Dáil Éireann - Volume 493 - 01 July, 1998

Copyright (Amendment) Bill, 1998: From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.

An Ceann Comhairle: Amendments Nos. 1, 7 and 8 are consequential on amendments Nos. 5 and 6. Amendments Nos. 1, 5, 6, 7 and 8 may be discussed together.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt): I move that the Committee agree with the Seanad in amendment No. 1:

Section 1: In page 3, between lines 8 and 9, the following definition inserted:

“‘Act of 1992’ means the Patents Act, 1992;”.

Amendments Nos. 5 and 6 involve making substantive changes to the Patents Act, 1992, bearing on the conditions of tenure of the Office of Controller of Patents Designs and Trademarks. Amendments Nos. 1, 7 and 8 are drafting amendments, the adoption of which would be required as a consequence of the adoption of amendments Nos. 6 and 7.

Amendment No. 6, amending section 6 of the Patents Act, 1992, provides that the Patents Office shall be under the control of the controller who shall act under the general superintendence and direction of the Minister for Enterprise, Trade and Employment. This reinstates a provision for general ministerial superintendence and direction which was in place prior to the enactment of the Patents Act, 1992. Amendment No. 7, amending section 97 of the Patents Act, [863] 1992, clarifies the legislative environment of the tenure in office of the Controller of Patents Designs and Trademarks on a number of points.

The proposed new subhead (1) of section 97 establishes the basic conditions of appointment and tenure of the office. I refer in particular to subparagraph (d) which will ensure that the present controller retains his personal conditions of tenure, such as rights to remuneration, superannuation, etc. The proposed new subhead (3) clarifies the requirement that a controller while in office shall be deemed to be employed in the Civil Service. The proposed new subhead (3)(a) would secure the Minister's right to specify the place at which the Patents Office and its staff are to be located and from which the functions of the controller are to be discharged.

Deputies will note that provision is made to allow the Minister to specify exceptions to this designated location. This provision will allow the Minister to specify that patent and trademark hearings may be held at locations other than the designated location of the office or that particular staff or functions of the office may be located away from its designated location on a temporary or permanent basis should this prove expedient or necessary to the effective performance of the office.

The Government believes the new provision was a particularly important clarification of the legislative position regarding the location of the Patents Office and of the discharge of the functions of the controller in the context of the forthcoming move of the Patents Office to Kilkenny. The proposed new subhead 4A is self-explanatory and provides for the specific circumstances in which the person appointed to the office of the controller may be removed.

The proposed new subsections (5) and (6) make provision for officers authorised by the Minister to act in place of the controller subject to the terms of the authorisation concerned where this is deemed necessary or expedient. The table following the specific amendments shows a consolidated version of section 97 of the Patents Act, 1972 as it would appear following the adoption of amendment No. 6.

Mr. Stanton: As I said on the last occasion this Bill was in the Dáil, my party generally favours it and will not oppose it. However, I have a number of reservations about it. The Minister of State will recall that during Question Time yesterday I raised the issue of the perceived dangers in the area of traditional music. I also raised that matter on the last occasion the Bill was debated here. I am disappointed the Minister of State did not endeavour to tackle this complex area, but I am pleased he will monitor the position in the period leading up to the enactment of the forthcoming Copyright and Related Rights Bill and that he will put any measures that are required in place. I ask him to be extremely vigilant in monitoring this area because we do not want multinationals [864] from outside the State to come in here and use modern technology to digitise traditional Irish music, which is not subject to copyright law, and claim copyright on it. This matter has been raised on a number of occasions and it is extremely important and complex.

