Intellectual Property (Miscellaneous Provisions) Bill 2014: Report and Final Stages

Amendments Nos. 1, 2 and 4 form a composite proposal and will be discussed together. Recommittal is necessary in respect of amendments Nos. 1, 2 and 4 as they relate to the instruction to committee motion.

Bill recommitted in respect of amendments Nos. 1 and 2.

I move amendment No. 1:

In page 3, line 7, after “1996;” to insert “to amend the Competition Act 2002;”.

This amendment relates to the Long Title of the Intellectual Property (Miscellaneous Provisions) Bill 2014 and seeks to provide for amendment to the Competition Act 2002, as amended by the Competition and Consumer Protection Act 2014.

Amendment No. 2 contains a number of technical and consequential amendments to the Competition Act 2002. Section 22(4B) of the Act, which was inserted by section 59 of the Competition and Consumer Protection Act 2014, is being amended to provide for the conformity of time limits relating to the consideration of any proposals from notifying parties in the context of a final determination in respect of a merger notification. The amendment to section 28B(2)(b), inserted by section 74 of the Competition and Consumer Protection Act 2014, provides 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. This is to preserve the ability of the Minister to request further information from parties to a merger and to stop the clock until such time as the request is met.

The opportunity is being availed of to correct an inadvertent incorrect cross-reference in section 28E(13)(b), inserted by section 74 of the Competition and Consumer Protection Act 2014, while consequential amendments provide for clarification of treatment of media mergers notified during the interim period between 31 October 2014, when Part 4 of the Act came into effect, and these amendments coming into effect. Definitions of the Competition Acts are also provided for by this amendment.

Amendment No. 4 incorporates a proposed amendment to the Competition Act 2002, as made by the amendment inserting a new section 4 referred to earlier, into the collective citation Competition Acts 2002 to 2014 and that they should be construed as one Act.

The amendments are mainly technical.

Amendment agreed to.
NEW SECTION

I move amendment No. 2:

In page 5, between lines 32 and 33, to insert the following:

“Amendment of Act of 2002

4. (1) The Act of 2002 is amended—

(a) in subsection (4B) (inserted by section 59 of the Act of 2014) of section 22, by the insertion of “and paragraph (b) (inserted by section 4 of the Intellectual Property (Miscellaneous Provisions) Act 2014) of section 28B(2)” after “section 28A(1)”,

(b) in section 28B (inserted by section 74 of the Act of 2014), by the substitution of the following paragraph for paragraph (b) of subsection (2):

“(b) notwithstanding paragraph (a), shall not be made before whichever of the following dates is applicable:

(i) the date of a determination by the Commission under paragraph (a) of section 21(2) or under paragraph (a) or (c) of section 22(3);

(ii) the day after the period specified in subsection (2) of section 21 has elapsed without the Commission having informed the undertakings that made the notification concerned of the determination (if any) it has made under paragraph (a) or (b) of that subsection (2);

(iii) where the Commission has made a determination under section 21(2)(b), the day after—

without the Commission having made a determination under section 22;

(iv) the date of a decision of the European Commission under Article 6(1)(b) or Article 8(1) or (2) of the Council Regulation;

(v) the date that Article 10(6) of the Council Regulation comes into effect.”,

and

(c) in section 28E (inserted by section 74 of the Act of 2014), by the substitution of “subsection (7)” for “subsection (8)” in paragraph (b) of subsection (13).

(2) Where a media merger was notified under Part 3A (inserted by section 74 of the Act of 2014) of the Act of 2002 before the commencement of this section, then, upon such commencement, the Act of 2002 shall apply to the media merger as if the amendments effected by paragraphs (a) and (b) of subsection (1) had not been made.

(3) In this section—

“Act of 2002” means the Competition Act 2002;

“Act of 2014” means the Competition and Consumer Protection Act 2014.”.

Amendment agreed to.
Bill reported with amendments.

I move amendment No. 3:

In page 5, between lines 32 and 33, to insert the following:

4. The Patents Act 1992 is amended by the insertion of the following new section after section 61:

“Common good

61A. The achievement of the common good may require permanent or temporary interference with the rights, including intellectual property rights, of persons or corporate entities.”.”.

Intellectual property rights and the rights of citizens and governments are in fine balance. Recently, the US Chamber of Commerce lodged objections with the European Commission with regard to the Government's plans to introduce plain packaging on tobacco products. There is disagreement with regard to the correct use of policy and the correct use of intellectual property rights. The US Chamber of Commerce said it was concerned that a member state would propose legislation that would, in effect, create an intra-EU trade barrier that had not previously existed and that it would set a dangerous precedent at the expense of the protection of the intellectual property rights of many other industries, not just the large tobacco industry. Not to be outdone by this, the European Commission weighed in and said our economy could be significantly damaged if we failed to safeguard intellectual property rights.

