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Seanad Éireann debate -
Thursday, 4 Jul 1957

Vol. 48 No. 6

Industrial and Commercial Property (Protection) (Amendment) Bill, 1957—Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The sole purpose of this Bill, as its Long Title indicates, is to implement certain international conventions. The amendments contained in the Bill do not affect the basic principles of our law in regard to industrial property and copyright, which is embodied in the Acts of 1927 and 1929. The 1927 Act is a voluminous statute of 187 sections which covers the three distinct subjects of (a) patents; (b) trade marks and designs; and (c) copyright.

The Act of 1929 was short amending Act which was designed to effect certain minor amendments in the 1927 Act. There has been no amending legislation on this subject in the long period between 1929 and the present time, with the exception of (1) a short Copyright Act passed in 1929 to deal with pre-Treaty copyrights, (2) a short amending Act passed in 1947 to implement an international agreement for the preservation or restoration of rights of industrial property affected by the Second World War, and (3) a very short amending Act passed in 1949 to revise a section of the Principal Act relating to the fees to be charged by the Controller of Industrial and Commercial Property in respect of applications.

As stated, the purpose of the Bill is to bring our existing law into conformity with three international conventions, that is, to carry out the international commitments which we entered into in signing these conventions.The three conventions are: —

"(1) The revised Industrial Property Convention signed at London in 1934,

(2) The revised Berne Copyright Convention signed at Brussels in 1948, and

(3) The Universal Copyright Convention signed at Geneva in 1952."

There has been delay in implementing these conventions — the London convention in particular. The reason was that it was considered in the years after 1934 that a number of other amendments to the law about patents and trade marks might be necessary. Examination of this whole question was delayed by the war, and after the war it was found that the conventions on copyright also were likely to be revised as a result of further conferences which it would be possible to hold on the return of normal conditions.

Such conferences were in fact held in 1948 and in 1952 and it was then considered that, for the purpose of implementing outstanding conventions it will be desirable to introduce a single statute for that purpose only. Accordingly the present Bill is confined to the amendments of existing law necessary to implement the conventions, and it is not designed to effect the various changes in our law which might be necessary or desirable to make it cover all the developments which have occurred in recent years in the fields of industrial property and of copyright.Proposals for amendments have been put forward from various quarters, and these will be examined with a view to the introduction of such amending legislation as the Government may decide upon.

As regards the first convention, the object of the International Convention for the Protection of Industrial Property is to develop and unify the laws and practices of member countries in relation to the protection of industrial property and to secure the grant of reciprocal rights between member states. The convention was revised at the London Conference of 1934 which was attended by a delegation from this country. The convention is a world-wide organisation embracing some forty-three member states. It is administered by the International Union for the Protection of Industrial. Property, a body with headquarters in Berne, which is concerned with patents, trade marks and designs.

Under our existing law every application for a patent, except those made under the international convention, must contain the name of the true and first inventor, but the true and first inventor is not mentioned in the patent. Section 2 of the Bill provides, in accordance with the revised convention, for the mention, on his request, of the name of the true and first inventor in the patent granted for an invention.

Section 4 extends to aircraft and land vehicles temporarily imported into the State the immunity from action for infringement of patent rights now enjoyed by certain foreign vessels in respect of inventions used in the machinery or appliances connected with the vessel.

Sections 5 and 6 relate to designs. It will be no longer necessary for an article to which a registered design is applied to bear a prescribed mark to denote that the design is registered; and the registration of a design will not in future be cancelled merely on the grounds that it is not being utilised industrially in this country.

Section 7 grants applicants for patents under the convention the same rights to a single patent for cognate inventions as are at present accorded to non-convention applications.

Many of the amendments required to implement the conventions involve more changes in procedure or in the periods of time in which certain things are to be done. Examples of this kind of amendment are the provision to prevent abuse of monopoly rights in Section 3, the international arrangements connected with applications for patents, and for registration of designs or of trade marks in Section 7.

