PUBLIC BUSINESS. - INDUSTRIAL AND COMMERCIAL PROPERTY (PROTECTION) BILL, 1926—SECOND STAGE.

Motion made and question proposed:
"That this Bill be now read a second time." (Cathaoirleach.)

This Bill is probably the most complicated, as well as the most technical, that has yet appeared before this House. I am afraid that no member of the House, without a considerable amount of legal and technical knowledge, could possibly follow and understand the 188 clauses of this Bill. It was for that reason that the original Bill of 1925, at the very early stage, was referred to a Joint Committee of both Houses for the purpose of considering it and making recommendations—a very wide reference to this Committee of the two Houses. The Committee held prolonged sittings in the months from February to June last year. These sittings resulted in an elaborate report, which recommended so many amendments in the original Bill of 1925 that the Government thought it better to scrap that original Bill and to introduce the present Bill of 1926.

Now all the amendments which were suggested by that Joint Committee, after these prolonged sittings, most of them the result of further consideration by the Minister and those advising him on the very complicated problems that this Bill involves, have been adopted and appear in the present Bill. In addition to amendments which the Joint Committee definitely suggested should be put into the new Bill, they made some general recommendations which will be found at the end of their report. All those recommendations, except, I think, one in reference to the publication in the Official Gazette, which was found to be impossible, have been duly considered and, I think, with one exception, they appear in the present Bill.

As I was Chairman of the Joint Committee, it occurred to me that it might be useful if I stated very shortly the object and scope of this Bill, so that the Seanad will be able to get a general idea of the Bill, the Second Reading of which they are now asked to pass.

This Bill deals with the protection of three kinds of industrial and commercial property. It deals with patents for inventions, with designs and trade marks, and with copyright. Now, the protection which British Statute Law gave to these three kinds of industrial and commercial property required a great deal of elaborate administrative machinery. In order to provide for the granting of patents there had to be a patent office manned by a large body of thoroughly trained experts who had to decide on the validity of the patent; whether the patent was really an invention; whether that invention was quite new or had been anticipated, and a number of technical questions of that kind. Designs and trade marks, also, depended upon a registry. Their validity depended and the right to bring an action for their infringement depended on their being on a register. That involved another Government Department also, with highly and technically trained officials. Then there was also a register of copyright. Copyright is not dependent for its existence on registration, because it is a common law right, but the right to bring actions for infringements of copyright depends upon the copyright being registered.

When the Free State was established we took over, practically, the whole of the statute law that applied to these three forms of commercial and industrial property, but naturally we took over no part of the administrative machinery. Accordingly, between the 6th December, 1921, that is the date of the Treaty, and the present time, any inventor of a patent in the Free State had no patent for his invention. There was no Patent Office in the Free State. No new design or trade mark could be registered, and no author could register his copyright for the purpose of bringing an action if his copyright was infringed. Therefore, the main object of the Bill was to set up in this country the necessary machinery for the protection of the three kinds of property, and this involved, in the case of these three kinds of property, very elaborate provisions which had to be enacted in an Act of the Oireachtas and could not be left to mere rules.

More than nine-tenths of this long Bill of 188 sections is taken up with those provisions for providing the machinery which is to protect these three kinds of commercial and industrial property. But there was another and very difficult problem which had to be solved in this Bill. There was the period between the 6th December, 1921, and the present time, during which there was no machinery here for the protection of this kind of property, but, during which, invention went on, trade marks and designs were adopted, and books were written, and it would be most unfair to the authors of these inventions, and persons who adopted these trade marks, and authors who had written books, if their rights in that kind of property that came into being, in this period between the 6th December and the present time, could not be protected, and protected in such a way as to carry their rights back. Roughly, that was the second great problem that had to be solved by this Bill, and roughly what the Bill does is: it puts the owners of these three kinds of property in the same position as if there had been machinery in the Free State during this period.

