Chapter 4

Acts Permitted in Relation to Performances

220. —In this Part an act may be exempted under more than one category of exemption and the exemption of an act under one category of exemption shall not preclude its exemption under another category.

221. —(1) Fair dealing with a performance or recording for the purposes of criticism or review, of that or another performance or recording, or of a work, or for the purpose of reporting current events, shall not infringe any of the rights conferred by this Part.

(2) In this Part “fair dealing” means the making use of a performance or a recording which has been lawfully made available to the public for a purpose and to an extent which will not unreasonably prejudice the interests of the rightsowner.

222. —(1) The rights conferred by this Part are not infringed by the inclusion in an incidental manner of a performance or recording in another recording or work.

(2) The rights conferred by this Part are not infringed by the making available to the public of anything whose making was not, by virtue of subsection (1), an infringement of those rights.

(3) A performance or recording shall not be regarded as included in an incidental manner in another recording or work where it is included in a manner where the interests of the rightsowner are unreasonably prejudiced.

Education

223. —(1) The rights conferred by this Part are not infringed by the copying of a recording of a performance in the course of instruction or preparation for instruction where the copying is done by or on behalf of a person giving or receiving instruction.

(2) The rights conferred by this Part are not infringed—

(a) by the copying of a recording of a performance for the purposes of setting or answering the questions in an examination, or

(b) by anything done for the purposes of an examination by way of communicating the questions to the examination candidates.

(3) Where a copy which would otherwise be an illicit recording is made under this section but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an illicit recording for those purposes and for all subsequent purposes.

224. —(1) The playing or showing of a sound recording, film, broadcast or cable programme before an audience limited to persons who are teachers in or pupils in attendance at an educational establishment or other persons directly connected with the activities of that establishment—

(a) by a teacher or pupil in the course of the activities of the establishment concerned, or

(b) by any person for the purposes of instruction,

is not a playing or showing of a performance or a recording in public for the purposes of infringement of the rights conferred by this Part.

(2) For the purposes of this section, a person is not directly connected with the activities of an educational establishment by reason only that he or she is a parent or a guardian of a pupil in attendance at the educational establishment concerned.

225. —(1) A recording of a broadcast or a cable programme, or a copy of such a recording, may be made by or on behalf of an educational establishment for the educational purposes of that establishment without infringing any of the rights conferred by this Part in relation to any performance or recording included in the broadcast or cable programme.

(2) Where a recording which would otherwise be an illicit recording is made under this section but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an illicit recording for those purposes and for all subsequent purposes.

226. —(1) Subject to subsection (2), educational establishments and establishments to which members of the public have access shall be exempt from the payment of remuneration under section 205 (5)(g) and shall not infringe the rights conferred by this Part by the lending of copies of a recording of a performance.

(2) The Minister shall prescribe the educational establishments and the establishments to which members of the public have access for the purposes of subsection (1).

Libraries and Archives

227. —(1) The Minister may make regulations for the purposes of this section and those regulations may make different provisions for different classes of libraries or archives and for different purposes.

(2) Without prejudice to the generality of subsection (1), the Minister may prescribe the libraries and archives to which sections 228 to 234 apply and may prescribe all or any of the following—

(a) the conditions that are to be complied with when a librarian or archivist of a prescribed library or prescribed archive makes and supplies a copy of any part of a recording of a performance which has been lawfully made available to the public to a person requiring a copy;

(b) the conditions that are to be complied with when a librarian or archivist of a prescribed library or prescribed archive makes and supplies to another prescribed library or prescribed archive a copy of a recording of a performance or part of a recording of a performance which has been lawfully made available to the public and is required by that other prescribed library or archive;

(c) the conditions is that are to be complied with before a librarian or archivist of a prescribed library or prescribed archive makes a copy of a recording of a performance in the permanent collection of the library or archive in order to preserve or replace that recording in the permanent collection of that prescribed library or prescribed archive, or in the permanent collection of another prescribed library or prescribed archive;

(d) the conditions that are to be complied with by a librarian or archivist of a prescribed library or prescribed archive when making or supplying a copy of the whole or part of certain recordings of a performance which have not been lawfully made available to the public from a recording in the prescribed library or prescribed archive to a person requiring the copy.

