STATUTORY INSTRUMENTS
S.I. No. 20 of 2009
————————
COPYRIGHT AND RELATED RIGHTS (PROCEEDINGS BEFORE THE
CONTROLLER) RULES 2009
(Prn. A9/0126)2[20]
S.I. No. 20 of 2009
COPYRIGHT AND RELATED RIGHTS (PROCEEDINGS BEFORE THE
CONTROLLER) RULES 2009
I, JIMMY DEVINS, Minister of State at the Department of Enterprise, Trade
and Employment, in exercise of the powers conferred on me by section 363(1)of the Copyright and Related Rights Act 2000 (No. 28 of 2000) and theEnterprise, Trade and Employment (Delegation of Ministerial Functions) Order2008 (S.I. No. 288 of 2008) and, in so far as these rules relate to fees chargeablein respect of proceedings before the Controller, with the consent of the Ministerfor Finance, hereby make the following rules:
1. These Rules may be cited as the Copyright and Related Rights
(Proceedings before the Controller) Rules 2009.
2. (1) In these Rules—
“Act” means the Copyright and Related Rights Act 2000 (No. 28 of 2000);“applicant” in relation to an application under Rule 17, has the meaning
assigned to it by that Rule;
“counter statement” has the meaning assigned to it by Rule 6( a);
“document” includes a reproduction in legible form of a record in non-legible
form;
“operator” means operator of a scheme;“petitioner” means any of the following:
(a) a person or licensing body who makes a reference to the Controller
under section 38(4) and if applicable, section 38(9);
(b) a person or licensing body who applies to the Controller under section
38(11) to review an order made by the Controller under subsection(7) or (10) of section 38;
(c) a person by or to whom equitable remuneration is payable under
section 125 who applies to the Controller under section 126(1) indefault of agreement;
(d) a person by or to whom equitable remuneration is payable under
section 125 who applies to the Controller for an order under section126(2) to vary an agreement or any previous determination of theController as to the amount payable;
Notice of the making of this Statutory Instrument was published in
“Iris Oifigiu ´il” of 30th January , 2009.[20] 3
(e) the organisation which refers the terms of a licensing scheme pro-
posed to be operated by a licensing body to the Controller undersection 151, 267 or 342 as the case may be;
(f) an operator, person or organisation who is a party to a dispute
referred to in that section who refers a licensing scheme to the Con-troller under section 152, 268, or 343 as the case may be;
(g) an operator, person or organisation who refers a licensing scheme to
the Controller under section 153, 269 or 344 as the case may be;
(h) a person who applies to the Controller for an order pursuant to
section 154, 270 or 345 as the case may be;
(i) an operator or original applicant who applies to the Controller for a
review of an order under section 155, 271 or 346 as the case may be;
(j) a prospective licensee who refers to the Controller for an order under
section 158, 274 or 349 as the case may be;
(k) a licensee under a licence which is due to expire with the passage of
time or as a result of notice given by a licensing body who applies tothe Controller under section 159, 275 or 350 as the case may be;
(l) a licensing body or person entitled to the benefit of an order under
section 158, 159, 274, 275, 349 or 350 as the case may be, who appliesto the Controller for a review pursuant to section 160, 276 or 351as appropriate;
(m) a person by or to whom equitable remuneration is payable under
section 208 who applies to the Controller under section 208(5) indefault of agreement;
(n) the person by or to whom equitable remuneration is payable under
section 208 who applies to the Controller for an order under section208(6) to vary an agreement or any previous determination of theController as to the amount payable;
(o) a person by or to whom equitable remuneration is payable under
section 298 who applies to the Controller under section 299(1) indefault of agreement;
(p) a person by or to whom equitable remuneration is payable under
section 298 who applies to the Controller for an order under section299(2) to vary an agreement or any previous determination of theController as to the amount payable;
(q) a person who makes an application under section 254;
“respondent” means any of the following:4[20]
(a) a person or licensing body, other than a petitioner, where the pet-
itioner makes a reference to the Controller under section 38(4) and,if applicable, section 38(9);
(b) a person or licensing body, other than a petitioner, where an appli-