An extraordinary situation has developed in that the Minister for Enterprise, Trade and Employment is in danger of breaching copyright law. Yesterday the Industrial Development Enterprise Ireland Bill was before us. The patent to the title “Enterprise Ireland” is owned by another body and if there are exhibitions or functions it is the only body that can legally use that title. I cannot understand how the Minister will set up an agency that is also expected to use that title. There is a danger she could break the law in that regard. The Minister of State is responsible for copyright legislation and I urge him to ensure this anomaly is corrected as soon as possible. We will have an opportunity to do that tomorrow. We do not want to come back here during the summer to deal with a matter as important as this in one sense but quite trivial in another sense. Perhaps the Minister of State will ensure the name Enterprise Ireland is changed. The Small Firms Association is entitled to the protection of the law and demand that in this area.

We do not have any major difficulties with the other changes outlined by the Minister of State. The new subhead 4A states “… whose removal appears to the Government to be necessary for the effective performance of the functions of Controller.',”. That is a sweeping provision, but as this Bill will be amended when the substantive legislation is introduced later in the year we will hold fire on that.

I thank the Minister of State for bringing this legislation before us even though we would be happier if we were dealing with the substantive legislation. It is important that Ireland is not brought before an international court. I understand one of the main reasons for introducing this legislation is the Minister was more or less compelled to do so by the United States. Otherwise we would probably have faced sanctions from the World Trade Organisation. We do not want Ireland's name to be muddied internationally by delays caused by the Government's failure to introduce the substantive legislation. For that reason we do not oppose this Bill and we want to do everything we can to ensure its speedy passage through the House.

Mr. Broughan: I echo many of the comments made by Deputy Stanton. This critical legislation must be passed as soon as possible. However, it is disappointing that more than a year has passed and the team in the Department of Enterprise, Trade and Employment has not come forward with a substantial Bill. It seems many of the fundamental issues on ownership, authorship and traditional music, referred to earlier and to which Deputy Rabbitte referred on Second Stage, had not been dealt with at this stage. The Department [865] has been working on this for the past seven or eight years, but such significant legislation is essential to give us the impetus to develop our information technology industry, which forms such a critical part of our economy. It was said recently we have two economies, one based on the high tech industry where there is a good deal of development and those engaged in it earn high salaries and another one in which those engaged in it earn a much lower salary. This Bill is a prerequisite for the operation of the high tech economy.

Senator Costello spoke on this Bill in the Seanad. I note two small amendments to delete the word “commencement” and substitute the word “passing” tabled by my colleagues, Senators Costello, Gallagher and O'Meara are still before us. I also note the Government has tabled a major amendment dealing with the controller. Why was such a fundamental amendment not included in the original Bill? This is a small Bill and, to some extent, it represents fire brigade action. It had to be introduced to enable us to solve a basic problem which had arisen and to give us a basis for the forthcoming substantial Bill. Why did the Government not wait to include that major amendment in the main patent Bill? Why is it seeking to amend the 1992 Act in such a seemingly significant way in relation to the controller's office?

I note what the Minister of State said about the designation of the location where the controller may be based. As a Dublin Deputy, I am of the view that enough Government institutions have been moved out of Dublin. We have lost many Civil Service jobs in recent years. I and my colleagues tend to keep a careful watch on this situation. Something in the region of 40 or 50 per cent of the Civil Service is based outside the capital.

Why was such a lengthy and seemingly fundamental amendment not included with the rest of the Bill?

Having said that, I welcome the fact that the Minister introduced this Bill to at least deal with the difficulties which arose earlier in the year with the World Trade Organisation. The Americans were apparently threatening to take action at an international level against Ireland if we did not act speedily. I commend the Minister for dealing with that now.

I look forward in the autumn to liaising closely with the Department on the heads of the Bill which the Minister proposes to introduce. Clearly, it will be one of the most complex Bills which the 28th Dáil will enact. I look forward to having a lengthy period to consider it and offering advice to the Minister on the future shape of patent and copyright law. I welcome the Bill.

Mrs. Owen: I welcome the Bill as, clearly, we were in grave danger of being blacklisted and in serious trouble with the World Trade Organisation. I understand that at least one other European member state is already in trouble because [866] it did not introduce a minor legislative amendment such as this.