228. —(1) Where regulations made by the Minister under section 227 require a librarian or archivist to be satisfied as to any matter before making or supplying a copy of a recording of a performance—

(a) the librarian or archivist concerned may rely on a declaration as to that matter by the person requesting the copy, unless the librarian or archivist is aware that it is false in a material particular, and

(b) in such cases as may be prescribed, the librarian or archivist shall not make or supply the copy in the absence of a declaration in such form as may be prescribed.

(2) Where a person requesting a copy of a recording of a performance makes a declaration which is false in a material particular and is supplied with a copy which would have been an illicit recording if made by him or her—

(a) he or she shall be liable for infringement of the rights conferred by this Part as if he or she had made the copy, and

(b) the copy shall be treated as an illicit recording.

229. —(1) The librarian or archivist of a prescribed library or prescribed archive may, where the prescribed conditions are complied with, make and supply a copy of part of a recording of a performance which has been lawfully made available to the public without infringing any rights conferred by this Part.

(2) A copy made under subsection (1) shall not be supplied other than to a person who satisfies the librarian or archivist that he or she requires that copy for the purposes of research or private study and he or she shall not use it for any other purpose and that person shall not be furnished with more than one copy of the same recording unless the person satisfies the librarian or archivist that the previous copy has been lost, stolen, discarded or destroyed or a reasonable period of time has elapsed, and that person shall not be furnished with a copy of more than a reasonable proportion of any recording of a performance.

230. —(1) A copy of a recording shall not be supplied under section 229 to more than 3 persons whose requirements are related to any similar requirement of any other person.

(2) For the purposes of subsection (1)—

(a) the requirements of persons shall be deemed to be similar where the requirements are for copies of substantially the same material at approximately the same time and for substantially the same purpose, and

(b) the requirements of persons shall be deemed to be related where those persons receive instructions to which the material is relevant at the same time and place.

231. —(1) The librarian or archivist of a prescribed library or prescribed archive may, where the prescribed conditions are complied with, make and supply to another prescribed library or prescribed archive a copy of the whole or part of a recording of a performance, which has been lawfully made available to the public, without infringing any rights conferred by this Part.

(2) Subsection (1) shall not apply where, at the time the copy is made, the librarian or archivist making it could, by reasonable enquiry, obtain the consent of a person entitled to authorise the making of the copy.

232. —(1) The librarian or archivist of a prescribed library or prescribed archive may, where the prescribed conditions are complied with, make a copy of a recording of a performance in the permanent collection of the library or archive—

(a) in order to preserve or replace that recording by placing the copy in the permanent collection of that library or archive in addition to or in place of that recording, or

(b) in order to replace in the permanent collection of another prescribed library or prescribed archive a recording which has been lost, destroyed or damaged,

without infringing any right conferred by this Part.

(2) This section shall only apply where it is not reasonably practicable to purchase a copy of the recording concerned for the purposes of subsection (1).

233. —(1) The librarian or archivist of a prescribed library or prescribed archive may, where the prescribed conditions are complied with, make a copy of a recording of a performance in the permanent collection of the library or archive—

(a) for the purposes of obtaining insurance cover for the copy of a performance concerned;

(b) for purposes of security;

(c) for the purposes of compiling or preparing an archival record of the performance; or

(d) for exhibition in the library or archive,

without infringing any rights conferred by this Part.

(2) This section shall apply to copying conducted for the curatorial purposes specified in subsection (1), and to an extent reasonably justified by the non-commercial purpose to be achieved.

234. —(1) The librarian or archivist of a prescribed library or prescribed archive may, where the prescribed conditions are complied with, make and supply a copy of the whole or part of a recording of a performance which has not been lawfully made available to the public from any recording in the permanent collection of the library or archive without infringing any right conferred by this Part.

(2) This section shall not apply where the performer, or the person having recording rights in the relevant performance, has prohibited copying of that recording of the performance and at the time the copy is made the librarian or archivist making the copy knew, or ought to have been aware of, that fact.