cation is made under section 38(11) by the petitioner to review anorder made by the Controller under section 38(7) or section 38(10);
(c) a person by or to whom equitable remuneration is payable under
section 125, other than a petitioner, where the petitioner applies tothe Controller for an order under section 126(1) in default ofagreement;
(d) a person by or to whom equitable remuneration is payable under
section 125, other than a petitioner, where the petitioner applies tothe Controller under section 126(2) to vary an agreement or any pre-vious determination of the Controller as to the amount payable;
(e) a licensing body proposing to operate a licensing scheme where the
terms of the scheme are referred to the Controller under section 151,267 or 342, as the case may be;
(f) an operator, person or organisation who is a party to a dispute
referred to in that section, other than a petitioner, where a referenceis made by the petitioner to the Controller under section 152, 268 or343, as the case may be;
(g) an operator, person or organisation referred to in that section, other
than a petitioner, where the licensing scheme is referred by the pet-itioner to the Controller under section 153, 269 or 344 as the casemay be;
(h) an operator in respect of whose scheme an application is made under
section 154, 270 or 345 as the case may be;
(i) an operator or original applicant who is not a petitioner where an
application is made by the petitioner for a review of an order undersection 155, 271 or 346 as the case may be;
(j) a licensing body the terms of whose proposed licence are referred by
the petitioner to the Controller under section 158, 274 or 349 as thecase may be;
(k) a licensing body operating a licensing scheme in respect of which an
application is made by a petitioner to the Controller under section159, 275 or 350, as the case may be;
(l) a licensing body or the person entitled under section 160, 276 or 351
as the case may be to seek a review of an order made under section[20] 5
158, 159, 274, 275, 349 or 350 as the case may be, other than a pet-
itioner, where the petitioner seeks such review under section 160, 276or 351 as appropriate;
(m) a person by or to whom equitable remuneration is payable under
section 208, other than a petitioner, where the petitioner applies tothe Controller for an order under section 208(5) in default ofagreement;
(n) a person by or to whom equitable remuneration is payable under
section 208, other than a petitioner, where the petitioner applies tothe Controller under section 208(6) to vary an agreement or any pre-vious determination of the Controller as to the amount payable;
(o) a person by or to whom equitable remuneration is payable under
section 298, other than a petitioner, where the petitioner applies tothe Controller for an order under section 299(1) in default ofagreement;
(p) a person by or to whom equitable remuneration is payable under
section 298, other than a petitioner, where the petitioner applies tothe Controller for an order under section 299(2) to vary an agreementor any previous determination of the Controller as to the amount
payable;
“statement” has the meaning assigned to it by Rule 4(1)( c).
(2) In these Rules a reference to a section or a subsection is a reference to
a section or a subsection of the Act.
3. (1) There shall be charged by the Controller in respect of each matter
mentioned in column 2 of Schedule 1, opposite a reference number mentionedin column 1 of that Schedule, the fee set out in column 3 of that Scheduleopposite the mention of that reference number.
(2) Fees shall be paid in the currency of the State and in any such manner
as may be approved by the Controller.
4. (1) Other than in relation to an application under Rule 27, a petitioner
who makes a reference or application to the Controller shall furnish the follow-ing items to the Controller and he or she shall not consider an application orreference as having been made to him or her unless he or she is duly furnishedwith those items:
(a) the name and address of the petitioner;
(b) the name and address of the respondent;
(c) original and one copy of a signed statement (in these Rules referred
to as a “statement”) which contains a reference to—6[20]
(i) the section of the Act pursuant to which the reference or appli-
cation is being made,
(ii) the material facts on which the petitioner relies in making the
reference or application, and
(iii) the relief sought;
(d) original and one copy of each of the documents mentioned in para-
graph (2) as the context requires;
(e) the fee payable pursuant to Rule 3 in respect of the reference or
application.
