The Copyright Act, 1963 (as amended in 1987) provides that copyright shall subsist in the following original works:-
- literary, dramatic, musical or artistic work;
- sound recordings;
- Cinematograph films; and
- published editions of works
provided, however,
- if the work is unpublished, that the author was a "qualified person" when it was made;
- if the work is published, that it was first published in the State or its author was a "qualified person" when it was first published or its author died before it was published but was a qualified person immediately prior to his death.
A "qualified person" is an Irish citizen, domicidiary or resident, or a company incorporated under Irish law. Protection is extended to citizens of the countries of the Berne Union, Universal Copyright Convention and Rome Convention.
2. JOINT AUTHORS
Generally, the author of a work shall be entitled to any copyright existing in the work. The most notable exception is that the copyright in a work made in the course of the author's employment subsists in the employer. The copyright in a photograph or portrait commissioned subsists in the person who commissioned the work.
"Work of joint authorship" is defined as a work produced by the collaboration of two or more authors in which the contribution of each author is not separate from the contribution of the other author(s). The protection conferred by the legislation on a sole author is conferred jointly and severally upon the joint authors. However, where the work is such that if it was done by only one of the joint authors, copyright would not have subsisted in that author, that person will not have copyright in the work.
3. CONTENTS OF RIGHTS
A. Literary, dramatic and musical works
The copyright owner has the exclusive right to do, and to authorise other persons to do the following in relation to:-
- Reproduce;
- Publish;
- Perform in public;
- Broadcast;
- Cause its transmission to subscribers to a diffusion service
- Make any adaptation due doing (a) to (e) in relation to an adaptation.
Secondary infringement in the form of importing, selling, letting for hire, offering or exposing for sale or hiring by way of trade, exhibiting by way of trade any article known to constitute an infringement; or permitting a place of public entertainment to be used for a performance of a work which will constitute an infringement of it.
B. Artistic Works
In relation to an artistic work, the Acts restricted are (a) and (b) above, and it is also a breach of copyright to include the work in a television broadcast or to cause a television programme which includes the work to be transmitted to subscribers to a diffusion service.
C. Sound Recordings
The maker of a sound recording has the exclusive right to
- make a record of it
- if unpublished, cause it to be heard in public, broadcast or transmitted
- if published, cause it to be heard in public, broadcast or transmitted without receiving payment of "equitable remuneration".
D. Cinematograph Films
The maker of a cinematograph film is the person by whom necessary arrangements for making the film were undertaken. The maker has an exclusive right to
- make a copy of it
- cause it to be seen/heard in public
- broadcast it and
- transmit it through a diffusion service.
Protection extends to a soundtrack for a film.
E. Television broadcasts and sound broadcasts made by RTE in the State
RTE, the National Broadcasting Authority, has the exclusive right to
- make, other than for private purposes, a film or photograph of the broadcast,
- cause it to be seen/heard in public by a paying audience, and
- make a sound recording of it and to re-broadcast it.
F. Published editions of works
The publisher has exclusive right to make a photographic reproduction of the edition except to the extent that it is made for private research or study.
4. DURATION AND LIMITATION OF RIGHTS
A. Duration
Copyright in an original literary, dramatic, musical or artistic work lasts during the lifetime of the author and for 50 years from the end of the year of the author's death. Sound recordings, cinematograph films and RTE television and sound broadcasts are protected for 50 years from the end of the year of their making. Copyright in a published edition of a word subsists for 25 years from the date of first publication. If a work is not in the public domain when its author dies, the period of copyright is 50 years from the date of its being made public. In the case of joint authors, the copyright lasts for 50 years from the death of the last joint author.
B. Limitations
Copyright is not infringed by
- fair dealing in a work for purposes of study, criticism, review;
- reporting current events;
- reproductions for judicial proceedings;
- use in schools.
Published sound recordings and RTE broadcasts may be played at charity events, and to residents, without breaching copyright. Subsequent recordings of musical work may be sold by retail upon payment of a fair royalty to the copyright owner, if he permitted the sale of a previous recording. Unpublished works over 100 years old may be published by Government Order. Finally, it is not an infringement of copyright in an artistic work to paint, draw, film or broadcast sculptures and works of artistic craftsmanship permanently situated in public, or to make a three dimensional reproduction of a two dimensional work, or to reconstruct a building by reference to plans drawn for its original construction in certain circumstances.
