STATUTORY INSTRUMENTS.
S.I. No. 411 of 2013
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EUROPEAN UNION (TERM OF PROTECTION OF COPYRIGHT AND
CERTAIN RELATED RIGHTS) (DIRECTIVE 2011/77/EU)
REGULATIONS 20132[411]
S.I. No. 411 of 2013
EUROPEAN UNION (TERM OF PROTECTION OF COPYRIGHT AND
CERTAIN RELATED RIGHTS) (DIRECTIVE 2011/77/EU)
REGULATIONS 2013
The Minister for Jobs, Enterprise and Innovation, in exercise of the powers
conferred on him by section 3 of the European Communities Act 1972 (No. 27of 1972) and for the purpose of giving effect to Directive 2011/77/EU of theEuropean Parliament and of the Council of 27 September 2011
1, hereby makes
the following regulations:
1. (1) These Regulations may be cited as the European Union (Term of Pro-
tection of Copyright and Certain Related Rights) (Directive 2011/77/EU) Regu-lations 2013.
(2) These Regulations come into operation on 1 November 2013.2. In these Regulations “Principal Act” means the Copyright and Related
Rights Act 2000 (No. 28 of 2000).
3. The Principal Act is amended—
(a) in section 24—
(i) by the insertion of the following subsection after subsection (1):
“(1A) Notwithstanding subsection (1), the copyright in a
musical composition with words shall expire 70 years after thelast of the following persons dies, namely:
(a) the author or authors of the musical composition
whose identity is known;
(b) the author or authors of the words whose identity is
known;
provided that both the musical composition and the words were
specifically created for the musical composition with words andthat either the musical composition or the words were protectedby copyright in at least one Member State on 1 November 2013,or were created on or after that date.”,
(ii) by the insertion, in subsection (2), of “, or, in the case of a musical
composition with words referred to in subsection (1A), a musicalcomposition with words,” after “subsection (1)”, and
1OJ No. L 265, 11.10.2011, p.1.
Notice of the making of this Statutory Instrument was published in
“Iris Oifigiúil” of 5th November , 2013.[411] 3
(iii) by the insertion of the following subsection after subsection (3):
“(4) In relation to a musical composition with words referred
to in subsection (1A), references in subsection (3) and in section32(1) to the identity of the author becoming known or beingdisclosed shall be construed as references to the identity of anyof the authors of the musical composition or the words becom-ing known or being disclosed.”,
(b) by the insertion of the following section after section 24:
“Transitional provisions relating to section 24(1A).
24A. (1) Subject to subsection (2), where, in relation to a musical
composition with words referred to in section 24(1A)—
(a) the copyright in either the musical composition or the words
had expired prior to 1 November 2013 and is revived byvirtue of section 24(1A), or
(b) the copyright in the musical composition or the words did
not expire before 1 November 2013 and is extended by vir-tue of section 24(1A),
the owner of the copyright as so revived or extended shall be the
author, or, in the event that that person is deceased, his or her legalpersonal representative.
(2) Where, in the case of revived or extended copyright specified in
subsection (1), a deed of assignment or other binding legal instrumenttransferring ownership in the copyright of the musical composition orthe words expressly provided that, in the event of any revival or exten-sion of the copyright being effected by or under any enactment, thecopyright as so revived or extended would vest in the person to whomownership in the copyright was transferred, the ownership of the copy-right shall vest accordingly.