(3) A copy made under subsection (1) shall not be supplied other than to a person who satisfies the librarian or archivist that he or she requires that copy for purposes of research or private study and he or she shall not use it for any other purpose and that person shall not be furnished with more than one copy of that recording or part of that recording.

235. —Where a recording of a performance of cultural or historical importance or interest may not lawfully be exported from the State unless a copy of it is made and deposited in a library, archive or other institution designated by the Minister for Arts, Heritage, Gaeltacht and the Islands under section 50 of the National Cultural Institutions Act, 1997 , it shall not be an infringement of any right conferred by this Part to make that copy.

236. —Where a copy which would otherwise be an illicit recording is made under section 229 , 231, 232, 234 or 235 but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an illicit recording for those purposes and for all subsequent purposes.

Public Administration

237. —The rights conferred by this Part are not infringed by anything done for the purposes of parliamentary or judicial proceedings or for the purpose of reporting those proceedings.

238. —(1) The rights conferred by this Part are not infringed by anything done for the purposes of a statutory inquiry or for the purpose of reporting any such inquiry.

(2) The rights conferred by this Part are not infringed by the making available to the public of copies of a report of a statutory inquiry containing a recording of a performance.

239. —Any material which is comprised in records which are open to public inspection may be copied, and a copy may be supplied to any person, without infringing any right conferred by this Part.

240. —(1) Without prejudice to the generality of section 239 , where material is open to public inspection pursuant to a statutory requirement, or is on a statutory register, the rights conferred by this Part are not infringed by the copying, for a purpose which does not involve the making available to the public of copies, of so much of the material as contains factual information of any description, by or with the authority of the person required to make the material open to public inspection or, by or on the authority of the person maintaining the register.

(2) Where material is open to public inspection pursuant to a statutory requirement, or is on a statutory register, the rights conferred by this Part are not infringed by the copying or making available to the public of copies of that material, for the purpose of enabling the material to be inspected at another time or place, or otherwise facilitating the exercise of any right for the purpose of which the requirement is imposed, by or with the authority of the person required to make the material open to public inspection or, as the case may be, the person maintaining the register.

(3) Where a recording of a performance is made available to the public under this section the person granting access to the material shall ensure that it bears a mark clearly indicating that it is provided for the purpose of inspection and that no other use of the material may be made without the consent of the person entitled to authorise such use.

(4) Material may not be provided under this section unless the person granting access to the material has first obtained from the person requesting the material a declaration, in such form as may be prescribed, indicating that the material is required for the sole purpose of enabling the material to be inspected at another time or place or to otherwise facilitate the exercise of the right of public inspection.

(5) Where material which is open to public inspection pursuant to a statutory requirement, or is on a statutory register, contains information about matters of general, scientific, technical, commercial or economic interest, the rights conferred by this Part are not infringed by the copying or making available to the public of copies of that material for the purpose of disseminating that information, by or with the authority of the person required to make the material open to public inspection or, as the case may be, the person maintaining the register.

(6) The Minister may prescribe the conditions which are to be complied with before material is made available to the public under this section.

(7) The Minister may by order provide that subsections (1) to (5) apply—

(a) to material made open to public inspection by—

(i) an international organisation specified in the order, or

(ii) a person specified in the order who has functions in the State under an international agreement to which the State is party,

or

(b) to a register maintained by an international organisation specified in the order,

as they apply in relation to material open to public inspection pursuant to a statutory requirement, or on a statutory register.

241. —(1) Where the undertaking of a particular act is specifically authorised by an enactment then, unless the enactment provides otherwise, the undertaking of that act shall not infringe any right conferred by this Part.

(2) Nothing in this section shall be construed as excluding any defence available under any enactment.

Recordings in Electronic Form

242. —(1) This section applies where a recording of a performance in electronic form has been purchased on terms which expressly or impliedly allow the purchaser to make further recordings in connection with his or her use of the recording.

