Seanad Éireann debate -
Wednesday, 24 Oct 2001

Vol. 168 No. 8

Industrial Designs Bill, 2000: Second Stage.

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

Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt)

I bring the Bill before the House as part of a broader programme of intellectual property law reform which has been ongoing over recent years. Intellectual property rights have become increasingly important to the economy and to society in general in recent times and this has been reflected in the increased activity on the legislative front, both domestically and internationally, in the past decade or so.

On the domestic front, in continuation of the process that started with the Patents Act, 1992, and the Trade Marks Act, 1996, the Government introduced the Intellectual Property (Miscellaneous Provisions) Act, 1998, and the Copyright and Related Rights Act, 2000, both of which significantly advanced the systems of rights and remedies for the creators and owners of intellectual property. This Bill represents the last leg of this initial programme of legislative reform and, as such, marks a significant milestone in the intellectual property arena in Ireland.

I refer to the economic significance of intellectual property law. Intellectual property rights are a key factor in promoting investment in innovative activity in an economy. Innovation is a critical element in maintaining a competitive edge for an economy in the face of increasing international competition and economic globalisation. Any hopes of sustaining economic growth in the longer term depend significantly on the ability of an economy to adapt and achieve technical progress. Investment in research and development and a high valuation and prioritisation of innovative activity must be encouraged to give this country a chance of sustaining in the longer term our current economic well-being.

Intellectual property rights are an essential part of the support and promotion framework which can ensure that Irish business continues to invest in and develop innovative and creative activity. In addition to the intellectual property programme, and with a view to driving competitiveness in the longer term, the Government has established, for example, the technology foresight fund, setting aside up to £560 million or €711 million over seven years for the creation of a critical mass of world class research, initially in biotechnology and information and communications technologies.

The role to be played by industrial design in this process should not be underestimated. Design has a crucial role in the process of product development and marketing and, at a broader level, in the continued development and growth of product markets. Prior to the 20th century industrial design endeavour was recognised as protection in law in respect only of textile products.

However, the growth of society and the growth of mass production techniques across all product markets have seen the scope of industrial design protection widen dramatically to cover countless product lines. The facts are now clear – if you are in the business of manufacturing, whether by industrial or handicraft means, products for consumption then industrial design is central to your operation, right through manufacture to marketing and end-sale. To succeed in today's highly competitive and globalised markets, you must invest in quality design.

Many Irish designers have received great recognition and have had remarkable success both at home and abroad for their excellence and individuality. Irish textile fashion designers have been at the cutting edge of international design and have exhibited around the world to great acclaim. Irish crystal and glassware products are household names throughout the world and are the subject of a massive export industry. On the domestic front, Irish design expertise has blossomed and currently boasts sufficient diversity and excellence to compete successfully with the best of imported material. Our success in this area is based on quality and, to no small degree, on our Irish culture, as witnessed by a strong and vibrant craftwork and traditional handicraft industry that continues to thrive in many parts of the country. Ireland has also been at the leading edge of modern design, including the area of graphic design which is so significant in the context of the information society. The excellence and hard work that has gone into these areas must continue to be protected against the potentially devastating effects of plagiarism and this Bill aims to provide the appropriate level of support in the law, by providing strong legal remedies and criminal penalties to ensure that the necessary level of protection is achieved.

Members will recall the great work on the Copyright and Related Rights Bill in this House. While copyright law is concerned with creativity and, in respect of artistic works at least, the aesthetic expression of intellectual creations, industrial design law is also concerned with conceptual and artistic creativity. There is one significant difference, however, and that is the fact that industrial design is centered on the appearance of products rather than on the creation of individual works of art or individual self-contained expressions of the intellect. In that way, I suppose we could refer to industrial design protection as a form of ‘applied copyright' because it is concerned with practical aspects of physical products. Industrial designs are essentially the appearance of products that are made by industrial or handicraft means. They include such features of appearance as shape, contours, lines and colours. Examples of familiar designs would be the shape of a Coke bottle, the patterns used on wallpaper and carpets and the contours of crystal glassware. If we look around this Chamber we can see many examples of industrial design in the furniture, carpets and other aesthetic features of our surroundings. This Bill will protect these designs against, for example, the illegal copying of the design, the illegal sale of products incorporating the design and the illegal import or export or other use of a product incorporating the design.

