Senators will notice that there are 188 sections in this Bill. To enumerate them individually would, I think, be unnecessary waste of time. I propose to take in groups the sections that are not cut in on by amendments. In doing that Senators will note that it is their right and privilege to comment on any section when I refer to it, and move an amendment even though no notice of it were given.
INDUSTRIAL AND COMMERCIAL PROPERTY (PROTECTION) BILL, 1926—THIRD STAGE.
The Seanad went into Committee.
CATHAOIRLEACH
I move:—
From the enacting words, page 5. "To delete in line 13 the word ‘therefore.'"
This is purely a verbal amendment. The word "therefore" has crept into the enacting part, and there being no Preamble it is not a proper word there.
Amendment agreed to.
Sections 1 to 8 ordered to stand part of the Bill.
SECTION 9.
(1) There shall be charged by the controller and paid in respect of the grant of patents and the registration of designs and trade marks, and applications therefor, and in respect of other matters in relation to patents, designs, and trade marks under this Act, such fees as may from time to time be prescribed by the Minister with the sanction of the Minister for Finance, so that the fees prescribed in respect of the instruments and matters mentioned in the Second Schedule to this Act shall not exceed the fees respectively specified in that Schedule.
(2) All fees charged by the controller under this section shall be collected and accounted for in such manner as shall be prescribed by the Minister with the sanction of the Minister for Finance.
I move:
Section 9, sub-section (1), "To delete in line 59 the words ‘and trade marks' and to substitute therefor the words ‘trade marks and artistic works.'"
Section 9, sub-section (1) to delete in line 60 the words "and trade marks" and to substitute therefor the words "trade marks and artistic works."
These two amendments are to the same effect. The object of both amendments is to enable the controller or the office to charge fees where the registration of artistic work is made registerable voluntarily under an amendment that I will propose later on to Section 181. It confers certain advantages on artists. It gives them an opportunity of producing an entry on the registry as prima facie evidence and a number of other things which otherwise they would have to prove expensively. For that privilege they are to pay reasonable fees. The amendments introduce into Section 9 the right of the controller to charge fees on artistic work.
I presume this would relate to pictures and statuary.
It only relates to artistic work designs in the nature of trade marks. You can have protection for the artistic work separately from the trade mark, as it might belong to a different person.
It would not enable an artist or sculptor by registering his picture or statue to obtain the copyright.
He has the copyright already.
Does this Bill give it to him?
I presume he could register that kind of copyright, but I do not see why he should when there is only one copy.
I do not know that he has the copyright.
Amendments agreed to.
Section 9, as amended, ordered to stand part of the Bill.
Before leaving the question of trade marks, and arising out of some information that the Minister gave us on the last occasion, there have been instances where English manufacturers applied to the Department for the registration of trade marks that might be considered as really Irish. I was going to suggest that it might be worth while introducing an amendment so that one or two designs specifically Irish and associated with everything Irish should be reserved by the Government. For instance, if Yorkshire bacon is to be impressed with a brand of the shamrock, to people in England that would be tantamount to saying that it was an Irish article.
CATHAOIRLEACH
You are out of order, Senator. The clause we are dealing with is one giving the right to charge fees.
Will the question come up elsewhere?
Amendment 17.
Sections 10 and 11 ordered to stand part of the Bill.
SECTION 12.
(1) Any person or the legal representative or assignee of any person who applied after the 6th day of December, 1921, and before the commencement of this Part of this Act, to the Minister for Economic Affairs of the late Provisional Government of Ireland or to the Minister for Industry and Commerce of Saorstát Eireann for a patent or protection in respect of an invention shall be entitled to apply under this Act within one year after the commencement of this Part of this Act for a patent in respect of the same invention and shall be entitled to have such application under this Act dated and treated as having been made as of the date of the first-mentioned application for the purposes of determining the respective priorities of the said application under this Act and any other application, fixing the date to be borne by any patent granted pursuant to the said application under this Act, and determining whether the invention had been previously published in Saorsát Eireann.
(2) Any person or the legal representative or assignee of any person who has obtained between the 6th day of December, 1921, and the commencement of this Part of this Act protection for an invention in any British dominion (other than Great Britain and Northern Ireland) or foreign state to which the provisions of Section 151 (which relates to international arrangements) of this Act are applied or declared to be applicable by order made under that section shall be entitled to apply under this Act within one year after the commencement of this Part of this Act for a patent in respect of the same invention and shall be entitled to have the said application under this Act dated and treated as having been made as of the date of the application for protection of the invention in such British dominion or foreign state for the purposes of determining the respective priorities of the said application under this Act and any other application, fixing the date to be borne by any patent granted pursuant to the said application under this Act, and determining whether the invention had been previously published in Saorstát Eireann.
(3) Any person who applies for a patent under the provisions of this section may at any time before the grant of such patent (hereinafter called the first-mentioned patent) apply to the Controller for the revocation of any patent (hereinafter called the second-mentioned patent) which by virtue of this Act is deemed to be a patent granted under this Act and bears date as of any date between the 6th day of December, 1921, and the commencement of this Part of this Act and is for the same invention as that in respect of which the first-mentioned patent is applied for on the ground that the date of the application for the second-mentioned patent was subsequent to the date of an application made by the applicant for the first-mentioned patent to the Minister for Economic Affairs of the late Provisional Government of Ireland or to the Minister for Industry and Commerce in Saorstát Eireann or in any such British dominion or foreign state as is mentioned in the foregoing sub-section for a patent or protection of the same invention and the Controller may on such application for revocation revoke the second-mentioned patent on the ground aforesaid, but on no other ground ....
I move:—
Section 12, sub-section (1). To add at the end of the sub-section the words "or in Great Britain."
Section 12, sub-section (1), protects persons who, during the interval between the Treaty of 6th December, 1921, and the coming into operation of this part of the Bill, applied either to the Minister for Economic Affairs in the Provisional Government or the Minister for Industry and Commerce in the present Government. That person is entitled, within twelve months of the passing of this Bill to apply for a patent. The date at which he made his application to the Minister is fixed as the date for certain purposes. It is to be the date for the purpose of determining the respective priorities of the application made under this Bill and any other application. It is also to be a date for fixing the date to be borne by the patent granted under this Bill. It is to be dated back. It is also to be the date for determining whether the invention has been previously published in Saorstát Eireann. It might quite easily have been published in a specification in the British Patent Office, and it is therefore necessary to add the words "or in Great Britain."
Amendment agreed to.
I move:—
Section 12, sub-section (2). To delete in line 14 the figures "151" and to substitute therefor the figures "152."
Amendment put and agreed to.
I move:—
Section 12, sub-section (2). To add at the end of the sub-section the words "or in Great Britain."
Amendment put and agreed to.
I move:—
Section 12, sub-section (3). Before the word "apply" in line 29 to insert the words "or within such time after such grant as may be allowed by the Controller."
This is necessary because as the sub-section stands the application to which it refers must be made before the applicant has got his patent. The object of the sub-section is to give a person the right of having an English patent revoked for any reason. As the sub-section stands he has to make that application at any time before the grant of his patent. It might be that he would not have discovered the existence of this English patent before he got his own grant, therefore it is proposed to add the words in the amendment. It gives the Controller the discretion of allowing this for a proper reason.
Amendment put and agreed to.
Section 12, as amended, put and agreed to.
Agreed that Sections 13 to 17 stand part of the Bill.
SECTION 18.
Sub-section (4):—"Whenever an appeal from a decision of the Controller in relation to the complete specification is pending at the expiration of the said period of fifteen months or any extension thereof made under this section, the Controller shall on application made to him therefor at any time grant without the payment of any fee an extension or further extension (as the case may be) of such period until the expiration of seven days after the final decision of such appeal."
I move:—
Section 18, sub-section (4). To delete in line 42 the word "seven" and to substitute therefor the words "twenty-one."
Section 18 deals with the time for the acceptance of what is called the complete specification, and it is necessary that there should be a limit to the time during which a person who has applied for a patent and has lodged a preliminary specification should lodge his complete specification, and get his patent or have it refused. There ought to be a time limit on that. The section puts a time limit of fifteen months to the process of getting his complete specification. It may happen that there is some question on which an appeal has to be made either to the Minister or to the court, and the fifteen months might expire while that appeal was pending. The section gives him seven days in addition — that is, after the appeal is determined, which is a very short period. The amendment proposes to turn the seven days into twenty-one.
Amendment put and agreed to.
Section, as amended, put and agreed to.
SECTION 19.
I move:—
To delete Section 19.
It is with great diffidence I take up the position of art critic in regard to this Bill, but I am acting as the agent of people who have made a keen study of the proposals in the Bill. It is because of representations they made to me that I have put down the amendment, to which I hope careful consideration will be given by the Minister. The Paris Convention, I understand, has been subscribed to by the Free State, which has entered into certain undertakings as a member of the Union for the protection of industrial property, and I submit that the provisions of this section are incompatible with those undertakings. Article 4 of the Paris Convention states that:
"Applications for patents in the different contracting countries by persons within the jurisdiction of the Union shall be independent of patents obtained for the same invention in other countries, either within or without the Union."
It goes on to say that this provision is to be interpreted in its widest sense. According to my information, I take this provision to mean, among other things, that no country in the Union can make it a condition of the acceptance of a specification or of the grant of a patent that the specification shall have been accepted or a patent granted in another country. Unless an arrangement has been made with the British Government in regard to those who have taken out patents in England, I submit that we are not keeping our obligations. I made inquiries from an experienced patent agent, and he informed me that the cost of taking out a patent in this country would be very heavy. A patent agent, according to statutory regulations, is authorised to charge a fee of ten guineas per day. I am informed that to make the search mentioned in the sub-section takes from three to seven days or perhaps even more.
In what country is the patent agent's fees ten guineas?
I understand that fee is universal.
I applied once for a patent and the fee for making the search was one guinea. Unfortunately I found I had been anticipated.
A patent agent has to make the search himself, and not by a member of his staff, and he must make a statutory declaration that he has made the search, before a patent can be granted. If my information is correct, we have entered into several international obligations. It is the essence of all international agreements that each is entitled to equal rights. I think it is the intention of this House and the Government to be impartial in this matter with all countries within the Union. Take the case of an American who wants to get a patent. His case would be very complicated. Sub-section (3) seems to me to constitute another violation of the Convention. An inventor in the United States, for example, and the United States is one of the countries within the Union, cannot obtain a patent in this country if he has not taken out a patent in Great Britain unless he has employed a patent agent to make the search mentioned in the sub-section.
That is not so.
The whole position seems to be this: it will be obvious. I think, that this handicap would weigh very heavily on the Irish inventor and discourages Irish invention, if it will not do away with it altogether. It would mean, moreover, that an inventor in Saorstát Eireann before he could even lodge his application for a patent would have to reveal the secret to a patent agent, the seriousness of which members will readily appreciate. I am given to understand that the section is not necessary for the machinery of the Bill, and in any case that sub-section 3 should go. My information has been supplied by a body very willing and anxious to help in this matter, and I would ask the Minister to carefully consider the amendment I have submitted.
We are either actually members of certain international unions or conventions, or we are not, or we have to give notice that we intend to become members. As far as patents are concerned what the Senator's amendment seems to aim at is to more or less elevate the Convention into a law in this country. We are bringing in a measure which implements the Convention.
What we do is to bring in a measure to implement the Convention and to establish that as the law of the country, and having this, to proceed as regards copyright, trade marks and designs, by means of this Bill, as the better way. Not having a Convention in this country to achieve what we desire, the better way is to legislate so as to implement all that the Convention seeks to achieve. The 1883 Convention in its second article says:—
"Consequently they shall have the same protection as the latter, and the same legal remedy against any infringement of their rights, provided they observe the conditions and formalities imposed on native subjects or citizens."
We are not breaking away from that particular section of the 1883 Convention by having a Bill, which, keeping within the Convention in general terms, establishes a particular law for our own citizens. I think there is a misapprehension on the part of the Senator with regard to sub-section (3) of Section 19. That sub-section refers to
(a) complete specification which is accompanied by a statement that the British patent for the Convention has not been applied for shall be accompanied also by a statutory declaration made by a person who is registered either in the Register of Patent Agents, kept under this Act or in the Register of Patent Agents, kept in London, that he has made a search and investigation in the National Library of Ireland or in the Patent Office in London, or in some other place for the time being authorised in that behalf by rules made under this Act for the purpose of ascertaining whether the invention claimed in the complete specification has been wholly or in part claimed or described in any specification published before the date of the application."
You could not discuss that purely upon this section. But there is nowhere laid down in the Bill that in order to get a grant of patent in this country there must have been previously obtained a grant of patent in England. There is no such condition. Sub-section (3) has added a very definite limitation. The small point about the employment of patent agents as opposed to other people I will be prepared to meet if the Senate considers it advisable. I shall be prepared to put in, after the word "London," in line 59, or earlier after the words "register of patents," the words "agents' clerks, established under the provisions of this section," and then to give the Minister power to establish a register of patents agents' clerks. We have no such power at the moment, but that matter can be dealt with in a single point on Report Stage. On the other matters I simply make the general statement which will be supported by those who sat on the committee with regard to the Bill and by the House generally, that what we seek to do is to carry out the international conventions by so adapting our law and to have the conventions by which we are bound implemented.
Amendment put and negatived.
I beg to move:—
Section 19, sub-section (3) to delete in line 60 the words "National Library of Ireland" and to substitute therefor the word "office."
The necessity for this amendment is that the records which were formerly kept in the National Library of Ireland will, now, by arrangement, be removed to the office.
Amendment agreed to.
Section 19 agreed to.
Sections 20 to 28 inclusive agreed to.
SECTION 29.