(2) There shall be furnished to the Controller in respect of each reference or
application made under the section of the Act specified in column 2 of Schedule2, opposite a reference number mentioned in column 1 of the Schedule, thedocument mentioned in column 3 of that Schedule opposite the mention of thatreference number.
5. As soon as may be following receipt of all of the items mentioned in Rule
4(1), the Controller shall furnish a copy of—
(a) the original signed statement mentioned in paragraph ( c) of that
Rule, and
(b) each of the documents mentioned in paragraph ( d) of that Rule,
as the case may be, to the respondent.
6. A respondent who wishes to contest a petitioner’s reference or application
shall, within 28 days of receipt of copies of the documents mentioned in Rule 5
from the Controller, furnish the following items to the Controller:
(a) a counter statement (in these Rules referred to as a “counter
statement”) replying to the statement furnished under paragraph(1)(c) of Rule 4 and setting out the extent to which that statement is
admitted or disputed together with a copy of the said counterstatement;
(b) the fee payable pursuant to Rule 3 in respect of the counter
statement.
7. Unless the Controller otherwise directs, a respondent who fails to furnish
items referred to in paragraph ( a)o r( b) of Rule 6 within the period referred to
in that Rule shall be deemed not entitled to so furnish them and the Controllershall be entitled to presume that the respondent does not intend participatingin the application or reference and the Controller shall proceed with the appli-cation or reference accordingly.[20] 7
8. As soon as may be following receipt by the Controller of the items referred
to in Rule 6( a) and ( b), he or she shall furnish a copy of the counter statement
to the petitioner.
9. (1) Where, having considered the statement and other information fur-
nished by a petitioner or respondent the Controller is of the opinion that it isnecessary, he or she may request by notice in writing that the following is fur-nished to him or her by the petitioner or respondent within the period of timereferred to in the notice:
(a) further statements or counter statements;
(b) books, records or other documents; or
(c) the work to which the application or reference refers.
(2) In this Rule “record” other than in relation to a work, includes, in
addition to a record in writing—
(a) a disc, tape, soundtrack or other device in which information, sounds
or signals are embodied so as to be capable (with or without the aidof some other instrument) of being reproduced in legible or audibleform,
(b) a film, tape or other device in which visual images are embodied so
as to be capable (with or without the aid of some other instrument)of being reproduced in visual form, and
(c) a photograph,
and any reference to a copy of a record includes—(i) in the case of a record to which paragraph ( a) applies, a transcript
of the sounds or signals embodied therein,
(ii) in the case of a record to which paragraph ( b) applies, a still
reproduction of the images embodied therein, and
(iii) in the case of a record to which paragraphs ( a) and ( b) apply,
such a transcript together with such a still reproduction.
10. (1) If the Controller is furnished with the items mentioned in Rule 9 in
accordance with his or her request by one or both parties to the application orreference within the period referred to in the notice then the Controller shall,if he or she considers it appropriate, immediately furnish copies of same to theother party to the application or reference, as the case may be.
(2) If the Controller is not furnished with the items mentioned in Rule 9 in
accordance with his or her request by one or both parties to the application orreference within the period referred to in the notice, then, unless the Controllerotherwise directs, the person from whom the statements or information were8[20]
requested shall be deemed not entitled to so furnish them and the Controller
shall be entitled to presume that the person does not intend participating in theapplication or reference as the case may be and the Controller shall proceedwith the application or reference accordingly.
11. (1) If the Controller—
(a) is satisfied that it is necessary having considered documents furnished
pursuant to Rules 4, 6 or 9, or
(b) having received a request for an oral hearing from a petitioner,
respondent or, if appropriate an applicant who has been made a partyto the proceedings pursuant to Rule 22, consents to do so,
he or she may fix a date for hearing the petitioner, respondent or, if appropriate
an applicant who has been made a party to the proceedings pursuant to Rule22, or a person who he or she is satisfied to hear on their behalf in relation tothe application or reference.