I shall take one or two examples in the case of patents. There were a number of people—I forget the exact number, but perhaps the Minister will be able to tell us—who applied to the Ministry here in this period and gave notice that they had inventions that they desired to patent. They made the only kind of application that they could in a country where there was no machinery for doing it. That is one class of person that needs to be protected. They are protected specially in Section 12, sub-section (1). Everybody who made application of this kind will get a patent for his invention, and it will date back to the date that he made his application, and it will be deemed as from that time to have been a valid patent under the Act. Then during that interval a number of persons took out patents in the Colonies, the Dominions, and in foreign countries, and it is, of course, important for them that they should be able to get valid patents in this country and that their publication in other countries will not be anticipated in this country so as to block their rights.

They are provided for in the same way. They get a year during which they have to make application as soon as our register, our patent office and general controller's register, are set up. During that year they may make application, and those patentees in the Dominions and in foreign countries will also get the advantage of having their patents dated back. The validity of their patent during this period will be established and they will be entitled to bring action if their patents were infringed in this country during that period. The only other case that I think I should mention is the case of British patents. Under this Bill, all British patents which were in existence before the commencement of the Act—there will have to be a date fixed for the commencement of the Act— will be taken over here and they will be dated back to the date on which the original application for the grant was made in England. Similar provisions are made for preserving the rights of people who adopted designs and trade marks in that period. So far as copyright is concerned, it was not necessary for the writer to make any provision for that period, because the right exists at common law, but the right of action will be given as soon as the register is set up. If they register their copyright they will be able to bring action if the copyright were infringed in the interval between 6th December, 1921, and the passing of the Act.

I do not think there is any other matter I need call attention to except this: There were some questions raised on the subject of copyright with reference to certain provisions in the Bill which it was feared would have prevented our membership of the International Copyright Convention and also the Commonwealth Convention. There were certain provisions with reference to registration of certain kinds of designs that it was feared would prevent us having the advantage of these Conventions. These questions have been gone into very fully, and the sections have been altered in such a way as to provide that that will not happen. I am myself personally satisfied that the sections of the Bill as they now stand are absolutely safe in that regard and that they do not offend in any way against these Conventions. However, that is my own personal view, and when the Bill is in Committee I think the Seanad should satisfy itself that these provisions are effective for the purpose of keeping us within these Conventions. It is most important that we should do so. I hope the Bill will receive a Second Reading.

I think the Seanad is indebted to Senator Brown for his very lucid explanation of the Bill. I think it would be to the advantage of the Seanad if all Bills introduced were explained by somebody who understood them. In this case every possible requirement has been met. This is a very complicated Bill, as Senator Brown has pointed out. It is a very necessary Bill for the protection of patents, the protection of authors and the protection of various people who work in the Saorstát and try to turn the products of their brains into money. The Bill is overdue. Of course, it could not be introduced before, but it is overdue and it should be passed as speedily as possible. There are some matters upon which we may have some doubt, but these are matters for amendment and discussion when we get into the Committee Stage We are indebted to Senator Brown for explaining the provisions of the Bill, and I hope it will have a successful passage through the House.

There has been considerable anxiety amongst Irish artists, dramatists and designers, as to how their interests will be affected by this Bill. I think it is right that I should say that I have gone into all the sections which affect their interests, and I think it is a thoroughly good Bill. I think it gives better protection to the Irish designer and dramatist—especially the dramatist—than is given by contemporary English legislation. I had a certain amount of anxiety about one or two details in the Bill as it passed the Dáil, but my anxiety has been removed by Senator Brown's speech. There was one matter on which he did not touch—that is, that the Registrar of Copyrights at Washington has refused to register the copyright of Irish authors. This has caused considerable loss.

I know one Irish author who, acting on legal advice, has published nothing for many months and thereby has suffered considerable financial loss. If you publish in England or Ireland, publication in America has to be practically simultaneous, and if you cannot register your American copyright you may, for the time being, lose it. I know the Government understands this and I know they will make their utmost endeavour, not only to restore our right of registration in the Washington Register, but to make it retrospective so that Irish books published during the interregnum will have registration given them in America. That has been my chief anxiety in connection with this Bill recently, and I know the Government is, as I say, as anxious as I am to put this matter right. I merely speak to urge them to do so quickly, because serious loss is being suffered by Irish authors.