The Minister's amendments are necessary. However, I, too, want to return to the new subsection (4A) in amendment No. 6, which inserts a new section 5. That subsection gives the Minister new powers. It states: “the Government may remove from the office of Controller a person who has become incapable through ill-health of effectively performing the duties of Controller or for stated misbehaviour or whose removal appears to the Government to be necessary for the effective performance of the functions of Controller”. I can understand a person becoming incapable of performing his or her duties through ill-health or misbehaviour, if a person embezzles or carries on in an illegal manner. However, that last section, which seems to give the Government complete power to make a decision that a person is not effective and to remove him or her, appears to be an open-ended power. A person might not get on with the Minister of the day due to a clash of personalities and the Minister could decide the person is not effectively performing his or her duty. I hope the Minister can satisfy me that that is a tight control.

Does the Minister intend to fix a time period? I think he fixed a period of five years. I understand that has not been the case to date. The Minister has moved from having an open-ended appointment ad infinitum until the person reaches the age of retirement to a five year period. I assume the person can be appointed for a second five year period. Is that the case? That would be only right and proper.

I want to return to the issue my colleague, Deputy Stanton, raised and impress on the Minister the seriousness of the situation. Deputy Stanton confirmed that “Enterprise Ireland” has been patented not only in Ireland but through an EU office. The Small Firms' Association is identified with “Enterprise Ireland” in its conferences, seminars or exhibitions. Deputy Broughan also raised this yesterday, as did my colleague, Deputy Perry. Yesterday the Minister appeared to rubbish that particular argument. She said she thought the SFA was happy with the use of the name “Enterprise Ireland”. Our understanding is that the SFA has taken legal advice to challenge the use of “Enterprise Ireland”. As Minister in charge of copyright and patents, the Minister of State, Deputy Kitt, must seriously examine this so that, before we take Report Stage of the Industrial Development (Enterprise Ireland) Bill, 1998, tomorrow morning, the Minister can be certain that there will not be a challenge to it. We have co-operated to bring that Bill through this House at a speedy pace because the Minister seems adamant to set up Enterprise Ireland by 16 July. It will not do any good, having sat last night in select committee until after 10 p.m. to agree Committee Stage and having agreed to take Report Stage, to then find that the Minister has not done her homework and cannot use the term “Enterprise Ireland”. That would be a very serious matter.

[867] In reply to a question from my colleague, Deputy Stanton, the Minister of State said he cannot introduce the trade mark rules because the intellectual property unit of his Department is completely overburdened with work in preparation for the forthcoming copyright Bill. The Minister of State must fight his corner to get staff to take care simultaneously of such issues as trade marks and the forthcoming copyright Bill. These are areas of law which may not receive great resonance with the public. However, when people find themselves at the receiving end of bad law, then they will make noise about it. I realise it is difficult for the Minister of State to make a great song and dance about the fact that his intellectual property unit is understaffed, but if he does not get the necessary staff to introduce the trade mark rules which are required under the Madrid Protocol and at the same time finalise the forthcoming copyright Bill, he will end up in the courts and bring down Ireland's name internationally. With all the advantages and extra money which the Government has at present, why is the Minister of State unable to get the necessary qualified personnel even on a part-time contract basis to help with the forthcoming copyright Bill and the other work of the Department?