(3) Where, in relation to a musical composition with words referred
to in section 24(1A), the copyright in either the musical compositionor the words had expired prior to 1 November 2013 and was revivedby virtue of section 24(1A) (‘revived copyright’)—
(a) a person who, before 1 November 2013, undertook the
exploitation of such a work at a time when that work wasnot protected by copyright shall not be regarded as havinginfringed the revived copyright,
(b) a person who, before 1 November 2013, undertook the
exploitation of such a work at a time when that work wasnot protected by copyright shall not infringe the revivedcopyright by continuing that exploitation of that work,4[411]
(c) a person who, before 1 November 2013, made preparations
to exploit such a work at a time when that work was notprotected by copyright shall not infringe the revived copy-right by the exploitation which he or she undertakes of thatwork on foot of such preparations,
(d) a person who does anything in relation to a literary, dramatic
or musical work or a film that contains a copy of such awork or is an adaptation of such a work, where the literary,dramatic or musical work or film—
(i) was made before commencement, or
(ii) was made on foot of preparations made before 1
November 2013,
shall not infringe the revived copyright in such a work if—
(I) the copy or adaptation of that work was made before 1
November 2013 at a time when that work was not pro-tected by copyright, or
(II) the copy or adaptation of that work was made on foot of
preparations made before 1 November 2013 at a timewhen that work was not protected by copyright, and
(e) a person who exploits such a work on or after 1 November
2013 shall not infringe revived copyright in that work if theexploitation is done at a time when, or is on foot of prep-arations made at a time when, the name and the addressof a person entitled to authorise the exploitation cannot byreasonable inquiry be ascertained.
(4) It is not an infringement of any moral right conferred by Chapter
7 of Part II to do anything which by virtue of subsection (3) is not aninfringement of copyright.”,
(c) in section 26—
(i) by the substitution, in paragraph ( b), of “available, or” for “avail-
able.”, and
(ii) by the insertion of the following paragraph after paragraph ( b):
“(c) notwithstanding paragraph ( b), where the sound
recording is lawfully made available to the public dur-ing the period specified in paragraph ( a), and—
(i) where the rights of the performer and the pro-
ducer would still have been protected on 1November 2013, had the European Union (Term[411] 5
of Protection of Copyright and Certain Related
Rights) (Directive 2011/77/EU) Regulations 2013not come into operation on that date, or
(ii) where the sound recording is created on or after
1 November 2013,
70 years after the date of such making available.”,
(d) in section 32—
(i) by the insertion, in subsection (1), of “or subsection (1A), as the
case may be,” after “subsection (1)”, and
(ii) by the insertion, in subsection (2), of “or a musical composition
with words,” after “artistic work,”,
(e) in section 208, by the insertion of the following subsections after sub-
section (1):
“(1A) Where the copyright of the producer in a sound recording
has expired pursuant to section 299A(3), the performer in the soundrecording has, subject to subsection (1B), a right to equitable remuner-ation from the person who—
(a) plays the sound recording in public, or
(b) includes the sound recording in a broadcast or cable pro-
gramming service.
(1B) The period during which the performer is entitled to equitable
remuneration after the expiry of the producer’s copyright pursuant tosection 299A(3), is the period of copyright that would have remainedpursuant to section 26, had the copyright of the producer in the soundrecording not expired pursuant to section 299A(3).”,
(f) by the substitution of the following section for section 291:
“Duration of rights.
291. (1) The rights conferred by this Part shall expire 50 years after
the date of the performance.
(2) Notwithstanding subsection (1)—
(a) if a recording of the performance is lawfully made available
to the public within the period referred to in subsection (1),the rights shall expire 50 years from the date the recordingis first so made available, and
(b) notwithstanding paragraph ( a) but subject to subsection (3),
if a sound recording of the performance is lawfully made6[411]
available to the public within the period referred to in sub-
section (1), the rights shall expire 70 years from the date therecording is first so made available.
(3) Subsection (2)( b) applies to a sound recording—
(a) in regard to which the rights of the performer and the pro-
ducer would still have been protected on 1 November 2013,had the European Union (Term of Protection of Copyrightand Certain Related Rights) (Directive 2011/77/EU) Regu-lations 2013 not come into operation on that date, or
(b) that is created on or after 1 November 2013.
(4) The terms provided for in subsections (1) and (2) shall be calcu-
lated from the first day of January of the year following the event thatgives rise to them.”,
(g) by the insertion of the following sections after section 299—
“Termination of assignment agreement.