This Bill is in essence modernising legislation. The fact that the landmark 1927 Industrial and Commercial Property (Protection) Act, the first comprehensive piece of intellectual property law to be enacted in the State, is still in force in respect of industrial designs is, in itself, sufficient reason to revisit this aspect of the law. The adoption of a European Union directive on the legal protection of designs in 1998 also offers both an opportunity and an obligation to overhaul the current legislation and to bring this aspect of intellectual property law into the new century.

In relation to the content of the Industrial Designs Bill, 2000, let me point out a few general facts about industrial designs and the law. It is the appearance of products that is the subject of industrial designs protection, as distinct from the function of the product. To use the car tyre as an example, it is the shape of the tyre or the contours of the thread grooves that may be protected under industrial design while the function, which in this case is to enable the car to be driven on a surface – or with new tyre designs to increase the technical control that the driver has of the car on the road – is not protected at all by the registration of the industrial design. It may be possible that the function could be patentable as an invention and thus protectable under patent law, but that is not a matter for this legislation. In that sense, it could be said that protection under this Bill is not to be given to products that re-invent the wheel. Rather, it is the aesthetic appeal of an industrial design that is protectable under this Bill. The appearance of many products can be the decisive factor in determining whether a consumer buys that product or opts instead for a competing product. In this way, a poor design might undermine the commercial potential of a very high quality product. As a result, designers will spend a lot of time and effort, and businesses a lot of money, on achieving the best possible design for their products. This investment of time and money must be rewarded to encourage its continuation.

The most effective and transparent manner in which to protect industrial designs is through a system of registration. This offers legal clarity and certainty and provides a system of accessible and concise information on the existence of rights and on registered rights holders. The production of evidence of registration greatly assists the designer in moving quickly and decisively to obtain legal redress, through an injunction for example, to prevent the infringement of his or her rights and to stop the continuation of such infringement. The existence of a public register also offers the public and businesses important information on pre-existing rights and the expiry dates of such rights. This is very useful information for future planning and expenditure decisions of directly competing industries and of industries and businesses that rely on designs to provide the best possible finish for their own product.

As part of the update of existing law, this Bill clarifies the legal position regarding authorship and ownership of industrial designs and provides a clear statement of the rights that attach to the registration of the design under the new law. These provisions offer significant support to the designer in prosecuting and defending his or her rights in civil legal cases. The existing system of law is also amended to allow invalidation actions to be taken before the Controller of Patents, Designs and Trademarks on less restricted grounds than in the current law. This should prove useful, practical and cost-efficient in terms of time and expense for users of industrial designs.

The Bill includes new provisions on the restoration of protection of designs that has lapsed despite due diligence on behalf of the owner in maintaining the registration and provides an exception which permits prior use of a registered design to be continued in specific circumstances, even after the design has been registered under the new law. These provisions will facilitate operation of sensible and reasonable law in practice and will assist the smooth transfer to the new regime of protection, particularly for those who have already committed time and resources in good faith to the exploitation of a design and subsequently find that they have no right to use the design.

The Bill restates in a clearer, more comprehensive manner the civil and criminal remedies that exist under the current law and improves them. The civil remedies include access to injunctions and damages and delivery up of infringing products. They also contain protection for those who, unaware of the existence of rights to a design, innocently infringe the right. The Bill proposes strong criminal penalties along the lines of those in the recent copyright legislation. This brings consistency across intellectual property law in this respect and a coherent approach to protection of the various forms of intellectual property. The Bill also provides for a system of compulsory licensing, a mechanism to allow the manufacture of a product where demand for that product is not being met or is not being met on reasonable terms.

One of the principal aims of this Bill is the implementation of the EU directive on the legal protection of designs that was adopted in 1998. It is important that this directive is implemented at the earliest possible date to demonstrate that our recent commitments to bring Irish intellectual property law into line with international commitments are being met. The Bill proposes that many of the legal definitions in the directive be directly transposed into our law. This will eliminate any possibility of incorrect or inconsistent application of the directive. The Bill also introduces new novelty and individual character tests, which are fundamental to the directive. The revised novelty test effectively means that in general, a design must not have been made available to the public within the European Economic Area prior to application for registration in order to qualify for protection. This is a much broader novelty test than exists under current law and is a significant development in terms of the achievement of a single market within the European Union.

