Chapter 9

Remedies: Copyright Owner

127. —(1) An infringement of the copyright in a work is actionable by the copyright owner.

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

(3) Subject to section 139 , where in an action for infringement of the copyright in a work the defendant does not admit that the plaintiff is the owner of the copyright the court may direct that evidence in relation to ownership of the copyright be given on affidavit and the court may decide the issue having considered any affidavit presented to it unless it is satisfied that any conflict of evidence between the affidavits may not be resolved other than by hearing oral testimony in which case the court may order that oral evidence may be adduced.

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

128. —(1) The court may, in an action for infringement of copyright award such damages as, having regard to all the circumstances of the case, it considers just.

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

(3) In exercising its powers under subsection (1) in addition to or as an alternative to compensating the plaintiff for financial loss, the court may award aggravated or exemplary damages or both aggravated and exemplary damages.

129. —In an action for infringement of the copyright in respect of the construction of a building no injunction or other order shall be made—

(a) after the construction of the building has begun, so as to prevent it from being completed, or

(b) so as to require the building, in so far as it has been constructed, to be demolished.

130. —(1) Where, in proceedings for infringement of the copyright in a work in respect of which a licence is available as of right, the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the Controller—

(a) no injunction shall be granted against the defendant,

(b) no order for delivery up shall be made under section 131 , and

(c) the amount recoverable against the defendant by way of damages or on an account of profits shall not exceed three times the amount which would have been payable by the defendant as licensee where a licence on those terms had been granted before the earliest infringement.

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

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

131. —(1) Where a person—

(a) in the course of a business, trade or profession, has in his or her possession, custody or control an infringing copy of a work,

(b) has in his or her possession, custody or control an article specifically designed or adapted for making copies of a copyright work, knowing or having reason to believe that it has been or is to be used to make infringing copies, or

(c) has in his or her possession, custody or control a protection-defeating device,

the owner of the copyright in the work may apply to the appropriate court for an order that the infringing copy, article or device be delivered up to him or her or to such other person as the court may direct.

(2) An application under subsection (1) shall not be made after the expiration of the period specified in section 144 (1) as being the limit of the period for delivery up and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order as to the disposal of the infringing copy, article or device.

(3) A person to whom an infringing copy, article or device is delivered up pursuant to an order made under this section shall, where an order under section 145 as to the disposal of the infringing copy, article or device is not made, retain it pending the making of an order, or the decision not to make an order, under that section.

132. —(1) Without prejudice to section 133 , where the owner of the copyright in a work applies to the District Court, it may, where satisfied that there are reasonable grounds for believing that there are being hawked, carried about or marketed—

(a) infringing copies of the work,

(b) articles specifically designed or adapted for making copies of a work, knowing or having reason to believe that it has been or is to be used for making infringing copies of a work, or

(c) protection-defeating devices,

authorise by order a member of the Garda Síochána to seize without warrant the copies, articles or devices and to bring them before the District Court.

(2) On being satisfied that any copy, article or device referred to in subsection (1) is—

(a) an infringing copy,

(b) articles specifically designed or adapted for making copies of a work, which the person hawking, carrying about or marketing those articles, knows or has reason to believe that they have been or are to be used to make infringing copies of a work, or

(c) a protection-defeating device,

the District Court may order the copy, article or device to be destroyed or to be delivered up to the owner of the copyright or otherwise dealt with as the Court may think fit.

(3) In an application to the District Court under subsection (1) or, in any ex parte application or interlocutory motion to a court of competent jurisdiction for an order which would permit the applicant to enter and search premises or place specified therein and take possession of material found therein on terms set out in such order, the court hearing such an application may receive hearsay evidence to the effect that the witness or deponent believes that the material may be found in a particular location.

(4) A witness or deponent shall not be obliged to indicate the source of the information upon which that witness formed the belief that material may be found in a particular location.

