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Remedies for Intellectual Property Rights Infringement

Copyright issues often arise in connection with our Advertising Law practice. The statutory rights have been greatly enhanced since the beginning of 2001.

On the 1st of January 2001 the Copyright and Related Rights Act, 2000 became law with the exception of four sections. The Act is designed to effect a total reform of Irish copyright law. The coming into force of this Act marks another major step in the Government's programme of copyright law reform, following on the enactment of the Intellectual Property (Miscellaneous Provisions) Act 1998 which substantially increased penalties for criminal offences in the copyright field, as well as revising the burden of evidence in favour of plaintiff rights holders in civil action for breach of copyright.

The Copyright and Related Rights Act 2000 is the first comprehensive review of Irish copyright law since the enactment of the Copyright Act 1963. The Act covers three broad areas, they being copyright and related rights generally, rights in performances and database rights. It runs to over 350 Sections which are set out in 7 parts. Part I deals with interpretation and procedural matters. Part II deals with subsistence of copyright, authorship, duration, rights of copyright owner, exceptions, moral rights, dealings, infringements and remedies, copyright licensing schemes and miscellaneous matters. Parts III and IV deal with Performers' rights and Performers' moral rights respectively. Part V deals with databases. Part VI deals with Jurisdiction of the Controller and Part VII deals with Technological Protection Measures.

The Act extends existing protections to broadcasts, cable programmes, typographical arrangements of published editions and original databases. New provisions are introduced concerning recordings of works of folklore, anonymous works and retransmission of encrypted broadcasts. The Act implements into Irish law a number of European Union Directives in the field of copyright and related rights and brings Irish law into conformity with all obligations incurred under international law on copyrights and related rights, in particular under the Berne Convention (Paris Act) 1886, the Rome Convention 1960, the Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement 1994, the World Intellectual Property Association (WIPO) Copyright Treaty 1996 and WIPO Performances and Phonograms Treaty 1996.

In line with the requirements of the Berne Copyright Convention the Act introduces into Irish Law the concept of moral rights. These are rights which belong to the author of a work no matter who the owner of the copyright is. The Act therefore establishes a "paternity right" - the right to be identified as the author of a work and an " integrity right"- the right not to have a work subjected to a derogatory treatment, being a treatment which is prejudicial to the honour/reputation of the author. Additionally a person has a right not to have a work falsely attributed to him or her.

Section 23 of the Act establishes that the author of the work will be the owner of the copyright except in certain specified cases. In both Civil and Criminal proceedings relating to copyright, copyright will be presumed to subsist in a work unless the contrary is proved.

The civil remedies available for infringement of copyright are supported by a range of penalties for criminal offences in relation to copyright and related rights. The copyright holder may now take actions against infringements of copyright which will allow for the delivery up of infringing copies or the seizure of same. The provisions of the Act introduce into Irish law a comprehensive regime of civil rights in relation to performer's rights and rights in performances and thus provide effective measures to combat the "bootleg" copying of performances which has posed a major problem to both performers and those holding exclusive recording rights.

New provisions have been introduced concerning licensing agreements. Sections 249 to 263 allow for the reference of disputes between licensees and licensing bodies to the Controller of Patents Designs and Trade Marks.

Part V of the Act implements the provisions of the EC Directive on the Legal Protection of Databases (EC 96/9) and establishes a Database right which will only apply to citizens or bodies incorporated in the European Union or the EEA. The provisions in the Act relating to computer programmes are similar on the whole to provisions in existing legislation.

The four sections which have not yet been implemented are: sections 98 and 247 which both deal with playing of sound recordings for clubs, societies, etc. Section 198 which deals with delivery of certain materials to libraries and section 199 which deals with the Amendment of sections 65 and 66 of the National Cultural Institutions Act, 1997. As of May 2002, these sections have still to be implemented.