5. PROTECTION OF FOREIGN AUTHORS' RIGHTS
Ireland has ratified the Berne Convention (as amended), the Rome Convention and the Universal Copyright Convention. Authors who are citizens or subjects of any other country also party to these Conventions are afforded the rights set out above. Works made prior to 1959 in Universal Copyright Convention countries not party to the Berne Union are not covered. Unless a similar right exists in the country in which it was first published, copyright in a sound recording shall not afford to foreign authors a right to equitable remuneration as set out above.
6. PROTECTION OF COMPUTER PROGRAMS, DATABASES ETC.
The EEC Council Directive on computer programs is not yet implemented in Ireland. However, it has generally become accepted that computer programs are protected by copyright.
In the Copyright Act, 1963, a literary work is stated to include any written table or compilation, and ti is accepted that a program is a literary work, although the Irish Courts have never had to decide on this point. When the Patents Act, 1992 comes into force, it will preclude patent protection for computer programs, although it is already accepted that patent protection is inappropriate. Copyright protection could prove inadequate, however, if a program is never reduced to writing or other material form, and care should be taken to so reduce it before writing a program into a computer.
7. CIVIL REMEDIES
Infringement is actionable at the suit of the owner who will normally seek injunctive relief, damages and accounts of profits. The Courts are given jurisdiction to award punitive damages for breach of copyright.
The owner of a copyright has the same rights in infringing copies of his work as would accrue to the owner of the infringing copies. This extends to any plate used or intended to be used for making infringing copies of his work.
8. DEFENCES
If the Defendant can prove that he was not aware, and had no reasonable grounds of suspecting, that copyright subsisted in the work, the Court will not award damages or order delivery of infringing copies or plates. However, the Plaintiff is, nonetheless, entitled to an account of the profits made during infringement.
Likewise, if the Defendant can prove that he believed, and had reasonable grounds for believing, that the copies were not infringing copies or that the articles for which the plate would be used would not be infringing copies, a claim for damages or other pecuniary remedy (except costs) will not succeed.
No injunction shall be granted to prevent the completion of a building in respect of the construction of which there is an action for infringement of copyright.
9. EXCLUSIVE LICENSEES
Where the owner of the copyright has granted an exclusive licence in it, the exclusive licensee has the same rights of action for infringement as the owner. Their rights and remedies are concurrent. Consequently, if either party brings an action for infringement, the other party must be joined as a Plaintiff or added as a Defendant, although one party alone may apply for an interlocutory injunction. Unless there is an agreement before the Court as to the allocation of profits in an action for an account of profits, the Court has discretion as to the apportionment of the profits.
10. PRESUMPTIONS
The Act provides that a copyright is presumed to subsist and that the Plaintiff is presumed to be owner if it is so claimed and the Defendant does not put the question in issue. A person whose name appears on the published copy of a work is presumed to be the author unless the contrary is proved.
Certain presumptions are made if the author has died:-
- it is presumed that the work is an original work unless the contrary is proved;
- if it is alleged that a publication specified was the first publication of the work, and that it took place in a country and on a date so specified, it will be presumed that the publication was the first publication and did take place in that country and on that date.
If a publication was anonymous, or made under a name alleged to have been a pseudonym used by the author, and it cannot be shown that the work was ever published under the true name of the author, these presumptions are also made.
11. CRIMINAL PENALTIES
It is an offence to
- make, sell, let, exhibit, import or distribute infringing copies;
- make or have a plate knowing it is for use in infringing copyright;
- cause a work to be performed in public knowing it to be an infringement of copyright.
District Courts may authorise search warrants and order seizure of allegedly infringing copies and plates and order that they be brought before the Court. On proof that they are infringing copies, the Court may order them to be destroyed, or to be delivered up to the owner of the copyright or otherwise dealt with as the Court thinks fit.
These offences attract a maximum fine of œ100.00 per article to which the offence relates, in the case of a first conviction. Otherwise, the Court has discretion to fix the fine and may order imprisonment for a term not exceeding six months. However, the total maximum fine per transaction cannot exceed œ1,000.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