Two of the three international conventions with which we are here concerned deal with the subject of copyright. This country is a member of the International Union for the Protection of Literary and Artistic Works, commonly called the Berne Copyright Union. The international convention commonly known as the Berne Copyright Convention was drawn up in 1886 and was revised at various international conferences since then. The most recent revision, that with which we are now concerned, was carried out at Brussels in 1948. The revised convention signed on behalf of this country on that occasion was signed by the undermentioned other states: Australia, Austria, Belgium, Brazil, Canada, Denmark, Spain, Finland, France, Great Britain, Greece, Hungary, India, Iceland, Italy, Lebanon, Liechtenstein, Luxembourg, Morocco, Monaco, Norway, New Zealand, Pakistan, Netherlands, Poland, Portugal, the Holy See, Sweden, Switzerland, Syria, Czechoslovakia, Tunis, South Africa, Yugoslavia.

The convention provides for reciprocal rights between countries which are members of the Berne Union and the main principle of the convention is that a work first published in any member country is accorded the same protection in each of the other countries of the union as if it were first published in each of those countries.

Fundamental changes are not required to bring our legislation into conformity with the Brussels revision of the Berne Convention. Implementation of the revised convention is effected by Sections 9, 10 and 12 of the Bill. Section 156 of the 1927 Act provides that any time after the expiration of 25 years from the death of the author of a published work reproduction of the work is permitted provided the publisher pays the copyright owner 10 per cent royalties. This provision conflicts with the Brussels revision and its repeal is necessary in order to enable this country to accede to the convention.Section 9 of the Bill accordingly grants absolute protection for the full agreed term of copyright, i.e. the author's or artist's lifetime and 50 years after his death. In the case of works of joint authorship Section 10 extends the period of copyright to 50 years after the death of the author who dies last in lieu of the existing provision of 50 years after the death of the author who dies first. Section 12 in effect extends copyright protection to all cinematographic works; and also alters the definition of "simultaneous publication" in the 1927 Act from within 14 days to within 30 days.

The second convention relating to copyright is the Universal Copyright Convention. This convention was the culmination of action begun by Unesco in 1947 and it was signed at a world conference held in Geneva in 1952. This was the first occasion on which the United States of America and the other countries of the Pan-American Union entered into an agreement with the countries of the Berne Union in the matter of copyright. Because of the many interests covered by this convention, the measure of agreement embodied in it is necessarily restricted to basic principles; implementation of it will not involve any fundamental change in our law.

The following states in addition to this country were represented at the Geneva Conference and signed the Convention, on that occasion: Andorra, Argentina, Australia, Austria, Brazil, Canada, Chile, Cuba, Denmark, Finland, France, Germany, Great Britain, Guatemala, Haiti, the Holy See, Honduras, India, Italy, Liberia, Luxembourg, Mexico, Monaco, Netherlands, Nicaragua, Norway, Portugal, Salvador, San Marino, Spain, Sweden, Switzerland, Uruguay, the U.S.A., Yugoslavia.

Sections 8, 11 and 13 of the Bill arise out of the Universal Copyright Convention. Section 8 provides that copyright in a protected work shall, as regards translation into the Irish language, cease to exist at the expiration of seven years from the first publication of the work instead of ten years as at present, unless the author has the work translated into Irish in the meantime. Section 11 enables the Government to protect by Order the works of a national of a contracting State first published in a non-contracting State. Section 13 provides protection for the unpublished and published works of the United Nations, its organs and specialised agencies, and the Organisation of American States, and it empowers the Government to extend copyright protection to such other international organisations as they may think fit and specify by Order. Implementation of the Conventions will not involve any additional costs of administration. I recommend the principle of the Bill for approval by the House.

I should like the Parliamentary Secretary to tell us what is the real necessity for us, a small country, adopting this convention. Difficulties may arise for a small manufacturer here who may find that he is infringing copyright or some other right and he will have to defend himself against very big industrial or other corporations outside the country. It is quite possible that the small manufacturer here could be involved in litigation which he could not afford and he would find that it was better for him not to manufacture that article because he would not be in a position to defeat a big corporation. It would almost be like a private individual going to law with the State. These are the only remarks I have to make with regard to this copyright procedure. I do not see that it can be very advantageous to us when, in this convention, we are giving protection only to other countries and doing little or no good for our own manufacturers. If we were making claims in foreign countries to patent our own ríghts, we would have a reciprocal advantage, but at present it appears that we are going to lose on the swings and gain nothing on the roundabouts.