I mention in particular the position under the directive of industrial designs that constitutes spare parts used for the repair of complete products. Existing Irish law does not make specific provision with respect to spare parts. Therefore, if a design of a spare part meets the criteria for protection under the existing Irish law, it shall be protected. The terms of the directive include provisions that deny protection of the design of spare parts that are not visible during normal use of the product and the Bill implements that aspect of EU law. Our current Irish law makes no specific provision preventing the registration of spare parts used for the repair of complex products to restore their original appearance, so the opportunity has been taken in the Bill to regularise this position and to liberalise the market for the production of spare parts in Ireland. This means that while there would be no protection for a spark plug in a car as it is not visible during normal use, there would only be limited protection for, say, a wing mirror. For example, Ford could prevent other manufacturers from using the design of the Ford mirror in their cars but Ford could not prevent a spare part company making mirrors for the purpose of replacing damaged mirrors on Ford models. This is a very good provision in relation to consumers and the economy in general.

On the international front, the Bill enables the ratification and implementation of the Geneva Act of the Hague Agreement on the International Registration of Industrial Designs. This treaty was concluded in 1999 and provides for the establishment of an international registration system for industrial designs that is likely to attract large membership among the member states of the World Intellectual Property Organisation and will offer the possibility of protection for Irish designers in many different countries through a single application. Under current arrangements, Irish designers would have to apply individually to each country, pay each country a separate fee and probably hire local legal expertise to assist in achieving registration in those countries. There are obvious cost and time savings involved in having access to a central, dedicated system that will operate to high standards of performance and will process applications more efficiently than the currently available options offer. The regulations that I will, in time, bring forward to effect ratification of the Geneva Act of the Hague agreement will require the positive approval of both Houses of the Oireachtas. The Bill will also ensure that Ireland's industrial design law is fully compliant with the agreement on Trade Related Aspects of Intellectual Property Rights, colloquially known as TRIPS, annexed to the World Trade Organisation agreement. These developments will permit Irish business to fully participate in the various international systems for protection of industrial designs and Irish society to avail of the undoubted benefits they offer.

It is my intention that regulations made under this Bill in the future will facilitate e-business, including electronic payments and, eventually, electronic filing of applications. It is critically important that Irish business and the Irish public have quick, secure and cheap access to information on registered intellectual property rights.

Procedures and enhanced systems to enable the Patents Office to meet that challenge and to bring the industrial designs registration system into the modern era are currently being prepared and will be developed on a structured basis over time. In practice, it is my intention that designers will, in time, be able to apply for registration electronically and access the designs register on-line via the Internet. At present a person seeking information on registered designs must request the relevant information by post or must visit the Patents Office to physically view the paper-based register of designs. This is most impractical and does not permit electronic searching of the designs database or timely access to information for Patents Office users. Indeed, this process will need to be reflected in respect of all areas of intellectual property services, in line with the improved access to public services to be provided in the future. Only then can we say we have truly implemented e-government in this area of public services.

I appreciate that this debate is not the most light-hearted and deals with technical material but it is important, as are the other areas of intellectual property which we have dealt with in previous legislation. I emphasise that while the Industrial Designs Bill is only one element of the overall ongoing programme of reform of intellec tual property law in Ireland it is, in itself, a very significant step forward. It will have a significant beneficial impact on design industries and craft businesses, which rely heavily on the protection of the law to underpin the substantial investments they make in developing designs, but will also impact on virtually every producer and product market. The Bill will also contribute to the modernisation, simplification and user-friendliness of the Irish legal code, as well as enabling Ireland to meet all its EU and international obligations in the industrial designs area. It will serve to promote and encourage innovation and creativity in the development of products and will offer the possibility of appropriate financial reward for those who engage in and invest in the creation of intellectual property. This Bill achieves a fair balance between the need to encourage and protect innovation and ensure that the interests of consumers are respected. I commend the Bill to the House.

Mr. Coghlan

I welcome the Minister of State to the House. He referred to the time we spent debating the Copyright and Related Rights Bill. How could I ever forget it? The debate, which went on for many days and nights, was not all of my making or that of the Minister of State. I hope the end product justifies our deliberations. I thank the Minister of State for his overview of the Bill and for the information he so kindly made available to me through his office.

Fine Gael fully supports this measure. It is absolutely necessary and much needed for the modernisation of industrial design law, which is currently governed by an Act of 1927. Fine Gael also fully accepts the requirement to implement the EU designs directive, which is due to be implemented by 28 October. As this is 24 October, I wonder how that deadline can be met. I understand this Bill is needed to allow us ratify and give effect to the Geneva Act of the Hague Agreement on the International Registration of Industrial Designs. It is, of course, needed to ensure that the agreement on Trade Related Aspects of Intellectual Property Rights is fully implemented in Ireland.

