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Dáil Éireann debate -
Tuesday, 2 Dec 2014

Vol. 860 No. 1

Intellectual Property (Miscellaneous Provisions) Bill 2014: Instruction to Committee

I move:

That, pursuant to Standing Order 177, Standing Order 131 is modified to permit an instruction to the Committee to which the Intellectual Property (Miscellaneous Provisions) Bill 2014 may be recommitted in respect of certain amendments, for which it has power to make provision in the Bill to amend the Competition Act 2002 to provide for-

(a) a technical amendment to section 22(4B) (inserted by section 59 of the Competition and Consumer Protection Act 2014) to provide for conformity of time limits in relation to the consideration of any proposals from notifying parties in the context of a final determination in relation to a merger notification;

(b) an amendment to section 28B(2)(b) (inserted by section 74 of the Competition and Consumer Protection Act 2014) to provide that a media merger notification to the Minister for Communications, Energy and Natural Resources may only happen after the determination process undertaken by the Competition and Consumer Protection Commission has concluded;

(c) an amendment to section 28E(13)(b) (inserted by section 74 of the Competition and Consumer Protection Act 2014) to correct an inadvertent incorrect cross reference; and

(d) consequential amendments to provide for clarification of treatment of media mergers notified before the above amendments come into effect and to clarify definitions of the Competition Acts, and associated collective citations and construction;

and to change the Title of the Bill to take account of these provisions.

I am introducing three amendments to the Competition Act 2002 to deal with two minor issues that have emerged in the implementation of the media mergers parts of the amendment to that Act introduced under the recently enacted Competition and Consumer Protection Act 2014. I referred to these on Second Stage and a briefing on these specific amendments was provided to Deputies on Committee Stage. I am happy to facilitate these on the basis that they deal with a number of technical issues that emerged during the implementation of this Act.

In effect, there are two separate sets of amendments being introduced today. The first relates to section 28B(2)(b) and the process around the notification to the Minister for Communications, Energy and Natural Resources of a merger. As it stands, the Act allows parties to notify the Minister immediately after they have notified the Competition and Consumer Protection Commission, CCPC. However, while the Act gives the Minister 30 days from the end of the CCPC process or European Commission process - whichever applies - to complete his or her initial examination, the Act also currently allows, under section 28D(9), for the Minister to effectively stop the clock on the process while he or she waits on further information from parties. However, the ability of the Minister to do this is contingent at present on the date of notification rather than the end of the CCPC or European Commission process. This means the situation could theoretically arise that the Minister could lose the ability to request further information while suspending the time limits, given that he or she cannot actually commence examination of the merger until after the end of the previous part of the process. This amendment, to section 28B(2)(b), clarifies that notification can now only occur after the end of the CCPC or European Commission processes, thus removing the possibility that the Minister might be deprived of the ability to require further information of parties with the appropriate protections.

There is also an amendment to section 22(4B), as inserted by section 59 of the Competition and Consumer Protection Act 2014, which ensures that in circumstances where parties submit proposals to the CCPC, the later timelines and the process are unaffected. Importantly, this amendment has no effect on the length of the process that parties must go through. It merely ensures that the process remains robust and coherent throughout.

The second set relates to a single amendment to section 28E(13)(b), and corrects a reference to a subsection, from subsection (8) to subsection (7). This is a drafting error in the text and this change ensures that the phase 1 and phase 2 assessment can operate in the same manner.

I thank the Minister of State and his officials for the briefing provided to us. We will be supporting the amendments as it is important any issues around the legislation be amended as quickly as possible.

I would like to comment on the role of the Competition and Consumer Protection Commission in the recent beef dispute as I do not believe it covered itself in glory. We had an issue where farmers were looking for a fair price and for fair treatment from those whom they supplied, and the only action of the commission was to go after the farmers and not particularly to go after the big conglomerates that were causing the dispute. As its first outing in terms of public persona and public presence, I do not believe it covered itself in glory. This agency needs to develop a reputation for standing by the consumer and for standing by the small producers who do not have the power and the might of the big conglomerates. On this occasion, it did not do that. It is not a good start and I hope it is not a method by which it means to continue.