(2) Where there are no express terms—

(a) prohibiting the transfer of the recording by the purchaser, imposing obligations which continue after a transfer, prohibiting the assignment of any licence or terminating any licence on a transfer, or

(b) specifying the conditions on which a transferee may undertake the acts which the purchaser was permitted to undertake,

then, any acts which the purchaser was permitted to undertake may also be undertaken by a transferee without infringement of any right conferred by this Part, but any recording made by the purchaser which is not also transferred shall be treated as an illicit recording for those purposes and for all subsequent purposes.

(3) Subsection (2) applies where the original purchased recording is no longer usable and that which is transferred is a further recording used in its place.

(4) This section shall apply on a second and subsequent transfer in like manner as to the first transfer to a purchaser and references to the purchaser shall be construed as references to a second or subsequent transferee.

(5) This section shall not apply in relation to a recording purchased before the commencement of this Part.

Miscellaneous Matters Relating to Performers' Rights

243. —(1) Subject to compliance with the conditions specified in subsection (2), where a recording of the reading or recitation of a literary or a dramatic work is made for the purpose of—

(a) reporting current events, or

(b) broadcasting or including in a cable programme service the whole or part of the reading or recitation,

it is not an infringement of any right conferred by this Part to use the recording or to make further copies and use those copies for the purposes referred to in paragraphs (a) and (b).

(2) The conditions referred to in subsection (1) are—

(a) that the recording is a direct recording of the reading or recitation and is not taken from a previous recording or from a broadcast or cable programme,

(b) that the making of the recording was not prohibited by or on behalf of the person giving the reading or recitation,

(c) that the use made of the recording is not prohibited by or on behalf of the person giving the reading or recitation before the recording was made, and

(d) that the use made of the recording is by or with the authority of a person who is lawfully in possession of the recording.

244. —(1) The rights conferred by this Part are not infringed by the making of a transient and incidental copy of a recording of a performance which is technically required for the viewing of or listening to the recording by a member of the public to whom the recording is lawfully made available.

(2) Where a copy which would otherwise be an illicit recording is made under this section but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an illicit recording for those purposes and for all subsequent purposes.

245. —(1) A recording of a performance of an anonymous work which has not been lawfully made available to the public may be made for the purpose of including it in an archive maintained by a designated body without infringing any right conferred by this Part where at the time the recording is made—

(a) the making of the recording does not infringe any copyright, and

(b) the making of the recording is not prohibited by any performer.

(2) A copy of a recording made under subsection (1) and included in an archive maintained by a designated body may, subject to compliance with the conditions referred to in subsection (3), be made and supplied by an archivist without infringing any right conferred by this Part.

(3) The conditions referred to in subsection (2) relating to the actions of archivists are—

(a) that a copy may not be supplied other than to a person who satisfies the archivist that he or she requires that copy for the purposes of research or private study and he or she shall not use it for any other purpose, and

(b) that a person shall not be furnished with more than one copy of the same recording.

(4) In this section “designated body” means a body designated for the purposes of section 92 .

246. —(1) Subject to subsection (2), it is not an infringement of any of the rights conferred by this Part to cause a sound recording, broadcast or cable programme to be heard or viewed where it is heard or viewed—

(a) in part of the premises where sleeping accommodation is provided for the residents or inmates, and

(b) as part of the amenities provided exclusively or mainly for residents or inmates.

(2) Subsection (1) does not apply in respect of any part of premises to which subsection (1) applies where there is a discrete charge made for admission to the part of the premises where a sound recording, broadcast or cable programme is to be heard or viewed.

247. —(1) Subject to compliance with the conditions specified in subsection (2), it is not an infringement of any right conferred by this Part to play a sound recording as part of the private activities of or for the benefit of a club, society or other organisation.

(2) The conditions referred to in subsection (1) are—

(a) that the club, society or other organisation is not established or conducted for profit and its main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare, and

(b) the proceeds of any charge for admission to the place where the sound recording is to be heard are applied solely for the purposes of the club, society or other organisation.

(3) Subsection (1) shall not apply in the case of any club, society or other organisation where a charge is made for admission to the place where the sound recording is to be heard and any of the proceeds of the charge are applied otherwise than for the purpose of the club, society or other organisation.