(1) Every patent granted by the Patent Office in London before the commencement of this Part of this Act shall have and be deemed always to have had in Saorstát Eireann during the period between the 6th day of December, 1921, or the date of such patent (whichever is the later) and the commencement of this Part of this Act the same force and effect as such patent had during that period in Great Britain, but from and after the commencement of this Part of this Act every such patent shall (notwithstanding that it bears a date prior to the passing of this Act or to the commencement of this Part of this Act) be deemed to be a patent granted under this Act as of the date such patent actually bears and accordingly every such patent shall from and after the commencement of this Part of this Act have the like force and effect in Saorstát Eireann as it would have had if it had been granted under this Act as of the date it actually bears but with and subject to all licences and other rights and obligations actually attached to it by law or contract at the commencement of this Part of this Act and also with and subject to all privileges, liabilities and incidents conferred or imposed by this Act or otherwise by law on patents granted under this Act.
I beg to move amendment No. 11:—
Sub-section (1). To delete all from the word "accordingly" in line 51 down to and including the word "subject" in line 58, and to substitute therefor the words "shall have immediately on the commencement of this Part of this Act the same force and effect in Saorstát Eireann as such patent had in Great Britain immediately before such commencement and shall thenceforth have and be subject."
The sub-section provides that every patent that has been granted by the Patent Office in London, before the commencement of this Act, or of this Part of the Act, shall be deemed always to have had, in Saorstát Eireann during the period between the 6th December, 1921, or the date of such patent, whichever is the later, and the commencement of this Part of this Act, the same force and effect as such patent had during that period in Great Britain, and the closing words are "from and after the commencement of this part of this Act have the like force and effect in Saorstát Eireann as it would have had if it had been granted under this Act." It is given by this part of the section the same force which it had in Great Britain during the interval, and the real object of the section was that it should have the same force after the commencement of this Act as in Great Britain before.
It is to make that clear that the amendment asks for the deletion of the words from the word "accordingly" in line 21 to the word "and" in line 55 and for the insertion of those words on the Paper.
This amendment also meets the point raised by a later amendment, No. 15, standing in the name of Senator Sir Thomas Esmonde. The object of Senator Sir Thomas Esmonde's amendment is to pay attention to patents that had been revoked by a Court of patents jurisdiction. The words of Senator Brown's amendment have the same force and effect as Senator Sir Thomas Esmonde's amendment, to which considerable objection, however, might be taken inasmuch as it would leave us bound by the judgment of certain courts outside.
I am much obliged to the Minister for his statement, but I should like to know whether Senator Brown's amendment gives control over all those patents, whether they are expired or not, to the Saorstát Courts, or to the official who is responsible for the protection and arrangement of patents; that is the point. I think the Government does right in seeing that our own courts should decide these matters, but I wish specifically to arrange that our courts shall decide them or that the Irish official shall decide any question if there is any dispute.
CATHAOIRLEACH
That is the question arising on your amendment. Meanwhile I think the Senator would do well to study the effect of the amendment moved by Senator Brown which the Minister is approving of and see whether it meets his point.
I think it is somewhat like this. After the commencement of the Act any patent granted will be granted under the Act and will be according to this legislation. The difficulty was in dealing with patents that came over to us, that is, pre-Treaty patents, and, secondly, dealing with patents that arose in the interim period from the 6th December, 1921, when there was no machinery here for dealing with them. Senator Brown's amendment shows that any such patents revoked or declared invalid or granted prior to the commencement of this Part of this Act and coming over here would be dealt with by our Controller under this patent legislation.
I am sorry to press the Minister on this point. I think the point is clear with regard to a patent that lapses or was in existence before the passing of the Act. But what would happen to a patent revoked immediately after the passing of the Act in Great Britain?
The ground of revocation can be studied by the Controller here to see whether there is a sufficient right of revocation here.
Would a patent illegally revoked in England be enforceable in Ireland? That is my second point.
CATHAOIRLEACH
What the Minister says is that the mere fact of revocation of a patent in England subsequent to the passing of this Act that will not, ipso facto, revoke it here. But there is power to the Controller here to revoke, but it is not revoked automatically by merely the act of the British Controller; it has to be followed up by an Act of our Controller.
Certainly. The point is that if the patent is bad in England immediately after the passing of this Act, why should it be good in Ireland? Is there not an automatic method by which our Patent Office comes into operation and declares that this patent, which was declared bad in England, is bad in Ireland?
CATHAOIRLEACH
It does not become bad in the Free State merely as a consequence of revocation in England. It may well be that the Controller here would take up a different view from the courts there and, therefore, do you not see any automatic revocation would be a mistake. What the Minister points out is that no such automatic revocation will follow, and that revocation in England will not apply to the Free State unless the courts here or the Controller think it their duty to follow the example.
Of course, naturally, we do not expect the English courts to legislate for this country. I am with the Minister there. But the point is, can we ensure that in the event of an English or a French or a German patent proving bad in those countries that that patent cannot be operated in the Free State, to the detriment of the manufactures of Irish citizens?
The difficulty is this: if the Senator will look at Section 29, line 50, he will see the words "shall be deemed to be a patent granted under this Act." Then Section 41 can be brought to bear upon that. Section 41 gives power for the revocation of patents on objections presented to the courts on grounds to be stated, but the defeat of a patent in another country does not operate automatically here. It has to be judged by our Controller and our courts.
CATHAOIRLEACH
Is not the substance of it this: that from the date of the passing of the Act every patent previously enforced, no matter how you may apply for your patent, is deemed to be granted under this Act, and, therefore, this Act gets control over it, and our officials get jurisdiction over it no matter where it comes from.
I am perfectly satisfied with that arrangement. I only wanted to make certain.
Arising out of what Senator Brown says, could a patent that can no longer be operated in Germany be worked in this country to the detriment of Irish investors? There is another point to be considered. Supposing, owing to the charges in this country for the exercise of patents, certain people like the Gillette Razor Company refuse to send razors into this country, is there any machinery by which we can give a grant of patent for them to be made here in defiance of the parent company?
Yes, in Section 43.
Amendment put and agreed to.
SECTION 29 (5).
In every case in which a complete specification has been accepted by the Comptroller-General of the Patent Office in London before the commencement of this Part of this Act (whether before or after the passing of this Act) and the patent pursuant thereto has not been sealed and the time for such sealing has not expired at the commencement of this Part of this Act, the applicant for such patent shall during the time between the date of such acceptance or the 6th day of December, 1921 (whichever date is the later) and the sealing of the patent or the expiration of the time for sealing have and be deemed always to have had the like privileges and rights in Saorstát Eireann as if a patent for the invention had been granted to him under this Act on the date of the application to the Patent Office in London for such patent notwithstanding that such last-mentioned date is prior to the passing of this Act or to the commencement of this Part of this Act, but the said applicant shall not be entitled to institute in Saorstát Eireann any proceedings for infringement until a patent which by virtue of this Act is deemed to be a patent granted under this Act has been granted to him for the invention.
I beg to move:
Section 29, sub-section (5). To delete in line 42 the word "Act" and to substitute therefor the word "section."
This is purely formal.
Amendment put and agreed to.
Section 29, as amended, put and agreed to.
I move:
Section 29. To add at the end of the section a new sub-section as follows:—
"(7) The holder of a patent which by virtue of this section is deemed to be a patent granted under this Act shall not be entitled to apply for or be granted under this Act any other patent for the invention for which such first-mentioned patent was granted."
Section 29 is the one we have been dealing with, and it automatically extends to British patents. All this amendment does is to prevent a person whose patent has been extended under the section automatically from getting a patent in this country for the same invention by which he might get an extended period.
Amendment put and agreed to.
Sections 30 and 31 put and agreed to.
SECTION 32.
The term limited in every patent for the duration thereof shall, save as otherwise expressly provided by this Act, be sixteen years from its date.
I move:
To delete in line 21 the word "sixteen" and to substitute therefor the word "twenty."
I think I will give the Seanad some very good reasons for making the change which I suggest here. I do not know whether the Seanad really has appreciated the discrimination which is proposed under this Bill between different classes of inventors. I do not mean for a moment to suggest that this Bill is exceptional to Acts in other countries, but the fact remains that the author of a book or piece of music gets the profits from his work for the natural period of his life and his executors for a period, I think, of twenty years after his death, but the class of man who invents a machine which may confer very much greater benefits on the community at large only gets under this Bill 16 years of his profits, and these only by the payment of very heavy cumulative fees. It seems to me that that is a discrimination which is hardly just. I do not see why a man who invents machinery should not get the same period, but it does not seem to be the custom in every other country. The period for which a patent is granted differs very largely in different countries, but if you look at the period for which patents are granted in agricultural countries, such as ours, which from their very nature do not offer great inducements to inventors to take out patents for their inventions, you will find that they offer a greater term of years than countries which are purely industrial and where the field for these patents is much greater.
The period for which a patent is granted under this Bill is sixteen years, the same period as is granted in England. I do not see why we should slavishly follow the British practice in this country when the circumstances of the two countries are so different. Spain, which is largely an agricultural country, gives 20 years. Belgium, which to a large extent is also dependent on its agriculture, gives 20 years. Canada gives 18 years, and the United States, which is an important industrial country, gives 17 years. These terms are all in excess of the period proposed in this Bill. There is no question that the expense of running the office to be established under this Bill will be very heavy, and unless we can induce people who want to take out patents to come here, and give them some special inducement, the expenses will very much exceed the receipts under the Act.
There is another point I would like to direct attention to, and that is, the protection which the extension of this period would give to poor inventors. I think, from my experience — and I have had some experience in these matters — the great bulk of inventors are drawn from the working classes and poorer men and it is notorious that they have been exploited, exploited to a very shameful extent, by people who take up and work their patents. In many firms it is the rule that if any of their employees has an idea of patenting an invention for the improvement of the various processes they have to deal with, such employees are bound, in the first instance, to give the benefit of such inventions to the firm that employs them. I have heard of cases where when a man fails to do that he is summarily dismissed. I know there are cases in which men have been offered very trifling inducements to part with their inventions. I think if the poorer man had a longer period for his patents, say, twenty years, it would give an impetus to invention. I am not suggesting that we should go so far as in the case of copyright, but I think we should give some facilities for extending the period. By extending it to twenty years we will be very reasonable in our legislation, and I hope the Minister will see his way to accept the amendment.
I am glad this amendment has been brought forward. I think it is generally recognised that anything that enhances the value of property ought to be encouraged, and certainly twenty years is much better than sixteen as the life of a patent. It is not generally recognised that Ireland has been a very fertile mother for inventors. A number of inventions that have been responsible for great progress in civilisation originated in Ireland. One was the Dunlop Tyre and the other was the Marconi Wireless. It was Professor Fitzgerald, of Trinity College, who first described the electrical energy which Marconi afterwards utilised for wireless telegraphy. Therefore, for a country which is so prolific in inventions, I think we should give every encouragement to inventors.
Senator Gogarty asked me a moment ago about the Gillette razors. I would like to remind him now of the Gillette razors. Would the Senator like to have to pay a higher price for four years longer than an Englishman for the Gillette razors? Yet that would be the effect of adopting this amendment. It must be rein membered that a patent is a grant of a monopoly right against the public. While you are going to give a longer term for patent rights to Irish inventors, it must be remembered that anybody who takes out a patent for an invention here will have the advantage of this extended term. For the Gillette blade you would have to pay a higher price for four years longer than the English people.
Surely the inventor will have to pay a royalty to your office during the term of the patent?
I wonder would the public agree, because of the mere fact that a sum of £8 or £9 per annum has been paid to the Controller's office, to pay during these four years more than what an Englishman would have to pay, or for three years more than what an American would have to pay. It is a matter upon which the Seanad must bring some common sense to bear. One thing certain is that a patent is a monopoly grant adverse to the public. The public is going to pay. It is not a matter of fostering native inventions or anything of that kind. It is a matter of giving inventions registered here a term of four years more than in England.
The Senator referred to the term in other countries, presumably from a list with which I supplied him. I have a list of countries which can be summarised. I have a list of twenty-two countries here. In two countries, Spain and Belgium, the patent grant is for twenty years. In one country the term is eighteen. In one, the United States, the term is seventeen; in Great Britain the term is sixteen, and the proposal here is sixteen. In thirteen other countries the term is fifteen years only, and four other countries have a term of only fourteen years. That would represent the main European countries, and would bring in America, South Africa, New Zealand, Newfoundland, and a few places like that. The patent term stated here is, in fact, one year over what is rapidly becoming the average in other countries — a fifteen-year period.
In reply to what the Minister said, I would like to point out that it is not a question of whether the public are going to pay extra for four years, but whether it is fair, just and right that they should be asked to pay. If it is not unjust to ask them to pay for the whole period that an author lives, and for some years after, why should it be unjust to ask them to pay for a few additional years in the case of a patent? In addition to that, as I have already pointed out, there will be heavy expense incurred in administering the Act, and unless we induce people to come here, to take out patents by giving them some special facilities, they will not come and the taxpayers of this country will have to bear a burden which should not be undertaken by the taxpayers.
There are two points to be considered. We estimate that we are going to make a profit out of this office, that it is going to be a revenue-producing business. When a comparison is instituted between copyright given to an author during his life and to others for a number of years after his death, and the term given to a patent, I think the Senator should take into consideration the profits that would accrue to a patentee from his patent and those accruing to an author from his copyright.
The Senator should also remember that there is a clause in the Bill, as there was in the English Patent Bill, that if the patentee has not been sufficiently rewarded through no fault of his own, during the term of his patent, he can apply for an extension of five or ten years, or for a new patent.
Amendment put and declared lost.
Sections 32 to 40, inclusive, put and declared carried.
CATHAOIRLEACH
There is an amendment by Senator Sir Thomas Esmonde to sub-section (3), Section 41, but I think the amendment has already been disposed of.
It has, I think. I think the second amendment of Senator Brown's also rather covered my position. From the explanation of the Minister, for which I am indebted, I think it is quite clear that the public in this country are not to suffer in any way from the exercise of a patent which it has been decided as bad in England, Scotland, America, or Germany inasmuch as our officials have absolute control over the matter, they can easily put into operation, in the event of anybody feeling aggrieved, the provisions outlined in the Bill. I therefore ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Sections 41 to 65 put and agreed to.
SECTION 66 (2).