This Bill, as regards copyright, has been very closely drafted on the English model. I feel that it should be subject to some modification and that the copyright laws in some of the Dominions are more suitable and applicable to this country. That is a point which, perhaps, should be dealt with in Committee, but I do wish to say that I am not satisfied as to the manner in which these sections of it are drafted.

I am in agreement with Senator Dowdall on this matter. I followed closely the debate in the Dáil on the 7th December when an amendment was proposed by Deputy Magennis to the effect that Irish authors, before they would have copyright——

All authors.

——to the effect that all authors, before they got copyright in Ireland, should get their work printed in Ireland. It did not matter where it was published. After a very long discussion that was turned down. The Canadian model, I believe, was quoted, but the Canadian model does not go so far as that. It simply states that a Canadian citizen must, before he gets copyright in his own country, have the work printed there. It may be published in London. It may be published anywhere, but the printing of that work, so far as Canadian sales are concerned, must be done in Canada. That was enacted with the distinct object of helping industry and trade in Canada. In the United States, of course, they have a very comprehensive protective system. Every book or other matter not published in the United States is tariffed, but Canada, we should take it, would have the interests of the other States of the Dominions as seriously at heart as the Saorstát should have them. The amendments we hope the Minister will consider will be to that effect, though not as wide, perhaps, as those put forward in the Dáil, but will still be sufficiently effective to relieve the vast amount of unemployment that exists in this country, especially in the City of Dublin, and, at the same time, will inflict no hardship on the author so far as the sale of his books is concerned. They may publish in London, but we want the printing work done in Ireland. I wonder if the Minister will say that such a system of protection does not exist in Canada? I think he will not. My information on the point seems very definite. Accordingly, we hope that the Minister will adopt some means, either in Committee or on some other stage of the Bill, to deal with what is a highly technical business. I must say, with all respect to the Committee that examined this question, that perhaps only one or two of the members had practical knowledge of the printing trade. Without practical knowledge and experience dealing with publications and copyright, it is quite possible they might overlook something of great importance to an Irish industry. I would suggest to the Minister that he should look into the matter, and that, in any case, an author who is a citizen of the Saorstát, so that his copyright might be preserved in Ireland, should get the necessary printing done in Ireland. The Government, I am sure, are keen on doing everything to help an Irish industry. For that reason it should be the special care of the Minister in charge of the Bill to consider this matter.

I would like to put a question to the Minister as to the position of the Irish trade mark under the Bill. As the House is aware, that trade mark is the property of the Irish Industrial Development Association. It is an incorporated society, and has a very large number of members. It has a certain amount of funds, contributed by the members and used for the purpose of defending the trade mark. The trade mark is granted only in the case of goods that have been manufactured in Ireland. Many thousands of pounds have been spent in protecting the trade mark in foreign countries. I may say that this trade mark is registered in nearly every country, and cases have constantly to be brought against parties who attempt to use it wrongfully. These prosecutions have generally been brought with success. As I do not understand what the position of the trade mark is under this Bill, perhaps the Minister will be able to give us some information.

CATHAOIRLEACH

Does that trade mark extend to the Northern province?

That is the difficulty.

CATHAOIRLEACH

Does it extend there at present?

Yes, to all Ireland. Another point concerns an injury to the trade mark. The Minister for Lands and Agriculture, I understand, proposes to issue a special trade mark for goods of Irish manufacture, such as agricultural produce. Many of the creameries have registered and adopted the Irish trade mark. I do not know if it will diminish the number of members in the Association if they substitute the National trade mark issued by the Department of Lands and Agriculture for the Irish trade mark. It may not be convenient for the Minister to reply now, but perhaps he would do so on the Committee Stage.

I think this is perhaps the best time to call attention to some matters alluded to by members of the Committee and which the Minister promised to consider. I notice that suggestions that were made have not been adopted. The Minister said that he would consider one of these but, evidently, he either overlooked it or for some reason has not adopted it. In the first place, I would like to point out that the establishment of a patent office in the Irish Free State involves very considerable expense. The anxiety of most of the Committee interested in these things was to attract as many patents here as possible, so that the fees would go to meet this expenditure. The main point I allude to is that contained in Section 32, "term of patent." The term of patents varies in different countries. I think it is 15 years in England, but the Bill adopts 16 years. In the Colonies that period has been very considerably extended. I believe it is 20 years in Australia.

