Chapter 2

Infringement of Performers' Rights

209. —A person infringes the rights of a performer conferred by section 203 where he or she, without the consent of the performer—

(a) shows or plays in public the whole or any substantial part of a qualifying performance, or

(b) broadcasts or includes in a cable programme service the whole or any substantial part of a qualifying performance,

by means of a recording which was, and which that person knows or has reason to believe was, made without the consent of the performer.

210. —(1) In Parts III and IV “illicit recording”, in relation to a performance, shall be construed in accordance with this section.

(2) A recording of the whole or any substantial part of a performance shall be an illicit recording where the recording is made without the consent of the performer.

(3) A copy of a recording shall be an illicit recording where its making constitutes an infringement of a performer's property rights in the recording concerned.

(4) Subject to subsection (5), a copy of a recording shall be an illicit recording where—

(a) it has been or is to be imported into the State, and

(b) its making in the State would have constituted an infringement of a performer's property rights in the recording concerned, or breach of an exclusive licence agreement relating to that recording.

(5) A copy of a recording which previously has been issued to the public in accordance with section 206 in any other Member State of the EEA by, or with the consent of, the owner of the performers' property rights in the recording, shall not be deemed to be an illicit recording for the purposes of subsection (4).

(6) A recording of the whole or any substantial part of a performance which is subject to an exclusive recording contract shall be an illicit recording where it is made, otherwise than for private and domestic use, without the consent of the person having recording rights or the consent of the performer.

(7) For the purposes of sections 258 and 260, a recording shall be deemed to be an illicit recording where it is an illicit recording for the purposes referred to in subsections (2), (3), (4) and (5) of this section.

211. —Where in any proceedings for infringement of any right conferred by Part III or IV the question arises as to whether a recording is an illicit recording and it is shown that—

(a) the recording is a recording of the performance concerned, and

(b) rights conferred by Parts III and IV subsist or have subsisted at any time in the recording,

it shall be presumed until the contrary is proved that the recording was made at a time when such rights subsisted.

212. —(1) A person infringes the rights of a performer conferred by section 203 where he or she, without the consent of the performer—

(a) sells, rents or lends, or offers or exposes for sale, rental or loan,

(b) imports into the State, otherwise than for his or her private and domestic use,

(c) in the course of a business, trade or profession, has in his or her possession, custody or control, or makes available to the public, or

(d) otherwise than in the course of a business, trade or profession, makes available to the public to such an extent as to prejudice the interests of the performer,

a recording of a qualifying performance which is, and which he or she knows or has reason to believe is, an illicit recording.

(2) Where, in an action brought under this section for infringement of the rights of a performer, a defendant shows that the illicit recording was innocently acquired by him or her or his or her predecessor in title, the only remedy available against the defendant in respect of the infringement shall be an award of damages not exceeding a reasonable payment in respect of the act complained of.

(3) In Parts III and IV “innocently acquired” means that the person acquiring the recording did not know and had no reason to believe that it was an illicit recording.

213. —A person infringes the rights of a performer conferred by section 203 where he or she without the consent of the performer—

(a) makes,

(b) sells, rents or lends, or offers or exposes for sale, rental or loan,

(c) imports into the State, or

(d) has in his or her possession, custody or control,

an article specifically designed or adapted for making recordings of a performance, knowing or having reason to believe that it has been or is to be used to make illicit recordings.

214. —Where the rights of a performer conferred by this Part are infringed by a public performance of a recording of the performance, or by playing or showing the recording in public, by means of apparatus for—

(a) playing sound recordings,

(b) showing films, or

(c) receiving sounds or images or any combination of sounds or images, or the representations thereof, conveyed by any means,

the following persons shall also be liable for the infringement—

(i) a person who supplied the apparatus, or any substantial part thereof if, when he or she supplied the apparatus or part thereof—

(I) he or she knew or had reason to believe that the apparatus was likely to be used to infringe the rights of a performer conferred by this Part, or

(II) in the case of apparatus the normal use of which involves a public performance, playing or showing, he or she had reason to believe that it would be used to infringe the rights of a performer conferred by this Part;

(ii) an owner or occupier of premises who gave permission for the apparatus to be brought onto the premises if, when the owner or occupier gave permission, he or she knew or had reason to believe that the apparatus was likely to be used to infringe the rights of a performer conferred by this Part; and

(iii) a person who supplied a copy of a sound recording or film used to infringe the rights of a performer conferred by this Part if, when the person supplied it, he or she knew or had reason to believe that what was supplied, or a copy made directly or indirectly therefrom, was likely to be used to infringe the rights of a performer conferred by this Part.