Chapter 14

Delivery up and Disposal

144. —(1) Subject to subsection (2), an application for an order under section 131 may not be made after the expiration of 6 years from the date on which the infringing copy, article or device was made.

(2) Where, during the whole or any part of the period referred to in subsection (1), the copyright owner—

(a) is under a disability, or

(b) is prevented by fraud or concealment from discovering the facts entitling him or her to apply for an order,

an application under section 131 may be made at any time before the expiration of 6 years from the date on which the applicant ceased to be under a disability, or, as the case may be, could, with reasonable diligence, have discovered those facts.

(3) An order for delivery up in criminal proceedings under section 142 shall not, in any case, be made after the expiration of 6 years from the date on which the proceedings under that section were initiated.

(4) Where, in any proceedings for an order for delivery up under section 131 or 142, the date of the making of the infringing copy, article or device is put into question by the defendant, the onus of proof shall be on the defendant that the infringing copy, article or device was made more than 6 years before the date on which an application for an order under section 131 was made or proceedings under section 142 were initiated.

145. —(1) An application may be made to the appropriate court for an order that an infringing copy, article or device—

(a) delivered up under section 131 or 142, or

(b) seized and detained under section 132 or 143,

shall be—

(i) forfeited to the copyright owner, or

(ii) destroyed or otherwise dealt with as the court may direct,

and the court may make such an order or such other order as it thinks fit.

(2) In considering what order, if any, should be made under subsection (1), the court shall consider whether other remedies available in an action for infringement of the copyright in a work would be adequate to compensate the copyright owner and to protect his or her interests.

(3) Provision shall be made by rules of the court as to the service of notice on persons having an interest in the copies, articles or devices concerned, and any such person may—

(a) appear in proceedings for an order under this section whether or not he or she was served with notice, or

(b) appeal against any order made, whether or not he or she appeared in the proceedings concerned.

(4) An order made under this section shall not take effect until the expiration of the period within which notice of an appeal may be given or, where before the expiration of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.

(5) Where there is more than one person interested in a copy, article or device, the court shall make such order as it thinks fit and may direct the copy, article or device to be sold or otherwise dealt with and any proceeds divided in accordance with the direction of the court.

(6) Where the court decides that no order shall be made under this section, the person who had the copy, article or device in his or her possession, custody or control immediately before it was delivered up or seized shall be entitled to its return.

(7) References in this section to a person having an interest in a copy, article or device include any person in whose favour an order may be made under this section in respect of the copy, article or device or under section 264 or under section 23 of the Trade Marks Act, 1996 .

146. — Section 23 of the Trade Marks Act, 1996 , is hereby amended by the substitution of the following subsection for subsection (6) of that section:

“(6) References in this section to a person having an interest in goods, material or articles include references to any person in whose favour an order could have been made under sections 145 and 264 of the Copyright and Related Rights Act, 2000.”.