I only mention this matter now, as it was mentioned to the Committee. Perhaps the Minister can give a reason for turning down the suggestion that the period here should be as long as possible. If one of the other States in the Commonwealth of Nations forming the British Empire has, without any difficulty, adopted 20 years, I fail to see why the same term might not be adopted here. The effect, undoubtedly, would be to induce a great many people, especially the poorer people, who desire to register patents to come here where they get an extra four years. The patent arrangements are interchangeable, and if you give 20 years you may be able to get certain extensions elsewhere. I am quite certain that if the period was 20 years instead of 16 it would have a very great effect in popularising the office here.

I do not recollect that the Committee made any definite recommendation on the term of patents. I think if the Senator looks at the end of the Committee's Report he will find that we only made four recommendations, none of which allude to term, but all of which have been carried out, except one.

A great many suggestions were made which the Minister promised to consider.

I remember that this suggestion was made and that the Minister promised to consider it, but there was no recommendation from the Committee.

Senator Cummins referred to an amendment that was brought forward in the other House in connection with copyright. The object, as I understand, was that if copyright was required in this country it would be necessary for the author to have the printing of the book done in Ireland. I think the Minister said that applied to any author.

The object of the amendment is to include all authors.

I want to point out the futility of that. In that case, men like G. B. Shaw or H. G. Wells, who write novels, would be unable to circulate them in Ireland, unless they were published here, so that the thing would generate into a perfect farce. If the writer is a citizen of the Saorstát and resident here, it would not be unreasonable to ask him to have the printing done here. To make it general would render the proposal impossible.

Perhaps the Senator does not know that books published in England have to be printed in America before they can obtain copyright there?

An international scandal.

I am very much indebted to Senator Brown for the explanation he gave of this Bill. His explanation covers pretty well all the grounds that could be covered to enable the Second Reading to be agreed upon. In addition to that explanation I would refer to two points. It may be that people who found themselves very definitely in support of the report of the Select Committee may not trouble to inquire too deeply if they find that the recommendations are not carried out in the Bill. The recommendations of the Committee, omitting those on page 27, which were left over for further consideration, have, in fact, been carried out, with two exceptions. In Section A of the Schedule of the Report, page 6, there is a comment made with regard to searches in London records up to the date 6th December, 1921. That has been somewhat enlarged on in Section 19 of the Bill. The section is now to run "up to the date of the commencement of this Act." We found that was necessary to cover whatever portion of the term had run during the time this country was part of the United Kingdom. The Bill provides for a search in the Home Office to the date of the commencement of the Act. There is a gap between the 6th December, 1921, and whatever date this Act comes into force. That has been enlarged in Section 19.

One other point I refer to in regard to Section E of the Schedule of the Report, dealing with Section 52, page 21, of the Report. The recommendation is to delete paragraph A of sub-section (1) on the ground that there is no reason why the publication of an invention in a British specification published more than 50 years before the date of the application should not invalidate the patent. It was thought such a publication invalidated the patent. We can argue the merits of that on the Committee Stage. That and the enlargement that I have referred to, accomplished in Section 19, are the only points on which the Bill, as introduced again to the Dáil, departed from the Committee's recommendations. There are four other matters left over for consideration. They are referred to on page 27. The first is not put in any positive way. We have decided that restriction of copyright of Government publications should last for 50 years, and that is incorporated in a section of the Bill. The second recommendation is that "removal fee" should be "renewal fee." Provision for renewal fees has been made. We had to consider the advisability of recognising "Iris Oifigiúil" as the official journal and we considered it undesirable. We can argue on Committee Stage why it was considered undesirable.

A fourth suggestion has been adverted to. Provision was made for searches in the National Library or such other places as recommended by order under the Act. Changes have been made in the Bill since it was introduced in the Dáil, by amendment. These are mainly dealing with the copyright section, and I think we could have a general discussion on them on the Committee Stage. Senator Barrington deals with "term of patent." My memory runs closely with Senator Brown on what arose; that certain things were put forward and suggested which might be considered on Committee. They were to be considered on amendments if they were brought forward on ordinary debate in the House. The Committee did not seem to make such recommendations. I think that that matter of "term" was one of the things we could discuss if Senator Barrington brings forward an amendment. The copyright sections of the Bill are the only ones, I think, on which there will be any great debate.

