Seanad Debate on Protection of Intellectual Property - Opening Statement by Dr. Jimmy Devins T.D., Minister for Science, Technology and Innovation.

The IP Concept

The concept of ‘intellectual property’ covers a wide range of creations of the human mind – from the inventions, symbols and designs used in industry to literary and artistic works such as novels, paintings and films. Over the centuries, various societies came to recognise that it was in the public interest to recognise these as being the property of the people who created them so the wider modern concept of ‘intellectual property rights’ became more widely used. Today, intellectual property rights consist of concrete protections such as patents on inventions, trademarks, industrial designs, as well as copyright on artistic works like books, films, music and paintings.

Its Importance

IP is of growing importance in the global economy. In practice it means that through innovation, good quality design, effective branding and top quality production, we can sell products at a premium price without having to compete purely on the basis of price alone.

We do however need to protect our IP to ensure that we can convert the fruits of our research into saleable products, processes and services, secure comparative advantage and so move up the value chain. Ireland’s future prosperity depends on being able to do that .

National policy strategies and reviews over recent years have placed an increasing stress on the creation and protection of intellectual property. For example, last December’s Building Ireland’s Smart Economy A Framework for Sustainable Economic Renewal, points to intellectual property protection as being a top priority and points out that creative industries cannot survive in the marketplace without adequate protection from copyright infringement.

IP and National Strategy

As our aim nationally must be to build and maintain a world–class knowledge-based economy and society, then equally we need to have effective means of ensuring the creation, protection, commercialisation and profitable use of Intellectual property

Several Complementary IP Elements

There are several closely–linked but distinct elements in our approach to IP including strategies to promote its creation, protection and commercialisation. Government is active in each of those elements. In the case of the protection of IP, it exercises its responsibilities through providing a suitable and responsive legislative and regulatory framework. It promotes the production and development of creative industries and of innovation through giving exclusive rights to exploit IP while also making provisions which act as a considerable deterrent to would-be imitators and infringers.

Directly related to this protection of IP through the legal system is the matter of the enforcement of that protection. I will come back to that aspect later.

Balance in IP Protection

The extent of IP legal protection has to be balanced by Government with other considerations. The extent of the effective monopoly given in law has to be weighed with the wider economic good and with the need to promote innovation. Sometimes, in seeking longer or higher levels of protection, rights owners can seem to forget that there is this wider public interest to consider; the fact that a piece of IP exists and that it has been protected by, say, a patent or a copyright does not, unfortunately, always lead to its commercialization.

Again, for example, it is important that the levels of protection provided can sustain general public support and respect for rights holder’s creations. That can have an important bearing on attitudes and behaviour in the fight against piracy and counterfeiting.

Counterfeiting & Piracy – Major Threats

Intellectual property theft is now big business. Counterfeiting and piracy are pressing problems in IP protection and enforcement. Those who take the right steps to protect their creations are in a stronger position but those who do not are wide open to counterfeiting and piracy.

It is already a big problem. The OECD estimated that, in 2007, global trade in fake goods was worth around $200 billion and that does not include goods produced and consumed within countries. The real figure is, therefore, far higher.

Counterfeiting and piracy are also rapidly growing problems; customs services across the European Union seized about 75 million fake articles in 2005 but that almost doubled to 128 million items by 2007.

Some countries have bigger problems with counterfeiting and piracy than others but these problems now feature everywhere. The same OECD Report I just quoted includes customs data showing that infringing products had been intercepted from close to 150 countries, including no fewer than 27 of the OECD’s 30 member countries .

Apart altogether from the scale of this problem it is important to note that some counterfeiting, such as that of airline industry spare parts or fake or dangerous medicines, are direct and deadly threats to human life

IP Protection through Regulation

The essence of IP protection is a strong focus on having and managing an effective legislative and regulatory system. My Department has been making a sustained effort over recent years to ensure that our patent, trademark, industrial design and copyright laws, amongst other IP areas, are kept as up to date as possible. Most of this ongoing effort arises, however, from our EU and other international obligations rather than from the purely national context .

Global Nature of IP Protection

Over recent decades the increasingly international nature of IP Protection rules have grown. This has both facilitated and reflected the increasing levels of international trade – both traditional and internet based. The development of internet-based businesses over recent years has further underlined – even for the biggest of countries - the global as against the national nature of markets and of IP protection. It would now be more difficult than ever for countries or their economies to take part in the global economy without signing up to and enforcing a range of globally agreed rules.

Main International Rule-Making Bodies in IP Protection

The World Intellectual Property Organisation or WIPO which is the UN body charged with the development of global IP rules and the World Trade Organization –the WTO though its TRIPS Agreement are the two main rule-making bodies at global level in IP Protection.