The Bill properly makes provision for the registration of design and defines a registerable design as the appearance of a product produced by industrial and handicraft means, resulting from features such as shape, line, contour, colour etc. Any design aspect of any product is covered. However, artistic designs and drawings are generally within the scope of copyright law rather than industrial design law. The Bill lays down that a design should be deemed to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such user by a design which has been made available to the public before the filing date of the application for regis tration or, where priority is claimed, the date of priority.

Design must be incorporated in a product to qualify for protection. Examples given are the distinctive shape of different bottles or the design thereon, such as the Coca Cola bottle, as the Minister of State mentioned. The same may apply to a Club Orange bottle, but I am not sure about that. It should certainly apply to a Kerry Spring bottle, which has a distinctive light blue colour, although it ought perhaps to be green and gold. Another distinctive bottle which comes to mind and which the Minister of State would appreciate is the Chateau Neuf du Pape bottle, which has a distinctive Papal keys design thereon.

The Bill sets out to define industrial property rights as including patents, trade marks and industrial designs which therefore require a registration process, the details of which are incorporated in the Bill. It follows, therefore, that industrial designs to be protected as intellectual property must be registered and the Bill establishes procedures to continue to enable registration and to make registration information available to the public in the most accessible manner possible.

It is interesting to note that protection under the Bill relates to the appearance of the product only and does not cover its function, which may be protected as a process under patent law. As well as complying with the legal requirements of the EU directive, it is good that the Bill extends by ten years, from 15 to 25 years, the protection afforded to proprietors of registered designs and extends the protection of copyright to include all registered designs. When enacted it will allow the owners of these design rights better scope to enforce their ownership by referring matters to the Controller of Patents, Designs and Trade Marks or to the courts.

The provisions in the Bill which deal with rectification procedures and set out the basis where persons are not entitled to register design rights or to adopt another person's design rights for their own use and benefit are to be welcomed. The Bill enables the ratification of the Geneva Act of the Hague agreement and introduces new novelty and individual character requirements for designs. It establishes power for the Minister to specify procedures for application or registration of designs and for the maintenance of patents of a statutory register of designs by the controller.

This is a complex and technical Bill and is one of a number in the area of intellectual property necessary to allow Ireland keep pace with international developments and modernisation. Important advances have been made in industrial design. The manner in which many of our designers have kept pace with best international practices is to be commended. The Bill centres on the EU directive on the legal protection of designs adopted by the Council of Ministers in September 1998 and published in October 1998. It came into force on 17 November 1998 and it was announced that member states had three years to implement the directive. When is it intended to have all Stages of the legislation completed in this House? Fine Gael supports the harmonisation of laws in those areas directly affected in the working of the Internal Market. The matters of penalties, remedies, sanctions and enforcement will remain in our hands. I am pleased the Government took this decision following publication of the directive.

I understand there is an exemption from registration in Britain when dealing with articles of an artistic or literary nature. Design or sculpture works may be accepted for registration in Ireland. Will the Minister comment on the exemption from registration or otherwise in respect of articles of a literary or artistic nature? An application for registration of a new design must be one not previously published in this State. The matter of novelty is considered to be of great importance. In other jurisdictions there have been difficulties in deciding what is new and original. It seems that the test applied to consider novelty is one where an original should be interpreted as referring to a design that no previous designer had created for any purpose. A new article would be in reference to a design which was not in this sense original but was new in so far as it was the first time it was the subject matter of an application.

The directive sees significant changes in Irish law as far as novelty is concerned. For the first time we have introduced the concept of universal novelty. Under current law only local novelty is required. There is also a subjective test as prior art must be shown to have become known to the relevant industrial sector within the EU. Otherwise the requirement of novelty in individual character does not appear to differ significantly from our local test applied under existing law. The directive does not require examination and it is questionable whether the novelty examination carried out by the Irish Patent Office for prior Irish designs would be worthwhile in the context of this new universal novelty. The European office that will deal with design registration will be based in Spain. Will there be an Irish representative there? What will the relationship be between the European and Irish patent offices? Will Ireland have a representative on the international inspectorate? What will be the changed role and function of the patent office? Fine Gael is happy to support the Bill.

Ms Cox

Today we are looking at the modernisation of industrial design laws to meet the demands of the information society. The current Irish law on industrial designs dates primarily from 1927. It is well overdue a comprehensive overhaul. It is possibly the oldest legislation since the foundation of the State to survive on the Statute Book. It has survived a world war and the falling of the Berlin Wall, but it cannot outlast the information technology revolution. The Industrial Designs Bill, 2000, is therefore required to reflect the current state of technological development in society and to provide a modern system of protection for creators of industrial designs. We must be conscious of the need to provide excellence in public services and to facilitate businesses that wish to carry out their transactions electronically in the information society era.