(5) After the implementation of an order made under this section, the court may, on the application of a person aggrieved by it, award damages against the applicant for the order as it considers just, on being satisfied that—

(a) no infringement of copyright has been established, and

(b) the information on which the copyright owner applied for the order was given maliciously.

133. —(1) Where it would be impracticable for the owner of the copyright in a work to apply to the District Court for an order under section 132 , a copy, article or device referred to in section 132 (1) in respect of which the copyright owner would be entitled to apply for an order for delivery up under section 131 , may be seized and detained by the copyright owner or a designated representative thereof where the copy, article or device is found being hawked, carried about or marketed.

(2) The right to seize and detain conferred by subsection (1) is exercisable, subject to subsections (4) to (8) of this section, and is subject to any decision of the court relating to disposal of infringing copies, articles or devices under section 145 .

(3) A person who seizes any infringing copies, articles or devices under this section shall apply to the District Court for an order to dispose of those copies, articles or devices within 30 days of the seizure.

(4) Before any infringing copies, articles or devices are seized under this section notice of the time and place of the proposed seizure shall be given to a member of the Garda Síochána in the District Court Area in which the copies, articles or devices are to be seized.

(5) A person exercising the right to seize and detain conferred by subsection (1) may enter premises to which members of the public have access.

(6) A person exercising the right to seize and detain conferred by subsection (1) may not seize anything in the possession, custody or control of a person at his or her permanent or regular place of business, trade or profession, and may not use any force.

(7) Without prejudice to the generality of subsection (6), a person exercising the right to seize and detain conferred by subsection (1) may make an inventory or prepare other evidence of infringement of copyright or potential infringement of copyright.

(8) At the time when any infringing copies, articles or devices are seized under this section there shall be given to the owner, occupier or person in charge of the place where the copies, articles or devices are seized a notice, in the prescribed form, informing the person of the right of the owner of the copies, articles or devices being seized to apply to the District Court for the return of the copies, articles or devices on the grounds that they are not—

(a) infringing copies of a work,

(b) articles that have been or are to be used to make infringing copies, or

(c) protection-defeating devices.

(9) Without prejudice to the generality of subsection (8), the Minister shall prescribe the form of the notice to be given under that subsection and the form shall specify—

(a) the name and the address of the person claiming to be the owner of the copyright in the work concerned,

(b) the statutory authority for the seizure,

(c) the grounds that the person seizing the copies, articles or devices has for such seizure, and

(d) a list of that which is seized.

(10) The owner of any copies, articles or devices seized under this section may apply to the District Court for the return of those copies, articles or devices.

(11) Rules of court shall be made under this section and the rules shall provide for procedures to enable applications to be made and dealt with in an expeditious manner.

(12) Where there has been an exercise of the right to seize and detain, conferred by subsection (1), the court may, on the application of a person aggrieved by it, award damages against a person who exercises that right as it considers just, on being satisfied that—

(a) no infringement of copyright has been established, and

(b) the person had no reasonable grounds for such seizure.

134. —(1) Subject to the provisions of this Act, the owner of any copyright shall be entitled to all such rights and remedies, in respect of the conversion or detention by any person of—

(a) infringing copies of a work,

(b) articles that have been or are to be used to make infringing copies, or

(c) protection-defeating devices,

as he or she would be entitled to if he or she were the owner of every such copy, article or device and had been the owner thereof since the time when it was made.

(2) Where by virtue of section 12(2) (which relates to successive conversions or detentions) of the Statute of Limitations, 1957, the title of the owner of the copyright to such a copy, article or device referred to in subsection (1) of this section would (if he or she had been the owner of the copy, article or device) have been extinguished on the expiration of the period referred to in the said subsection (2), he or she shall not be entitled to any rights or remedies under subsection (1) of this section in respect of anything done in relation to that copy, article or device after the expiration of that period.

(3) In awarding damages for conversion, the court shall take into account all the circumstances of the case and shall award such sum as it considers just.