For the purposes of the duration and extension of the period of copyright in a design registered pursuant to this section, such design shall be deemed to have been first registered under this Act on the date on which such design was first registered in the Patent Office in London notwithstanding that such date is prior to the passing of this Act or to the commencement of this Part of this Act and (whenever appropriate) the period of the copyright in such design shall be deemed to have been extended under this Act on the date or respective dates and for the time or respective times on and for which such period was extended in the Patent Office in London before the registration of such design pursuant to this section whether such date or dates was or respectively were prior or subsequent to the passing of this Act or the commencement of this Part of this Act.
I beg to move amendment 16 to sub-section (2) of Section 66:—
To delete all from the beginning of the sub-section down to and including the word "design" in line 12 and to substitute therefor the words "For all purposes under this Act a design registered pursuant to this section."
The owner has a registered design. It applies six months after the passing of this Act. Now only two purposes are specified in sub-section (2). There is no reason why the purposes should be confined to those.
Amendment put and agreed to.
Section 66, as amended, agreed to.
Question —"That Sections 67 to 84 stand part of the Bill"— put and agreed to.
NEW SECTION.
Before Section 85 to insert a new section as follows:—
It shall not be lawful to register as a trade mark or part of a trade mark in respect of any goods not manufactured in Saorstát Eireann any matter the use of which would be calculated to represent that such goods are manufactured in Saorstát Eireann. (Senator Goodbody).
I have been asked to move this amendment for Senator Goodbody. I do so for a particular reason that very often trade marks applied for convey, at any rate, the suggestion that the goods are manufactured in the Saorstát. There is no specific requirement in the Bill that I can see, and special attention should be called to that point. I might mention as an instance of what I allude to, such descriptions as "Hibernia" and "Dingle" sweets. Dingle, you know, is a town in this country, and it is misleading to call foreign manufactured sweets by that name. That is the reason why I am moving this new section.
This amendment may be considered with another amendment that is put down to another section which gives to the Controller the right to refuse registration on certain grounds. Now, the ground that the proposer of this amendment wishes to add is, that it ought be a reason to refuse registration where the trade mark represents in any way that the goods of which it is the mark have had their origin in the Free State, whereas they had been manufactured elsewhere. Such goods should be refused the use of the trade mark. That should be a reason for refusing registration. I think we had an instance in the House the other day, when an advertisement was handed round with "Balbriggan" on it. The advertisement was in respect of goods produced in England and advertised as "Balbriggan" socks or stockings, although we knew they were produced in England. The propriety of giving the right to the Controller to refuse registration on that ground was considered very carefully by the Committee, and it was felt that it would be an unwise thing to do. It was felt it would be unwise for this reason — if the Controller refused registration, which was all that he could do, there was nothing to prevent anybody else using this fraudulent trade mark. In fact, it would be an encouragement to anybody else to use it. But apart from that — and that is the real reason which ought weigh with the members of this House — there was this, that this is a matter that can be dealt with under the Merchandise Marks Act and ought to be dealt with under it if it is to be dealt with at all. There ought to be a penalty under that Act, or if that Act does not provide a penalty there ought to be a penalty in this Bill.
CATHAOIRLEACH
Does the Merchandise Marks Act make it a matter for a penalty to put any brand or mark on an article that would mislead as to origin?
Yes. For reasons it was considered an unwise thing to put it into this Bill.
Would it be necessary to define the mark, or could we go along and say that any mark which suggests Ireland would be a false description for goods manufactured outside this country? Could we not make a list of such things as the Harp, The Shamrock, Hibernia, and so on, which could not be applied except to goods made in Ireland?
You could not make a list like that. The brand "Shamrock" might be all right on one class of goods and on another class of goods it would be misleading.
Could one get redress at present under the law?
You can prosecute under the Merchandise Marks Act.
CATHAOIRLEACH
Yes, any individual firm affected can prosecute or any member of the public who has been deceived by the description on the goods could prosecute.
Supposing an English firm is manufacturing goods and they put the brand "Harp" on these goods, could not an Irish firm say: "We are the sole possessors of harps, and you have no right to use that description for these goods"? What would happen?
CATHAOIRLEACH
That would be a question for the courts, as to whether, taking the whole thing together, it was not a false representation. That is a question of fact. In one case the use of the description "Harp" would be conclusive proof of a false description and in another case it would not.
It was because the word "Balbriggan" became so descriptive of a particular type of goods that it became general and we could not overtake it. We have to acknowledge that "Balbriggan" was a sort of hosiery which everyone in the trade understands, such a thing as an Inverness coat, Harris tweeds and things like that. I think in the future we should have the same need for protecting ourselves. Now if I were in London and saw an article with the description "Balbriggan" on it, I think I would be helping the town of Balbriggan by buying that article.
CATHAOIRLEACH
Not with your present knowledge.
A trade mark is supposed to be associated with the owner of the trade mark. The other question at issue is a matter of a false impression with regard to origin. There is no doubt whatever about this particular mark under discussion, the word "Balbriggan" surrounded by shamrocks, with the Irish harp on top. An application made to our Controller after this Bill is passed would have to be accepted. The Controller would have to accept and register that as a trade mark. But immediately a person having acquired that trade mark introduces goods into this country with that mark, then either of two things happens — there is a definite way of procedure to the court, and another method by which the Revenue Commissioners hold up the goods as bearing marks which give a false indication of the origin of the goods. The Merchandise Marks Act gives sufficient protection at the moment except that it does not go far enough in certain directions. An amendment of that Act is under consideration, but there is sufficient power for people to be protected at present on goods coming in. I stated previously to the House that there was nothing incongruous or abnormal in these two situations: (a) the Controller registers this, and (b) immediately he registers it a prosecution may be instituted against the man who uses that mark.
It is quite possible for a firm registering this mark in Ireland to sell those goods all over the world with a mandate. The only place in which he is up against any interruption is in Ireland.
CATHAOIRLEACH
How can we stop him selling elsewhere?
You cannot do so.
The laws of the other countries would stop him. The law will stop him in England.
CATHAOIRLEACH
We cannot do more than prevent him passing off such goods here.
Could we not put it on a par with our national trade mark? Supposing you introduced a clause saying that goods made abroad and bearing the trade mark such as a harp, shamrock, and things of that kind could not be sold in Ireland.
Putting the word "Irish" on foreign goods would complicate matters in other countries. Any firm using the word "Ireland" on goods that were made elsewhere would be immediately blocked by the countries in the Convention, because we have a Convention on that. But the use of the word, say, "Balbriggan" would not be prevented by most countries. The use of the word "Irish" on goods not made in Ireland would be prevented by those countries.
If the words "made in Ireland" were, under the trade mark, registered, that would simplify everything.
I think the Controller could do that, because that is contrary to morality. It is fraudulent.
In this country we are protected under the Bill, and as far as other countries, to which Irish goods are exported, are concerned, those exporters will have to fight for their rights there.
CATHAOIRLEACH
With this further advantage, that so far as we have a Convention with them, these other countries will protect us.
That is the great advantage of this Bill.
As the object of the amendment is provided for in another section, I withdraw it.
CATHAOIRLEACH
Not in another section but in another Act.
Well, I withdraw it.
Is the Minister stating that we are protected?
Not in all the things mentioned. We can put certain countries to their election, either that they have to clear out of certain Conventions to which this country is a party with them, or that they will prevent goods with a false origin branded on them coming in. But there is a limit. It would be hard to establish a case in other countries against the use of the word "Balbriggan." The use of the word "Irish" could definitely be established.
CATHAOIRLEACH
The Senator wants an assurance that the Government have gone as far as they can legitimately go to protect Irish goods.
Undoubtedly. We cannot take many more steps until we get this Bill through, but afterwards we have a course open to us.
Amendment, by leave, withdrawn.
Question —"That Sections 85, 86, 87 and 88 stand part of the Bill"— put and agreed to.
SECTION 89.
I beg to move amendment 18 to Section 89:—
To delete the section and to substitute therefor a new section as follows —
So long as persons within the jurisdiction of, or resident in, or carrying on business in Saorstát Eireann shall be entitled to the benefit of the agreement for the protection of industrial property entered into between certain countries constituting the Paris Union and known as the Convention of the Paris Union of 20th March, 1883, as revised from time to time, and at the Hague on 6th November, 1925, any person having duly registered a trade mark in a country of origin, as defined therein, shall be entitled to have such trade mark registered in Saorstát Eireann in its original form, and such registration shall be refused or cancelled only on the grounds therein provided.
Some of the reasons given in support of the first amendment would have a bearing on this. With your permission, I will take up Sections 89 and 152 together. I do so because I am informed that this section is a violation of our international obligations. The British proprietor should be entitled, for example, to registration of his mark for the full registered period. But Section 89 only gives him the unexpired term of his agreement. I suggest to the Minister for Industry and Commerce that this country should carry out its national obligations to the strict letter and that this section curtails the rights of the proprietors and is a violation of obligations.
It is very hard to speak dogmatically on any part of this Bill, but I would suggest that our international obligations are not carried out to the full in any part of the Bill, as far as my reading of it goes. I find in sub-section (4) of Section 152 the provision that any trade mark for which application has been made abroad may be registered in Saorstát Eireann. This section appears to have rights of priority here, and if the section means what the words seem to imply it seems an extraordinary section, for if all and sundry marks applied for in any country within the Union be registered within the Free State, the conditions in the Saorstát as to trade marks are stultified to some extent. I point out, also, that in sub-section (4) of Section 152 there is a provision which seems to have the effect already referred to of throwing open to the public in this country, and therefore to the world in general, particulars of inventions that are kept a secret in the country of their origin for a much longer period than that. I have no warrant for that. I think it is a great breach of privilege, and I believe that it evoked a great deal of protest across Channel. I have no brief for England, but I believe the protest will be forthcoming. I am sure the House will see that international obligations are fulfilled to the strictest letter, and it would be a good thing to embody in the Bill those obligations and all the Conventions we have subscribed to. That is my object. We have a mass of things laid down, not in the language of the Conventions, but in language which may lead to doubtful interpretations. I think if the language of the Convention were embodied in the Bill, or reference made to it, it would clear the atmosphere a great deal and keep us out of international complications.
Again I am in the difficulty I was in before. What we are endeavouring to do in this House is to carry out our international obligations. We believe we have done that. We cannot possibly take the International Convention of Paris, 1883, and set it up as law. There are all sorts of provisions with regard to searches, dates and all kinds of complicated points. If it could be proved that this Bill is, in a single particular, contrary to any of the Conventions mentioned, we must amend it in that particular, and undoubtedly we will amend it. As to the Senator's position, what we are aiming at is to set up legislation here which would implement all our international obligations.
Let me take one thing of which the Senator spoke, Section 89, sub-section (1). The Senator says we must give the rights given by the Conventions of various countries. With regard to a trade mark, registered under any of the Conventions published in any of the Convention countries, the Convention gives a period of six months in which to effect registration in any other Convention country. Take a trade mark registered in Germany about the year 1922. If that trade mark was not registered here within the strict terms of the Convention within six months after registration in Germany in 1922, we could defeat that trade mark here and you would have to go a little bit further to help that person who has got into a difficulty owing to the fact that there is no machinery here owing to the lapse of time. If we say that is registered within six months after the commencement of this Act we do not amend the period that has lapsed. In various ways we have gone out of our way — the most difficult section is that dealing with the period from 1921 to the commencement of the Act for which provision had to be made. Trade marks, designs and all the rest prior to 1921 are carried forward here and get full force and effect. Those occurring after the date of the commencement of the Act will fall within the Act, and the Convention owner of a trade mark and design has his rights under the '83 Paris Convention. We have gone out of our way to make every provision to see that no hardship is caused owing to lack of our administrative machinery. I can definitely assure Senator Cummins that my aim is, as he has said. If it can be proved that this is, in a single particular, contrary to the Convention, there will be an amendment proposed, but I am convinced there is not any breach of any international obligation.
I would like to say that I very strongly support the Minister. I had the opinion of one of the best experts on this matter. He said that an amendment to this section, as proposed by Senator Cummins, would be doing infinite damage to the Bill. He also goes on to say that in sub-section (2) of this particular section it was with the greatest difficulty and after a great deal of thought and care that the validity of all British trade marks was preserved. Such trade marks having been on the British register for over seven years, if the amendment suggested by Senator Cummins was adopted, would also disappear.
The Minister mentioned the Paris Union Convention of 1883. The Senator stated this particular clause limiting recognition to the Patent Office in London is a violation of the Convention of 1883.
There was no limitation.
Does the Minister give me an assurance?
I can, but you may prefer Senator Brown's assurance.
There is no doubt about that assurance.
CATHAOIRLEACH
It would be better for you to see the Bill itself.
When the Senator states there is a violation, I want a specific statement from the Minister.
I am glad of Senator Guinness's intervention. The chief authority, as regards the Patent Office in England, has definitely stated that this Bill preserves all our international obligations and interests.
The Minister referred to applications received for registration of goods made abroad and likely to deceive people if registration were granted in this country. We referred to the Balbriggan hosiery. In the Paris Convention, there is a provision made in Article 6 to safeguard this country, and registration could be refused on the grounds of public morality. The Minister also suggested that if patents were granted those people might be prosecuted under some other portion of the Act. I cannot see how they would be prosecuted or their goods held up for a thing granted to them by Statute. I would like the Minister to safeguard the position of people in this country.
With reference to this particular mark, the Paris Convention states there are certain instances in which applications may be refused or cancelled, for instance, owing to reasons of morality or public order. If it can be considered that that mark is contrary to public morality or public order it can be refused by the Berne Convention.
Immorality in what? Is it with regard to trade?
CATHAOIRLEACH
I think it means indecent. The Merchandise Marks Act deals with that kind of immorality.
The Senator has introduced this article from the Convention in so far as it has relation to something contrary to public morality or public order. We have a specific provision in Section 138: "The Controller may refuse to grant a patent for an invention, or to register a design, or trade mark of which the use would, in his opinion, be contrary to law or morality." That covers that point. The Senator has asked you could it be possible for a person, having been granted a trade mark and a design, to be prosecuted. He is entitled under the Paris Union to have it registered. He will get it registered and thereafter the Merchandise Marks Act comes into play, and there is a definite section in the Act — Section 3 — which states that a trade description, if a trade mark shall not prevent such trade description being a false description. It is registered as a trade mark under the Bill and becomes a false trade description under the Merchandise Marks Act, and a possibility follows.