I would like to have further time to consider what Senator Yeats has spoken of, that is to say, orders made under Section 176. At least we might be enabled to have orders made under Section 176 apply retrospectively. It may mean an enlargement of that section, so far as Senators may consider it necessary, to empower the orders to apply retrospectively. Senators can realise that the accomplishment of that will depend on the arrangement to be made with the American Government.

It may be necessary to consider an amendment to Section 176 to enable the order to apply retrospectively. I will have to get legal advice on that. As to Senator Everard's point I prefer not to answer that until he considers what the Committee has said on page 24 of the Report, with regard to the national mark for agriculture, because, it seems to me, the Irish trade mark is in very much the same category as the national mark which the Minister for Agriculture proposes to establish for agricultural produce. I think the Senator will find that his point about the Irish trade mark will be clarified by the consideration which the Committee has given on page 24 to the mark for agricultural produce. Then the Senator can again inquire on Section 117, which deals with kindred points with that of his national trade mark.

The point hinted at by Senator Dowdall, and referred to more specifically by Senator Cummins, is one of the most difficult to deal with in this Bill. An amendment was, in fact, brought into the Dáil and was defeated in the Dáil on the grounds that the Dáil had before its mind that it was necessary, in this country, to abide by the terms of the Berne Convention, and it was decided that the amendment, as moved in the Dáil, would have thrown us completely out of the circle of the Berne Convention. First, let me deal with what Senator Cummins and Senator Dowdall said.

It appears to be possible to work within the Berne Convention and have a type of amendment dealing only with native authors and imposing on them the requirements of printing in this country in order to secure copyright here. Those are the terms of the Canadian Act. It was wrongly put in the Dáil. I think it is, as it were, applied to citizens of the country in dealing with copyright. I cannot accept the suggestion that I should consider the matter and bring forward an amendment, but what I say is, I would ask the Seanad to consider favourably any amendment which, while keeping within the Berne Convention, does good to a certain industry in the country. The main consideration should be to remain inside the union of countries associated with the Berne Convention.

If either of the two Senators can bring forward an amendment or form of words that will achieve the object he had in view, that is, to give a certain help to the printing trade in this country and will keep us within the Berne Convention, I will recommend that to the favourable consideration of House. It is going to be difficult to frame such an amendment. It may come to this: those who have the Canadian legislation before their minds and its relations to the restrictions of the Berne Convention before them, may agree that it is a question simply of adopting some provision corresponding to the Canadian legislation and letting time test whether that has not any evil reaction on our association with the Berne Convention. There are technical and legal matters at the back of all this, and I would prefer to hear Senator Brown explaining them. I would like if the Senator, as Chairman of the old Committee, would inquire into the repercussions of such an amendment as would bring about the Canadian conditions here, on Clauses 4 and 5 of the Berlin edition of the Berne Convention.

What is the Canadian point?

The Canadian point is that citizens of Canada, in order to secure copyright in Canada, must have the work printed in Canada. It is just a question whether that, applied to our conditions, can run and leave us still members of the Berne Convention. If the answer is Canada is inside the Berne Convention——

What about America?

America is outside it. Senator Yeats referred to the conditions in America as an international scandal. It is the only country of any importance outside, and I think it is considering, immediately, coming within the Berne Convention.

They are to make separate arrangements.

They have to make separate arrangements. Those are the only points that have been raised by Senators. There are two others to which I would like to call attention; one is Section 179 with regard to the delivery of books to libraries. I am sure we shall hear more of this on the Committee Stage. I can state on that section when we come to it what was the position of the law up to 1921 and what is the new obligation put upon publishers and authors by Section 179. What they used to consider a grievance has not been modified, but, in fact, has been aggravated by this section. I would like to have the matter thoroughly understood, debated here, and a decision taken. The Dáil has come to a decision with no great feeling one way or the other. An impasse was reached and a certain way out was adopted which was, to my mind, a bad one.