(2) If the Controller—
(a) is not satisfied that it is necessary having considered documents fur-
nished pursuant to Rules 4, 6 or 9, or
(b) does not receive a request from a petitioner, respondent or, if appro-
priate an applicant who has been made a party to the proceedings
pursuant to Rule 22, for an oral hearing,
he or she may make his or her decision in respect of the application or reference
without hearing the petitioner, respondent or, if appropriate an applicant whohas been made a party to the proceedings pursuant to Rule 22, or a personacting on their behalf in relation to the application or reference.
12. The Controller shall give not less than 10 days notice to the petitioner
or respondent or, if appropriate, applicant who has been made a party to theproceedings pursuant to Rule 22 (unless they consent to the giving of shorternotice) of the time fixed under Rule 11(1) for hearing the parties and—
(a) a person who intends to appear at the hearing shall give notice to
that effect to the Controller and pay the fee payable pursuant to Rule3 in respect of it no later than 7 days after receipt of the notice fromthe Controller, and
(b) where a person does not so notify him or her or does not pay the fee
referred to in paragraph ( a), then the Controller shall be entitled to
presume that the person does not wish to appear at the hearing andthe Controller may act accordingly.
13. (1) The procedure at a hearing shall be such as the Controller may
determine.[20] 9
(2) The Controller may postpone or adjourn a hearing as he or she thinks fit.
14. The Controller shall make his or her decision in relation to an application
or reference in a timely manner and shall inform the petitioner, respondent or,if appropriate an applicant who has been made a party to the proceedings pursu-ant to Rule 22 of the decision.
15. The Controller, having considered the documents furnished to him or her
under Rule 4 in relation to a referral of a licensing scheme to him or her by anorganisation under section 151, 152, 267, 268, 342 or 343, may if he or she con-siders it necessary, notify the organisation of such evidence as is required byhim or her in order to satisfy him or her that the organisation is representativeof the class of persons that it claims to represent.
16. (1) Where a person intends to apply for special leave of the Controller
to make an application pursuant to a section mentioned in paragraph (2), thenthe person shall—
(a) notify—
(i) the Controller, and
(ii) the other person to whom the order, agreement or previous deter-
mination, as the case may be, in relation to which the applicationfor special leave is being made refers, of his or her intention toso apply and the reasons therefor,
and
(b) pay to the Controller the fee payable pursuant to Rule 3 in respect of
the application.
(2) The sections pursuant to which the application for special leave may be
made are sections 38(12), 126(3), 153(3), 155(2), 160(2), 208(7), 269(3), 271(2),276(2), 299(3), 344(3), 346(2) and 351(2).
17. A person or organisation (in these Rules referred to as the “applicant”)
who is not a petitioner or respondent may apply to the Controller to be madea party to proceedings and shall furnish the following to the Controller—
(a) the name and address of the applicant,
(b) the name of the relevant proceedings,
(c) a statement pursuant to Rule 18, and
(d) the fee payable pursuant to Rule 3 in respect of the application.
18. The applicant shall furnish an original and 2 signed copies of a statement
to the Controller which sets out the material facts relied upon in claiming that10 [20]
the applicant has a substantial interest in the matter the subject of the pro-
ceedings in respect of which the application is made, and the reasons why he,she or they should be made a party to the proceedings.
19. Where the Controller receives an application from an applicant he or she
shall notify the following of the statement referred to in Rule 18 and furnish acopy of same to them:
(a) in the case of a licence or licensing scheme referred to the Controller
under section 151, 152, 153, 267, 268, 269, 342, 343 or 344, the licens-ing body,
(b) in the case of any relevant proceedings before the Controller, the
petitioner and the respondent.
20. The licensing body, petitioner or respondent, as the case may be, if they
wish to object to the applicant becoming a party to the proceedings, havingconsidered the statement furnished to them under Rule 19, shall within 14 daysof the statement being so furnished notify the Controller of their objection, andin so notifying the Controller shall furnish—
(a) the fee payable pursuant to Rule 3, and
(b) a statement outlining the reasons for their objection to the Controller
together with a copy thereof.
