Republic of Ireland: Copyright FAQs - IAML (UK & Irl)

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Republic of Ireland: copyright – frequently asked questions

The following FAQs have been compiled by the IAML (UK & Irl) Trade and Copyright Committee. Whilst the intention is to provide useful information for music users, it should be noted that they are the interpretation of committee members and do not constitute legal advice. It is recommended that you seek legal advice in circumstances where policies or actions could potentially result in infringement.

General

What is copyright?

Copyright is a legal concept which determines who may carry out or permit certain activities in relation to material protected by copyright. It confers what is described as an exclusive right to control certain restricted acts: copying; making available to the public (including performing, showing and playing in public, broadcasting, issuing to the public, renting and lending) and adapting. This ‘exclusive’ right is, however, subject to a number of exceptions which mean that in certain circumstances activities may be undertaken without the permission of the copyright holder. Once the term of protection has expired, the copyright restrictions cease to apply.

The primary legislation governing copyright in Ireland is the Copyright and Related Rights Act, 2000 which has been amended many times subsequently by further legislation / provisions.

There is also a considerable corpus of Irish case law which amplifies and interprets the statutory provisions. Since joining the EU, all Irish law must conform to EU jurisdiction.

Further to the allowances permissible by law, collective management organizations (CMOs) issue licences to allow certain uses of material (e.g. live performance of works, playing recordings in public etc.), generally for a fee.

What categories of work are protected by copyright?

CRRA 2000 states that copyright subsists in the following types of works:

Literary, dramatic, musical and artistic works
Sound recordings, films, broadcasts or cable programmes
Typographic arrangement of published editions
Databases

For these purposes a dramatic work includes dance and mime, whilst literary works include computer programmes.

To qualify for protection, literary, dramatic and musical works must be original. Originality is not defined by statute, however recent decisions of the Court of Justice for the European Union (CJEU) have shown that to be considered original a literary, dramatic, musical or artistic work must now “contain elements which are the expression of the intellectual creation of the author of the work, reflecting his personality…mere labour in creation cannot lead to an original work” (Tim Padfied, Copyright for Archivists and Records Managers, 5th ed. Facet, 2015)

The second qualification for protection is that works must be recorded in a tangible fixed form.

What is not protected by copyright?

Facts or ideas, concepts or principles, works which are not original or fixed in some form, are not protected by copyright.

How long does copyright last?

The term of protection for literary, dramatic, musical and artistic works and original databases expires at the end of the 70th year from the end of the year in which the author dies.

Where two authors write a work as co-authors (e.g. composer and librettist), the term of protection for all protectable elements of the work is now determined in relation to the death date of the last surviving author.

The term of protection for sound recordings expires 70 years from when it was published or made available publicly. However in the event that at the end of 50 years the record producer has failed to exploit the recording in certain ways the performer can reclaim their performer’s rights and the producer’s copyright in the recording will expire (CRRA 2000, s299A).

What is the public domain?

Works in the public domain are those for which copyright has expired. Due to the differing terms of protection in one country to another, works may be protected in one country, whilst in the public domain in others. (See below in relation to the Berne Convention.)

Can works of foreign origin be protected by copyright in Ireland?

Ireland is a signatory to the Berne Convention, which requires a signatory country to protect the works produced in other signatory countries as if they had been produced within its own borders. However the Berne Convention cannot protect works for more than 50 years (though countries are free to provide longer terms of protection under national law), so authors and works from countries where there is a longer term (eg 70 years) will only receive 50 years’ protection if that is the term in the country where the right under the Convention is being claimed. This is why it is not an infringement to upload or download material to and from IMSLP in countries where the term of protection is 50 years, even when the material might enjoy a longer term of protection in its country of origin. (IMSLP is hosted in Canada where the term of protection is 50 years.)

What is fair dealing?

Fair dealing is a concept in common law jurisdictions e.g. UK, Ireland, Canada, Australia, New Zealand, India. In the US the equivalent concept is known as fair use. Fair dealing is unknown to other, civil law jurisdictions, such as those of continental Europe.

Fair dealing is an exception to the ‘exclusive’ right granted to authors to control copyright. Fair dealing is not a right, but a defence to a charge of infringement, which in Ireland is permitted only for the following purposes: research, private study, criticism, review and reporting current events. There are also further (not specifically fair dealing) exceptions for education and libraries/archives. CRRA 2000 s2(10) provides that a contract cannot override an exception in the legislation.

Fair dealing is defined in CRRA 2000 s50(4) as “making use… for a purpose and to an extent which will not unreasonably prejudice the interests of the owner of the copyright”

‘Dealing’ is clearly intended to encompass the broadest range of activity. Equally, ‘fairness’ could involve consideration of all sorts of elements, such as quantity and proportion, purpose, commercial impact etc. Whether or not an activity is fair dealing, therefore, must be decided on a case by case basis, drawing analogies and distinctions with previous decided instances. It is worth noting, however that statute does not give a limit to the amount of a work that may be dealt with under fair dealing. Indeed, case law confirms that it would be possible for a complete work to be dealt with under fair dealing: the test is fairness, not quantity. But if so, it is also true (and common sense) that the greater the quantity, the more likely the amount will be judged not to be fair.

It may be helpful to consider the “three-step test” found in the Berne Convention (relating to the provision of exceptions, but nevertheless in a similar spirit to the idea of fairness), which states that the use must a) be a special case b) not conflict with a normal exploitation of the work and c) not unreasonably prejudice the legitimate interests of the rights holder.

