Dáil Éireann debate -
Thursday, 21 Mar 1929

Vol. 28 No. 13

Industrial and Commercial Property (Protection) (Amendment) Bill, 1929—Report Stage.

Minister for Industry and Commerce (Mr. McGilligan)

I beg to move amendment 1:—

In page 3, Section 6 (1), to delete lines 43 to 58 inclusive, and substitute the following—

(a) develop and perfect such invention;

(b) form or promote an incorporated company or an unincorporated association of persons to develop and perfect such invention;

(c) take an assignment of any patent or of a share or interest in any patent theretofore or thereafter obtained for such invention;

(d) sell or lease any such patent or grant licences under any such patent on such terms as he shall, with the sanction of the Minister for Finance, think proper;

(e) form or promote an incorporated company or an unincorporated association of persons to work commercially any such patent;

(f) do all such things as may be necessary for the maintenance or preservation of any such patent or be otherwise incidental to the ownership thereof.

This is the best suggestion or offer that I can make to the Dáil with regard to the points discussed on the original Section 6 when the Bill was under consideration in Committee. The changes made are simple enough. I have taken out paragraph 6 (e) as it existed, under which the Minister was given power to work a patent commercially. I have, however, still retained for the Minister the power to form or promote a company to work a patent commercially. I have kept paragraph (a), and have, in addition, given power to form a company for the purpose of developing and perfecting an invention. I have kept paragraph (b) as it was, and I have amalgamated paragraphs (c) and (d) with a slight change in the wording which does not make any material difference to the powers given. Paragraph (f) is amended so as to leave it solely to deal with the formation and promotion of a company to work any such patent commercially. Paragraph (g) remains as it was.

The important part is what follows in amendment 2. The two amendments will have to be considered together, and for that reason I will now move amendment 2:—

In page 3, line 59, before Section 6 (2) to insert a new sub-section as follows—

"(2) Every Minister shall, before the 1st day of April in every year, lay before each House of the Oireachtas a report of every (if any) exercise by him in the next preceding year of the several powers conferred by paragraphs (d) and (e) of sub-section (1) of this Section and also, if and so far as he considers expedient in the public interest, of the several powers conferred by paragraphs (a), (b), (c) and (f) of the said sub-section."

Under that amendment the Minister must lay a report upon the Table of each House if he has exercised any of the powers under (d) and (e), selling or leasing a patent or granting licences under any such patent, or the formation or promotion of a company to work a patent commercially; and if and so far as he considers it expedient in the public interest he shall also lay a report on the Table of the several powers conferred by paragraphs (a), (b), (c) and (f). The distinction is that I must bring to the notice of the House every year anything that is done with regard to the selling or leasing of a patent, the granting of licences under any such patent, or the formation or promotion of a company to work a patent commercially. With regard to the other paragraphs in the first amendment, if and so far as the Minister considers it expedient in the public interest he may report with reference to the several powers conferred upon him under paragraphs (a), (b), (c) and (f). I may say that I do not consider it expedient in the public interest to lay a report on the Table with regard to what has been done under (a), (b), (c) and (f) already, if this be passed; that is, with regard to the particular invention which has been somewhat vaguely discussed.

There is one other point to be noted in the first amendment arising out of paragraph (d) under which the selling or leasing of a patent or the granting of licences under any such patent is now subject to the sanction of the Minister for Finance.

Before any evil use can be made of the peculiar powers granted under this there will have to be two corrupt, evil-minded or irresponsible Ministers, the Minister handling this and the Minister for Finance. They will have to bring their peculiar action or their irresponsibility before the House prior to the 1st of April in each year.

That is the best I can offer with regard to the points raised the last day. I may take it that if these two amendments are accepted it would be regarded as pretty well guaranteed that once a matter has been the subject of discussion here and has reached the point of being brought before the public in a proper way, when that matter has been enquired into by the Public Accounts Committee there should be such further amendment of the clause as the Public Accounts Committee's examination of the transaction would seem to make necessary. In other words, this is being put forward as provisional legislation. Of course, that is subject to all the fluctuating circumstances of the future and the guarantee may not be worth a great deal. As far as I am concerned I would apply myself to that, that paragraph 6 would be regarded as very provisional. If one desired to secure that very definitely and precisely, I presume one could take out paragraph 6 and bring it under the heading of expiring laws legislation so that it will have to be reviewed year by year. At the moment I would prefer not to do that unless there is a very strong feeling in the House on the matter. I would prefer to patch it up in this way although that may not satisfy those who expressed themselves upon the subject during the Committee Stage.

Mr. Lemass

We have discussed this suggested amendment, and it seems to us to be a fair effort to meet the objections raised to the wide powers proposed to be given to the Minister originally. We would be inclined to allow this procedure to be adopted for the purpose of seeing how it would work if a case arose where those powers would be called into operation. Very often inaccurate or incomplete information is worse than no information at all, and if the Minister proposed to make a statement with respect to the exercise of the powers conferred upon him by (a), (b), (c) and (f), only in so far as he considered it expedient in the public interest, I think either in the document laid on the Table it should be stated: "Important information relative to these matters is being withheld, as it is not expedient in the public interest to publish it," or else the Minister should make no statement at all. I feel it is better that he should not be under any obligation to make a statement than that he should make a statement which might, to a person not fully conversant with the facts, be misleading. On the other hand, he might put it that the information could be supplied, but that certain matters necessary to the proper understanding of the subject were being withheld, as it was not expedient in the public interest to publish them. I would like the Minister to consider that suggestion or alternatively stop after paragraph (e) of amendment 1. It is really the information relating to the exercise of the Minister's powers under (d) and (e) that is essential. It is not equally essential that the Dáil should have information under the other paragraphs, because in the exercise of them certain moneys will have to be expended and a statement will have to be made in the House for the purpose of getting the sanction of the Dáil.

