any proceedings before him under this Act, have power by order to award to any party or parties to the proceedings such costs thereof as he may consider reasonable and to direct how and by which party or parties they are to be paid and any such order may be made a rule of court.

Appointment of assessors.

38. —(1) In any proceedings before him under this Act the Controller may, if he thinks fit, and shall, on the request of all the parties to the proceedings, appoint an assessor who is specially qualified in regard to all or any of the questions arising in the course of the proceedings to aid him in his consideration of those questions.

(2) There shall be paid by the Controller to an assessor appointed by him under this section such remuneration (if any) as the Minister may, with the consent of the Minister for Finance, prescribe.

Effects of orders of the Controller.

39. —(1) Where an order made on a reference under this Part of this Act with respect to a licence scheme is for the time being in force, any person who, in a case covered by the scheme as confirmed or varied by the order, does anything which—

(a) apart from this subsection would be an infringement of copyright, but

(b) would not be such an infringement if he were the holder of a licence granted in accordance with the scheme, as confirmed or varied by the order, in so far as the scheme relates to cases comprised in the order,

shall, if he has complied with the requirements specified in the next following subsection, be in the like position, in any proceedings for infringement of that copyright, as if he had at the material time been the holder of such a licence.

(2) The said requirements are—

(a) that, at all material times, the said person had complied with the terms and conditions which, in accordance with the licence scheme as confirmed or varied by the order, would be applicable to a licence covering the case in question, and

(b) if, in accordance with the scheme as so confirmed or varied, any charges are payable in respect of such a licence, that at the material time he had paid those charges to the licensing body operating the scheme, or, if at any time the amount payable could not be ascertained, he had given an undertaking to the licensing body to pay the charges when ascertained.

(3) Where the Controller has made an order under section 34 of this Act declaring that a person is entitled to a licence in respect of any matters specified in the order, then if—

(a) that person has complied with the terms and conditions specified in the order, and

(b) in a case where the order requires the payment of charges, he has paid those charges to the licensing body in accordance with the order, or, if the order so provides, has given to the licensing body an undertaking to pay the charges when ascertained,

he shall be in the like position, in any proceedings for infringement of copyright relating to any of those matters, as if he had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms and conditions specified in the order.

(4) In the exercise of his jurisdiction in respect of licences relating to television broadcasts, the Controller shall have regard (among other matters) to any conditions imposed by the promoters of any entertainment or other event which is to be comprised in the broadcasts; and, in particular, the Controller shall not hold a refusal or failure to grant a licence to be unreasonable if it could not have been granted consistently with those conditions.

(5) Nothing in the immediately preceding subsection of this section shall require the Controller to have regard to any such conditions as are mentioned in that subsection in so far as they purport to regulate the charges to be imposed in respect of the grant of licences, or in so far as they relate to payments to be made to the promoters of any event in consideration of the grant of facilities for broadcasting.

(6) Where, on a reference to the Controller under this Part of this Act—

(a) the reference relates to licences in respect of copyright in sound recordings or in television broadcasts, and

(b) the Controller is satisfied that any of the licences in question are required for the purposes of organisations such as are mentioned in paragraph (b) of subsection (8) of section 17 of this Act,

the Controller may, if he thinks fit, exercise his powers under this Part of this Act so as to reduce in the case of those organisations, to such extent as he thinks fit, the charges which he determines generally to be reasonable in relation to cases of the class to which the reference relates, or, if the Controller thinks fit, so as to exempt those organisations from the payment of any such charges.

(7) The immediately preceding subsection of this section shall have effect, with the necessary modifications, in relation to applications under this Part of this Act as it has effect in relation to references thereunder.

(8) In relation to copyright in a literary, dramatic or musical work, any reference in this section to proceedings for infringement of copyright includes a reference to proceedings brought by virtue of subsection (8) of section 27 of this Act.

Appeal to the High Court,

40. —(1) An appeal shall lie to the High Court from any order or decision of the Controller on any reference or application made to him under any provision of this Act, and the High Court may make such order confirming, annulling or varying the order or decision of the Controller as it thinks fit.

(2) Subject to subsection (3) of this section, a decision of the High Court under this section shall be final and not appealable.

(3) By leave of the High Court, an appeal from a decision of the High Court under this section shall lie to the Supreme Court on a specified question of law.

Reference of cases of dispute to arbitration.

41. —(1) In the case of any dispute referred to the Controller under section 13 , section 17 or section 48 of this Act, the Controller may at any time—

(a) if the parties to the dispute consent, or

(b) if the case requires any prolonged examination of documents or other investigation which, in the opinion of the Controller, could not conveniently be made before him,

order the case to be referred to an arbitrator agreed on by the parties, or, in the absence of such agreement, appointed by the Controller.

(2) The award made by an arbitrator in any case referred to him under this section shall, if the parties to the dispute consent to the reference, be final and binding on the parties.

(3) An appeal shall lie to the High Court from any award made by an arbitrator in pursuance of a reference under this section to which the parties to the dispute did not consent and the High Court may make such order confirming, annulling or varying the award of the arbitrator as it thinks fit.

(4) Subject to subsection (5) of this section, a decision of the High Court under this section shall be final and not appealable.

(5) By leave of the High Court, an appeal from a decision of the High Court under this section shall lie to the Supreme Court on a specified question of law.

Controller may consult the Attorney General.

42. —The Controller may, in any case of doubt or difficulty arising in connection with the administration of any of the provisions of this Act, apply to the Attorney General for advice in the matter.