Amendment, by leave, withdrawn.
NEW SUB-SECTIONS.
I move the following amendment standing in the name of Senator Goodbody.
Section 89. To add at the end of the section two new sub-sections as follows:—
(3) Anything in this section to the contrary notwithstanding it shall be lawful for the Controller to refuse to register any such trade mark on the ground that the same relates to goods not manufactured in Saorstát Eireann, and is of a nature calculated to lead to the belief that such goods are manufactured in Saorstát Eireann.
(4) An appeal shall lie to the Law Officer from every decision of the Controller under sub-section (3) of this section.
It seems to me when you have this technical Irish mark registered by a firm manufacturing elsewhere than in the Saorstát it is a distinct hardship to those in this country who want to use it. Such a very simple and distinctive emblem as the shamrock cannot be used with the same class of goods. I will give you an instance. A Cork firm manufacturing spades and shovels had the temerity to put on the base of the shovel the emblem of the shamrock. That firm was prosecuted by a Birmingham firm who had adopted the shamrock as its trade mark and who had registered in Great Britain.
It seems absurd that an Irish firm could not use the same trade mark on the same class of goods because a British firm had done it. This is only to give the Minister in charge of the Bill or the Controller instructions that a misleading emblem such as that should not be accepted and placed on the Irish register.
It is not misleading.
As a mark of origin you would call it such. I can give you other cases. For instance, the case of St. Patrick's flour. That is manufactured in England and comes over here in large quantities. I do not think every purchaser of a bag of flour scrutinises it carefully enough to notice in very small type the words "made in England." There is St. Patrick on the Hill of Tara. Surely any man would assume that that is milled in Ireland, but it is not so. It strikes me that the Controller should be, at any rate, compelled to consider whether the trade mark ought to be accepted for this country. There are other cases, but I need not trouble you with them. Those trade marks already exist on the British register, but I think our Controller ought to have power not to adopt them.
The answer I would again like to stress to Senator Sir Nugent Everard is that the fact of refusing to register St. Patrick's flour for a person who applied for that design or trade mark only means that everyone in England could use it instead of confining it to one person. Instead of only one firm of exporters from England sending a particular type of flour with the design St. Patrick's flour on it, dozens of others could send it. That is the only effect of refusing to recognise the design.
It is calculated to deceive.
If it is, we have to consider distinctiveness associated with a particular type of goods of a particular firm. False indication of origin is dealt with under the Merchandise Marks Act. If you want to deal with false origin you must deal with the Merchandise Marks Act and see if that Act goes far enough and is it rigidly enough interpreted in this matter of associating a particular design with a particular firm.
Is it your opinion that this could be met under the Merchandise Marks Act?
CATHAOIRLEACH
In so far as it would falsely represent to the customer the country of origin.
A flour bag having on it something about St. Patrick, and having on it at the same time "made in England," would come under the Merchandise Marks Act.
CATHAOIRLEACH
Or any other country.
Amendment, by leave, withdrawn.
I gave notice of the following amendment:
Section 89. To add at the end of the section two new sub-sections as follows:—
(3) Anything in this section to the contrary notwithstanding, it shall be lawful for the Controller to refuse to register any such trade mark on the ground that the same relates to goods not manufactured in Saorstát Eireann, and is of a nature calculated to lead to the belief that such goods are manufactured in Saorstát Eireann.
(4) An appeal shall lie to the Law Officer from every decision of the Controller under sub-section (3) of this section.
The case mentioned by Senator Sir Nugent Everard is not the only case in point. There are quite a number of people carrying on business in this country who find that certain marks and designs are used on English goods that are imported and that are, presumably, calculated to deceive as regards the country of origin. It was to deal with that particular aspect of the matter that the amendment was put down.
CATHAOIRLEACH
Do you not think if there was a large harp and a round tower and that to read the letters on it you want a magnifying glass, the courts could deal with that?
Are they able to deal with it?
CATHAOIRLEACH
I think they are.
Yes.
CATHAOIRLEACH
If the courts are satisfied, taking the whole matter together, that it is calculated to deceive the customer as to the place of origin, no trick of that kind will get them out of it.
Does the Merchandise Marks Act lay down a certain size for the letters "made in England"?
I think there is some reference, "in a distinctive way," or some phrase like that, but there is no limitation as regards the size of the letters.
The matter might be met by an amendment that the letters should be a certain size.
CATHAOIRLEACH
That might be quite reasonable and right, but would not the amendment be to the Merchandise Marks Act?
Amendment, by leave, withdrawn.
Sections 89 to 121 ordered to stand part of the Bill.
PROPOSED NEW SECTION.
I move:
Before Section 122 to insert a new section as follows:—
(1) The control of the Irish Trade Mark registered under the provisions of Section 62 of the Trade Marks Act, 1905, as a mark of origin and advertised in No. 1492 of the "Trade Mark Journal" by the Irish Industrial Development Association (Incorporated) and all the rights of the said Association under all existing agreements with their licensees shall be transferred to and vested in the Minister, and the said Irish Industrial Development Association (Incorporated) shall as soon as convenient may be after the passing of this Act assign the said Trade Mark to the Minister, but no compensation whatsoever shall be payable to the said Association in respect of such transfer.
(2) The Minister may procure the registration in Part A of the Register of the said Irish Trade Mark and shall be and be registered as the proprietor thereof and may procure the registration of the said Irish Trade Mark in any register maintained in any place outside Saorstát Eireann if and so far as and subject to such conditions as such registration is permitted by the law regulating such register and in any such case may procure himself to be entered as the proprietor of the said Irish Trade Mark.
(3) The Minister shall in relation to the said Irish Trade Mark have all the powers conferred on Ministers in relation to marks of which they are the registered proprietors by Section 121 of this Act (which relates to the registration of marks by Ministers).
(4) Nothing herein contained shall prejudice or affect licences already granted by the said Association to any persons to use or apply to any goods the said Irish Trade Mark during the respective period or periods for which such licences may have been granted by the said Association.
(5) Every licence to use the said Irish Trade Mark granted by the Minister shall contain such provisions, conditions and restrictions as the Minister may think proper for ensuring that the said Irish Trade Mark shall only be applied by the licensee to goods of Irish origin and of specified quality or description.
(6) The whole time staff of the said Association unless taken over with their consent by the Minister for the administration of the said Irish Trade Mark upon similar terms of employment as they at present enjoy shall be entitled to be compensated for the loss of their employment upon the like terms as those to which they would be entitled if they were members of the Civil Service.
The object of this amendment is to give the Minister directions to acquire and control the use of the Irish trade mark. As the facts may not be known to Senators I propose to give a short resumé of its origin and history. I cannot do better than quote from a Government publication, the "Irish Trade Journal." It is not likely to exaggerate the facts in any way. It simply gives a business statement:—
The modern industrial revival movement in Ireland began in 1903 with the establishment in Cork City of the Cork Industrial Development Association. The movement spread to Dublin, Belfast, Derry, Waterford, Limerick, and other centres where local associations, having objects identical with those of the Cork Association, were founded. The title of the different associations indicates the object of the movement, namely, the industrial development of Ireland. At an early stage it was perceived that Irish industries were suffering much injury, both at home and in foreign markets, by the widespread practice of passing off foreign-made goods—generally of inferior quality — as genuine Irish manufactures. It was felt that this unfair competition could best be countered by affixing to all goods made in Ireland a distinctive national mark, which would enable buyers to recognise genuine Irish products, and could not be applied to goods made outside the country. With this purpose in view the Irish Industrial Development Association was incorporated under the Companies Acts, 1862-1900. Its headquarters were at first in Cork City, and are now at 102-103 Grafton Street, Dublin.
About the beginning of 1903 this movement caused a considerable demand for Irish-made goods amongst the general public, and many traders and manufacturers found it to their advantage to adopt some mark which showed distinctly the Irish origin of the goods. Foreign traders, by way of satisfying the sentiment for Irish-made goods, also adopted titles which would lead the public to imagine that their goods were manufactured in Ireland. Steps were taken by the Irish Industrial Development Association to issue a distinctive national trade mark. That is the one that is in use up to the present. It was duly registered with the Board of Trade. The Board of Trade, having agreed that it was in the public interest, the registration of the Irish trade mark for all cases of goods was allowed by the Registrar for Trade Marks in December, 1906, and the Incorporated Association thereupon began a career of public utility extending now to close upon twenty-one years.
In due course the Association registered its title to the trade mark in the Argentina, Australia, Canada, Chile, Egypt, France, New Zealand, Nigeria, and other foreign countries. In the United States of America, the laws governing the registration of trade marks do not provide for the registration of marks of origin or of standardization by non-traders. Accordingly, the Association was put to considerable expense in fighting through all the courts an attempt by an American trader to register in his own name a representation of the Irish trade mark. Its efforts were successful, and the Association thus made effective its title to the mark in the United States.
That one case cost £1,000 and shows the necessity for some association which should have means to fight for the trade mark, so that the users of the mark in any country might be protected. Over 800 licences have been issued. This is not, as some members may think, a trifling matter, or one in which a few traders employ the mark for sentimental reasons. The directory of users of the Irish trade mark contains the names of firms using it. It is used in the following industries:— linen, woollen, brewing, malting, aerated waters, sugar, sweets, confectionery, soap, candles, flour, bacon-curing, oatmeal milling, chemical and colours, boot, and other manufactures. There are hundreds of other manufacturers using the trade mark not, of course, of such importance as those I have mentioned. I should say that the principal tobacco manufacturers in Ireland have incorporated their own design, or else use ours. In order to show the importance of having a body to protect Irish manufacturers from titles or designs calculated to mislead the public, I will mention a case in point. One of the large manufacturing firms in Ireland wished to register the shamrock in Canada as an emblem. The application was refused because a branch of the Imperial Tobacco Company had already registered the shamrock in Canada for the same class of tobacco — plug. The Irish firm applied for the right to use the shamrock on roll tobacco. The other tobacco is made in Canada, but there is an Irish emblem on the package. The Irish firm were refused, and I need hardly say they considered that a great grievance. There are many other cases in which we have exercised the functions of the Association, not only to protect the trade mark but also to prevent misleading titles being registered on goods.
At one time, I think it was about 1902, it was a common practice to sell in the British markets goods bearing designs that were almost as flagrant as the St. Patrick's design that I have mentioned, and without even the description "Made in England" or elsewhere. I will give an instance. A case of Siberian eggs was sent over to this country and sold on the market as Pat Murphy's, from Castlemurphy. On the outside of the box containing the eggs there was the design of a stage Irishman dancing a jig. The case was brought to the court and the fraud was exposed by the old Department of Agriculture. I do not know whether we have now any assistance from the Department of Lands and Agriculture in looking after our interests on the other side of the water. I do not think they have even got an agent. It is quite obvious that some control is necessary, and we suggest that the Minister for Industry and Commerce should take this mark, as any Minister is entitled to issue a mark of his own and administer it with funds supplied by the Government. Probably everyone is aware that the Irish Trade Mark is entirely dependent on subscriptions and licence fees. The Irish Industrial Development Association is a voluntary association, and has never asked the Government for a subsidy or any assistance in any way whatever. This Bill gives the Minister power to issue trade marks. That necessitates some provision being made for the future of that mark, which is known in every country in the world. I believe that the power taken under this Bill by the Minister will destroy the usefulness of the mark. It certainly will damage its prestige. Considering that it has such a wide use in this country it would be exceedingly injurious to the interests of Irish manufacturers if it was allowed to lapse merely through want of funds. It would be almost impossible to carry on the working of this Association with a competing national trade mark.
The Minister for Lands and Agriculture has already intimated that he proposes to issue a national trade mark for butter, eggs, and other agricultural produce. It may be desirable that he should do so. I quite think it is desirable, but at the same time it will damage our funds considerably by withdrawing from our list a number of licences. I imagine that if a man had his choice at an equal price of a national mark issued by the Government and one issued by a private association he would prefer the Government mark. Therefore, we can only see before us the possibility, and even the inevitability, of the Irish Trade Mark becoming defunct, dying of starvation, and before such a thing could happen we of the Council of the Association, of which I have the honour of being President for the last 15 years, think it would be more in the public interest if the Minister took over the working of this Irish Trade Mark.
I am sure it would be appreciated by the House that those who have served faithfully in what is really national work should at any rate not be turned adrift without some form of compensation. We have only two officials; one of them, the secretary, has been 20 years employed at this work, and the other is our inspector, who has been in our service for only two years. If it is necessary that these officials should be retired, they ought to be retired under Civil Service Rules in regard to pension, if they cannot be employed, or if it is not desirable that they should be taken over.
The Minister has already taken over a large part of the functions of the Irish Development Association, and I would like, if possible, that he would also take over the mark, because the most serious point is that if this mark is abandoned it would be open to any trader to take this mark and register it as his own. I think that a Government body ought to work it, as they could work it with greater facility than an association. I think it would be very injurious to the public interests if it is allowed to fall into the hands of a private trader. The Minister could substitute one which he thought more appropriate than the present Irish trade mark, but at any rate he will save it from being pirated. That is one of the reasons why I think the House ought to require the Minister to state his intentions as regards this Irish trade mark.
It seems to me that a case has been made in one point. It is not quite clear that the Association could register, if the Bill as drafted becomes an Act, the Irish trade mark in the office to be set up under this Act. I am prepared, on the Report Stage, to bring forward an amendment myself to an earlier section of the Bill, which would most properly be Section 89, sub-section (1), and introducing words including a mark registered under the provisions of the Act of 1905, and by re-registering here the Irish trade mark already registered in England would, to a certain extent, prevent pirating, of which Senator Sir Nugent Everard seems to be afraid. The Association has some doubts about it at the moment as to whether they could register here their trade mark.
