IRELAND Law and Practice Contributed by: Hannah McLoughlin, Jane Bourke, Karen Gallagher and Kevin Doyle, Pinsent Masons Ireland LLP
3.2 Essential Elements of Copyright Protection In order to qualify for copyright protection, a work must: • fall into one of the protected categories under Sec - tion 17 (2) of the Copyright Act; • be fixed in a tangible form (ideas, thoughts, con - cepts, principles and facts are not protectable by copyright); and • be original, meaning it must result from the author’s own intellectual creation. 3.3 Copyright Authorship Authorship Section 21 of the Copyright Act deals with authorship. In Ireland, “author” means the person who creates a work and includes the following: • in the case of a sound recording, the producer; • in the case of a film, the producer and principal director; • in the case of a broadcast, the person making the broadcast or in the case of a broadcast that relays another broadcast by reception and immediate retransmission, without alteration, the person mak - ing that other broadcast; • in the case of a cable programme, the person pro - viding the cable programme service in which the programme is included; • in the case of a typographical arrangement of a published edition, the publisher; • in the case of a work that is computer-generated, the person by whom the arrangements necessary for the creation of the work are undertaken; • in the case of an original database, the individual or group of individuals who made the database; and • in the case of a photograph, the photographer. Non-Human Authorship European copyright law requires a protected work to reflect the author’s own intellectual creation, based on free and creative choices made by a human. This human authorship requirement underpins whether any work qualifies for copyright protection. The Copyright Act provides that an author of a work that is computer- generated is the person who creates the work and the
There is no restriction on the use of surnames as trade marks in Ireland. Whilst no case law on the use of a surname as a trade mark has been determined in Ireland and it is not addressed in the relevant legis - lation, caution would need to be applied where an existing surname is in use. In O’Neills Irish Interna - tional Sports Company Ltd v O’Neills Footwear Dryer Company Ltd [1997] IEHC 75, the renowned sporting brand O’Neills was granted an injunction based on its unregistered rights to prevent a defendant from using his own surname on sports drying equipment. Moral rights are more commonly dealt with under copyright law in Ireland. There is no limit to the scope of Irish trade mark laws based on copyright or related rights. The two regimes operate independently, and copyright does not over - ride or restrict trade mark protection. 3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works Section 17 (2) of the Copyright Act provides that the following works are eligible for copyright protection in Ireland: • original literary, dramatic, musical or artistic works; • sound recordings, films, broadcasts or cable pro - grammes; • the typographical arrangement of published edi - tions; and • original databases (where substantial investment has been made in obtaining, verifying or presenting the content). Industrial designs are not protected by copyright in Ireland. They are protected by designs rights, which are provided for by the Industrial Designs Act, 2001 (as amended). However, it is arguable that design ele - ments such as drawings, patterns and decorative ele - ments might be protected by copyright where they qualify for copyright protection (see 3.2 Essential Ele- ments of Copyright Protection ).
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