I support the legislation. I again thank the Minister of State and his officials for the clarifications given.

This is the second time in recent weeks that Ministers have sought to piggyback amendments to enacted legislation. What makes this more worrying is that the legislation the Minister of State seeks to amend here only passed the Dáil and Seanad a few short months ago, in effect.

Specifically on the amendments, one of the major questions is when the Minister Communications, Energy and Natural Resources will use his ministerial powers. The guidelines on media mergers have not yet been published. It is disappointing that the Minister believes it is appropriate to slip in amendments to the competition and consumer protection legislation in this manner. If the legislation is to be revisited, the debate should have begun at the start of the Bill's journey. I, for one, would have welcomed an opportunity to amend it in some key areas.

Section 19 of the legislation prescribes those organisations with which the new body will work. It does not, however, mention Irish Water. For hundreds of thousands of families across the State, Irish Water is toxic. Some are opposed to the commodification of water for logical reasons. Water is necessary for life and to commodify it puts a cost on one of the key inputs. Others are opposed to it because they simply cannot afford to meet another cost, charge and stealth tax. Regardless of the reasons people are opposed to water charges, they are united in their disgust at the manner in which Irish Water has conducted itself. The Government may believe it is going to pull it back from the brink, but, to be honest, nobody outside the House really believes that.

The Minister told us earlier this year that the Government had established a new governance model to manage, fund and deliver water services. We asked him who would independently stand up for the consumer in this reform process. He told us that the Commission for Energy Regulation, CER, would be the independent regulator for Irish Water and that it would have powers to direct the company to prepare a code of practice on any matter that it considered necessary and appropriate to secure the interests of customers. We warned that the CER was a regulator, not a consumer watchdog with real teeth to protect and vindicate consumer rights.

We raised a number of other concerns with the Minister and, in a manner true to form, the Government did not listen. Not listening is becoming the modus operandi of Fine Gael and the Labour Party in government. It is business as usual; the Government is literally carrying on the baton from the previous Government, with the same arrogance playing itself out. There is a disconnect on the part of the Government in dealing with the issue of water charges and how to address the antiquated water infrastructure in the State. The Government hides behind EUROSTAT figures, as if the construction of the company is something over which it has no control. The EUROSTAT figures are simply a method used by the European Union to force important utilities such as this to be separated from the state. The Government is obviously flying by the seat of its pants and its governing is becoming more chaotic day by day.

We also sought to amend the Competition and Consumer Protection Bill to address a deeply unjust ruling in 2004 by the Competition Authority on rates of pay for vulnerable workers in journalism and the entertainment industry. SIPTU and Equity had a collective agreement with the Institute of Advertising Practitioners in Ireland setting out minimum rates of pay, overtime rates and rest breaks for voice-over actors. In 2004 the Competition Authority ruled that this agreement was in breach of section 4 of the Competition Act 2002 as each actor was, in effect, a business. In real terms, this is nonsense. The authority deemed it unlawful for musicians, actors and journalists to have a right to collective representation by their unions. Further down the road SIPTU and the NUJ secured an agreement via the social partnership process on a legislative change to deal with this deeply unfair decision. However, the commitment was not delivered on by Fianna Fáil and the unions have had even less success with the Labour Party and Fine Gael - so much for the so-called Labour Party softening the hard edges of its right-wing coalition partner. In 2012 ICTU wrote to the Minister for Jobs, Enterprise and Innovation seeking an exemption from the provisions of the Competition Act. In 2013 the Minister's officials told the unions that the troika was blocking the Government in exempting these workers from the provisions of competition legislation.

Is the Deputy speaking specifically about the amendments?

Deputy Peadar Tóibín does not have to yield.

I am not yielding on this occasion. The Minister of State will be very welcome to come in when I have finished. Perhaps he is becoming uneasy about his experience in government.

As I stated, the proposition that the troika was in some way micro-managing the industrial relations environment in the State was laughable, but that is what the senior Minister in the Minister of State's Department stated about the reason Fine Gael had refused to enact a pledge it had made prior to going into government. The Competition Authority's judgment was wrong and today the Government had an opportunity to make things right.