248. —(1) Where, by virtue of a licence or assignment of a right conferred by this Part, a person is authorised to broadcast or include in a cable programme service a recording of a performance, he or she shall be deemed to be licensed by the owner of the right in the recording to copy or authorise the copying of that recording by means of his or her facilities for the purposes of his or her broadcast or cable programme.

(2) A licence conferred by subsection (1) shall be subject to the condition that any copy resulting from the exercise of that licence shall not be used for any purpose other than the broadcast or cable programme and shall be destroyed within 3 months of first being used for broadcasting or included in a cable programme service.

(3) A copy of a recording made under this section shall be treated as an illicit recording where it is used for purposes other than broadcasting or inclusion in a cable programme service or where it is used after the expiration of 3 months from the date it is first used for broadcasting or included in a cable programme service.

249. —(1) The rights conferred by this Part are not infringed by the making or use by an authorised broadcaster or authorised cable programme service provider, for the purpose of maintaining supervision and control over programmes broadcast by them or included by them in a cable programme service, of recordings of those programmes.

(2) The rights conferred by this Part are not infringed by any use made by any body established by the State to regulate the operations of broadcasters or cable programme service provides of any recordings of broadcasts or cable programmes.

250. —(1) The making for private and domestic use of a fixation of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at another time or place shall not infringe any right conferred by this Part.

(2) Subject to subsection (3), the making by an establishment for private and domestic use of a fixation of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at another time or place shall not infringe any right conferred by this Part.

(3) The Minister may specify by order establishments for the purposes of this section.

251. —(1) This section applies where a broadcast made from a place in the State is, by reception and immediate retransmission, without alteration, included in a cable programme service.

(2) The rights conferred by this Part in relation to a performance or recording included in a broadcast to which this section applies are not infringed where—

(a) the inclusion is pursuant to a statutory requirement, or

(b) the broadcast is made for reception in the area in which the cable programme service is provided and it is not a satelite transmission or an encrypted transmission.

(3) Where the making of a broadcast is an infringement of any right conferred by this Part, the fact that the broadcast was retransmitted as a programme in a cable programme service shall be taken into account in assessing the damages for that infringement.

252. —(1) A designated body may—

(a) make a copy of a recording, for the purpose of modifying that copy to meet the special needs of a person who has a physical or mental disability, and

(b) supply that modified copy to that person without infringing any right conferred by this Part.

(2) Where a copy which would otherwise be an illicit recording is made under this section but is subsequently sold, rented or lent, or offered or exposed for sale, rental or loan, or otherwise made available to the public, it shall be treated as an illicit recording for those purposes and for all subsequent purposes.

(3) In this section “designated body” means a body designated for the purposes of section 104 .

253. —(1) A recording of a broadcast or a cable programme of a designated class or a copy of such a recording may be made for the purpose of including it in an archive maintained by a designated body without infringing any right conferred by this Part in relation to a performance or recording included in the broadcast or cable programme.

(2) In this section—

“designated body” means a body designated for the purposes of section 105 ;

“designated class” means a class designated for the purposes of section 105 .

254. —(1) Subject to the service or publication of such notices as may be required by rules made under section 363 or as the Controller may in any particular case direct, the Controller may by order, on the application of a person wishing to make a copy of a recording of a performance, consent to the making of the copy in a case where the identity or location of the person entitled to the reproduction right cannot be ascertained by reasonable enquiry.

(2) The consent given by the Controller under subsection (1) has effect in the same manner as the consent of the person entitled to the reproduction right for the purposes of section 204 and may be given subject to any conditions specified in the order made under subsection (1).

(3) For the purposes of giving consent under subsection (1), the Controller shall take into account—

(a) whether the original recording was made with the consent of the performer and is lawfully in the possession, custody or control of the person proposing to make the copy, and

(b) whether the making of the copy is consistent with the obligations of the parties to the arrangements under which, or is otherwise consistent with the purposes for which, the original recording was made.

(4) subsection (3) shall not affect the obligation of the Controller in any case to have regard to all relevant circumstances.

(5) Where the Controller consents under subsection (1) he or she shall, in default of agreement between the applicant and the person entitled to the reproduction right, make such order as the Controller thinks fit as to the payment to be made to the person entitled to the reproduction right in consideration of consent being given.