299A. (1) If, in relation to a sound recording of a performance—
(a) the performer has made an assignment agreement with the
producer,
(b) a period of at least 50 years has elapsed after the sound
recording was first lawfully made available to the public,
(c) the producer does not offer copies of the sound recording
for sale in sufficient quantities, or does not make it availableto the public, by wire or wireless means, in such a way thatmembers of the public may access it from a place and timechosen by them,
the performer may, in writing, notify the producer of the performer’s
intention to terminate the assignment agreement referred to in para-graph ( a).
(2) If, not later than one year from the date of notification by the
performer of his or her intention to terminate the assignment agree-ment, the producer has not offered copies of the sound recording forsale, or made it available to the public, as described in subsection(1)(c), the performer may terminate the assignment agreement by
notice in writing to the producer.
(3) Upon the termination of the assignment agreement in accord-
ance with subsection (2), all rights of the producer in the soundrecording shall expire and the rights transferred or assigned to theproducer by the performer under the assignment agreement shallrevert to the performer.[411] 7
(4) An agreement is void in so far as it purports to exclude or restrict
the right to terminate an assignment agreement conferred by thissection.
(5) Where the performance of more than one performer is captured
in a sound recording and more than one assignment agreement hasbeen made in relation to that sound recording, subsection (3) shall nottake effect until the last of the existing assignment agreements inrelation to that sound recording has been terminated in accordancewith subsection (2).
(6) In this section and in sections 299B to 299E—
‘assignment agreement’ means an agreement between the performer
and the producer by which the performer transfers or assigns one ormore of the transmissible rights conferred on him or her by this Partto the producer;
‘producer’ means the person for the time being entitled to the copy-
right in the sound recording.
Annual supplementary remuneration.
299B. (1) If, in relation to a sound recording of a performance—
(a) the performer has made an assignment agreement that gives
the performer the right to claim a non-recurring remuner-ation, and
(b) the minimum period specified in section 299A(1)( b) has
elapsed,
the performer shall have the right to obtain an annual supplementary
remuneration from the producer for each full year immediately follow-ing the fiftieth year after the sound recording was first lawfully madeavailable to the public.
(2) The right of the performer to obtain an annual supplementary
remuneration in accordance with this section shall not be waived bythe performer and an agreement is void in so far as it purports toexclude or restrict that right.
(3) The overall amount to be set aside, at least once a year, by a
producer for payment of annual supplementary remuneration pursuantto this section shall correspond to 20% of the gross revenue that theproducer has derived for the preceding full year referred to in subsec-tion (1).
(4) The right of a performer referred to in subsection (1) to obtain
an annual supplementary remuneration in accordance with this sectionshall be administered by a collecting society on his or her behalf asfollows:8[411]
(a) the producer shall pay the annual supplementary remuner-
ation referred to in subsection (1) to which the performer isentitled to a collecting society within one month of its havingbeen set aside;
(b) the collecting society shall then distribute the annual sup-
plementary remuneration referred to in paragraph ( a)t o
the performer.
(5) For the purposes of this section, the producer or the former pro-
ducer of a sound recording shall, if requested by the performer in writ-ing, inform the performer in writing as soon as may be, and in anyevent not more than 40 days after receipt of the said request, of anyinformation in the possession of the producer or former producer thatmay be necessary for the performer in order to secure payment ofthat remuneration.
(6) If the producer or the former producer fails to supply the infor-
mation specified in subsection (5) within the period specified in thatsubsection, the performer may seek an injunction from the High Courtrequiring the producer or former producer to provide the information.
(7) The ‘gross revenue’ referred to in subsection (3) means the
revenue, before deducting costs, derived by the producer from theexclusive rights of distribution, reproduction and making available ofthe sound recording.
Recurring payments.