That would assume that the Association remains in existence. It would mean re-registering every year. I do not see, when there is a Government actually doing the same work, as in the case of misleading titles, that we would have any functions left at all except that of issuing the trade mark, which I foresee, and everybody must realise, must in time be replaced by a national brand issued by the Government, and therefore we are bound to die from want of funds.
There are two points: first, whether the Association is going to continue or not. If it is to continue, or some other body takes its place, they should get power to register here the Irish trade mark for the full term of fourteen years. I undertake to introduce an amendment to sub-section (1) of Section 89. With regard to the second point, as to whether or not the Government should be made to take over the trade mark, I can see the case again made that there should be an amendment to this Bill. It should be beyond doubt that the Minister may take over, but as to whether he should or not would depend on what is the likely use or value of it — is any good going to come of it at all? The Senator, I think, has destroyed his case by stating that the trade mark hereafter is going to be useless. If useless no Government department is going to take it over. I propose to meet the Senator to this extent: I will get sufficient amendment introduced to allow the mark to register under the provisions of this section, or to register under the provisions of the 1905 Act, allowing that the Association may assign to the Minister and the Minister may take over. As to whether that is done or not will depend on the balance of the good or bad hereafter, and one will have to see the advantages and disadvantages. I am not clear that the amendment proposed is in accordance with the money resolution approved prior to this Bill. We can leave that out of consideration for the moment. I would be prepared to advance to this point: to bring in a permissive section that the Association may assign and the Minister may take over, but at this stage I would have an objection to having the obligation on me of taking over the trade mark.
May I ask, was there not a provision of this kind in the 1925 Bill?
No, not with regard to this. The Committee discussed another matter, the national mark.
That was the national mark for the Minister for Agriculture.
In the section dealing with the trade mark we had a long discussion upon the question of the mark itself. It was a mark that was proposed, not a distinct description, indicating not the origin but quality. Of course the national mark which the Minister for Agriculture desired to have established had reference merely to quality, and quality found in a variety of products and particularly having regard to the quality found in butter.
CATHAOIRLEACH
The Minister has undertaken, on Report Stage, that he will facilitate the Senator so far as to enable the Association to apply to the patent authorities, and he will also introduce a clause conferring a power upon the Ministry to take over the mark if they are so advised.
That would be permissive.
Yes, decidedly.
The question is whether this is not a matter of national concern. This mark has been very widely used and it is a question whether it is wise to leave its use merely permissive. I am told that with a mark of this kind there would be no difficulty of registration, but the protection of the mark would require funds. If we have not funds we shall lose our advantage and also the co-operation of a large number of those who for 20 years have been using the mark and upon whose fees we have to rely to fight our case. I am sure that the Minister does not speak without knowing the work that has been done. We have fought against any infringement of the mark and against colourable imitations of it. We had hundreds of cases in court. If we are deprived of the means there would be no object in having the mark except to prevent it from being pirated.
I desire to support everything that has been said by Senator Sir N. Everard, in his request to preserve the Irish trade mark. It was brought into being by the Association which was formed for the protection of Irish industries when there was no Irish Government in being to do anything for their protection. In years gone by, under very great difficulties and with very great credit to themselves, they secured the registration of this trade mark for Irish industries and they secured that Irish industries were given protection through this mark which came to be known all over the world. It is very beautiful. It has a design of an ancient collar and the history of it is that there is a little opening in the collar which was supposed to close upon the neck of the wearer if he did something against the interests of the country. I wish we could get some such collar made to order. At all events that was the story that was selected for design and that was adopted. The design is very beautiful; it is made in gold and was worn in the form of pins by many people in this country. The late Mr. Arthur Griffith, from the time the mark was established until his death, wore it as a tie pin. From the sentimental side of the question as well as from the good work done by the trade mark I do think it would be rather a pity that the Irish trade mark should disappear under an Irish Government for a new trade mark. If another trade mark is established then this one in which a great many people were interested will disappear and its history will go with it. It is an interesting history covering 20 years development of the new Ireland that has come about. It is things like that that helped to make this State, and for that reason I hope the Government will retain the mark. Perhaps another might not be as easily acquired. I hope the Minister will see his way to advise the Government to keep the present Irish trade mark in existence.
I strongly back up all that has been said by Senators who have spoken in favour of keeping the trade mark. I certainly would not like to have it left to chance. It is not a case of leaving the matter in doubt. I do not want to repeat the arguments already advanced, but I wish to entirely endorse what they have said.
I also support the appeal that has been made to the Minister.
I also desire to back the appeal that has been made. In business I know how very well the Irish trade mark acts. It is far better to adopt one already established than to go in for a new one.
It is quite a different matter merely to say that the national trade mark set up shall, in appropriate circumstances, be the one used by the Trades Marks Association, but to take it over, as Senator Sir Nugent Everard's amendment sets out, is quite a different thing. If it is the intimation of the wish of this House that the actual trade mark, with the collar design, in existence, is to be kept and used, then I have very little hesitation in replying favourably, but to take it over in accordance with the conditions laid down in the amendment, and when I have no knowledge of what the financial obligation would be, is a different matter. It is a thing to be considered by the financial authorities, but I think the obligations which this amendment would entail are pretty well outside the terms of the financial resolution.
Might I suggest that the matter might remain over until the Report Stage and, in the meantime, the Minister and Senator Sir Nugent Everard might meet each other and come to an arrangement?
CATHAOIRLEACH
I think that is desirable for another reason, and that is, that the question has been raised how far this new sub-section is compatible with the Financial Resolution. I have not seen it, but I will take an opportunity of seeing it between this and the Report Stage.
Might I say a word in reply? With regard to the obligations of the financial resolution or otherwise connected with the trade mark mentioned in the amendment, the only condition that I mentioned that would bear out the objection of the Minister for Industry and Commerce is that relating to compensation to certain individuals for loss of office.
CATHAOIRLEACH
That is the thing I referred to.
If that is the only thing we could, I am certain, by voluntary subscription, repair that deficiency. I do not believe our staff would wish that merely for the purpose of keeping them in office we should allow this trade mark to die. Although the matter has not been before our Association I have no doubt we shall be able to find a fund to give compensation which the Government do not feel disposed to give.
We have not considered it.
CATHAOIRLEACH
Would it not be sufficient if a clause was inserted in the Bill to enable the Government to negotiate with your Association as to the terms on which they might be able to take over the trade mark.
I would be agreeable to that. I honestly think that that is the only objection of the Government taking it over. I should be perfectly willing to leave that as a matter of negotiation between now and the Report Stage.
CATHAOIRLEACH
It is better to leave the whole thing over for Report, and in the meantime the Minister will probably consult with the Senator.
Amendment, by leave, withdrawn.
SECTION 126.
Reports of examiners and other officers made under this Act shall not in any case be published or be open to public inspection, and shall not be liable to production or inspection, and shall not be liable to production or inspection in any legal proceeding, unless the court or officer having power to order discovery in such legal proceeding certifies that such production or inspection is desirable in the interests of justice, and ought to be allowed:
Provided that, on application being made by any person in the prescribed form, the Controller may disclose the result of a search made under Section 17 (which relates to comparison of provisional and complete specifications) or Section 21 (which relates to investigation of specifications published subsequent to application) of this Act on any particular application for the grant of a patent.
I move amendment 21:
To delete all from and including the figures "17" in line 38 down to and including the word "specifications" in line 39, and to substitute therefor the figures and words "19 (which relates to documents to accompany specifications) or Section 20 (which relates to investigation of specifications published previous to application)."
The object of the amendment is to correct a mistake in a figure and also to put in an additional reference which was left out. The object of the section is to create privilege for the reports the examiners and other officers make under this Act in the case of patents and trade marks. These reports made to the office are usually of a kind which are privileged from being produced in court where people are litigating. When they seek to get evidence from documents of this kind it is usual that the Government has the right of claiming privilege. The reference in the clause in the second paragraph to Section 17 is a clerical error, it ought to be 19, and it relates to comparison of provisional and complete specification.
Amendment put and agreed to.
Section 126, as amended, agreed to.
Sections 127 to 151 agreed to.
SECTION 152 (4) and (6).
(4) The application for the grant of a patent, or the registration of a design, or the registration of a trade mark under this section, must be made in the same manner as an ordinary application under this Act:
Provided that —
(a) in the case of patents the application shall be accompanied by a complete specification, which, if it is not accepted within the twelve months from the application for protection in the foreign state, shall with the drawings (if any) be open to public inspection at the expiration of that period; and
(b) in the case of trade marks, any trade mark the registration of which has been duly applied for in the country of origin may be registered under this Act.
(6) Where it is made to appear to the Governor-General that the legislature of any British dominion has made satisfactory provision for the protection of inventions, designs, or trade marks, patented or registered in Saorstát Eireann, it shall be lawful for the Governor-General by order made on the advice of the Executive Council to apply the provisions of this section to that dominion with such variations or additions, if any, as may be stated in the order.
I move amendment 23:—
After the word "state," in line 25, to insert the words "or the commencement of Part II. of this Act (as the case may require)."
This is purely a formal amendment.
Amendment agreed to.
I beg to move amendment 24:—
Sub-section (6), after the word "Dominions," in line 37, to insert the words "protectorate or territory."
Amendment agreed to.
Section 152, as amended, agreed to.
Section 153 agreed to.
SECTION 154.
(1) Subject to the provisions of this Act, copyright shall subsist in Saorstát Eireann for the term hereinafter mentioned in every original literary, dramatic, musical, and artistic work, if —
(a) in the case of a published worw, the work was first published within Saorstát Eireann or a part of the British dominions to which the benefit of this Part of this Act extends; and
(2) . . . . . . . . .
(a) to produce, reproduce, perform, or publish any translation of the work;
Senator Dowdall has a rather important amendment down to Section 154. He asks me to move it in his absence, but it is rather complicated. With the permission of the House, I should like to reserve my arguments and have the amendment held over for a later stage. It is amendment No. 28. I would like to have it retained for the Report Stage, and I would have his remarks. I am not quite conversant with the facts.
CATHAOIRLEACH
Do you wish the amendment of Senator Dowdall to remain over to the Report Stage?
Yes.
Does that apply to all the amendments dealing with copyright? They are all the same.
I have also an amendment of this nature, and I think it would be more convenient to postpone them, because my amendment is on the same lines as Senator Dowdall's. The Minister was good enough to suggest last week that we should arrange to draw up an amendment to certain lines which would give the printing of books, by Irish authors resident in the country, to Irish printers, and that he would be prepared to recommend it to the House. I have not had an opportunity of consulting with Senator Dowdall, so I think in the circumstances that we should postpone consideration of these amendments until the Fourth Stage.
On a point of procedure, I would not object to recommitting the Bill, but I think it would be very undesirable that controversial amendments of this character, which are bound to give rise to a lot of discussion, should not be taken until the Fourth Stage, when the discussion will be more or less restricted. We shall have no opportunity then of discussing this important amendment adequately. I think it would be a very dangerous precedent, against which I protest.
I had really thought that almost the only controversial point to be met on the Committee Stage was the point with regard to the printing of books, and that most of the other amendments were more or less formal. I thought we had discussed that already.
CATHAOIRLEACH
Do you not think, Senator Bennett, that we had better take the amendment standing in Senator Dowdall's name, and any remarks you have to make can be supplemented by Senator Dowdall on the Report Stage. I think it would be a mistake that an important matter of this kind should be only ventilated on the Report Stage.
I am quite willing to move the amendment.
CATHAOIRLEACH
I shall give Senator Dowdall an opportunity to state his views again on the Report Stage, but we had better go on now with the amendments.
The object of the amendment primarily is to make Dublin what it once was — a great centre of printing, one of the leading centres, perhaps, in the British Isles, when it turned out a quality of work equal to any of its kind. To-day it would, with proper encouragement, and in fact it is, carrying out plenty of work equal to any done in the British Isles. I saw within the last few days in this House an example of art printing done in Dublin, and I was assured that that specimen was as excellently and as cheaply done, and, in fact, more cheaply than any similar kind of work could be done, in any part of the British Isles. I was told, further, that work which here cost 10/6 would, probably, not be turned out in the present state of English printing for less than one guinea. That is one of the objects of the amendment — to promote and encourage the printing trade in Dublin. Another object, of course, is that incidentally you give employment to a very large number of the members of the trade, who are at present largely unemployed. It is within the knowledge of members of this House, I am sure, that English works by English publishers sold in Ireland are, at the present moment, being executed in this country. We must be careful to draw a distinction between publishing and printing. The publisher of a book gets the manuscript from the author, and he can publish in any country or in any circumstances he likes.
The United States has at present in operation a very comprehensive system of protection. No book or printed work has a copyright in the United States unless the work is actually carried out there. Canada up to, I think, the 1st January, 1924, had the same system of protection, but desirous of getting within the Berne Convention, it passed an amending Act in 1924, that brought it within the Berne Convention, at the same time insisting that works having copyright in that country, works by authors who are citizens of that country, should be printed and that all their work should be done in Canada. The United States, of course, will be quoted as having a wider field for sale than this country, but the United States adopted this system of protection in the interests of the printing trade. Canada did the same with no injurious effect to those who are publishing their books in Canada and with an increased amount of employment in the printing trade.
It is a well known fact that some of the biggest publishers in London are not printers — Macmillan, for instance, is a case in point. I am credibly informed that Macmillan does no printing. He gets his books printed in Scotland in the cheapest market, and I am convinced, too, that if this Act is passed such a thing will happen here. It is happening at the present moment in Dundalk. No well disposed author in this country would question the claim that the people of the country have a right to expect that he should get his books done in Ireland. I know some authors of distinction will — I instance the case of Lady Gregory. She will insist on her work being done in Ireland without any prejudice to her reputation or to the sales of her work. Sir Gilbert Parker, perhaps one of the most widely read authors of the day, gets his work printed in Canada. It has been stated in the public Press and in magazines that no writers of repute existed in Canada, but these statements on reference to the fact can be easily countered. You have Sir Gilbert Parker and Sir Ralph Connor. I should say that what is good enough for Canada in this matter should be good enough for this country. An immense relief would be brought to a very depressed section of our industrial community by the adoption of this principle, and it may well be a stepping stone to restoring a great trade in Dublin.