Legislation is required on many fronts to facilitate e-business and e-government, but none more so than in the area of industrial regulation and where costs to business are involved. I am delighted this Bill will eventually provide Irish business and the Irish public with quick, secure and cheap access to information on registered intellectual property rights. Proposals to meet that challenge and to bring the industrial designs registration system up to date will have to be developed. People should be able to access the designs register on-line via the Internet. They should also be able to conduct their business with the State in the most efficient and cost-effective manner. If it involves electronic transactions, then this should become a reality.

I support the Minister's view that this process will need to be reflected in respect of all areas of intellectual property services. This is in line with the improved access to public services to be provided through the public services broker model recently proposed by the Taoiseach. Businesses should be able to communicate in their preferred manner with the State in respect of obtaining their property rights. The public must also have access to information on publicly registered rights of this nature. Such information must be available on demand in a format that is useful and relevant and in a manner that the public can easily access. I am reassured to hear the Minister's comments on the improvements in this regard that this Bill will herald.

We have all read the rave reviews of our Celtic tiger economy. We have also read of the possibilities that exist to create a society that is capable of standing on its own and of taking its part fully on the world stage. Senators will be aware of the great achievement and honour attained by Ireland this year when we took our seat on the Security Council of the United Nations. There is no better time than now to increase our international profile and to demonstrate our commitment to co-operation in the international arena. This applies equally in the area of intellectual property rights and security and other forms of international relations.

I note that this Bill contains measures to bring Ireland fully into line with our EU commitments and places us at the forefront of international protection for industrial designs. It strengthens the protection for industrial designs by raising the standard of design protection to meet the requirements of the EU directive on the legal protection of designs. It goes beyond the minimum requirements of that directive in the interests of Irish designers, Irish industry and citizens. The broad range of strong civil and criminal remedies and penalties ensures that innovation and creativity in the field of industrial design will be encouraged and well protected. As one of the first member states to bring a measure before our national Parliament, we are setting an example for our partners in the EU and underlining our commitment to making the single market work. In this regard, I congratulate and applaud the Minister.

I further note that the Bill facilitates access for Irish designers and owners of intellectual property rights in designs to the Geneva Act system under the Hague agreement concerning the International Registration of Industrial Designs. This is further evidence of Ireland's commitment to participate fully in the international intellectual property community and in the World Intellectual Property Organisation. When operational, this new Hague system will permit Irish rights holders to access, in a cheap and effective manner, protection for designs in potentially over 150 countries by a single application to an international designs office in Geneva. Once again ratification of the Geneva Act of the Hague Treaty will place Ireland at the forefront on nation states in committing to co-operation and implementation of an international treaty. This is to be commended.

The most important outcome of this legislation on industrial designs from a business and competitiveness perspective must be the creation of a system that is easy to access, inexpensive to use and as user friendly as possible. This means that the most practical and efficient methods by which businesses can avail of the protection afforded by this Industrial Designs Bill must be provided. I congratulate the Minister on achieving this outcome through the legal clarity provided in the text of the Bill, the facilitation of easy access to registration of designs and the adjudication of disputes on the validity of registered designs before the controller rather than just the courts. These measures will contribute to the reduction of red tape and costs for industry in ensuring that its industrial designs are fully protected.

The provision to enable Ireland to ratify the Geneva Act of the Hague Agreement on the International Registration of Industrial Designs is particularly welcome in this regard. The Hague agreement, as I understand it, operates under the auspices of the World Intellectual Property Organisation and offers the possibility of registration in over 150 countries on the basis of a single application to the designs office in Geneva. The Geneva Act will become operational over the next few years and will offer Irish business the prospect of significant cost savings by removing the requirement to lodge separate applications in each of the 150 countries in which protection is sought.

Given the significant increases in exports over recent years and the development of an increasing number of markets for Irish products, it is vitally important that Irish businesses can access legal protection in a large number of countries through a simple system that is centrally controlled and co-ordinated. The costs in time and money in accessing legal protection for intellectual property in various countries can often be daunting and has frequently resulted in Irish businesses deciding not to enter a market or make their products available in markets where intellectual property protection is not strong. They have, therefore, suffered the losses associated with plagiarism and counterfeiting. The provision in this Bill which enables the ratification and implementation of the Hague system in Ireland cannot be over-estimated and the Minister is to be commended in taking such strident action in this regard.