I have the Bill as amended in the Committee of the Dáil. In the first portion of Part 7 there was one other matter. The Committee recommended the deletion of Sections 61 and 81 of the old Bill, on the ground that the desired object would be more properly obtained by an amendment of the Merchandise Marks Act. They remark, further, that there were two other sections which gave the controller discretion to refuse registration of the design indicative of Saorstát Eireann origin whereas, in fact, the design was not of Saorstát Eireann origin. I will go into that on the Committee more in detail. There were 6,000 applications up to a year ago—as between patents, trade marks and designs—for registration here. Fifty per cent of those would be patents. That number has been considerably increased in the meantime.

I have not the figures up to date. Amongst the trade marks and designs applications we have already received, there is one which may be alluded to here as exemplifying the difficulties we shall find ourselves in. We have got applications for the registration of a design composed of a figure of Erin and a harp surrounded by a lot of shamrock with the word "Balbriggan" stamped on it. The applicant for that trade mark is an English firm. Under the terms of the Bill that English firm would have to get that registered, and immediately that firm got that registered and our patents controller had taken a fee from it it would be his bounden duty to inform the revenue authorities of it. If any stockings, bearing that mark, came in they might be held up under the terms of the Merchandise Marks Act.

It seems a peculiar circumstance that we would accept, in one office, a fee which would lead to a prosecution of the man under the terms of another statute. It is possible that if Sections 61 and 81 of the old Bill had been left that would have happened. The discretion would be with the controller, to decide on certain grounds. His grounds would be very limited and the test would be the court of law. We may have to consider these two sections which are supposed to give the controller a discretion to refuse registration of a design indicative of origin in this country if, in fact, the article is not made in this country. We have to consider whether those are strong enough or whether they may be enlarged. I am advised that a matter of that kind cannot be dealt with in the Trades Marks and Designs Bill. It is to be dealt with by an enlargement of the Merchandise Marks Acts. I would not like that we should find ourselves later in the position of having to accept fees for registered designs and then prosecute the individual. And remember, to refuse the design does not put us in any better position. It would mean that the Revenue Commissioners might have to prosecute fifty people instead of a single firm.

Did the Minister in his statement mean that the article was to be made in Ireland, or was the design suggested with the intention of deceiving the people as regards the nationality of the goods? In that case it would be an attempt to defraud.

It is not intended to defraud. As a matter of fact I have been told by people in the trade that Balbriggan hosiery means a certain type of hosiery and has no relation whatever to the place of manufacture. If hosiery or some other article, stamped in this way, were brought into this country from England without a mark indicating that the article was made in England, then there is presumed to be an intention to defraud, and a prosecution would lie under the Merchandise Marks Act.

In reference to what the Minister has said with regard to the Balbriggan design indicating a certain class of goods, I desire to draw the attention of the Seanad to a case that was fought in the courts in Great Britain some years ago at very great expense. The case was in reference to Witney blankets, and the decision of the courts given at the time disposed of the idea that geographical designation merely connoted a certain class of goods rather than their place of origin.

CATHAOIRLEACH

I have a sort of recollection that this very question about Balbriggan has been decided in the courts. It was held that it had not a local signification. It is well understood as a brand of stocking in the trade. I do not know whether I am right in that, but that is my recollection of it.

I suggest that the decision in the Witney blankets case is more recent and over-rides that.

Question—"That the Bill be read a Second Time"—put, and agreed to.

CATHAOIRLEACH

When is it proposed to take the Committee Stage of this Bill?

I think a fortnight's delay at least would be desirable. Senator Cummins and Senator Dowdall are, I understand, anxious to frame some amendments, and some time would be required to consider these matters. There are some other matters, too, to be considered by people outside. I think it would not be possible to take the Committee Stage for at least a fortnight from now.

CATHAOIRLEACH

The reason I asked the question is that unless we were taking the Committee Stage of this Bill on Wednesday next I doubt if there would be any business requiring the House to meet on that day. I take it then that it is the wish of the Seanad that the Committee Stage be not taken earlier than Wednesday week.

Agreed.

Committee Stage ordered for March 9th.