Copyright and Related Rights Act, 2000

Playing of sound recordings — licences of right.

38.—(1) Notwithstanding the provisions of section 37 , where a person proposes to—

(a) play a sound recording in public, or

(b) include a sound recording in a broadcast or a cable programme service,

he or she may do so as of right where he or she—

(i) agrees to make payments in respect of such playing or inclusion in a broadcast or a cable programme service to a licensing body, and

(ii) complies with the requirements of this section.

(2) A person may avail of the right to play a sound recording in public or to include a sound recording in a broadcast or a cable programme service, where he or she—

(a) gives notice to each licensing body concerned of his or her intention to play sound recordings in public or include sound recordings in a broadcast or a cable programme service,

(b) informs each of those bodies of the date on and from which he or she intends to play sound recordings in public or include sound recordings in a broadcast or a cable programme service,

(c) makes payments to the licensing body at intervals of not less than 3 months in arrears,

(d) complies with any reasonable conditions relating to payments under this section as may be notified to him or her by the licensing body from time to time, and

(e) complies with any reasonable requests for information from the licensing body to enable it to calculate and manage payments under this section.

(3) A person who satisfies the conditions specified in subsection (2) shall be deemed to be in the same position as regards infringement of copyright as if he or she had been the holder of a licence granted by the owner of the copyright in question at all material times.

(4) Where the person intending to play sound recordings in public or to include sound recordings in a broadcast or a cable programme service and the licensing body fail to reach agreement as to fair payment under subsection (2) within a reasonable time, the terms of the proposed agreement shall be referred to the Controller for determination of the amount and terms of payment.

(5) In the case of a dispute referred to the Controller under subsection (4), a person shall not exercise the right conferred by subsection (1) unless he or she—

(a) gives reasonable notice to the Controller that he or she has commenced or intends to commence the playing of sound recordings in public and that a dispute has arisen between him or her and the licensing body concerned as to the terms of payment and the exercise of the right; and

(b) applies to the Controller for a determination under subsection (4).

(6) Where the terms of a proposed agreement are referred to the Controller under subsection (4) a person shall not exercise a right conferred by subsection (1) unless he or she—

(a) gives notice in writing to the Controller of his or her intention to exercise the right, and of the date on which he or she proposes to begin to do so, and

(b) applies in writing to the Controller for a determination under subsection (4).

(7) On an application to settle the terms of payment being referred to the Controller, he or she shall consider the matter and make such order as he or she may determine to be reasonable in the circumstances and that order shall take effect on and from the date on which the applicant begins to exercise the right, and any necessary repayments or further payments shall be made in respect of amounts which, in consequence of the terms of the order, have fallen due.

(8) Where no request for payment has been made by the licensing body, or where the amount requested by the licensing body is disputed by the person exercising the right then, pending the making of an order by the Controller under subsection (7), the person exercising the right shall pay to the licensing body such amount as he or she considers reasonable, and shall notify the licensing body and the Controller of his or her intention to do so.

(9) A person exercising the right conferred by subsection (1), or who has given notice to the Controller of his or her intention to do so, may also refer to the Controller the question of—

(a) whether any condition relating to payment, notice of which has been given to him or her by the licensing body concerned is a reasonable condition, or

(b) whether any licence condition, notice of which has been given to him or her by the licensing body in question, is a reasonable condition, or

(c) whether any information required by the licensing body is information which the licensing body can reasonably require him or her to provide.

(10) Where a reference is made under subsection (9), the Controller shall consider the matter and make such order as he or she may determine to be reasonable in the circumstances.

(11) A person exercising the right conferred by subsection (1) or a licensing body may apply to the Controller to review any order under subsection (7) or (10).

(12) An application under subsection (11) may not be made except with the special leave of the Controller—

(a) within 12 months from the date of the order or of the decision on a previous application under this section, or

(b) where the order was made so as to be in force for 15 months or less or, as a result of the decision on a previous application, is due to expire within 15 months of that decision,

until at least 3 months before the expiration of the order.

(13) Where an application is made under subsection (11), the Controller shall consider the matter and make such order confirming or varying the original order as he or she may determine to be reasonable in the circumstances and any order made under this subsection shall be for such period as may be specified by the Controller.

(14) This section shall not apply in any circumstances where sound recordings are made available to the public by wire or wireless means in such a way that members of the public may access the sound recordings from a place and at a time individually chosen by them (including the making available of copies of sound recordings through the Internet).

(15) Notwithstanding section 149 , in this section “licensing body” means a society, a company registered under the Companies Acts, 1963 to 1999, or other organisation which has as one of its objects the negotiation or granting of licences to play sound recordings in public or to include sound recordings in broadcasts or cable programme services, either as owner or prospective owner of copyright in the said sound recording or as his or her exclusive licensee, agent or designated representative and shall include a human person who has the right to negotiate or grant a licence to play sound recordings in public or to include sound recordings in broadcasts or cable programme services, either as owner or prospective owner of copyright in the sound recordings.