The provision of strong legal remedies for infringement of registered industrial designs is also to be welcomed by business interests. The move to provide greater access to the courts for the purposes of injunctions, damages and validation of rights in registered designs places the power to protect designs and to invoke the remedies provided in this Bill in the hands of the registered proprietors of industrial designs. This will release the resources of the State from administrative work in matters such as examination for novelty of designs to focus on providing more efficient and effective systems and procedures for the registration and protection of rights in registered industrial designs. It should also reduce the overall costs to industry in providing a system of protection for industrial designs. It is important, as we move into the era of globalisation, that we continue to be focused on our competitiveness, particularly in terms of the export market.

I emphasise the importance of the legal protection and support in the law for registered proprietors of industrial designs against piracy and infringement. We have all been made aware in recent times of the damage such activities can do to the economic interests of businesses which rely on intellectual property protection to continue the research and development activity upon which their products and businesses depend. The recent debate in this House on the Copyright and Related Rights Act, 2000, highlighted, as both the Minister of State and Senator Coghlan noted, the significance of strong intellectual property laws in attracting and retaining foreign investment in areas such as software and information and com munication technologies. The reality is that unless appropriate and effective protection is provided in the law, there will be less incentive for business to invest in research and innovative activity in Ireland. Given the mobility of capital and investment in the move towards globalised markets, we must take every step necessary to retain the country's attractiveness as an investment location. The knowledge that our intellectual property laws are in line with the best international standards is crucial in this regard.

I am pleased the Bill provides a clear and broad set of rights for industrial design proprietors as well as a comprehensive range of civil and criminal remedies for owners of and applicants for registered designs. These measures bring industrial design law into the new millennium and replace the existing provisions, which are completely out of date and fail to properly serve the intellectual property community. The establishment of substantial fines and penalties for offences under the Bill sends a strong message to infringers, pirates and those who rip off the people providing the innovations which drive our highly successful economy that there will be a heavy price to pay for such activity and the State will no longer put up with such fraudulent and harmful activity.

The combination of all these measures will provide a robust, modern and effective system of protection for the creators of intellectual property in Ireland. It is our aim as a country to be a leader in technological development and we have made and will continue to make huge investments in supporting research and development activity in the economy. It is vital that the supporting laws are in place to further encourage the creativity and development of innovations in Ireland. The intellectual property area is a key element in that regard. I am very pleased this type of legislation is being introduced. I commend the Minister of State for bringing it before the House and look forward to its passage in the very near future.

Mr. Mooney

Like my colleague, Senator Cox, in her excellent contribution, I acknowledge not only the presence of the Minister, but also the context in which he joins us. He has been in the vanguard of advancing very significant copyright legislation, much of which was initiated in this House. This is an acknowledgement of the important role this House plays in developing primary legislation. The House will ensure that when the Bill leaves the House there will be very few loose ends to tie up. I am sure the Minister of State is satisfied that when he enters the bear pit of the Dáil Chamber, most of the hard work will have been completed in this Chamber, leaving just a few elements in the legislation to be teased out and tidied up.

This legislation marks the continuation of a process commenced several years ago after it finally became apparent that Ireland could no longer rely on existing copyright legislation. The result has been strengthened intellectual copyright law and the introduction of the legislation before us to strengthen industrial design copyright. I could not help reflecting on the position Ireland would be in had we not embarked on this significant legislative review. Although our economy has grown apace in recent years and we punch above our weight internationally, size is irrelevant when the matter on hand is the provision of adequate legislative frameworks in which industry can operate.

I cite the example of China and Malaysia which were seen as pariah countries for many years due to their failure to introduce a proper legislative framework. So widespread was the problem of piracy that the Americans, in whom a vast amount of original copyright was vested, were on the verge of taking these two countries to international courts. They also imposed economic sanctions until proper legislation was introduced. We were caught in the tail stream of the American initiative when we passed legislation, regarded as unprecedented at the time, relating specifically to computer software under the TRIPS agreement as part of obligations to the World Trade Organisation. I believe I am correct in asserting that that was the context in which that legislation was introduced.

It was introduced because it had been proved by companies operating here in increasing numbers that our legislative framework was not strong enough to prevent wholesale piracy of software. We moved extremely quickly once it became apparent that it would undermine to some degree the investment framework carefully nurtured and developed by the Government since it came to office and by other Administrations since the beginning of the 1990s. It was an indication that the wheels of bureaucracy could move and move fast. Things do not happen by chance in government – they are made to happen. Deputy Kitt's tenure of office as Minister of State with responsibility for this very significant area leaves an impressive and valuable legacy. As they say in show business, he will be a hard act to follow. I know he can relate to that as he is a great singer.

