Chapter 5

Delivery Up and Seizure

255. —(1) Where a person—

(a) in the course of a business, trade or profession, has in his or her possession, custody or control an illicit recording of a performance,

(b) 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, or

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

a person having rights conferred by this Part in relation to the performance may apply to the appropriate court for an order that the illicit recording, 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 263 (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 illicit recording, article or device.

(3) A person to whom an illicit recording, article or device is delivered up pursuant to an order made under this section shall, where an order under section 264 as to the disposal of the illicit recording, 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.

256. —(1) Without prejudice to section 257 where the owner of the rights in a recording of a performance conferred by this Part 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) illicit recordings of the performance,

(b) articles specifically designed or adapted for making recordings of a performance, 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 illicit recordings of a performance, or

(c) protection-defeating devices,

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

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

(a) an illicit recording,

(b) an article that has been or is to be used to make illicit recordings, or

(c) a protection-defeating device,

the District Court may order the recording, article or device to be destroyed or to be delivered up to the rightsowner 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 a right conferred by this Part has been established, and

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

257. —(1) Where it would be impracticable for the owner of the rights in a recording of a performance to apply to the District Court for an order under section 256 , a recording, article or device referred to in section 256 (1), in respect of which the rightsowner would be entitled to apply for an order for delivery up under section 255 , may be seized and detained by the rightsowner or a designated representative of that owner where the recording, 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) and is subject to any decision of the court relating to disposal of illicit recordings, articles or devices under section 264 .

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

(4) Before any illicit recordings, 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 recordings, 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 any of the rights conferred by this Part or potential infringement of such rights.

(8) At the time when any illicit recordings, 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 recordings, articles or devices are seized a notice, in the prescribed form, informing the person of the right of the owner of the recordings, articles or devices being seized to apply to the District Court for the return of the recordings, articles or devices on the grounds that they are not—

(a) illicit recordings of a performance,

(b) articles that have been or are to be used to make illicit recordings, 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 rights in the recording concerned,

(b) the statutory authority for the seizure,

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

(d) a list of that which is seized.

(10) The owner of any recordings, articles or devices seized under this section may apply to the District Court for the return of those recordings, 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 a right conferred by this Part has been established, and

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