In Europe, the European Patent Office (EPO) plays a crucial role in the patents field and, in the EU proper, the Office for Harmonization in the Internal Market (Trade Marks and Designs) or OHIM, promotes and manages the Community Trade Marks and the Community Designs system

While WIPO, the EPO and OHIM also variously implement operational patent, trade mark and design protection services, they also variously generate Conventions, Treaties or other rules which require national, legal or regulatory change and which shape much of our domestic IP protection arrangements.

Importance of the EU

The most important single source of rule-making, here as in other fields, is now, however, the European Union. It has established a legal competence to act vis a vis the member states in most areas of IP protection law including copyright, trade marks and designs. In patents it has also come to play an increased role in Member State regulation over the past decade or so. Many of the provisions included in Irish primary legislation and many of the supporting Statutory Instruments made in this field over the period are in transposition of EU Directives in intellectual property into Irish law.

The Commission’s work over the years in harmonising and co-ordinating national approaches in the IP field has had a powerful effect in creating and securing the benefits for all Member States in the internal market. A lot has been done to harmonise the IP environment across the EU in the collective interest of the Member States, of rights holders and of business. New issues and proposals continue to surface. At the present time, several significant Commission proposals are under active negotiation in Council and the European Parliament in this field of policy. In patents, reduced legal, translation and other costs are in prospect through proposals for the creation of a Community Patent or COMPAT . There are also proposals in discussion to create a European Patent Litigation Jurisdiction. The aim of these proposals is to deliver a simple, cost-effective and high-quality patent system for Europe. In the trade marks field, there is a proposal to provide a major fee reduction for trade mark applicants at OHIM – the EU trade mark agency. In the field of copyright, there are proposals in discussion at Council Working Party level to amend Directive 2006/116/EC on the term of protection of copyright and related rights for performers and record companies. The central element of those proposals would extend the length of copyright protection for performers and producers from 50 to 95 years.

Extent of IP Protection - Differing Views

There are differing views and trends at global level regarding the correct approach to, and levels of, IP Protection.

Within the EU there is normally a limited range of views on how best to approach and to address IP Protection issues and , for example, how to consider proposals to deal in a co-ordinated way with issues such as counterfeiting and piracy.

Opinions and approaches are more diverse, however, at the global level in such bodies as the WTO-TRIPS and WIPO. Some developing countries are still not clearly in full compliance with their obligations to provide minimum standards of IP protection in national laws under the TRIPS Agreement of 1995. At WIPO, many developing countries regularly oppose the negotiation of new Conventions and Treaties which would effectively raise the bar of the 1995 TRIPS standards to new ‘TRIPS Plus’ level. In other UN bodies such as the World Health Organisation ( WHO) and the Convention on Biological Diversity (CBD), there are also, development -related issues arising from the links between patents, serious diseases and the ownership of biologically –based medicines

On the other hand, the proposed Anti-Counterfeiting Trade Agreement or ACTA put forward by Japan and the US in 2006 is now at an advanced stage of negotiation between a group of developed countries including the EU. It aims to agree an obligation to meet a stronger set of enforcement measures to reduce counterfeiting and piracy in trade between countries by filling gaps in existing multilateral agreements such as the WTO-TRIPS Agreement and WIPO Treaties, by improving international cooperation especially at customs borders and in providing a strong new legal framework for Intellectual Property protection.

Differing national views

Nationally there are also differences of view in evidence when my Department puts particular proposals out to consultation. The detailed views provided by parties vary from one proposal to the next but, in broad terms, rights holders such as authors and the film and music industries seek to maximize the numbers of situations in which royalties or licences are needed, the duration of such IP protection and the amounts to be paid while groups such as consumers and broadcasters seek to minimize the scope for such charges, the periods of protection and the levels of payments to rights holders

Overview Of the Irish IP Protection System

Patents, trade marks, design rights and copyright, are the four main forms of IP protection worldwide. In Ireland, together with various more recent amendments and a large corpus of Statutory Instruments, the primary legal instruments in the IP protection field are the Patents Act 1992, the Trademarks Act 1996, the Copyright and Related Rights Act 2000, and the Industrial Designs Act 2001.

These provide broad, flexible and practical civil remedies for the owners of intellectual property as well as credible and proportionate criminal sanctions. Provisions on search and seizure, delivery up and disposal of infringing goods and enhanced civil damages add up to a varied and effective toolkit against pirates. These exist to aid legitimate business and rights-holders in tackling piracy in the most immediate and effective manner through civil proceedings.

