I welcome the Minister of State, Deputy Devins.
Protection of Intellectual Property Rights: Statements.
I thank the Leas-Chathaoirleach and am delighted to be in the Seanad. In this opening statement I wish to set out for the Seanad the context for the Government's approach to intellectual property, IP, protection, to identify some important actors and factors which shape its arrangements in this area and to point to the main measures which are in place in the various areas of IP protection.
The concept of intellectual property covers a wide range of creations of the human mind from the inventions, symbols and designs used in industry to literary and artistic works such as novels, paintings and films. Over the centuries, various societies came to recognise that it was in the public interest to recognise these as being the property of the people who created them and, consequently, the wider modern concept of intellectual property rights became more widely used. Today, intellectual property rights consist of concrete protections such as patents on inventions, trademarks and industrial designs, as well as copyright on artistic works such as books, films, music and paintings.
IP is of growing importance in the global economy. In practice, it means that through innovation, good quality design, effective branding and top quality production, one can sell products at a premium price without having to compete purely on the basis of price alone. However, our intellectual property must be protected to ensure we can convert the fruits of our research into saleable products, processes and services and secure comparative advantage, thereby moving up the value chain. Ireland's future prosperity depends on being able to so do.
Hear, hear.
National policy strategies and reviews in recent years have placed an increasing stress on the creation and protection of intellectual property. For example, last December's framework document, Building Ireland's Smart Economy: A Framework for Sustainable Economic Renewal, points to intellectual property protection as being a top priority and points out that creative industries cannot survive in the marketplace without adequate protection from copyright infringement.
As our aim nationally must be to build and maintain a world class knowledge-based economy and society, then equally we must have effective means of ensuring the creation, protection, commercialisation and profitable use of intellectual property. There are several closely linked but distinct elements in our approach to IP, including strategies to promote its creation, protection and commercialisation. The Government is active in each of those elements. In the case of the protection of IP, it exercises its responsibilities through providing a suitable and responsive legislative and regulatory framework. It promotes the production and development of creative industries and innovation through giving exclusive rights to exploit intellectual property, while also making provisions that act as a considerable deterrent to would-be imitators and infringers. Directly related to this protection of IP through the legal system is the matter of the enforcement of that protection, to which I hope to return later.
The extent of IP legal protection has to be balanced by the Government with other considerations. The extent of the effective monopoly given in law has to be weighed against the wider economic good and the need to promote innovation. Sometimes, in seeking longer or higher levels of protection, rights owners can seem to forget that this wider public interest must be considered. Moreover, that a piece of IP exists and has been protected by, for instance, a patent or a copyright unfortunately does not always lead to its commercialisation. Again, for example, it is important that the levels of protection provided can sustain general public support and respect for rights holders' creations. This can have an important bearing on attitudes and behaviour in the fight against piracy and counterfeiting.
Intellectual property theft now is big business. Counterfeiting and piracy are pressing problems in IP protection and enforcement. Those who take the right steps to protect their creations are in a stronger position but those who do not are wide open to counterfeiting and piracy. It already is a big problem. The OECD estimated that in 2007 global trade in fake goods was worth around $200 billion and that does not include goods produced and consumed within countries. The real figure, therefore, is far higher. Counterfeiting and piracy also are rapidly growing problems. While customs services across the European Union seized approximately 75 million fake articles in 2005, that almost doubled to 128 million items by 2007. Some countries have bigger problems with counterfeiting and piracy than others but these problems now feature everywhere. The aforementioned OECD report includes customs data showing that infringing products had been intercepted from nearly 150 countries, including no fewer than 27 of the OECD's 30 member countries. Apart altogether from the scale of this problem, it is important to note that some counterfeiting, such as that of airline industry spare parts or fake or dangerous medicines, poses a direct and deadly threat to human life.
The essence of IP protection is a strong focus on having and managing an effective legislative and regulatory system. My Department has been making a sustained effort in recent years to ensure our patent, trademark, industrial design and copyright laws, among other IP areas, are kept as up to date as possible. Most of this ongoing effort arises, however, from our EU and other international obligations rather than from the purely national context. Over recent decades the increasingly international nature of IP protection rules has grown. This has facilitated and reflected the increasing levels of international trade, both traditional and Internet-based. The development of Internet-based businesses over recent years has underlined further, even for the biggest of countries, the global as against the national nature of markets and IP protection. It would now be more difficult than ever for countries or their economies to take part in the global economy without signing up to and enforcing a range of globally agreed rules.
The World Intellectual Property Organisation, WIPO, which is the UN body charged with the development of global IP rules, and the World Trade Organisation, WTO, through its trade related aspects of intellectual property rights, TRIPS, agreement, are the two main rule-making bodies at global level in IP protection. In Europe, the European Patent Office, EPO, plays a crucial role in the patents field and in the EU proper, the Office for Harmonisation in the Internal Market (Trade Marks and Designs), OHIM, promotes and manages the Community trade-marks and designs systems.