Mr. T. Kitt

I thank the Senator.

Mr. Mooney

It is an interesting point that the general public would never have thought about the reasons for such legislation. They would look at a Coke bottle and say, "So what?" There are unscrupulous people who would attempt to manufacture imitations, although I do not think they would get away with an imitation of the Coke bottle because it is so well known. The Minister of State, however, used it as a good example.

Will this legislation cover the industrial and commercial use of Celtic designs? We have a unique culture dating back many thousands of years. I am sure many Senators have seen images from the Book of Kells and discovered on inspection that the article in question was made in China, for instance. Will this legislation strengthen protection for Celtic designs now used in different ways in industrial design?

The Aran sweater is unique to Ireland. I presume its unique design will be covered by this legislation, yet it is manufactured in countries other than Ireland with a large textile export industry such as Thailand and other Third World countries such as Malaysia and parts of China. Will this legislation mean that those developing such designs in Ireland will be afforded stronger protection?

The concept of intellectual property goes over the heads of most people. They do not understand the reasons the creators of songs played on the radio should be paid by the radio station concerned. They will, however, understand the concept of a royalty paid to the author of a book and that the creative element of a book is the property of the person who created it.

It may be difficult for people to understand the abstract nature of this Bill. I suggest that in the case of uniquely Irish products, Ireland should not tolerate a regime in other countries that would allow the theft of our unique Celtic designs. Perhaps the Minister of State will address this.

I welcome the Bill which is not only timely and appropriate, it also sends a very powerful message across the world that Ireland does not tolerate any infringement of intellectual property, particularly in the area of industrial design, in the light of the huge explosion of creativity in this country in the last five to ten years. The Bill creates a safe bedrock for the future of creativity.

Seán Ó Fearghail

I welcome the Minister of State to the House and thank him for the work that he and his officials have done in bringing this important legislation to Second Stage. It is clear from the debate both here and in the Lower House that the Bill is not controversial and has met with general welcome and approval, not least from those involved in the design sector. Those whose ideas, innovation and designs have been stolen or plagiarised during the years have had the right to be unhappy with the inadequacies of the Industrial and Commercial Property (Protection) Act, 1927. It is interesting to note that in the intervening period the British Government has three times brought forward modernising legislation: Registered Designs Act, 1949, followed by the Design Copyright Act, 1968, and the Copyright Designs and Patents Act, 1988.

Industrial design law has been neglected during the years in this country. The Minister of State is rectifying that situation on which he is to be congratulated. The Bill brings us into line with our EU commitments and ahead of many of our EU partners in terms of implementation of the EU directive. It gives effect to the Geneva Act of The Hague Agreement which will ultimately provide protection for Irish designs in more than 150 countries around the world.

This is of necessity very technical legislation. Given that it deals with the area of intellectual property rights, it is unlikely to generate widespread public debate or many column inches in the national press. Nonetheless, its importance is not to be underestimated. The general public has a good understanding of copyright and all that it involves. The issue of intellectual property rights would be most frequently highlighted by the sometimes controversial work of the Irish Music Rights Organisation. There is not a strong public awareness of the need to foster and protect Irish industrial design, yet, as evidenced by today's debate, there is general consensus that it will be design more than anything else that will contribute to the success of many Irish enterprises in the future. The mere mention of Irish design conjures up images of Waterford Glass, Newbridge Cutlery and, more recently, Newbridge design jewellery, Nicholas Mosse pottery and even Philip Treacy's hats. All are designs that have been firmly established internationally.

The new young designer, the artist in the garret, will benefit most from the enactment of this legislation and the protection it will provide. Thanks to the work of Enterprise Ireland and, in particular, county enterprise boards and, in some instances, Leader companies, there is a growing network of successful designers in practically every county in the country. In County Kildare I make reference to the outstanding design and craftsmanship that are a feature of Franz Caffrey's "Manor Collection" and John Forkin's "Ironcraft Furniture." It is vitally important that these new innovators, inventors and designers can readily avail of the protection that this Bill will provide. The Bill will help in the fight against design theft or piracy and, I am quite certain, contribute to additional investment and job creation. It is entirely good that it provides for hefty fines for those who infringe the law by exploiting the ideas and innovations of others. "To each his own" is the concept enshrined in the legislation.