There is one other matter I would like to refer to. It may come up at a later stage, but I may as well deal with it now, as many of the sections of this Bill are very closely interwoven. Interested, as I naturally would be, in Irish educational matters, and having a great respect for that centre of enlightenment, Trinity College, I should say that the obligation imposed upon authors to contribute ten copies to institutions such as these, that are very largely endowed, should not commend itself to us as guardians of the public welfare. We are here to do our duty to the public and not to finance or subsidise institutions that have already been sufficiently provided for. The author, according to this Bill, must contribute no less than ten copies, one to the British Museum, one to Oxford, one to Cambridge, one to Edinburgh, one to the National Library of Wales, and one to Trinity College, Dublin — I do not single out Trinity College as being specially endowed above some of the other institutions, but I say it is a distinct hardship — and four others — one to the National Library, one to University College, Dublin, one to University College, Cork, and one to University College, Galway. I say it is a preposterous imposition to put upon authors or publishers. Following it to its logical conclusion, if the Act is strictly applied I understand that a publisher will actually have to give one of each of the publications on his shelf to each of those institutions mentioned. The British obligation, as far as I understand it, is to present one to Trinity College and one to the British Museum. That is the obligation on publishers and authors.
I think they have to present one to the Bodleian Library in Oxford.
Does the Senator mean that the obligation on authors pre-Treaty was only to contribute two books?
I understand that is the present obligation.
We have that as our present legislation, and the obligation is to deliver six books.
I think this discussion could be more profitably taken up on Section 169.
CATHAOIRLEACH
It is not connected with the present amendment. The Senator wanted to deal with the whole subject.
I am quite satisfied to leave that portion over. I would strongly urge the acceptance of the others. Senator Dowdall's amendment covers practically very much the same point. If there is anything in the amendment that I have put in that the Minister thinks may lawfully be cut down without damage to the force of the amendment I am prepared to do so. I strongly recommend this amendment to the House in the interests of Irish industry.
CATHAOIRLEACH
Your amendment covers an entire page of the agenda. Senator Dowdall's amendment is contained in four lines. Are you satisfied to stand by Senator Dowdall's amendment or do you prefer your own?
My amendment sets forth in greater detail the requirements.
CATHAOIRLEACH
If the object you have in view is accomplished by Senator Dowdall's amendment you will have a better chance the shorter you make it.
Very well.
CATHAOIRLEACH
Then we take it we are now discussing amendment 28 by Senator Dowdall.
The argument has been fully set forth by Senator Cummins, and I rise to propose the amendment standing in the name of Senator Dowdall which reads:—
Section 154, sub-section (1). After the word "and" in line 38, to insert the words, "in case the author is a citizen of Saorstát Eireann, and desires to secure copyright in Saorstát Eireann, the work for which copyright is sought to be secured shall be printed in Saorstát Eireann, anything in this Act to the contrary notwithstanding."
Are you going to allow the two amendments to be moved together?
CATHAOIRLEACH
No. I understand from Senator Cummins that the object in view in his amendment is covered by Senator Dowdall's amendment and that he is satisfied therefore to have the shorter amendment substituted for it.
And withdraw his own?
CATHAOIRLEACH
Yes. Am I misinterpreting the Senator in any way?
No.
This amendment No. 28 is based on the Canadian precedent. Canada, previous to 1924, was in a similar position to the U.S.A. Every work had to be printed in Canada. The present position in Canada is a compromise bringing it into line with the Berne Convention, and what is proposed to be done under the amendment, which I propose, will still leave us in line with the Berne Convention. But it will do one thing that is considered a very valuable thing, and that is to secure that the printing trade in Ireland, which is of considerable importance and which is proved to be so by the works which are published, of which you all know, will benefit. The printing trade in Ireland is capable of producing work of considerable importance. By this amendment it will receive a fillip from those from whom that trade has a right to expect it, namely, from those seeking copyright in the Saorstát. The amendment in Canada was proposed on the 1st January, 1924. The Canadian Government restricted the printing conditions to citizens of Canada, and those restrictions brought them into line with the Berne Convention. That was done by the Canadian Government. This amendment which I propose does not affect the rights of any member of the Convention outside the Saorstát. They will still have their full rights under the Convention. Now, under this amendment citizens of the Saorstat, to secure copyright in the Saorstát must print in the Saorstát. They can publish wherever they like. This is a very important condition. The publication of works is not affected in the smallest degree in this, and any of our learned people may go to John Murray or any of those publishers of historic reputation and have their works published there. We only ask that if they desire to secure copyright from us that they should give our printers an opportunity of performing the work for them. There is no danger in it. Perhaps, to be honest, there may be one small danger, as there is with all monopolies. There may be a danger that printing may be a little more expensive here than in other countries. That is the only danger that I can see or that anyone can detect in this amendment which I am endeavouring to explain. Printing and publishing are entirely different things.
Under this amendment, a citizen of the Saorstát may send his manuscript to the publisher in London and have his work published there. But, as Senator Cummins says, the great publishers in London are not printers at all. They get the manuscripts from the authors and they send them out to the printer, who sends back the proofs for correction after they are read by the author. The whole work is prepared by the printer. But unless somebody asserts that printers in the Saorstát are not capable of printing or of turning out good work, I do not know how my amendment could be opposed. Of course, if there is any Senator here who says that, then it is another matter. I assert again that if there are printers in the Saorstát capable of producing work which will be a credit to the country and a credit to the author, then, I think, an amendment such as this is eminently desirable and should be accepted. What will this amendment do? It will provide much-needed employment to a trade which is rather harassed, and it will bring Dublin again to the front in the printing trade. I have had handed to me since I came to the House a copy of a book by Sir Gilbert Parker. I have not had the pleasure of having read any of his works, but I am aware that he is an author who is very popular, and he is known as a "best seller." Now this book has been produced in Toronto. Men who publish books printed in Canada and get them circulated in the Saorstát——
That is not so.
It could be printed in England.
Yes, and circulated in the Saorstát. At any rate, this book has been printed in Canada and circulated here. That shows that Sir Gilbert Parker has the desire that his work should be printed in Canada. His work is circulated here. Authors who draw their inspiration from this country, who have existed in this country, and who draw upon their experiences in this country as the source of their inspiration, and whose every thought is embedded almost in the soul of Ireland, should get their books printed here. These men should, without hesitation, say: "Yes, we are no less patriotic than the authors of Canada are, and we are not willing to injure in any way our fellow authors. We are prepared to do what Canada has done. We accept the Berne Convention that our work shall be printed here and published wherever we desire." I move my amendment.
Are we dealing now with Senator Dowdall's amendment or with Senator Cummins's?
CATHAOIRLEACH
I thought I made that clear already. Senator Cummins has withdrawn his amendment in favour of Senator Dowdall's.
I am very strongly opposed to this amendment, and I hope the Senators will not be led away with sympathies for Irish publishers or Irish printers, or by the hope of establishing a great future for publishing in this city of Dublin.
Printing?
I hope that sympathy with Irish printers and the printing trade in Ireland will not make any of the Senators vote for this amendment. It is an amendment which, if it were adopted by this House and eventually carried in the Dáil, would do infinite harm. This amendment is confined to the citizens of the Saorstát. It only applies to authors who are citizens of the Saorstát. They are not to be allowed, no matter where they publish, to get copyright in this country unless they print in this country. And that is confined to the citizens of this State.
An author has a much better chance, if he is a young author especially, in London than he has here. He can get his book printed much more easily by a London printer than here. He appeals to a larger reading world if he gets his book published in London than if he gets it published here. If he is hoping to live by his work as an author, and if, like most authors, he is not very well furnished with this world's gear, he will be very much handicapped by this amendment. Now, a young, Irish author, a citizen of the Saorstát, who wants to print and publish his book in England, can still do so despite this amendment. He can go over to England, renounce his Saorstát citizenship, and become a citizen of Great Britain. Immediately he does that he is outside this amendment. He has ceased to be a citizen of the Saorstát. He has become a citizen of Great Britain, and he can snap his fingers at this amendment.
Any law which can be evaded in that way is not a good law. I am afraid that when it becomes a question with a struggling author between his patriotism and his pocket, that his patriotism will not always win. At any rate you are putting a premium on a man who is going to do an unpatriotic thing, because if this amendment is passed into law there will be citizens of the Saorstát who, in order to evade it, will renounce their citizenship. But that is not the main objection to this amendment. Senator Bennett has assumed that this amendment, if it were passed into law, would still keep us within the Berne Convention. Let there be no mistake about it — it will not. I will come to the case of Canada in a moment, but it is perfectly clear to anybody who reads the terms of the Berne Convention that this amendment in its present form and in the form in which it could be put — because it is confined to citizenship of the Saorstát, just like the Canadian one — it is perfectly clear that the amendment in its present form is a distinct and direct breach of the Berne Convention.
One of the conditions of the Berne Convention which has not been altered or modified in any way is that a citizen of a Convention country who first publishes his work in another Convention country, not his own, is then entitled to publish his work in any other Convention country, including his own, without any condition as to the printing. Those are the express terms of the existing Berne Convention. Therefore, an Irish author here, without giving up his citizenship, can first publish in England, which is a Convention country, and having done so, he is entitled to come over here and publish without the condition against printing. If you prevent him doing that you are acting contrary to the Berne Convention. It is suggested that Canada made some modification of the Berne Convention in Paris some years ago, to fit that express condition of the Berne Convention. That is not so. The present Canadian law which compels a Canadian citizen if he wants to publish and get copyright in Canada to print in Canada is still a distinct violation of the clause of the Convention which I have read, and Canada is, in my opinion, absolutely outside the Convention at present. Canada's law was directed against the United States, who are their nearest neighbours. Our law, if we pass it in the same shape, would be operative against our nearest neighbours.
No publisher in England is hit by the Canadian law. America is the only nation which is hit by the Canadian law. America is a non-Convention country, outside the Berne Convention altogether, and it has always refused to enter into it. If we adopt this we are, ipso facto, going outside the Convention. What will the result be? That once we pass this law any publisher in any other Convention country, i.e., in England, and that means for our purposes England and Scotland, can proceed to publish without paying one penny to the author of the work, can pirate it and scatter it all over the world, and if necessary, sell it here. They can certainly sell it all over the world if they are not able in the Saorstát. They can copyright it and sell it all over the world. Once you get outside the Convention that will be the result. That being so, I would strongly press on the members of the House not to be led away by their very natural desire for the good of the printing trade in this country, by bringing about a result which will be really disastrous to every Irish author.
Will Senator Brown explain how Canada remains in a legal position?
Because it has not been worth anyone's while to put it outside.
Canada is outside the Berne Convention.
Canada is distinctly outside the Berne Convention, and I do not think any lawyer reading the provisions I have read will come to any other conclusion.
I think I may, perhaps, allay some of the feelings of the Senators by demonstrating, as I shall, that the proposal of Senator Cummins is entirely absurd and unworkable. Last Monday evening a very distinguished scholar came to see me. He has devoted his life to editing texts in Middle and Old Irish. He told me that scholars and members of learned socities were alarmed. He began by pointing out to me that much has been done lately in phonetics in the vernacular, that is to say, taking down Irish dialects. It is very important work, and is an attempt to record the pronunciation of the various dialects of Ireland. They are not taken down in any alphabet of any country, but in a special set of symbols. No Irish publisher possesses those symbols. The result is that those books, recording the Irish dialect, are printed in Copenhagen and Germany. He pointed out to me that if this were passed certain scholars who have done this work, who are not citizens of the Saorstát, would possess the copyright of their work. Those who are citizens of the Saorstát would possess it in every country except their own. He then went on to point out to me that practically all works of learning are produced by certain Presses which are subvented from universities.
There is no publisher in Ireland who will accept or could accept such books. These books are brought to the University Press in Cambridge or the Clarendon Press in Oxford, or rather to the publishing houses which take their name from these Presses. Those books pay the authors practically nothing at all. The learned man is satisfied merely that his scholarship should be given to the world. If you pass this law these men will have copyright in every country except their own. I should add further that in publishing a work of this kind it is not only necessary to find the publisher who will take your work and pay for the printing, but it is desirable to find the publisher who has that very expensive thing — a highly-paid trained "reader to the press." No Irish publisher possesses it, as I know to my cost, but it is of enormous importance when dealing with works of learning. It may be said that as these learned men cannot be published except by subventioned presses, no matter what law you pass, they will not be printed in Ireland; that they should be left out of the argument.
We are thinking of the future. This is an ill-educated country. We all hope that will change. You are dealing with works 50 years after the death of the author. Such copyright may be all he has to leave to his children; some of these books, years and years hence, may be of considerable value. There are other works of scholarship which are of immediate value. At the Cambridge University Press are published great universal histories. One, a modern history, is finished. The Ancient History and Medieval History are unfinished. These are the works of a great many different scholars. One scholar's work may run into 300 pages. The work of these texts is done by University scholars. Those are men who cannot change their citizenship. Those men who have done this work cannot set up British citizenship. At once on the publication of this great universal history an Irish publisher can take 300 pages out, perhaps, the research of a man's life, and publish it here. Probably when this many volumed ancient history is completed it may contain a large section on Early Ireland, hundreds of pages that could be taken out immediately and published in this country.
It is quite obvious that no Irish author, no matter how patriotic, could persuade publishers of these universal histories to print in Ireland. They are always printed in certain University Presses which have a subvention from the university. I will give you another example. Many Irish scholars have done work on the Encyclopedia Britannica. They cannot very well persuade publishers of the Encyclopedia Britannica to print in Ireland.
They are not publishers. They are only employed to do the work.
