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Minister Michael Ahern Announces Proposal for New Intellectual Property Legislation

Minister for Trade and Commerce, Michael Ahern TD, Announces proposals for new intellectual property legislation

Minister for Trade and Commerce, Mr. Michael Ahern T.D, today (Monday 1st August 2005) announced his intention to bring forward legislative proposals to provide for several new schemes in the intellectual property field:

  • A Public Lending Right payments system for authors whose works are lent by Irish public libraries,
  • An Artists’ Resale Right payments system for artists whose original works are resold through the art trade, and
  • Transposition of the EU Directive on the Enforcement of Intellectual Property Rights.

Minister Ahern said that the Public Lending Right and Artists’ Resale Right schemes would provide new supports for Irish authors and artists. He added, “These schemes will be novel in this country but both have been in use in most EU countries for many years”.

The Government has recently approved the initiation of drafting work on an Intellectual Property (Miscellaneous Provisions) Bill. Minister Ahern said: “We need this new intellectual property measure to meet the obligations arising for Ireland from three EU Directives. This Bill may also cover some minor adjustments now required in intellectual property law in general.”

Minister Ahern acknowledged that Ireland has had difficulties with the European Commissions’ proposals both on the Public Lending Right and Artists’ Resale Right in the past. He added however, “Both are now part of European Community law and so my job at this stage is to provide the legal basis for their implementation. On the Public Lending Right, there had been a continuing difference in interpretation of the Rental and Lending Directive between Ireland and the Commission, which remains the subject of proceedings against Ireland in the European Court of Justice, but I am confident that this Bill will resolve these differences”.

Minister Ahern said, “The new schemes involve the responsibilities of several Ministers. Therefore, active inter-Departmental co-operation will be needed to implement these schemes”. In relation to the Public Lending Right scheme, implementation would be through the Departments of the Environment, Heritage and Local Government and, for the Artists’ Resale Right, through the Department of Arts, Sport and Tourism. Implementation of the Enforcement Directive will also require working closely with the Department of Justice, Equality and Law Reform

Minister Ahern said that he expected to be in a position to bring the intended bill to the Oireachtas before the end of the year.

Background Information for Editors on the proposed legislation

Obligations arising from the following three EU Directives will be addressed in the proposed Bill

Public Lending Right (PLR)

The Rental and Lending Directive (92/100/EEC) dealt with copyright rights arising on the rental of certain protected materials; on certain general copyright issues; and on the rights of authors whose works are lent to members of the public through public libraries. The last of these obliged Member States, at a minimum, to remunerate authors for loans of their works by public libraries, but allowed them to specify certain classes of public library for exemption from the scope of the remuneration scheme. With some exception (in the EU case, of Ireland, Italy, Spain and Portugal) most western countries have some such system in place. Ireland has in the past argued against the introduction of a Public Lending Right here, citing our small lending pool, the expected modest benefits for authors in relation to collection costs, and our long-standing efforts to encourage greater use of public libraries.

Ireland’s Copyright and Related Rights Act 2000, which transposed the provisions of the Rental and Lending Directive into Irish law, did create a public lending right. However, the exemption mentioned above was used to specify, in effect, all public libraries from the scope of the remuneration scheme. This was done for the reasons of policy mentioned in the preceding paragraph, and because it was thought that the provisions of the Directive actually allowed such a general exemption to be made if the circumstances in a particular Member State justified it.

After a EU-wide transposition review in 2003, the Commission initiated legal proceedings against several countries, including Ireland claiming (in Ireland’s case) that, in exempting all public libraries, Ireland had incorrectly transposed the Directive. Following a defence of our approach on the earlier lines, the Commission issued a Reasoned Opinion in July 2004 citing ‘insufficient assurances of Irish willingness to respond to its concerns’. The Commission has referred Ireland to the European Court of Justice alleging failure to implement the Directive correctly in the matter of the Public Lending Right. Ireland recently filed its defence in the case with the Court.

Following a full review of the situation, the Department has now concluded that the early provision of a system of payments to authors for loans of their works by public libraries would be required in order to resolve the case. The proposed Bill will therefore provide the legislative basis for introducing a practical Public Lending Right Scheme. The proposal is to have the scope of the scheme extend to public libraries other than those under the management or control of educational establishments, an exclusion that is permitted by the exception in favour of certain classes of library allowed by the Directive and mentioned above.

Artists Resale Right (ARR)

The Artists Resale Right Directive (2001/84/EC) is due to be transposed into national law before 1 January 2006. It creates a right for artists in the visual and plastic arts to receive a percentage of the value of sales of original works of art subsequent to the first transfer of ownership of the work during their lifetimes and (for the artist’s successors) for seventy years after their deaths, and requires the setting up of a scheme to provide for this. In its 1996 proposal for a Directive to harmonise legislation across the Union on the basis of a compulsory resale right for artists, the European Commission pointed to barriers in the internal market, distortions of competition, and a lack of protection for the authors of original works of visual and plastic art by reference to comparable protections available under copyright to artists in other fields (for example, the literary field) in respect of downstream or subsequent economic exploitation of their works.

Following a five year negotiation, in which a number of Member States actively opposed the proposal as likely to divert art market sales outside the EU, or prove uneconomic to administer in the conditions of the art market in some Member States, a unanimous compromise was agreed in late 2001, with mandatory transposition deferred to January 2006. A derogation was included, allowing Member States that had not legislated for an Artists’ Resale Right previously to defer implementation of the royalty in respect of works by artists no longer living but within the 70 year extended term of the right until 2010, should they so choose.

Enforcement Of Intellectual Property Rights

The Enforcement Directive (2004/48/EC) is due for transposition before the end of April 2006. It requires Member States to apply effective, dissuasive and proportionate remedies and sanctions against those engaged in counterfeiting and piracy. Member States are required to have similar measures and remedies in place to defend right-holders’ intellectual property across the Union. The Directive covers both ‘traditional’ rights such as copyright, trademarks, patents and designs, but also a number of other more specific rights such as geographical indications of origin and plant varieties.

The Department is currently in consultation with the Office of the Attorney General to establish the most effective manner of transposing the Directive. To the extent that primary legislation is required, the Minister intends to incorporate the relevant provisions within the proposed bill.

Details of Schemes

The operational details of the schemes have yet to be finalized and are the subject of ongoing discussions with the Departments of the Environment, Heritage and Local Government and Arts, Sport and Tourism

For further information contact

Intellectual Property Unit,

Dept. of Enterprise, Trade & Employment,

Earlsfort Centre, Lr. Hatch St., Dublin 2

Tel. 6312594 Fax. 6312561/2

http://www.djei.ie/

Last modified: 01/08/2005

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