I fear that the bottom line is that the Labour Party's influence in the Department of Jobs, Enterprise and Innovation is nowhere to be found. The Labour Party has failed to provide fundamental industrial relations rights for freelance journalists, photographers and voice-over actors whose opportunities and rates of pay have fallen significantly in the past few years. When the Minister approaches legislation such as this, I appeal for us to go back and make sure it goes through the Dáil in the normal manner to afford all Members of the Oireachtas an opportunity to have an input into its development simply to ensure members of the public - the people affected by the legislation - would have an opportunity to have their representatives speak on their behalf.

Before I begin, I would like the Minister of State to clarify what he said. Are we speaking about our views on the motion?

We are dealing with a motion to instruct the committee.

What then is the Minister of State's problem?

I only wanted to ask what exactly the questions were about the amendments. We are covering a lot of ground and much of what is being said is not necessarily relevant to the Bill.

I will cover a lot of ground also and do not want to be interrupted.

We will come to Report Stage later.

I did not interrupt Deputy Finian McGrath.

I did not know what was going on.

I thank the Leas-Cheann Comhairle for giving me the opportunity to speak to the motion which deals specifically with the Intellectual Property (Miscellaneous Provisions) Bill 2014. I welcome this debate as the entire sector to which we are referring is vital to the economic future of the country and also because the huge talent in the sector is often ignored by wider society. It is also important to say that when we address the words "intellectual property", we need to focus on the need for high standards and outside independent assessment, as in the case of the row about the junior certificate examinations. Students and graduates have high standards because they came through a second level education system in which they were assessed independently and professionally and that had their trust and that of parents. International companies come to Ireland because of our excellent workforce. It is important to say this in this debate in which we are talking about intellectual property. We have many high quality, skilled individuals in the State who are making a massive contribution. It is also important to emphasise our quality workforce as we often get carried away with the tax issues relating to international companies.

The Intellectual Property (Miscellaneous Provisions) Bill 2014 will amend existing patent law in order to extend a research exemption to the developers of innovative medicinal and veterinary medicinal products. The Bill will also make changes to the current trademark law to make it compatible with the Singapore Treaty on the Law of Trademarks.

In my introductory remarks on the Bill I also mentioned the importance of the pharmaceutical sector and the fact that we had highly qualified graduates. These are excellent young people who are delivering quality services. We all know that the pharmaceutical industry in Ireland has been transformed in recent decades, since the 1960s.

In fairness to the IDA and the people who work in this sector, they went around the world to target the fine chemicals industry. They brought a number of multinationals to Ireland and today Ireland is the eighth largest pharmaceuticals producer in the world, with nine of the world's top ten pharmaceutical companies locating substantial operations here. The pharmaceutical sector makes an important contribution to the Irish economy. It accounts for approximately one quarter of total Irish exports and it is a significant employer. The IDA estimates that 24,500 people are directly employed in the sector, with a further 24,000 people indirectly employed in support services. In the region of 120 pharmaceutical companies are located in Ireland. This is why I support the legislation. It is important to play to our strengths, particularly when we are trying to exit a recession. I know many of the people working in the sector, whether directly or indirectly, from my constituency of Dublin Bay North, in areas like Marino, Artane, Coolock, Clontarf, Howth and Killester.

The legislation gives legal certainty to the research exemption in Ireland and introduces a more liberal exemption than is currently provided. This legal certainty should reassure developers of innovative medicinal and veterinary products that Ireland remains a good place to conduct pharmaceutical business. That is a key element of the legislation. It also makes changes to Irish trade mark law, but these are not related to the research exemption.