I do not understand the point of that. The editors of the Encyclopedia will get their lives of O'Connell, of Burke, and of Parnell from Irish writers. Those authors will not succeed in inducing the great Encyclopedia Britannica Company to change their whole habits of printing and print in Ireland. The idea is absurd. The Irish publisher can extract these lives of O'Connell, Burke and Parnell, containing the latest information on their subjects, and can publish them here, and what is more there is at present no law whatever which can prevent him sending them to England. Anyone can write from England, as they write at present to an Irish bookseller, and ask for such a book. At present there is no machinery to stop these books from going into England. What will happen is, Irish scholars will not be employed because they have only an impaired copyright to offer. I am sure no one in this House wishes to do this great injury to Irish scholars. That, I think, we are agreed to.
I dare say, however, when they come to considering a creative writer they are in a different sphere. There is the idea that a creative writer is making a great deal of money. They have in their imagination that he is. A few are singularly wealthy men—Mr. George Bernard Shaw, Mr. Arnold Bennett, and Mr. H.G. Wells. These men are exceptional. No doubt they can dictate to their publishers and tell them where they are to print. If the publisher does not agree to print wherever they dictate they can say: "I will go to another publisher." Remember an old couplet of the eighteenth century. It is not far out when you go over in your own mind the lives of men whose work has become immortal. It is:
"Seven Grecian cities fought for Homer dead,
Through which the living Homer begged his bread."
Very few authors win success before they reach 40 years of age. Very few authors, no matter what their later careers, are in a position to change their publishers or dictate to their publishers. One young Irish novelist of to-day has, I know, made an agreement for a term of years. His publisher pays him so much a year and he gives him all he produces. That man loses his copyright unless he declares himself a British citizen. You are compelling export of your authors. Perhaps I might be a little personal. At the start I wish to say that I have had a very smooth and easy career. I make no complaint whatever. I was 45 before I ever earned from my books or by serial publication of their contents, as much as the £4 a week earned by Irish printers. During the last four or five years of that time I was able to enlarge my income by lecturing. I was not in a position to change my publisher. My publisher was Mr. A.H. Bullen. He had a rather famous Press — the Shakespeare Head Press. I cannot see myself going to Mr. A.H. Bullen, who had given me beautifully printed books, and who took me at a time another publisher refused me, and saying: "I shall withdraw unless you change your printers." Even much more celebrated men than I am have had the same experience even towards the end of their lives. Robert Browning told Lady Gregory that he would have made more money at any profession, even making matches. He was not in a position to change his publisher. Do you think it is a dignified position for a nation to say: "You will not have copyright in Ireland unless you can cajole your publisher; speak smooth to him"? Cajole! that is what you want authors to do. You are passing a law of cajolery.
I notice another result to which I wish to draw your attention. No Irish author can serialise his work in the English Press or newspapers and keep his copyright. No author, I think, however successful, who is dependent on his work for a living can afford to give up serialising his work in the English Press. Just as you have no Irish publishers prepared to take Irish authors' work, you have no Irish magazines or Irish newspapers prepared at their own expense to undertake the serialising of authors' work, and give anything like adequate pay for it; if they could pay for it at all. One Irish author — I will not mention names — a very celebrated woman, has at this moment ready for publication an autobiography covering many years and dealing with many things and personalities important in Irish history. It deals also with many great English, social and political questions. That autobiography will be serialised in the English Press. If this law is passed it will be immediately pirated by the Irish Press, which will not pay a penny to the author. It will also be pirated in book form. You cannot compel an English newspaper or review to print in Ireland for the sake of one contribution. It would be preposterous. So far as the copyright of books is concerned I do not suppose it personally will affect me. I have done the bulk of my work. Can I go to my publisher and say: "I want you to print in Ireland?" If he says "No," what am I to do? He has all my works, my collected edition: I lose heavily if I detach my work from that uniform edition, and have broken faith with those who purchased that edition on the understanding that it is to be a genuine collected edition. Cajolery! This great State is going to pass a law by which people are to be cajoled to do what it wants. I will not leave this country because you appropriate my books, the few I have to write. If you made it impossible for me or any Irish author to serialise our work our incomes would suffer. I shall not leave this country, but shall move to the border, and I assure you I shall become exceedingly eloquent if I do.
There is no reason in the world why this town should not become a centre of printing and publishing. I am not speaking in entire ignorance. I have some little experience. Some 25 years ago at the establishment of the Abbey Theatre I became editor of the Cuala Press. It is a hand press which employs several Irish printers all the year round. Nearly all my first editions have been printed by that Press. The first editions of a great many writers were printed there. As it is now the longest established hand press in these islands I have a right to say we have succeeded. There is no reason why what we have done in a small way cannot be done by this country on a large scale. If you are to do it on a large scale you must do the work as well and as cheaply as it is done elsewhere. There is a misunderstanding about printing. The artisan prints well. He seldom does bad work. The bad work that prevents your publishers and printers succeeding is done because they have not men of taste to select type, arrange proper proportions, margins, binding and the other necessaries of well-turned-out books. You can make a great centre of publishing and printing here, because Ireland has a good literary prestige in the world now. But, if you got all the Irish authors in the world to publish here they would not be, in themselves, sufficient in number to make it a great publishing centre. If you are going to make it even a paying centre for printing and publishing, apart from making it a great centre, you must keep the goodwill of the publishers of the world, and you must keep the goodwill of the men of letters of the world. You will certainly not do so by what will be considered all over Europe as pirating. The educated opinion of Europe sees no difference between the property in a book and the property in an article of manufacture. You would not think of confiscating Jacob's biscuits because the tin in which they are put up was not made in Ireland. That is the educated opinion of Europe.
I have here a document to which I would like to draw the attention of those interested in Irish publishing. Some time ago a book by an Irish author was printed in America. I have a protest signed by 150 men, whose names are those of men of great eminence all over Europe. I will mention some of these names. They are from all countries.
Germany is represented by that man often described as the greatest mathematician and man of science of our day — Einstein. There are appended the names of other celebrated German authors. Russia is represented by the President of the famous Russian Academy of Letters. Spain is represented by the President of the Spanish Academy, Azorin; the most celebrated of her dramatists, Benavente, and the great Catholic philosopher, Miguel de Unamuno. Italy is represented by her Minister of Education, Giovanni Gentile, who is also a very great philosopher, and who it may be of interest to some Senators to know has organised the entire education of Italy in a way of far greater perfection than any educational system of Europe. It may be also well to know that he has restored religious education to the schools. Austria is represented by Hofmannsthal, a very great dramatist and poet. Belgium is represented by the dramatist, Maurice Maeterlinck, and France is represented by various members of the French Academy of great eminence. England is represented by a great many names, such as John Galsworthy and Bertram Russell.
That appeal is not merely an appeal to American opinion to condemn piracy; it is an appeal to advertisers to withdraw all advertisements from the publisher who has committed this act of piracy. Do you think Irish publishing houses will flourish if they carry on piracy of that kind? No, decidedly not. The world has become sensitive in recent years on the question of literary copyright, because it involves the prestige of men of letters in all countries. You can only make a successful publishing or printing house here if you keep the goodwill of publishers and the goodwill of men of letters.
The opinion which Senator Brown has given with regard to the actual legal effect of this amendment is, I have been advised, the proper one. Senators should have the exact terms of the Convention, so that they could make up their minds as to whether Senator Brown's opinion is correct or not. First, it lays down the definition that the country of origin of any work is the country in which the publication was first made. Secondly, there is in the Article of the Berne Convention, which I am going to read, a note on the performance of formalities. We got into touch on one point with the headquarters of the Union at Berne. We submitted a specific statement to them as to whether the printing conditions attached were a formality within the meaning of this Convention, and we got their answer that they were so considered. The printing conditions, therefore, are a formality which is precluded by Article 4, which states:
"Authors who are subjects or citizens of any of the countries of the Union shall enjoy in countries other than the country of origin of the work for their works, whether unpublished or first published in a country of the Union, the rights which the respective laws do now or may hereafter grant to natives as well as the rights specially granted by the present Convention."
I think if that is applied to an Irish citizen publishing for the first time a book in England it is absolutely clear that that book must get copyright in this country as long as we remain members of the Berne Convention. I think the terms are quite clear on that, and beyond doubt. A native of one country publishing in another Union country gets in that country the rights accorded to a native. The argument will be made that Canada is a Convention country. I think Senator Brown's answer is the only one in the circumstances. If there arose cases of such consequence, if anybody cared to raise the point Canada would be immediately put to the election as to whether she wished to remain in the Berne Convention, or withdraw this printed condition. There can be no doubt about that. The question has not arisen, because even if the printing condition of Canada has been mainly with regard to the United States, which is a non-Convention country, whether the United States get their copyright in Canada or not is not really a matter that concerns any other country but the United States. Here we are surrounded by Convention countries. Let the Irish author get his book printed in Northern Ireland, England, or France, or other countries bound by the Convention, and that book must come back to this country on the clear recommendation of the Berne Convention.
If we pass this amendment, the law which our judges will have to administer and interpret will be this Patents Bill when it becomes an Act, the copyright sections of which are now before you, and they will not have to administer the Berne Convention. If cases of any number are raised we can be immediately put to our choice—do we intend to remain in the Berne Convention or withdraw the printing requirements? If we keep on the printing requirements then we join the United States, and we would be the only two countries which definitely give a sanction to piracy. Whether or not the people wish to be in that position is to be determined.
We are supposed here to be setting up what are called Canadian conditions. We are not by any means setting them up even under Senator Cummins's or Senator Dowdall's amendments. These are minor points. The bigger point is adherence to the Berne Convention or not, or whether this attached printing condition will mean our being out of the Convention. The Canadian conditions of copyright throw obligations on licensees which perhaps the supporters of the amendment do not thoroughly understand. Under the Canadian Act the licensee has to publish in Canada an edition of the book of not less than 1,000 copies. He has to give a deposit of £25; he has to pay royalties. If we are going to set up Canadian conditions I would ask whoever puts forward the amendment to look at the Canadian regulations with regard to the granting of licences to see whether they are equitable, if applied here. After that there is a further point to be considered. I have not been able to understand how a great advantage is to flow to publishers in this country by passing this amendment. Granting its passing does not put us outside the Convention, and that we do not become international pirates, in the course of time where is the great advantage to flow to publishing firms?
The Irish author will make up his mind that he has to get a return for his work and get copyright everywhere else except in Ireland. I think that the opinion people expressed was that it is only in a very limited instance. The author would decide to obtain copyright everywhere, else he would get no material benefit from his work if he obtained copyright everywhere else and, in addition, got copyright in Ireland; it would not be worth his while to submit to the conditions over here. If the argument is sound that there is going to be considerable benefit to be derived by the author from printing here in the future, then there is something to be said for the advantages that might accrue, but no such case has been made.
I had every wish to vote in favour of the amendment, but I must confess that after hearing Senator Yeats I have been completely changed in my opinion. I do not think it would be right or proper in the circumstances to assent to the conditions complained of.
Have we a choice between the Berne Convention——
That is for the Senator to decide. I have given the terms of the Convention.
We heard the terms of the Convention read out hastily, but we have not had time to digest them.
CATHAOIRLEACH
The Minister said that his Government were advised by their legal adviser that that was the right interpretation.
I do not think he said that. I would like to have an opportunity of studying the question of the country of origin.
I have got certain legal advice. When members of the Government speak of legal advice it is generally taken to mean the Attorney-General's advice. I have not got the Attorney-General's advice, but other legal advice.
Canada has got itself within the Berne Convention and by such a condition as set out in this amendment and I shall feel compelled to vote for this amendment.
I think in voting upon this question we should be guided by reason rather than by sentiment or passion. I am afraid a good deal of unreasoning sentiment is introduced into matters of this kind and that arguments of a very telling character flow without any hearing being given to them or any reasonable consideration being afforded them. I was in favour of the amendment until I heard the arguments advanced against it. I am very much more impressed by the legal opinion of Senator Brown which is believed by the Minister to be the only opinion that could be given, than I am by the hastily conceived opinion of any layman. My personal opinion is that the few Irish authors we have, even if they do publish every work here, would not give employment to half a dozen printers in Ireland for a year. Apart from that, it would drive us out of the Berne Convention and leave us outlaws in the literary world, and I think that would be an extremely unfortunate thing. Another thing that strikes me is this: people who are asking for this amendment want to make Irish authors patriotic at the expense of their books, but they have no hesitation in purchasing clothing material and boots made in England thereby giving employment to workers on the other side of the Channel. There is no use being patriotic at other people's expense unless we are prepared to be consistent where our own pockets are concerned. I am not prepared, for the sake of this doubtful advantage, to penalise the few Irish authors we have and to put them in an unfair position compared with their competitors throughout the world. For that reason, while I am as anxious as anybody else to find employment for Irish printers, I am not, for mere show, going to vote for an amendment that will inflict hardship upon other people.
I do not press the amendment, and ask leave to withdraw it.
Amendment, by leave, withdrawn.
CATHAOIRLEACH
That gets rid of other amendments in the name of Senator Dowdall which are consequential upon that.
Amendments 29, 30 and 32 not moved.
I beg to move amendment 33:—
Section 154, sub-section (1). To add at the end of the sub-section the words:—
"Provided that the Governor-General may by Order made on the advice of the Executive Council direct that copyright subsisting in Saorstát Eireann under the provisions of this sub-section, in works the authors of which are citizens of a country named in the Order with which no Convention relating to copyright and binding on Saorstát Eireann exists and in respect of which no Order has been made under the provisions of Section 176 (which relates to power to extend the benefit of this Part of this Act to foreign works) of this Act, shall be subject to such conditions or formalities (if any) as may be prescribed by the Order and to such modifications as regards the ownership of the copyright or otherwise as may appear necessary owing to the law of that country."
Amendment agreed to.
I move:—
Section 154, sub-section (2). After the word "work" in line 56 to insert the words "Provided that such right shall as regards translations into the Irish language cease to exist unless the author of the work or his legal representative shall have within a period of ten years from the date of the first publication of the work published or caused to be published in Saorstát Eireann a translation of the work into the Irish language."
There is a copyright in translation, Under the Berne Convention you can deprive a person of copyright provided he does not procure the translation within ten years. That is what this amendment does. It keeps us within the Berne Convention, and it deprives the author of the right in copyright unless the translation is published, within ten years. It is a reasonable course.