How can I tell who owns the copyright in a work?

The first copyright owner is generally the author(s) (though there are exceptions, such as when the work is being produced by an employee in the course of employment). Copyright exists without a requirement to claim or state or register it. Often the contractual arrangements between authors and publishers require the copyright to be transferred to the publisher, which is evident from most copyright statements on published works.

In the case of unpublished (in copyright) works where the author is deceased, ownership of copyright will generally belong to the author’s estate.

Library activity

Can we digitize our library’s LP/CD collection or burn our VHS tapes to DVD?

In the first instance the library should ascertain whether the content is commercially available for sale in the desired format. If it is, and it is reasonably practicable to purchase it in order to preserve the items, the library would be expected to purchase the material. Otherwise, a prescribed library may make a copy under s.65 of CRRA 2000 for preservation purposes provided the original items are part of the library’s permanent collection.

A box set of 4 CDs was returned with one disc missing. Is it possible to borrow a copy and burn a CD to complete the set?

As above, if the CD was commercially available you would be expected to purchase it. However, if it is not commercially available, a prescribed library can request that another prescribed library provides it with a copy burned from its own collection under s.65 of CRRA 2000 (but note you wouldn’t be able to borrow the CD from that library and burn it yourself).

We are missing a viola part for a string quartet, but have another copy of the set in stock. Can we photocopy a replacement part from this second set?

If the string quartet is commercially available and it is reasonably practicable to purchase a copy you would be expected to do so. Otherwise, a prescribed library may make a copy under s.65 of CRRA 2000 for preservation purposes provided the original item is part of the library’s permanent collection.

Under what conditions can a library user watch a video in a public library?

Libraries are permitted to make available equipment which allows users to individually listen to music or to view film media through headphones. Examples of such equipment might be an MP3 player, iPod, CD player, record player, a listening post, or a Blu-ray, DVD or videotape player and screen for individual use, or similar. No licence is required to permit such viewing.

However, screening commercially distributed films/TV content on pre-recorded media in a public library requires the relevant licence e.g. a MPLC licence or Public Video Screening Licence and an IMRO licence (if the film includes a musical soundtrack).

May off-air recordings be added to the library collection?

S56(1) of CRRA 2000 allows educational establishments for the education purposes of that establishment to record broadcasts so long as there is no certified licensing scheme in place (which there currently isn’t in Ireland).

What can be done with PDF scores purchased by a library?

This depends on what the author or publisher permits, and will generally need to be established on an individual case by case basis.

My collection includes material that is currently only available for hire from the publisher. Can I loan this to users?

No infringement occurs where a library lends copyright music that:

a) has been purchased legitimately in this territory (regardless of whether the publisher subsequently decides to limit distribution to hire-only); or

b) has been purchased legitimately from another territory, so long as it doesn’t infringe the ownership, distribution or other applicable rights (including hire) of any Irish distributor.

If there is any doubt as to whether the material was purchased legitimately the library would be well advised to exercise caution and seek clarification from the current Irish rights holder before lending it.

User activity

If I purchase adequate copies or parts for my ensemble, can I make copies to mark up for performance if I discard them afterwards?

If the musical work, its edition, its typographical layout, and any printed text included are all out of copyright, copies can be made (and there is no need to discard these after use). If the parts contain any element which is copyright protected, and there are no fair dealing / licence provisions or copyright exceptions in place which render a licence unnecessary, permission should be obtained from the rights owner (usually the music publisher).

Do I need to secure permission from a publisher to use public domain music in notation software such as Sibelius?

No permission is required to input public domain music into notation software, although care should be taken that the apparent ‘public domain’ status applies to all elements of the musical work in question (music, text, arrangement), and that the public domain status applies in all territories in which the notation will be used. It should be noted that the resulting output will be covered by a new typographical layout copyright, and that copyright will belong to the individual or institution that input the notation.

What permissions/licences are required to perform a musical work?

If the musical work (irrespective of any rights in the typographic layout of the edition being used) is completely out of copyright, no licence is required for public performance; no licence is required to perform a copyright protected work in private, or as part of curricula / classroom activity in education, including in examinations. If a ‘concert work’ (eg, a sonata, a symphony, a song) is copyright protected and performed in public, the premises in which the performance takes place must by licensed by the Irish Music Rights Organization; if a ‘stage work’ (eg, an opera, a show) is protected by copyright and performed in public the performance must be licensed directly by the rights owner/administrator or their agent. If in doubt, contact the rights owner directly.

What permissions/licences are required to record that performance?

If the musical work (irrespective of any rights in the typographical layout of the edition being used) is completely out of copyright, no licence is required to record a performance. If a ‘concert work’ or a ‘stage work’ is copyright protected any recording (audio or audio-visual) and subsequent physical or online distribution must be licensed by the Irish Music Rights Organization. If in doubt, contact the rights owner directly.

Do I need permission to make an arrangement of another composer’s composition?

If the original musical work is copyright protected permission from the rights owner to make an arrangement is required.

Can I perform from music printed from IMSLP?

If the music was sold/acquired legally through ISMLP (ie, no copyright or exclusive distribution rights were infringed through the sale and acquisition process), performance may take place (subject to an appropriate performance licence, if the music is copyright protected). If the music acquired from IMSLP infringes copyright or exclusive distribution rights in any way, subsequent performance using it may be regarded as ‘secondary infringement’, irrespective of any performing licence in place.

Can I scan music into my tablet and perform from that?

The same rules apply to scanning as they do for copying, and therefore the answers given to the preceding questions apply.