It may not be politically correct to raise a different issue pertaining to intellectual property but it is worth warning the Government about it because the State could face costs of hundreds of millions of euro if we do not watch what is going on in the broader sector. I refer to the Public Health (Standardised Packaging of Tobacco) Bill 2014. In early 2014, the new EU tobacco product directive, TPD, was adopted. It included a ban on the sale of packs of ten cigarettes and methanol cigarettes, and mandatory 65% health warnings. After the European Parliament specifically voted against including plain packaging in the new TPD, the Commission decided to revisit the issue in five years' time. Ireland took a different view, however, and the Government proceeded with reform. Questions arise about the legality of this approach in regard to the deprivation of intellectual property, breaches of existing WTO agreements and whether it would lead to similar legislation for other products, such as alcohol. It is also questionable whether plain packaging actually works. I raise these questions because a number of documents circulating in the European Commission suggest that plain packaging was abandoned because of serious concerns among stakeholders. A more balanced approach has been chosen as a result and the Commission plans to review the issue after five years.

Our Minister for Health takes a different view. By rushing to become the first country in Europe to adopt plain packaging, Ireland is set to make itself a guinea pig for lawsuits brought by tobacco companies. Is it not a more prudent course of action to let the UK or France, both of which have greater resources, to introduce plain packaging and defend any subsequent legal challenges before Ireland introduces its own measures? I may be a lone voice in this House but similar concerns have been raised by nine EU member states, namely, Bulgaria, the Czech Republic, Greece, Italy, Poland, Portugal, Romania, Slovakia and Spain, in detailed opinions submitted to the Commission under the TRIS notification procedures. Should these opinions not be shared with the Oireachtas before it is asked to vote on the legislation? I raise this issue in the context of our debate on intellectual property because I do not want us to face the prospect of a massive legal bill in several years time. We cannot afford it and we should not hammer the taxpayers of this country once again. I advise the Government to keep its eye on this ball because one never knows what is going to happen.

The Intellectual Property (Miscellaneous Provisions) Bill 2014 amends existing patent law to extend the current research exemption to developers of medicinal and veterinary products. It amends section 42 of the Patents Act 1992 to expand the research exemption provision to include all studies, tests, experiments, clinical and field trials and the consequential practical requirements for obtaining marketing authorisation for new and generic products. The exemption will apply to tests carried out in Ireland or any state in the European Economic Area. The 2012 Action Plan for Jobs tasked the Department of Jobs, Enterprise and Innovation with a review of section 42 of the 1992 Act with the aim of clarifying research actions that do not constitute patent infringement under Irish law in order to maintain and attract high value-added bio-pharmaceutical investment. The research or Bolar exemption is an exemption to the rights conferred by patents. This is particularly important for manufacturers of medicinal products. It will also allow manufacturers to prepare generic drugs prior to expiry of a patent.

Manufacturers of medicinal products must get regulatory approval that the products are safe and effective before they can be marketed or sold. This is very important in the context of international health. We have seen many mistakes in the past in respect of drugs like thalidomide. Product safety will be ascertained through clinical studies, tests and trials. Producers of generic medicines will be able to use the original manufacturer's regulatory approval if they can demonstrate that the generic version is bio-equivalent to the approved medicine. However, the generic producer runs the risk of patent infringement if it conducts clinical trials on a patented product before the patent has expired. The Bolar exemption means these necessary trials will not amount to a patent infringement.

The Bill has two distinct objectives. All EU member states require that prior to a drug being put on the market, the manufacturer must apply for marketing authorisation by submitting data that approve the safety of the product concerned. I welcome the Bill, although I would have preferred more detailed preparation, and I will be supporting it.

There is no provision for a reply to the debate but if the time allows and the Minister of State wishes to offer, he can be called on to reply.

A question was raised about media mergers and consultation on the guidelines. The guidelines are with the Minister in draft format and when they are published, a period of 30 days will be provided for consultation.

We dealt with most of the issues raised by Deputy Finian McGrath on Second and Committee Stages. The reason I asked for clarification earlier was because I thought we were debating the motion to introduce additional amendments. There may be some confusion in that regard. Most of the issues the Deputy raised are important and I welcome his support on this Bill.

It is a very important Bill. We have dealt with most of the concerns on the various Stages. There are some amendments that will have to be recommitted on Report Stage, but that will be dealt with shortly.

Question put and agreed to.
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