When Australia decided to opt for plain packaging for tobacco products, big tobacco fought it. As a result, Philip Morris International moved its headquarters from Australia to Hong Kong, where there existed an international trade agreement. In that international trade agreement, it sought to use investor-state dispute settlement, ISDS, which is part of the transatlantic trade and investment partnership process which the Government is enthusiastically and actively pursuing, to change the policy in Australia. Veolia threatened to use ISDS against Egypt in an effort to stop its policy of increasing the minimum wage, and the Egyptian Government has decreased the minimum wage as a result.

My argument is that there must be occasions where the common or societal good takes precedence and that governments have the liberty to create policy for that area. In the last conversation I had with the Minister about this he did not deal with the substantive issue I raised. Not only is the Minister for Jobs, Enterprise and Innovation not seeking the derogation the Minister of State mentioned, he is actively seeking the inclusion of ISDS within the TTIP agreement. The amendment is an effort to ensure that the common good is centrally placed in the legislation of this State.

I understand the Deputy's concerns and will try to put him at ease again, as I tried to do on Committee Stage. The patents are but one form of intellectual property rights, which term includes copyrighted trademarks, industrial designs and so forth. At national level, the various laws that govern these intellectual property rights provide saving provisions, of the type with which the Deputy is concerned, that allow the Government, if necessary, to legislate where there are public interest issues at stake. Individually, we can do that. Moreover, the Irish Constitution specifically recognises the importance of property and guarantees to pass no law to attempt to abolish the right of private ownership. However, in recognition of the principles of social justice, the Constitution provides that the State may, as occasion requires, delimit by law the exercise of such rights in the exigencies of the common good.

At national, European and international level, intellectual property rights enjoy protection that is set down under well-established and respected principles. At international level, the State is party to a number of international treaties and conventions that provide for the type of common good provision about which Deputy Tóibín is concerned. In summary, whether at national, European or international level, IP protections are not of themselves absolute rights and there exist provisions to allow states to apply derogations that allow for the suspension of part of the legal obligation which can operate to restrict some rights under certain circumstances, such as in the pursuit of broader compelling public policy reasons or for greater public interest considerations.

While I appreciate the intent of the amendment, I am not in a position to accept it as it would be wholly inappropriate to provide for the limitation of intellectual property on a blanket basis in a provision of the Patents Act. It is more appropriate that the status quo prevails, which allows for the delimitation of rights in certain express circumstances under the various IP legislative measures, EU instruments and international treaties and agreements to which the State is party. We believe there is ample opportunity to deal with the Deputy's concerns in that context.

On Committee Stage, Deputy Tóibín voiced concern about the position of intellectual property in the context of the negotiations on the transatlantic trade and investment partnership agreement. In particular, he was exercised about the necessity for governments to have the right to legislate and to implement policy in the context of public health and welfare. It is true that there are features of the TTIP negotiations, specifically those relating to investor-state dispute settlement, that are giving rise to considerable debate and some suspicion by stakeholders on both sides of the Atlantic. However, investment protection is a common feature of trade and investment agreements between nations. The EU and US follow the same principles that guide investment and seek to ensure a level playing field for investors. These principles recognise the right of governments to regulate for legitimate public policy objectives.

While the ISDS is a valid mechanism, experience of the ISDS internationally, which prompts the concerns, shows that there is much room for improvement in how the system works. This includes having safeguards against claims that are clearly unwarranted and making sure that ISDS does not serve to constrain the rights of governments to take measures for legitimate public policy reasons. The EU's negotiating mandate on TTIP includes recognition of the right of governments to take measures necessary to achieve legitimate public policy objectives, and this is a key element in TTIP.

It is clear that EU member states will seek to ensure any ISDS provisions in a future agreement will present a fair and reasonable option to which investors would have recourse for legitimate reasons and that governments would not be constrained on developing public policy measures and legislating for them in the public interest. I hope this puts the Deputy's mind at ease. I have tried as best I can to show that our Constitution and laws contain the mechanisms and protections the Deputy seeks to insert on a blanket basis.

TTIP is a significant challenge to the Irish economy. It is likely that Ireland will lose a significant number of jobs as a result of its introduction. It may also mean the introduction of meat that has been treated with hormones, for example, chlorinated chicken, which is illegal in this country. It may also mean a reduction of regulation on food, workers' rights and safety. In Europe, 1,300 products are forbidden in the production of makeup, whereas in the US, 12 products are forbidden. In general, Europe has good regulation, which creates a competitive disadvantage, and therein lies the opportunity for cheaper imports to come in and jobs to migrate as a result. France and Germany have indicated that they are against the ISDS, and I am amazed the Government is still pursuing a situation in which an arbitration mechanism which is not transparent or independent would have the right to arbitrate on a policy.