21. If the Controller is not furnished with an objection pursuant to Rule 20,
then, unless the Controller otherwise directs, the person to whom the statementwas furnished under Rule 19 shall be deemed not entitled to so furnish an objec-tion and the Controller shall be entitled to presume that the person does not soobject and the Controller shall proceed with the application accordingly.
22. The Controller having considered the statement furnished pursuant to
Rule 18 and any objection furnished pursuant to Rule 20 may, if he or she issatisfied to do so, decide to make the applicant a party to the proceedings.
23. The Controller shall make his or her decision in relation to an application
pursuant to Rule 17 in a timely manner and shall inform the applicant, licensingbody, petitioner or respondent, as the case may be.
24. A petitioner, respondent, or applicant shall furnish an address for service
in a Member State of the EEA to the Controller.
25. An application, reference, communication to, or attendance at a hearing
before the Controller under these Rules may be made by an agent or a legalrepresentative who resides or has a place of business in the State or in a MemberState of the EEA other than the State and is duly authorised by the petitioner,respondent or person or organisation on whose behalf the application, reference,communication or attendance is made, and where a document relating to anysuch application, reference, communication or attendance is served upon or[20] 11
addressed to an agent or legal representative authorised as aforesaid, the docu-
ment shall be deemed to be served upon or addressed to the person by whomhe or she is so authorised.
26. (1) An appeal on a point of law arising from a decision of the Controller
may be brought under section 366 no later than 4 weeks after the date of thedecision.
(2) The person appealing the decision of the Controller shall so notify the
Controller as soon as may be after the appeal is brought and furnish the Control-ler with a copy of the appeal.
(3) On receipt of a notice under paragraph (2) the Controller shall suspend
the operation of the order made by him or her which gives effect to the decisionbeing appealed.
(4) Where the operation of an order of the Controller is suspended under
paragraph (3), then, while the order remains suspended, sections 156, 161, 272,277, 347 and 352 shall not have effect in relation to the order.
(5) The Controller shall inform the persons directly affected by it by notice
in writing of the suspension of the operation of the order and shall cause anotice to be published in the Patents Office Journal of every order so suspended.
27. (1) A petitioner who applies to the Controller for an order under section
254 shall furnish the items mentioned in paragraph (2) to the Controller and theController shall not consider an application under that section unless he or sheis duly furnished with those items.
(2) A petitioner shall furnish the following items to the Controller:
(a) the name and address of the petitioner;
(b) a statement in the form of an affidavit in duplicate of the basis upon
which the application is made, the material facts on which the pet-itioner relies in making the application (including the title of therecording of the performance (if known), any information regardingthe name of the performer (if known), the name of the composer orauthor, as the case may be (if known), the age of the work and thedate of its creation (if known), and whether it was previously madeavailable to the public (if known)) and the purpose for which the rightto reproduce the work is sought;
(c) the recording of the performance which is the subject of the appli-
cation; and
(d) the fee payable pursuant to Rule 3 in respect of the application.
(3) No more than four weeks before making a decision in respect of an
application under section 254, the Controller shall publish a notice in the PatentsOffice Journal of the making of the application which shall include a short12 [20]
description of the recording or work as considered appropriate by the
Controller.