In the forthcoming Bill it is essential that we deal with software and the fact that much software is now being pirated and used in an unlicensed manner. The Minister of State will be aware that last week I tabled a question to all Ministers to ensure that every Department was using licensed software. The forthcoming Bill must contain strong penalties. There must be significant penalties of fines and jailing but also significant powers to make dawn raids. At present firms buy two copies of licensed software. If a firm has staff of ten, 12, 20 or 100, copies are made of the software and it is difficult to identify this practice. It is not possible to incorporate alarm systems in the software to inform a person who is using it. The only way to address the matter is to physically find the copied disks at the firm which is behaving illegally. I hope the Minister of State will take on board the recommendations of the Business Software Alliance, which is alerting the Opposition to its concerns about software piracy. This is probably the most serious element of the forthcoming copyright Bill which the Minister must examine because so much work is done through the use of software and information technology of all sorts. The terminology of the forthcoming Bill must be adamant that we will stamp out the use of illegally copied pirated products on which people have spent a great deal of time, energy and academic skill to develop. At present people can just take disks away and copy them and people lose their rights of copyright. I hope that in the larger forthcoming Bill the Minister will take on board the concerns which have been expressed by the Business Software Alliance, and that the work of researchers and developers will not be pirated in this way.

[868] An Ceann Comhairle: I remind the House that in accordance with the Order of this day we have 30 minutes only to deal with this item, of which seven minutes remain. The Minister of State has still to reply.

Mr. Rabbitte: I will leave the majority to the Minister of State as there is one pertinent question raised by Deputies Broughan and Owen with which he must deal. It has been agreed that this is a limited measure. I hope there will be no taking the foot off the pedal in regard to the main Bill which the Minister of State has promised to introduce in the autumn.

On the extraordinary insertion of a major substituting section, the Minister of State should be frank and explain what has brought this on now. It is an unusual section and I presume it has only come about as a result of the failure of the Minister of State and his staff and the controller to agree. That can be the only explanation. I do not want to abuse knowledge that I possess but I am aware of recent developments in this area. It is extraordinary that the Minister of State is enshrining in law the substitutions listed and inserting in statute that the office shall be situated in a location to be determined — I presume Kilkenny — and that the controller shall locate there or else. I would like the Minister of State who has included this major change among some minor amendments to explain why this is the case.

Mr. T. Kitt: I thank Deputies for their contributions. Deputy Stanton raised the question of traditional music which was dealt with yesterday. I share his concern. I have met representatives of Ceoltas Ceolteoirí Éireann and IMRO and clarified some of the issues raised. I have given an assurance that we will monitor the position.

On the question of Enterprise Ireland which was raised by Deputies Stanton and Owen, it is my information that the terms are unlikely to have copyright implications but may have trade mark implications. I will discuss the matter with my colleague, the Tánaiste, who dealt with it on Committee Stage. Software is a crucial aspect on which I share the views expressed.

On the substantive issue, Deputy Rabbitte asked me to be frank. He, more than anyone, is aware of the background to this important matter on which I offered the party spokespersons the opportunity to be briefed by officials of my Department. It is fair to ask why the provision is being included in this legislation rather than in a more substantial Bill. Negotiations are ongoing but there is an issue which needs to be addressed. The amendment reinstates a provision for general ministerial superintendence and direction which was in place prior to the enactment of the Patents Bill, 1992. In effect, it marks a return to the normal relationship between the controller and the Minister.

In the Seanad I gave assurances with regard to the rights of the individual in question. It is [869] obvious that Deputies have been well briefed on the matter. The Patents Office is to be relocated in Kilkenny in August. It is in the interests of the good management of the office that any uncertainty on the points raised should be dispelled prior to relocation. In that context it is expedient to employ this Bill, although the provision could be attached to any intellectual property Bill. When I was briefed on the matter I saw merit in attaching it to this Bill.

I hope the office will be run efficiently and effectively. There are problems which need to be addressed but there is only so much one can say when negotiations are ongoing. I dealt with the matter in more detail in the Seanad, the Members of which were clear on the implications of this provision and the background to it. They were briefed by officials of my Department in advance of the debate.

An Ceann Comhairle: As the time permitted for the debate has expired, I am required to put the following question in accordance with the Order of the Dáil of this day: “That the Seanad amendments not disposed of are hereby agreed to in Committee and agreement to the amendments is, accordingly, reported to the House”.

Question put and agreed to.