Amendment put and agreed to.
Amendment No. 35, which stands in my name, has been covered already.
CATHAOIRLEACH
That applies also to amendments Nos. 36, 37 and 38.
Amendments 35, 36, 37 and 38 not moved.
Section 154, as amended, agreed to.
Sections 155 to 172 inclusive agreed to.
I have been asked to move the following amendments which stand in the name of Senator Dowdall:—
New section. Before Section 173 to insert a new section as follows:—
(1) Any person may apply to the Minister for a licence to print and publish in Saorstát Eireann any book wherein copyright subsists and of which the author is a citizen of Saorstát Eireann or of a country with which no Convention relating to copyright and binding on Saorstát Eireann exists, if at any time after publication and within the duration of the copyright the owner of the copyright fails —
(a) to print the said book or cause the same to be printed in Saorstát Eireann; or
(b) to supply by means of copies so printed the reasonable demands of the Saorstát Eireann market for such book,
and the Minister may grant such licence on such terms and subject to such conditions as he may think fit.
(2) Every licence granted under the provisions of this section shall be deemed to be a contract, on the terms and conditions embodied in such licence, between the owner of the copyright and the licensee and the licensee shall be entitled to the like remedies as in the case of a contract, and shall have the same power and right to take any action or any legal proceedings to prevent or restrain any infringement of copyright which affects the rights of such licensee or to recover compensation or damages for such infringement that the owner of the copyright would have for an infringement of his copyright, and the provisions of Section 165 (relating to importation of copies) of this Act shall apply to the importation of copies of the book in respect of which the licence has been granted as if the licensee were owner of the copyright in the book.
(3) For the purposes of this section the word "book" shall include every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan separately published.
This amendment gives the Minister power to issue licences. It follows the Canadian legislation. It goes a small way towards meeting the ideas that some of us possess about this matter. I am not very clear about the amendment myself. I think if it meets with the approval of the House the Minister should consider it favourably.
This really raises the whole question of the trade conditions again; otherwise, it would have no effect. It simply says that a person may apply for a licence. This is an amendment which most nearly approaches the Canadian conditions, but from what has been said it would certainly endanger our position under the Berne Convention. I think the arguments used against amendments Nos. 26 and 28 also apply here, but if Senator Dowdall wishes to make any point on it he can bring forward the amendment again on the Fourth Stage.
Senator Dowdall instructed me that this amendment would be received favourably by the Government.
CATHAOIRLEACH
You had better let him show that on Report Stage.
Amendment, by leave, withdrawn.
With your permission, Sir, I would like to draw the Minister's attention to Section 169 before we pass on. Sub-section (2) states: "It shall not be deemed to be an infringement of copyright in any musical work for any person to make within Saorstát Eireann," etc. The point I want to make is that that should be made to read: "It shall not be deemed to be an infringement of copyright in any musical work for any person to make or to import into Saorstát Eireann reproductions of works on which stamps have been paid." The section, as I read it, would only give you power to import into the country the author's work, but not any authorised reproductions. You would not be entitled to import them on payment of the necessary copyright fees.
CATHAOIRLEACH
Possibly it would be better for the Minister to answer this on Report Stage.
I will put down an amendment for the Report Stage.
CATHAOIRLEACH
The Minister then will have notice of it. It is very difficult, without notice, to know what the effects of even a little change will be.
I mentioned it to the Minister, and I think he understands it.
CATHAOIRLEACH
The amendment of Senator Dowdall stands over, and if he wishes to mention it again on the Report Stage he can do so.
Amendment No. 40 not moved.
I have down an amendment to insert a new section before Section 174, but I am informed that that matter is covered already.
It is covered by amendment 44.
Amendment No. 44 even goes further.
SECTION 173.
If it appears to the Governor-General of Saorstát Eireann, acting on the advice of the Executive Council, that a foreign country does not give, or has not undertaken to give, adequate protection to the works of Saorstát Eireann authors, it shall be lawful for the Governor-General by Order made on the advice of the Executive Council to direct that such of the provisions of this Part of this Act as confer copyright on works first published within the parts of the British dominions to which the benefit of this Part of this Act extends, shall not apply to works published after the date specified in the order, the authors whereof are subjects or citizens of such foreign country, and are not resident in Saorstát Eireann or the British dominions, and thereupon those provisions shall not apply to such works.
I move: To delete the section. I have been asked to move the deletion of this section. The proposal is to withhold from authors who are subjects of a foreign State which is not within the Berne Convention, and has no separate arrangements in this country, and who first publish work in the country of its origin — it proposes to withhold the privileges of copyright in the Saorstát. This, I think, is not within the Berne Convention.
This has no application to Union countries. I cannot very well understand where I am with the Senator because I think the section is outside what he is speaking of. The section reads: "If it appears to the Governor-General of Saorstát Eireann, acting on the advice of the Executive Council, that a foreign country does not give, or has not undertaken to give, adequate protection to the work of Saorstát Eireann authors it shall be lawful for the Governor-General, by order made on the advice of the Executive Council, to direct that such of the provisions of this Part of the Act as confer copyright on works first published within the part of the British Dominions to which the benefit of this Act extends shall not apply to work published after the date specified in the Order." It means that there are foreign countries with whom we want to make certain arrangements, and if it seems there is not mutuality between the two countries then the Governor-General may direct that we shall apply the Act.
CATHAOIRLEACH
It is for countries outside the Berne Convention.
I think it would be a very lopsided Act without this section.
Amendment, by leave, withdrawn.
SECTION 174.
Neither the repeal of the Copyright Act, 1911, by this Act nor anything contained in this Part of this Act shall add to, derogate from, or otherwise affect any copyright or other right acquired before the commencement of this Part of this Act under or by virtue of the Copyright Act, 1911, or any order made thereunder.
I move:—
Section 174. To delete in line 32 the words "commencement of this Part of this Act" and to substitute therefor the words and figures "6th day of December, 1921."
It is a formal drafting amendment.
Amendment put and agreed to.
I move:—
Section 174. To add at the end of the section a new sub-section as follows:—
(2) Section 4 (which relates to repeals) of this Act shall, in so far as it relates to the repeal of the Copyright Act, 1911, be deemed to have had force and effect as from the 6th day of December, 1921, and this Part of this Act shall be deemed to have had force and effect as from that date: Provided that—
(i) Notwithstanding anything contained in Section 163 (which relates to limitation of actions) of this Act an action in respect of an infringement of copyright between the 6th day of December, 1921, and the commencement of this Part of this Act may be commenced within three years after the commencement of this Part of this Act but not later, and
(ii) The provisions of Section 172 (which relates to the application of this Part of this Act to registered designs) of this Act shall not have force and effect until the commencement of this Part of this Act.
There is a good deal of legal doubt as to whether the Copyright Act of 1911 applied to this country after the establishment of the Free State, and this section is inserted to meet that. It is to preserve the Copyright Act which was here prior to the Treaty. The amendment which I am proposing adds a further sub-section to Section 4, which relates to the repeal of this Act. The Act would be deemed to have force and effect as from the 6th December, 1921, and this Part of this Act shall be deemed to have had force and effect as from that date, and so on. That is, it repeals portion of the Copyright Act of 1911 from the date of the Treaty, and it makes this Act retrospective so as to give a right back to the date of the Treaty. That necessitated also a proviso. Under a section of this Act you had to bring your action for infringement within three years from the date of the infringement, or it was necessary to provide, in case the infringement took place in the interval between the Treaty and the Bill, that three years might have elapsed so as to give them a new term of three years that is provided for in the proviso.
Amendment put and agreed to.
Section 174, as amended, agreed to.
Amendment 45 is to delete Section 175. I think that is provided for already.
CATHAOIRLEACH
You already passed two similar amendments.
I withdrew several amendments, but I would point out that those amendments depend on the provisions of Section 175. This section says that the Act shall extend beyond Saorstát Eireann and the British Dominions. I take it that the Copyright Act of 1911 is regarded as still running in this country. When reference is made to it in this section what is meant, I should say, is that the Copyright Act of 1911, in so far as it may have force in the Free State after the passage of this Bill, clearly cannot mean that the Act will cease to run in this country but it may be operative in some other country. If that were so it would have the effect of placing the control of privilege in the Saorstát in hands outside the Irish legislature. If this were the intention it would be necessary to use words sufficiently clear to express it. We have here a constitutional issue so great that the whole of the remainder of this Bill may become in comparison trivial and insignificant. The words, however, convey no such intention. They clearly mean that the Copyright Act of 1911 shall, so far as it goes, have force in the Saorstát. Let us inquire what the effect of the Act of 1911 will then be. We look at Section 4 of 175 and we find that the Acts mentioned in the First Schedule of this Act are thereby repealed to the extent mentioned in the third column. When we look at the First Schedule we find what portion of the Copyright Act is repealed. What will be the effect of Section 175? It would appear to me that the words, so far as they apply to "the British Dominions," would have no meaning at all. It seems to withhold from the British Dominions the privileges and rights it extends to other countries. Sub-section (2) of 175 seems to me to be a very grave constitutional declaration. The language of the sub-section is clear enough. It does not admit of any save of one construction. It assumes that there was one remaining application of the Copyright Act of 1911, and it goes on to assert, and this assertion seems to be independent of the question, whether or not the Copyright Act of 1911 remains. It suggests that the powers for certain privileges in the Saorstát reside not in the people of the Saorstát as represented in the two Houses of the Oireachtas, but with the King in Council. That is a grave constitutional issue. We are the guardians of the Constitution and liberties of the people; and we should not at this stage of the proceedings be looking to the King and Council for our rights under this Bill. Great Britain, of course, is a member of the Berne Convention, and I should suggest that the proper method of continuing the provisions of the Bill is to incorporate the provisions of that Bill. That is done in amendment 176.
CATHAOIRLEACH
What sub-section (2) says is that the Governor-General may, by order, do certain things which hitherto were done by the order of the King in Council. It does not say that they are to be done by order of the King at all. It is only by the Governor-General acting on the advice of the Executive Council in the place of the King's Council advising his Majesty.
My point is that this should be embodied in or made part of the Act and not left over to the Governor-General.
But you could not do that because you have a different agreement every time with a non-Convention country.
The Senator misread Section I. That is not dragging back the Copyright Act of 1911 with it. It seems, as far as the Copyright Act applies to Britain and the Dominions, that by getting reciprocity with Britain we get it with other places.
Does not that repeal the 1911 Act?
In its application to this country. Whatever be the circle marked out by the 1911 Act under British legislation we can have certain action of our own.
Amendment, by leave, withdrawn.
Amendments 47 and 48, by leave, withdrawn.
Question—"That Sections 175 to 178 stand part of the Bill"—put and agreed to.
SECTION 179.
(1) The publisher of every book published in Saorstát Eireann shall, within one month after the publication, deliver, at his own expense, a copy of the book to the trustees of the National Library of Ireland, a copy of the book to the authority having control of the Library of Trinity College, Dublin, three copies of the book for or in accordance with the directions of the authority having control of the National University of Ireland for the use of the respective libraries of the three constituent colleges of that University, and a copy of the book to the trustees of the British Museum, and such trustees."
I move:—
Section 179, sub-section (1). After the word "Dublin" in line 5 to insert the words "or of the authority having control of the National University of Ireland."
This is the section which deals with the supply of books to universities and public libraries, and the proviso which I ask you to insert in this amendment is one which gives the Minister power, by regulation, to comply with the request from any of those libraries that they should not be supplied with books they do not want. The authority having control of the National University was left out. That body only meets once every six months, and I would ask leave to alter the amendment and instead of the words "or of the authority having control of the National University of Ireland" to insert "or of the authority having control of any of the three constituent colleges of the National University of Ireland." It is for their libraries the books are required.
I would ask to have this held over because it is a difficult one to frame. I do not think the amendment of Senator Brown would have this result. It says "at the instance of any of the three constituent colleges of the National University of Ireland." The Governing body of University College, Dublin, has control over a constituent college, but it might, under the terms of this amendment, purport to act for University College, Cork. That would lead to serious trouble. I think we will accept it as consequential to the one passed in the Bill and since adverted to. The sense is clear.
Amendment, by leave, withdrawn.
Question—"That Sections 179 to 180, inclusive, stand part of the Bill"— put and agreed to.
SECTION 181.
(1) Part VI of this Act shall apply to an artistic work defining a design if and when such work is registered in the register of artistic works under this Act, and if, in the case of a published work, such work was first published after the commencement of this Part of this Act or, in the case of an unpublished work, such work was made after the commencement of this Part of this Act.
I move:—
Section 181, sub-section (1). To delete all from and including the word "if" in line 30 down to and including the word "and" in line 31.
This is an important amendment because if the clause were allowed to remain as it is we would be outside the Berne Convention. Registration is compulsory under the clause as it stands. The line I ask you to delete makes it voluntary.
Amendment put and agreed to.
Question—"That Section 181, as amended, stand part of the Bill"—put and agreed to.
SECTION 182.
(5) For the purposes of this section —
(a) inspection of a register includes taking copies thereof or of any part thereof, and
(b) "entertainment" means the presentation of any dramatic work as defined in Part VI. of this Act or the giving of a lecture as similarly defined.
I move:—
Section 182, sub-section (5). To add at the end of the sub-section the words "Provided that ‘lecture' shall not for the purposes of this section include ‘sermon.'"
This is a section which provides for a register being kept at a theatre or house of entertainment of that kind where extracts of the play or anything which is performed are kept. You want to exclude sermons.
Amendment put and agreed to.
Question—"That Sections 182, as amended, to 188, inclusive, and First Schedule, stand part of the Bill"— put and agreed to.
SECOND SCHEDULE.
I move:—
Second Schedule, B. Trade Marks (Page 74). To substitute "Section 123" for "Section 122" at 1b, 1c, 2b, and 3b respectively.
The object of the amendment is to correct some clerical errors.
Amendment put and agreed to.
Question—"That the Second Schedule stand part of the Bill"—put and agreed to.
Question—"That the Title stand part of the Bill"—put and agreed to.
The Seanad resumed.
Bill reported with amendments.