Chapter 6

Offences: Performances

258. —(1) A person who, without the consent of the rightsowner—

(a) makes for sale, rental or loan,

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

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

(d) 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

(e) 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 rightsowner,

a recording which is, and which he or she knows or has reason to believe is, an illicit recording, shall be guilty of an offence.

(2) A person who—

(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, shall be guilty of an offence.

(3) A person who—

(a)  (i) makes,

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

(iii) imports into the State, or

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

a protection-defeating device, knowing or having reason to believe that it has been or is to be used to circumvent rights protection measures, or

(b) provides information, or offers or performs any service intended to enable or assist persons to circumvent rights protection measures,

shall be guilty of an offence.

(4) Where the rights conferred by this Part are infringed—

(a) by the playing or showing in public of a recording of a performance, or

(b) by the broadcasting or inclusion in a cable programme service of a performance or a recording of a performance,

the person who caused the recording of the performance to be shown or played, or the performance or the recording of the performance to be broadcast or included in a cable programme service, shall be guilty of an offence where he or she knew or had reason to believe that the rights conferred by this Part would be infringed.

(5) An offence shall not be committed under subsection (1) or (4) by the undertaking of an act which under this Part may be undertaken without infringing the rights conferred by this Part.

(6) A person guilty of an offence under subsection (1), (2) or (3) shall be liable—

(a) on summary conviction, to a fine not exceeding £1,500 in respect of each illicit recording, article or device, or to imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both.

(7) A person guilty of an offence under subsection (4) shall be liable—

(a) on summary conviction, to a fine not exceeding £1,500 in respect of each offence, or to imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both.

259. —A person who, for financial gain, makes a claim to enjoy a right under this Part or Part IV which is, and which he or she knows or has reason to believe is, false, shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both.

260. —(1) The court may, on conviction of a person or being satisfied that there is a prima facie case to answer, where the court is satisfied that at the time of the arrest or charge the person had in his or her possession, custody or control—

(a) in the course of a business, trade or profession, a recording of a performance, knowing or having reason to believe it to be an illicit recording,

(b) an article specifically designed or adapted for making recordings of a performance, knowing or having reason to believe that it had been or was to be used to make illict recordings, or

(c) a protection-defeating device,

order that the illicit recording, article or device be delivered up to the rightsowner or to such other person as the court may direct.

(2) An order may be made by the court of its own motion, or on the application of the person bringing a prosecution, and may be made whether or not the person is convicted of the offence, but shall not be made—

(a) after the expiration of the period specified in section 263 (3) as being the limit of the period for delivery up, or

(b) where it appears to the court unlikely that any order will be made as to the disposal of the illicit recordings, articles or devices.

(3) A person to whom an illicit recording, article or device is delivered up pursuant to an order made under this section shall retain it pending the making of a final order or decision not to make an order, as the case may be.

261. —(1) Where a Judge of the District Court is satisfied by information on oath that there are reasonable grounds for suspecting—

(a) that an offence under section 258 has been, or is about to be, committed in, on or at any premises or place, and

(b) that evidence that such an offence has been, or is about to be, committed is in, on or at those premises or that place,

the court may issue a warrant authorising a member of the Garda Síochána, accompanied by such other members of the Garda Síochána or other person or persons as that member thinks proper, at any time or times within 28 days from the date of the issue of the warrant, on production, where requested, of that warrant, to enter and search the premises or place specified in the warrant using reasonable force where necessary, and to do all or any of the following acts—

(i) to seize any copies of any recordings, articles or devices in respect of which he or she has reasonable grounds for suspecting that an offence under section 258 has been or is about to be committed;

(ii) to make an inventory or prepare other evidence of infringement or potential infringement of any right conferred by this Part;

(iii) to seize anything found there which he or she believes on reasonable grounds may be required to be used in evidence in any proceedings brought in respect of an offence under this Act;

(iv) to require any person found there to give his or her name and address.

(2) A warrant issued under this section may authorise persons, including the rightsowner or designated representative thereof, to accompany and assist any member of the Garda Síochána in executing the warrant or in collating any inventory or other evidence.

(3) A person who—

(a) obstructs or interferes with a person acting under the authority of a warrant issued under this section,

(b) is found in, on or at the premises or place specified in the warrant by a member of the Garda Síochána acting as aforesaid and who fails or refuses to give the member his or her name and address when required to do so or gives a name or address that is false or misleading,

(c) obstructs the exercise of an authority conferred by a warrant under this section, or

(d) fails or refuses to give information to a member of the Garda Síochána when required to do so under this section,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500, or to imprisonment for a term not exceeding 12 months, or both.

262. —(1) It shall be an offence for a person to represent falsely that he or she is authorised by any person to give consent for the purposes of this Part in relation to a performance, unless he or she believes on reasonable grounds that he or she is so authorised.

(2) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding £1,500, or to imprisonment for a term not exceeding 12 months, or both.

263. —(1) Subject to subsection (2), an application for an order under section 255 may not be made after the expiration of 6 years from the date on which the illicit recording, article or device was made.

(2) Where, during the whole or any part of the period referred to in subsection (1), a person entitled to apply for an order for delivery up—

(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 255 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 260 shall not, in any case, be made after the expiration of 6 years from the date on which the proceedings under section 260 were initiated.

(4) Where in any proceedings for an order for delivery up under section 255 or 260 the date of the making of the illicit recording, article or device is put into question by the defendant, the onus of proof shall be on the defendant that the illicit recording, article or device was made more than 6 years before the date on which an application for an order under section 255 was made or proceedings under section 260 were initiated.

264. —(1) An application may be made to the appropriate court for an order that an illicit recording, article or device—

(a) delivered up under section 255 or 260, or

(b) seized and detained under section 256 or 261,

shall be—

(i) forfeited to the rightsowner, 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 rights conferred by this Part would be adequate to compensate the person entitled to those rights and to protect his or her interests.

(3) Provision shall be made by rules of court as to the service of notice on persons having an interest in the recordings, 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 recording, article or device, the court shall make such order as it thinks fit and may direct the recording, 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 recording, 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 recording, article or device include any person in whose favour an order may be made under this section in respect of the recording, article or device or under section 145 or under section 23 of the Trade Marks Act, 1996 .