Dáil Éireann - Volume 353 - 24 October, 1984
Supplementary Estimates, 1984. - Copyright (Amendment) Bill, 1984: From the Seanad.
The Dáil by Order went into Committee to consider Amendments from the Seanad.
Acting Chairman (Mr. Prendergast) Acting Chairman (Mr. Prendergast)
 Acting Chairman (Mr. Prendergast): There are six Seanad amendments. To amendment No. 1 Deputy Flynn has put down two amendments, which are in order.
Seanad Amendment No. 1:
1. In page 2, before section 1, the following section inserted—
1.—Section 14 of the Copyright Act, 1963 is hereby amended by the insertion after subsection (7) of the following subsection:
‘(7A) The making of an object of any description which is in three dimensions shall not be taken to constitute an infringement of the copyright in an artistic work in two dimensions (other than such a work relating to a work of architecture) if—
(a) any of the features following, that is to say, shape, configuration and pattern that appear in the work and are applied to the object are wholly or substantially functional, and
(b) the object is one which is or has been manufactured by the owner of the copyright or by any person authorised by such owner and is or has been commercially available in numbers in excess of 50.’.”.
Mr. Flynn Mr. Flynn
Mr. Flynn: I move amendment No. 1 to Seanad amendment No. 1:
In the ninth line, after “object are” to delete “wholly or substantially functional” and substitute the following “dictated solely by the function which is to be performed”.
Minister of State at the Department of Industry, Trade, Commerce and Tourism (Mr. E. Collins) Minister of State at the Department of Industry, Trade, Commerce and Tourism (Mr. E. Collins)
Minister of State at the Department of Industry, Trade, Commerce and Tourism (Mr. E. Collins): Unfortunately I cannot accept the amendment proposed by Deputy Flynn. To substitute the alternative  words proposed would narrow the scope of what we are trying to achieve in the Bill and would continue to give rise to legal uncertainties. The arguments advanced for a change in the wording, I am advised, are not well founded. We were very careful in framing the section. I ask the Deputy to understand that it was done in the best interests of the country and that we are in no way trying to damage the traditional rights of copyright owners.
On the second amendment proposed by Deputy Flynn, in the short time available because the amendments were received officially today, the Attorney General's Office were not in a position to consider whether this amendment was necessary or if it is even proper and in a legal form. Accordingly, it is necessary for the Minister to take some time to consider the amendment. I ask the Deputy to allow the Bill to pass through the House in its present form.
Mr. Flynn Mr. Flynn
Mr. Flynn: While I would like to accommodate the Minister, the best advice available to me is that if the amendment being promoted by the Minister is allowed to stand, it will create more problems than it will solve, and that it will do nothing to achieve the purpose for which it is intended. The thrust of the amendment is quite acceptable to everyone, but it has been suggested to me that it is weak in certain areas. For that reason I felt I had to put down these two amendments.
They may have been late, but I find it difficult to understand the Minister's attitude. He said he is not in a position to discuss the matter because he has not received sufficient legal advice from the Attorney General's Office. There was a very easy way to deal with that matter. If the Minister felt he needed more time, I would have been more than happy to accommodate him. He might have been advised that the amendments I submitted would help to strengthen the section. I got advice from industry and other interested parties outside the House, who  sought in the recent past to get the message to the Minister that they supported in toto what he had in mind to achieve in the amendment, and that it was very necessary. So do I, but they are concerned about the form of the amendment. For that reason they are disappointed that there was not a response from the Minister's office to their request.
Having considered the matter fully I felt the proper thing to do was to put down the two amendments not to create tardiness in having the proposal introduced into the legislation, but purely to try to strengthen and clarify the section for the entrepreneurs who will be operating under the legislation for a considerable length of time.
I was also seeking a commitment from the Minister because of the fact that this amendment would be stripping certain types of operators in the economy of the protection afforded to them under the Copyright Act.
It would be necessary, in everybody's opinion outside this House, that alterations would be made in the Industrial and Commercial Property Protection Act, of 1927, Part 3. This concerns the question of design. It was regarded as essential to afford the protection that would be necessary to individuals engaged in these matters and that the Minister might be in a position to give a guarantee this evening that in a specified period of time he would be prepared to bring in amending legislation of this Act of 1927. I am sorry that the Minister feels it necessary to rush this legislation through. It raises very serious questions, with which I would have to deal in fairness to the legislation and in fairness to Minister Bruton. That Minister, when this Bill was introduced first, was most co-operative with this side of the House. He certainly got full co-operation in that it was regarded at the time as being essential legislation to control the widespread abuse of piracy in so far as videos were concerned. The question is dealt with of fines which the Garda could impose in dealing with illegal videos being smuggled in by various methods and hawked  about the town on building sites and estates, having a very bad influence on many of the population in certain areas. We agreed all that in the original Bill. I asked the Minister to consider further aspects that would strengthen his hand in this regard and he very kindly, in a spirt of co-operation, accepted the bona fides of my submission and entered some amendments to support my point of view.