The main aim of the Trade Marks Act, 1996 was to give effect to the EU Trade Marks Directive and to establish a more comprehensive set of protections for trade mark owners. It provided for the Community Trade Marks system which operates in parallel with national systems and offers trade mark owners the opportunity to register their mark throughout the EU though a single registration. As well as being a party to the European Community system of trademark and design registration, we are also a party to the international system of trademark registration under the Madrid system administered by the WIPO. A further aim of the Act, therefore, was to enable ratification of the Protocol to the Madrid Agreement concerning the international registration of marks and also to implement certain provisions of the Paris Convention for the Protection of Industrial Property. The Act also facilitated the registration of trade marks in respect of services.

The Act introduced important new measures to deal with the growing problems of the fraudulent use of trade marks and counterfeiting. It provided trade mark proprietors with wider rights against acts of infringement and gave strong protection to registered trade marks by broadening the scope of offences to include use of a mark which is identical to, or nearly resembles, a registered trade mark.

The Industrial Designs Act 2001 had four main purposes. It modernised Irish industrial design law, broadened the civil and criminal remedies available in respect of infringements of design rights, implemented the EU Directive on the legal protection of designs and enabled future access for Irish designers and business to an international system of design protection under the Geneva Act of the Hague Agreement.

The remedies contained in the legislation are very effective both as deterrents to infringement and as recompense for such unlawful acts. The Act extended the protection afforded to designs to 25 years and extended the protection of copyright to registered designs for the first time in Irish law. The Act gave rights owners greater capability to enforce their rights, through reference to the Controller of Patents, Designs and Trade Marks or through the Courts, and to provide a more efficient and speedier system of registration of designs. It also made user-friendly provision for invalidation and rectification procedures where persons, who are not entitled to design rights, poach those rights from rightful owners.

The main body of current Irish Patents law is contained in the Patents Act 1992. That set out the detailed procedures for the operation of our patents system as well as providing for national ratification of the European Patent Convention (EPC) and of the WIPO Patent Co-operation Treaty (PCT). The Patents (Amendment) Act 2006 updated its provisions to reflect various later obligations under international agreements which had arisen since the 1992 Act. That included ensuring compliance with the TRIPs Agreement of 1995, the revision of the European Patent Convention (EPC) and the WIPO Patent Law Treaty.

The Copyright and Related Rights Act, 2000 provides the main legislative provisions governing the protection of copyright in this country. The Act is a comprehensive piece of legislation, which provided - in some cases for the first time in Irish law - for moral rights, performers’ rights, rights in performances, a database right for non-original databases and for rights and remedies against those who unlawfully circumvent technological protection measures designed to protect copyright materials. The Act’s 376 sections provide a coherent legislative regime which conforms to the best standard of international practice in this area. It has regularly been acknowledged as a good legislative model. Last year, for example, the Business Software Alliance, in its annual study on International Piracy Losses, acknowledged that, through the Act, Ireland had one of the most stringent copyright laws in Europe.

Enforcement of Protection

I mentioned earlier that I would come back to the issue of the enforcement of the protections provided by our IP protection legislation. Each of the pieces of primary legislation across the main areas of IP specify civil sanctions for breach of the rights holders’ rights to be exercised by them. The measures also contain criminal sanctions by way of fines, imprisonment or both for more serious infringements.

The Gardai and Customs Authorities both play active roles in ensuring effective enforcement of the legislation The Gardai’s policing plan in the IP protection field has focused on high value white-collar crime, particularly that of trading in contraband goods. It has adopted a proactive approach in tackling IP enforcement issues with the National Bureau of Criminal Investigation (NBCI) targeting the main players. In relation to such matters as DVD piracy, its activity has been maintained at a high level, with searches being carried out country-wide by the Anti- Racketeering Unit with assistance from INFACT and IRMA. Significant quantities of counterfeit DVDs and CDs as well of DVD burners, copiers and scanners have been seized over recent years.

Again, the Customs enforcement action in tackling counterfeit or pirated goods has concentrated mainly on the points of importation into the State. It too has seized growing quantities of products .

Finally, a Chathaoirleach,

I think that we are fortunate to have in this country a well developed IP Protection system which has been crucial to ensuring free trade for our goods and services on foreign markets. This body of law is set to become even more important in support of our future knowledge-based society.

While there are competing pressures and interests in this field at international and at national level in relation to IP rule-making, I hope to reassure the Seanad that thus far we have provided for effective decisions through dialogue. Again, while there many international players in IP regulation, for Ireland, the EU role has been particularly important.

While the debate today should focus primarily on the legal and regulatory regime, it is also appropriate that the Seanad would note the effective enforcement support for those laws provided by An Gardai Siochana and the Customs Service in co-operation with the relevant industries and rights-holders.

Thank you

ENDS/IP89

27^th February 2009