The amendment I seek does not provide for a blanket limitation on intellectual property rights but seeks a permanent or temporary interference where it is in the common good. The Government has already accepted in principle that corporations have the balance of rights on it. A letter I received from the Minister was telling. He indicated to me that he sought the highest liberalisation and protection of investors possible through the TTIP process. Surely, the highest liberalisation of regulation and protection of investors is half the reason this country is on the ground.

While I understand the Deputy’s concerns, they are slightly flawed because the protection is already in the Constitution and legislation. There is much discussion about TTIP and many concerns, some genuine and some misconstrued. I would have no problem having greater public discussion about TTIP. In recent months, I attended some events. Given that very few of us attended them, there has not been enough public discussion about it. There are genuine concerns and there are always winners and losers in trade negotiations; that is why they are negotiated. They are a long way from being finished. All the Deputy’s valid concerns should be teased out and discussed. If the committee wants to hold a debate on it, I would be happy to participate and we could go through all these issues individually. We should discuss this more publicly. The Department held an event in Dublin Castle and invited a number of people, who raised genuine concerns and asked questions. I would have preferred to have seen a larger crowd and much more involvement. If Members want to have a full discussion about it on Committee Stage or some other Stage, or in the Dáil, if time permits, we should do it. It would be healthy. Let us tease out all the issues. However, these amendments are not required because the protection already exists in the Constitution, in laws and in other European agreements. We are not prepared to accept the amendments, which would involve an unnecessary blanket change.

Amendment put and declared lost.
Bill recommitted in respect of amendment No. 4.

I move amendment No. 4:

In page 5, after line 37, to insert the following:

“(3) The Competition Acts 2002 to 2014 and section 4* may be cited together as the Competition Acts 2002 to 2014 and shall be construed together as one Act.”.

Amendment agreed to.
Bill reported with amendment.

I thank the Members for their broad support for the Bill, particularly for facilitating the technical changes we had to make. While they caused concern, it was an opportunity for others to say a few words that they missed before. This is part of the nature of democracy. It was an opportunity to clarify that the amendments were only technical and nothing about which to be concerned. While I accept that Deputy Tóibín’s amendments were genuine, they were not needed. However, we should have a discussion on TTIP, and a committee meeting would be a good way to do so, and to engage on many of the other issues the Deputy raised. The changes to intellectual property legislation before the Dáil are modest but significant. They form part of the incremental improvements required to ensure our legislation remains supportive of the kind of high-value and high-tech investment the economy needs to enhance competitiveness and grow employment.

We had a very useful event at an innovation showcase. Many of the committee members were invited but could not avail of the opportunity to turn up. It was a good showcase of innovation and how important it is that we get our legislation on it right. Much is happening in the sector. Deputy Finian McGrath referred to many issues to which other Members referred on Second Stage. We recognise that there is much potential for job creation in this area and successive Governments have put a lot of money into research, innovation and development, and we want to build on it. Part of this is having our intellectual property legislation in order so we can compete with other countries. I thank the Members for facilitating the Bill.

I welcome the passing of the Bill and congratulate the Minister of State on getting his maiden Bill through the House. As always, his officials were helpful and completely on top of their game. The legislation is important. As the Minister said, we must make innovation more real. While we have spent enormous amounts of money and made enormous investments, we must translate it into jobs, into something that means something to people on the ground. Tomorrow, Deputy Eoghan Murphy will host a session on coding. I gather the Taoiseach did some coding last week, although listening to his responses to questions here recently, one would have to do a lot of coding to find the answer. He did some real coding. Coding is very important and needs to be brought into the primary school curriculum. The Minister of State's other Department is the Department of Education and Skills, and that is why his fit is so important, to make such changes happen. The groundwork for investment in innovation was made by my colleague, Deputy Martin both when he was Minister for Education and Minister for Enterprise, Trade and Employment. The foundation stones he put in place are the cause of where we are today. Unless we convert that investment into jobs, it will lose its reach and impact. This legislation is a small but important step in making it real.

Ba mhaith liom buíochas a ghabháil leis an Roinn as an gcabhair a thug sí dom ón dtús. Gabhaim buíochas freisin leis an Aire Stáit agus guím gach rath air agus é ag tabhairt Bille don chéad uair tríd an Dáil. Ba cheart dúinn, sna laethanta amach romhainn, díriú isteach ar conas is féidir linn innovation agus maoiniú a bhaineann le innovation a scaipeadh go dtí na gnóthaí beaga atá lonnaithe thart timpeall na tíre.

Bill, as amended, received for final consideration and passed.