Mr. Good

With regard to the new sub-section it is proposed to insert before Section 6, the Minister proposes to lay before the Dáil a statement in connection with probably liability under certain proposals that he has in mind. Supposing a matter arises between Ist April in one year and Ist April in the following year which necessitates immediate action, what step would the Minister purpose taking to meet the situation? Would he purpose waiting until he would have an opportunity of laying the matter before the Dáil? It might not be desirable to delay it so long.

Mr. McGilligan

The proposal is that the report would refer back to the year preceding. There would be no information given with regard to something that was projected. It is only after the event that the report would be laid upon the Table giving an indication of what exercise the Minister had made of the powers under (d) and (e). The report is to be made after the event.

Mr. Good

The wording of the sub-section is "a report of every (if any) exercise by him in the next preceding year." That is the year that is past, I take it.

Mr. McGilligan

Yes. The report will always come after the event.

Mr. Good

Then the discussion may be late.

Mr. McGilligan

It would certainly be too late to prevent any exercise of the powers.

Mr. Good

The liability and the expense might have been incurred without the Dáil knowing anything about it.

Mr. McGilligan

I do not see how any expense can be so incurred. If there is expense which involves any financial liability on the State that expense has to be met out of the moneys voted by the House. The expense cannot be incurred by the Minister save in so far as the Contingency Fund may be raided except he goes for a supplementary estimate, and that supplementary estimate would always have to come before the event. If there is liability in the nature of expense that matter must be brought before the Dáil before the expense is incurred.

Mr. Flinn

Unless it came out of the Contingency Fund.

Mr. McGilligan

I said already unless it came out of the Contingency Fund. But in any other liability that might come under the head of selling or leasing that would not apply. I do not know if the Deputy means that there might be in certain cases a contingent liability—a liability which had not accrued. In that case I suppose the Minister might go ahead, and when the liability had become an actual one he would then come to the Dáil. Naturally the Minister would have to look forward to having to do that and to contemplate the possibility that the Dáil might refuse. If the thing could be foreseen at all, he would be certain to come before the Dáil. In that event the Dáil would again get notice. With regard to selling or leasing or forming companies there is nothing in the nature of a sacrifice. The Minister would afterwards have to report. It is a question of selling or leasing or granting licences. The Minister would report, but then it would be too late to prevent the exercise of the powers.

On the point that Deputy Lemass raises, why this was put in was because I cannot conceive circumstances in which the Minister would give such a mangled report so that the information given to the House would be misleading. Rather than do that, the Minister would say: "It is not expedient in the public interest to give any information." Without that provision in the Bill Deputies could not call for information. It is better to have that there, because by a Parliamentary question there can be got from the Minister a statement on the matter if there is anything withheld, and if so what the reason is. It may be that the statement of the Minister in reply to that would be that it is not in the public interest to disclose the information. It would be a completely wrong thing for the Minister to place such a mangled statement before the House as would mislead the House. If the phrasing remains as it is now, the matter will be clear. I ask that it be left in.

Amendments 1 and 2 put and agreed to.

Mr. McGilligan

I move amendment No. 3, which reads:

In page 4, line 52, Section 10 (1) (ii), after the word "language," but within the inverted commas, to insert the words "provided also that the Governor-General may, by order made on the advice of the Executive Council, exclude from the operation of the foregoing proviso all or any class or classes of works, the authors of which were at the date of the making of such works citizens of any country not a party to the said International Union which the Governor-General, on the advice aforesaid, shall think fit to specify in such order."

This is a simple point. It has to deal specially with the case of America and with the obtaining of copyright privileges there. We find that in order to get the Presidential Proclamation which is necessary in the United States before our citizens can obtain copyright in America or in the United States, it is for us to show that we are granting exactly the same copyright conditions here. This is conferring on American citizens the same privileges here as their law confers on our citizens in America. But the American law makes no reservations for translation, and we have to make provision for the case where the Governor-General, on the advice of the Executive Council, may except from the provisions with regard to translations. It really applies to America, and before we can get copyright in America we must give the same right as our citizens get in their country.

Amendment 3 put and agreed to.

Question—"That the Bill as amended be received for final consideration"—put and agreed to.

Mr. McGilligan

On the question of the Fifth Stage, it could be taken now, but there is a possibility that some verbal alterations might be required, and I would like to look at the Bill before we take the Fifth Stage. I propose to take that Stage to-morrow. Should any amendments of a verbal kind be made tomorrow, the Bill will be in time to go to the Seanad at their next meeting.

Fifth Stage fixed for Friday, 22nd March.