28. Unless otherwise provided for in these Rules, the Controller may fix such
times as he or she thinks fit for the submission to him or her of any statement,counter statement, books, records, recordings of performances, documents orother matter to which these Rules refer, which he or she may require in relationto an application or reference, and the Controller may alter as he or she thinksfit such times as have been so fixed.[20] 13
SCHEDULE 1
Reference Matter Amount
Number
(1) (2) (3)
1 Reference or application by Petitioner under Rule 4 \500
2 Counter statement by Respondent under Rule 6 \380
3 Hearing under Rule 12 \40
4 Application for special leave under Rule 16 \250
5 Application to be made a party under Rule 17 \250
6 Objection under Rule 20 \60
7 Application under Rule 27 \500Rule 3(1).Rule 4(2).14 [20]
SCHEDULE 2
Reference Section of Act Document
Number under which
Reference or
Application made
(1) (2) (3)
1 38(4) or (9) Proposed agreement
2 38(11) Order made by the Controller under section 38 (7) or
section 38 (10)
3 126(1) Agreement (if any) on foot of which it is claimed
equitable remuneration is payable
4 126(2) Agreement (if any) in place or determination of
Controller
5 151 Proposed licensing scheme
6 267 Proposed licensing scheme
7 342 Proposed licensing scheme
8 152 Licensing scheme
9 268 Licensing scheme
10 343 Licensing scheme
11 153 Proposed licensing scheme or licensing scheme as
appropriate and Order made by Controller
12 269 Proposed licensing scheme or licensing scheme as
appropriate and Order made by Controller
13 344 Proposed licensing scheme or licensing scheme as
appropriate and Order made by Controller
14 154 Licensing scheme
15 270 Licensing scheme
16 345 Licensing scheme
17 155 Licensing scheme and Order made by Controller
18 271 Licensing scheme and Order made by Controller
19 346 Licensing scheme and Order made by Controller
20 158 Proposed licence
21 274 Proposed licence
22 349 Proposed licence
23 159 Licence
24 275 Licence
25 350 Licence
26 160 Licence or proposed licence where appropriate and
Order made by Controller
27 276 Licence or proposed licence where appropriate and
Order made by Controller[20] 15
Reference Section of Act Document
Number under which
Reference or
Application made
(1) (2) (3)
28 351 Licence or proposed licence where appropriate and
Order made by Controller
29 208(5) Agreement (if any) on foot of which it is claimed
equitable remuneration is payable
30 208(6) Agreement (if any) in place or determination of
Controller
31 299(1) Agreement (if any) on foot of which it is claimed
equitable remuneration is payable
32 299(2) Agreement (if any) in place or determination of
Controller
33 254 Documents referred to in Rule 27
GIVEN under my hand,
28 January 2009
JIMMY DEVINS.
Minister of State at the Department of Enterprise, Trade
and Employment.
I, BRIAN LENIHAN, Minister for Finance, hereby consent to the making of
the foregoing Rules insofar as they relate to the fees chargeable in respect ofproceedings before the Controller.
GIVEN under my Official Seal,
19 January 2009
BRIAN LENIHAN.
Minister for Finance.16 [20]
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal
interpretation)
These Rules prescribe the procedures to be observed and the fees payable in
relation to proceedings before the Controller of Patents, Designs and TradeMarks under the Copyright and Related Rights Act 2000 (No. 28 of 2000).BAILE A ´THA CLIATH
ARNA FHOILSIU ´AG OIFIG AN tSOLA ´THAIR
Le ceannach dı ´reach o ´n
OIFIG DHI ´OLTA FOILSEACHA ´N RIALTAIS,
TEACH SUN ALLIANCE, SRA ´ID THEACH LAIGHEAN, BAILE A ´THA CLIATH 2,
no´trı´d an bpost o ´
FOILSEACHA ´IN RIALTAIS, AN RANNO ´G POST-TRA ´CHTA,
AONAD 20 PA ´IRC MIONDI ´OLA COIS LOCHA, CLA ´R CHLAINNE MHUIRIS,
CONTAE MHAIGH EO,
(Teil: 01 - 6476834 no ´1890 213434; Fax: 094 - 9378964 no ´01 - 6476843)
no´trı´aon dı ´olto´ir leabhar.
——————
DUBLIN
PUBLISHED BY THE STATIONERY OFFICE
To be purchased directly from the
GOVERNMENT PUBLICATIONS SALE OFFICE
SUN ALLIANCE HOUSE, MOLESWORTH STREET, DUBLIN 2,
or by mail order from
GOVERNMENT PUBLICATIONS, POSTAL TRADE SECTION,
UNIT 20 LAKESIDE RETAIL PARK, CLAREMORRIS, CO. MAYO,
(Tel: 01 - 6476834 or 1890 213434; Fax: 094 - 9378964 or 01 - 6476843)
or through any bookseller.
——————
\4.06
Wt. (B26597). 305. 1/09. Cahill. Gr. 30-15.