IRELAND Law and Practice Contributed by: Hannah McLoughlin, Jane Bourke, Karen Gallagher and Kevin Doyle, Pinsent Masons Ireland LLP
are qualified on the basis that such use must be in accordance with honest practices in industrial and commercial practices. Comparative advertising prac - tices must comply with the Misleading and Compara - tive Marketing Regulations. 9.2 Defences to Copyright Infringement (Fair Use/Fair Dealing) Fair Use Exemption in Ireland In Ireland, a statutory fair dealing exemption applies to the use of copyrighted works. This exemption is generally considered narrower than the US fair use doctrine. As outlined in 9.1 Defences to Trade Mark Infringement , certain acts are also permitted under the Trade Marks Act, such as the spare parts provision and allowances in respect of comparative advertising. In the Irish Copyright Act, fair dealing is defined as making use of a literary, dramatic, musical or artistic work, film, sound recording, broadcast, cable pro - gramme, non-electronic original database or typo - graphical arrangement of a published edition which has already been lawfully made available to the public, for a purpose and to an extent which will not unrea - sonably prejudice the interests of the owner of the copyright. The key fair dealing copyright provisions are set out in Sections 50 to 52 of the Copyright Act, as follows: • Section 50 provides for fair dealing for the purpos - es of research or private study; • Section 51 provides for fair dealing for the purpose of criticism or review – however, where the author is identified, it must be accompanied with sufficient acknowledgement of the author, and acknowledge - ment of the title; and • Section 52 provides for incidental inclusion of a copyrighted work. Fair dealing provisions also apply to performances or recordings. There are qualified provisions that apply to the work carried out by librarians and archivists, and concerning database rights. Caricature, Parody and Pastiche Exemption Section 52 (5) of the Copyright Act provides for an exemption to copyright based on caricature, parody and pastiche. Parody is not defined in the Copyright
Act; it is a relatively new provision, inserted into Irish law in 2019 by the Copyright and Other Intellectual Property Law Provisions Act 2019, and the concept has not yet been explored by the Irish courts. How - ever, in Deckmyn v Vandersteen (Case C-201/13), the CJEU interpreted parody, noting that it should evoke a work while being noticeably different, and should constitute an expression of humour or mockery. Right to Free Speech as an Exception to Trade Mark or Copyright Infringement The fair dealing exemptions in the Copyright Act imply a right to free speech and information. No such provi - sions are set out in the Trade Marks Act, but the Irish Constitution provides for a right to free speech. The fair dealing provisions in the Copyright Act are quali - fied in that the interests of the copyright owner must not be prejudiced. The constitutional right must also be balanced. 9.3 Exhaustion Section 16 of the Trade Marks Act provides that a reg - istered trade mark shall not be infringed by the use of the trade mark in relation to goods that have been put on the market in the European Economic Area under that trade mark by the proprietor of the trade mark or with the consent of the proprietor. As discussed in 9.1 Defences to Trade Mark Infringement , exhaustion does not apply where the condition of the goods has been changed or impaired. In the copyright context, Article 4 of the InfoSoc Direc - tive (2001/29/EC) provides for exhaustion within the EU in respect of the original work or copies, where the first sale or other transfer of ownership in the EU of that object is made by the right-holder or with their consent. By contrast, the Directive makes clear that exhaustion does not apply to digital content, as such transactions typically involve reproduction of the work rather than transfer of a tangible copy.
10. Remedies 10.1 Injunctive Remedies
In Ireland, preliminary, interim or Mareva (freezing) orders are available to trade mark or copyright own - ers.
228 CHAMBERS.COM
Powered by FlippingBook