The point raised by the Senator is quite novel and I have had nothing like it brought to my notice in the Dáil. All I might say is that the legislation now before the Seanad is an implementation of agreements made at international conventions at which the Parliament of this country was represented after, I take it, due consideration of the issues involved. The Senator's objection would now bring me back to the original decision — and I am not concerned with the original decision—of this country to be a participant in these international conventions.All I am putting before the Seanad is a measure which implements what was done at these conventions.

If the Senator has any notion that there will be a binding obligation on our nationals to protect their copyright and other interests under this Bill, I do not think there is anything in the Bill into which that could be read. It does provide them with the ways and means for copyrighting property, if they wish so to do. The matter is put more succinctly for me in a note which I received and which says that corporations abroad are duly protected so far as inventions are concerned when the foreign corporation takes out a patent here to protect its invention.

I do not know whether there is any other comment I want to make on the Senator's objection, if I may so regard it. In so far as it is an objection, it must be made to relate to the original decision to take up these conventions. Some of these conventions were made as far back as 1934 and are implementing some of these decisions in this Bill.

Question put and agreed to.

An Leas-Chathaoirleach

Next Stage?

Perhaps the Seanad would take it now?

I was wondering if interested parties would like to examine the position. Perhaps it would be better if we did not take the other Stages until next week.

I have no objection myself and I have not been advised officially of any great urgency about the matter, but I might inform the Seanad now of inquiries which I have personally received, as Parliamentary Secretary, from publishers in this country as to when this legislation was to be effected. Apparently, there are interests in the country to be served by the speedy implementation of this Bill. I have no other information on the matter beyond that.

We are doing something which was agreed to in 1934 and I do not think we should object——

An Leas-Chathaoirleach

There is no objection to the Committee Stage being taken now? In respect of the Committee Stage, there are two amendments circulated in connection with Section 5 and Section 13. This is at short notice. I take it that the Seanad are prepared to take the Committee Stage and agree to the acceptance of these amendments as being in order, and discussed.

Did we agree to take the Committee Stage?

An Leas Chathaoirleach

To take it now? I understood that.

Are there amendments?

They will be circulated.

There is no need for this rush really. We have not had an opportunity of looking at the amendments.Although we might not understand them, we should at least make the effort.

We should not rush the measure through like this. I have not seen the amendments.

An Leas-Chathaoirleach

They will be circulated. It is a matter for the House, but I understood that the Leaders had agreed to go on with the Committee Stage. The Chair is prepared to accept the views of the House on the matter.

Ní miste é chur ar gcúl go ceann seachtaine.

Ní miste liomsa é chur ar gcúl. Maidir leis na leasaithe seo, níl ionta ach leasaithe dréachta. Ní athraíonn siad brí an Bhille beag nó mór. Níl i gceist ach go bhfuil focail áirithe níos feiliúnaí ná a chéile.

These amendments do not in any way alter the meaning of the sections. They are merely drafting amendments. If the Senators look at them, they will recognise that immediately.

Is it a question of whether the Dáil will be able to consider the Bill before going into recess?

An Leas-Chathaoirleach

Yes; I take it that that is the point.

Under the circumstances, I think we should allow it.

I think what Senator Murphy meant was that since it took from 1934 to bring in this legislation, it would be no harm to adjourn consideration of the Committee Stage until next week and that another week will not make any difference. As the Parliamentary Secretary said he would be prepared to wait for a week, we should have an opportunity of seeing if there are any persons affected in this House. We do not generally give all the Stages to a Minister or Parliamentary Secretary in this House, unless we are asked to do so for good reasons.

Mr. O'Donovan

I rather think that Senator Burke misinterpreted Senator Murphy's remarks. His point was that since we were doing something which was agreed to in 1934, there was no harm in the House passing the legislation now.

An Leas-Chathaoirleach

Let us not scatter our thoughts too widely. I felt that the House had agreed to go on with the Committee Stage now. Perhaps I was in error, but I heard no voice raised against that point of view. There is a consideration advanced by the Parliamentary Secretary that these are drafting amendments which, if inserted in the Bill, would enable the Bill to be returned to the Dáil before it rises this evening for the summer recess.

In those circumstances I withdraw my objection.

Agreed to take remaining stages to-day.

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