299C. If, in relation to a sound recording of a performance—
(a) an assignment agreement gives the performer the right to
claim recurring payments, and
(b) the period specified in section 299A(1)( b) has elapsed,
neither advance payments nor any contractually defined deductions
shall be deducted from the payments made to the performer after theperiod referred to in paragraph ( b) has elapsed.
Application of sections 299A to 299C.
299D. Sections 299A to 299C shall apply to assignment agreements
in relation to sound recordings—
(a) in regard to which the rights of the performer and the pro-
ducer would still have been protected on 1 November 2013,had the European Union (Term of Protection of Copyrightand Certain Related Rights) (Directive 2011/77/EU) Regu-lations 2013 not come into operation on that date, or
(b) that are created on or after 1 November 2013.[411] 9
Deemed continuation in force and modification of assignment
agreements.
299E. (1) Where an assignment agreement was made before 1
November 2013, it shall be deemed to continue in force, unless itclearly indicates otherwise, until the expiration of the rights of theperformer under this Act that were transmitted pursuant to the assign-ment agreement, or until the assignment agreement is terminated pur-suant to section 299A.
(2) An assignment agreement that entitles a performer to recurring
payments and which was concluded before 1 November 2013 may bemodified for the benefit of the performer once the period specified insection 299A(1)( b) has elapsed until the expiration of the rights of
the performer under this Act that were transmitted pursuant to theassignment agreement, or until the assignment agreement is terminatedpursuant to section 299A.”, and
(h) by the substitution of the following section for section 315:
“Duration of moral rights.
315. (1) The rights conferred by this Part shall expire 50 years after
the date of the performance.
(2) Notwithstanding subsection (1)—
(a) if a recording of the performance is lawfully made available
to the public within the period referred to in subsection (1),the rights shall expire 50 years from the date the recordingis first so made available, and
(b) notwithstanding paragraph ( a) but subject to subsection (3),
if a sound recording of the performance is lawfully madeavailable to the public within the period referred to in sub-section (1), the rights shall expire 70 years from the date therecording is first so made available.
(3) Subsection (2)( b) applies to a sound recording—
(a) in regard to which the rights of the performer and the pro-
ducer would still have been protected on 1 November 2013,had the European Union (Term of Protection of Copyright
and Certain Related Rights) (Directive 2011/77/EU) Regu-lations 2013 not come into operation on that date, or
(b) that is created on or after 1 November 2013.
(4) The terms provided for in subsections (1) and (2) shall be calcu-
lated from the first day of January of the year following the event thatgives rise to them.”.10 [411]
4. For the avoidance of doubt, the duration of copyright in works referred to
in paragraph 9(1) of Part I of the First Schedule to the Principal Act shall bedetermined, where applicable, in accordance with the Principal Act as amendedby these Regulations.
GIVEN under the Official Seal of the Minister for Jobs, Enterprise
and Innovation,31 October 2013.
DERMOT CURRAN,
A Person Authorised Under Section 15 of the Ministers and
Secretaries Act 1924 to Authenticate the Seal of theMinister for Jobs, Enterprise and Innovation.[411] 11
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal
interpretation)
These Regulations transpose Directive 2011/77/EU of the European Parlia-
ment and of the Council of 27 September 2011 amending Directive 2006/116/ECon the term of protection of copyright and certain related rights into Irish law.In line with the Directive, the Regulations extend the term of protection forperformers and for producers of sound recordings from 50 to 70 years.
The Regulations introduce also new measures to benefit performers in sound
recordings in the later stages of their career such as: a 20% fund for sessionmusicians to obtain additional payments during the extended 20 year term; aprovision whereby performers can reclaim their rights from producers if, in theextended period, a record company does not market a recording and, a ‘cleanslate’ provision, whereby producers will not be entitled to make deductions fromthe contractual royalties due to featured performers during the extended termof protection. The Regulations implement also harmonised rules governing theterm of protection of copyright in musical compositions with words, i.e. wherethe lyricist and the composer are different persons.BAILE ÁTHA CLIATH
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