The Bill went to the Seanad and other matters arose. Because of these things, the Minister found it necessary to amend another section of the Principal Act — the Copyright Act of 1963. That legislation appears back here without any discussion at all in the House on it. That, I understood, was the reason for its appearance here this evening. I am disappointed that the Minister says he is not in a position to take this amendment at all. While I would have been more than happy to give it a nod and a wink, which is the easiest way out of anything, I am concerned about interests outside the House who do not feel that they were properly accommodated in the submissions being made in support of the strengthening of the amendment. For that reason, I feel obliged to pursue the matter a little further.
I know how important this is, when one considers that there are one or two very major projects hingeing on the passing of this legislation. I certainly would not be the one to stand in the way of the attraction of major high technology industries into this country in such depressed times. For that reason it must be clearly understood that all I have in mind is to help the Minister to strengthen these two lines of the amendment which would add enormously to the effectiveness of the legislation and dispel the confusion which I understand will ensue if it is left to stand in the format in which it is now framed.
I can quite readily support copyright protection in drawings of functional objects so that it would be an infringement of copyright if someone else were to manufacture it in commercial quantities. Indeed, all the industrial agencies are in  favour of preserving copyright protection in such drawings where the object depicted is not produced in commercial quantities by the holder of the copyright or authorised agents. Commercial quantities, I understand, would be not less than 50 units of the object. The existing Copyright Act has been successfully used by quite a few indigenous companies here as a means of restraining other firms here from copying functional objects which they had developed for both home and overseas markets. The proposed amendment to the Act could, therefore, be seen as a deterrent to investment in new product development. The whole thrust of this amendment is to allow new manufacturing outlets to proceed without the danger of being challenged in the court in so far as the subsistence of copyright in various designs is concerned.
It is important that the section be amended to ensure that the manufacturer marketing a functional object does not infringe the copyright in the drawing of the object, provided of course that the object is in commercial production. Herein lies the crux. The passing of this legislation, even in the amended format that I suggest, would strip some of the protection available through copyright. It would be necessary to protect the interests by having other amending legislation guaranteed or at least promised here this evening. This would cover firms who wish to retain the protection currently enjoyed under the Copyright Act of 1963.
It is imperative that the Industrial and Commercial Property Protection Act of 1927, Part 3, be amended so that design covers the appearance of functional objects. This is a highly technical area. The best advice that I have is that a guarantee must be afforded here that the Minister will give an undertaking to have this matter introduced in the House at an early stage. If the Minister would nod his agreement to that it would be very acceptable and would deal with much of the confusion and perhaps, fears which exist outside the House.
The original new shape as applied to any article produced in more than 50 copies can be protected as a registered  design under Part 3 of the Industrial and Commercial Property Protection Act of 1927 and the maximum period of protection afforded to a registered design is 15 years and to a patent 16 years. Of course, the protection afforded under a copyright is the life of the individual and 50 years beyond, so it is easy to understand how people could monopolise markets for considerable periods of time if allowed to continue in this way. This amendment is being introduced to strip away that protection so that entrepreneurs and industrialists here can become involved in producing goods which would otherwise have to be imported. I would support the Minister in his attitude in this regard, in that having this amendment would help enormously in the import substitution drive. My difficulty is not with that; it is with the question of the format and the words being used. For that reason my amendments are being introduced.
The protection afforded by the Copyright Act of 1963 does not apply to articles capable of being registered under the provisions of Part 3 of the Industrial and Commercial Property Protection Act. The Copyright Act protects original drawings and any three-dimensional representation of those drawings. Consequently, purely functional articles which start their life on the drawing board are currently entitled to a far greater degree of protection than articles which qualify for protection as registered designs. It is for that reason that I want the commitment concerning the 1927 Act to be entered into here. The duration of the protection enjoyed by a copyright owner is the lifetime of the author plus 50 years thereafter.
The High Court has upheld copyrights in original drawings in respect of such items as the simple fish box and has prevented manufacturers here from becoming involved in what would be very worthwhile industrial projects because of the difficulties encountered in the High Court. Numerous local manufacturers have been stopped and some deterred from producing articles by a threat of  infringement proceedings by copyright owners. Industrial development is being hindered by the application of the Copyright Act which also stunts initiatives such as the import substitution programme and I take it that this is the reason the Minister is entering this amendment at this time. He has projects that he would like to see cleared that would be in danger of infringing on the Copyright Act.
Mr. J. Bruton Mr. J. Bruton
Mr. J. Bruton: Not only in import substitution.
Mr. Flynn Mr. Flynn
Mr. Flynn: Of course not, in high technology industries also, which I referred to earlier. Having listened to the Minister of State, who said he had not time to consult with the Attorney General about the bona fides of my amendment, I say that the Minister in the intervening period before this is taken again might have an opportunity to see if this amendment can be strengthened by my amendment or some other formula of words that I would be prepared to accept.
Mr. E. Collins Mr. E. Collins
Mr. E. Collins: I would like to be allowed time to consider the amendments.
Progress reported; Committee to sit again.
Dáil Éireann 353 Supplementary Estimates, 1984. Copyright (Amendment) Bill, 1984: From the Seanad.