It is appropriate to mention the recently launched technology foresight fund to which the Minister of State referred. It involves expenditure of £560 million in research and development. The Tánaiste has described it as an integral part of the Government's new industrial development strategy. This fund seeks to promote Ireland as a dynamic location for innovation, particularly in the technologies of tomorrow. If this laudable objective is to be achieved and it must, manifestly the originators of new ideas and designs must be secure in the knowledge that the product of their endeavours and genius has the protection of Irish and international law.

Given the highly technical nature of the Bill, I suggest to the Minister of State that following its adoption there is a need to place its contents in the public arena in a more user-friendly format. I thank him for his work and detailed explanation of the provisions of this complex Bill. I congratulate him on all his work in the area of intellectual property rights and commend the Bill to the House.

Minister of State at the Department of Enterprise, Trade and Employment (Mr. T. Kitt)

I thank the Cathaoirleach and Members for their involvement in the debate. I was here for a longer period when we dealt with the copyright legislation, an area in which we did some useful work. I recall the lengthy debates we had here and many independent commentators suggested that we did our work well.

As Senators acknowledged, we are back dealing with less controversial and more straightforward legislation. I wish to dwell on some of the issues raised. Senator Coghlan talked about the EU directive which member states are obliged to transpose into their national laws by 28 October. The up-to-date position is that, among member states, Ireland is to the forefront in implementing the directive. Thanks to the Senators' assistance today, I hope the Bill can be progressed through the Houses as soon as possible to enable us to meet our commitments in this area at the earliest opportunity. Enactment of the Bill by the end of the year is likely. That would avoid legal action by the European Commission against Ireland for late implementation of the directive. Other member states are not as advanced as we are in implementing it.

Senator Coghlan also referred to the possible exemption from protection of articles of a primary, literary or an artistic character. There is an exclusion in UK law at section 1(5) of the UK Registered Designs Act, 1949, to which Senator Ó Fearghail referred. However, the EU directive on the legal protection of designs does not permit such an exception to be continued in law. I understand the UK authorities propose to delete their provision in implementing the directive. The directive allows member states to refuse to register a design or, if registered, to invalidate its registration on the grounds that it constitutes an unauthorised use of a copyright work under a copyright law. This is incorporated in section 21 in respect of refusal to register and in section 47 in respect of invalidation.

Senator Mooney raised the issue of Celtic design. The Bill covers designs made by handicraft means. Celtic design, in general, will be covered by it. The accession to the Geneva Act of The Hague Agreement will allow Celtic designs to be registered and protected in many countries for a very small cost. The Bill also prevents the copying of a particularly Irish creative design by domestic or international entities.

All those who spoke touched on the point that industrial designs essentially cover the appearance of the products made by industrial or handicraft means. They include features such as the shape, contour, line and colour. I gave the examples of the famous Coke bottle, the patterns used in wallpapers, carpets and the contours of crystal glassware. As Senators Coghlan and Ó Fearghail said, this legislation has major implications for Irish companies. I add my voice of praise to those involved in this creative area. It is important to recognise this.

I will give examples of what this legislation will cover. In the case of clothes, it will affect Irish fashion designers. Senator Ó Fearghail mentioned Philip Treacy's creative work on hats. In sportswear, it will include such companies as Adidas and our own O'Neill's; in crystal glass, it will include Waterford and Galway Crystal; in pottery, it will include Kilkenny Design, Tara and Beleek; and in cutlery, it will include Newbridge Cutlery. I understand the legislation will cover the shape of kettles, and the shape, contours and patterns of toothbrushes. The design of mobile phones is a more up-to-date example. It will relate to the shape, colour and covers of mobile phones that can be removed and replaced by differently designed covers. I mentioned carpet design in which we have interest in respect of Navan Carpets. The shape of and material relating to clocks, the shape, colour and contours of television sets, and the shape, contour and lines of cars will also be covered by the legislation. Its enactment will have many implications for our economy.

Senator Coghlan referred to novelty designs. It is not intended that the Patents Office will examine such designs under this new law given that the definition of "novelty" is now almost universal. It will fall to designers to protect their designs using the much enhanced civil legal remedies contained in the Bill.

Senator Coghlan and others referred to the Community design office in Spain, which has not yet been established. It awaits the final approval of the EU Council of Ministers. When established, access to jobs in it will be open to Irish citizens as well as to those of other EU member states.

I thank the Senators present and those who contributed to the debate. I appreciate their involvement in it. I hope we can now move on to the next stage.

Question put and agreed to.

Committee State ordered for Wednesday, 7 November 2001.

Sitting suspended at 4.20 p.m. and resumed at 6 p.m.