While WIPO, the EPO and OHIM variously implement operational patent, trade-mark and design protection services, they also variously generate conventions, treaties or other rules that require national, legal or regulatory changes which shape much of our domestic IP protection arrangements. However, the most important single source of rule making, here as in other fields, is now the European Union. It has established a legal competence to act vis-à-vis the member states in most areas of IP protection law, including copyright, trademarks and designs. In patents, it also has come to play an increased role in member state regulation over the past decade or so. Many of the provisions included in Irish primary legislation and many of the supporting statutory instruments made in this field over the period are in transposition into Irish law of EU directives in intellectual property.
The Commission's work over the years in harmonising and co-ordinating national approaches in the intellectual property field has had a powerful effect in creating and securing benefits for all member states in the Internal Market. Much has been done to harmonise the intellectual property environment across the European Union in the collective interest of member states, rights-holders and of business. New issues and proposals continue to surface. Several significant Commission proposals in this field of policy are under active negotiation at Council and in the European Parliament.
In regard to patents, reduced legal, translation and other costs are in prospect through proposals for the creation of a Community patent, COMPAT. There are also proposals to create a European patent litigation jurisdiction. The aim of these proposals is to deliver a simple, cost-effective and high-quality patent system for Europe. In the trademarks field, there is a proposal to provide a major fee reduction for trademark applicants at the Office of Harmonisation for the Internal Market, OHIM, which is the European Union's trademark agency.
In the field of copyright, there are proposals in discussion at Council working party level to amend Directive 2006/116/EC on the term of protection of copyright and related rights for performers and record companies. The central element of these opening proposals would be to extend the length of copyright protection for performers and producers from 50 to 95 years.
There are differing views and trends at global level regarding the correct approach to, and levels of, intellectual property protection. Within the European Union there is normally a limited range of views on how best to approach and address such issues, including, for example, how to consider proposals to deal in a co-ordinated way with issues such as counterfeiting and piracy. Opinions and approaches are more diverse, however, at the global level in such bodies as the World Trade Organisation's body on trade-related aspects of intellectual property rights, WTO-TRIPS, and the World Intellectual Property Organisation, WIPO. Some developing countries are still not in full compliance with their obligations to provide minimum standards of intellectual property protection in national laws under the TRIPS agreement of 1995. At the WIPO, many developing countries regularly oppose the negotiation of new conventions and treaties which would effectively raise the bar of the 1995 TRIPS standards to a new TRIPS plus level. In other United Nations bodies such as the World Health Organisation, WHO, and the Convention on Biological Diversity, CBD, there are also development-related issues arising from the links between patents, serious diseases and the ownership of biologically-based medicines.
On the other hand, the proposed anti-counterfeiting trade agreement, ACTA, put forward by Japan and the United States in 2006, is now at an advanced stage of negotiation between a group of developed countries including the European Union. It aims to agree an obligation to meet a stronger set of enforcement measures to reduce counterfeiting and piracy in trade between countries by filling gaps in existing multilateral agreements such as the WTO-TRIPS agreement and WIPO treaties, by improving international co-operation, especially at customs borders, and in providing a strong new legal framework for intellectual property protection.
Nationally, there are also differences of view in evidence when my Department puts particular proposals out to consultation. The detailed views provided by parties vary from one proposal to the next but, in broad terms, rights-holders such as authors and the film and music industries seek to maximise the number of situations in which royalties or licences are needed, the duration of such intellectual property protection and the amounts to be paid while, on the other hand, groups such as consumers and broadcasters seek to minimise the scope for such charges, the periods of protection and the levels of payments to rights-holders.
Patents, trademarks, design rights and copyright are the four main forms of intellectual property protection worldwide. In Ireland, together with various more recent amendments and a large corpus of statutory instruments, the primary legal instruments in the intellectual property protection field are the Patents Act 1992, the Trade Marks Act 1996, the Copyright and Related Rights Act 2000 and the Industrial Designs Act 2001. These provide broad, flexible and practical civil remedies for the owners of intellectual property as well as credible and proportionate criminal sanctions. Provisions on search and seizure, delivery up and disposal of infringing goods, and enhanced civil damages add up to a varied and effective toolkit against pirates. These exist to aid legitimate businesses and rights-holders in tackling piracy in the most immediate and effective manner through civil proceedings.
The main aim of the Trade Marks Act 1996 was to give effect to the European Union trademarks directive and to establish a more comprehensive set of protections for trademark owners. It provided for the Community trademarks system that operates in parallel with national systems and offers trademark owners the opportunity to register their mark throughout the Union via a single registration.
As well as being a party to the European Community system of trademark and design registration, we are also a party to the international system of trademark registration under the Madrid system administered by the WIPO. A further aim of the Act, therefore, was to enable ratification of the protocol to the Madrid Agreement concerning the international registration of marks and also to implement certain provisions of the Paris Convention for the Protection of Industrial Property. The Act also facilitated the registration of trademarks in respect of services.
The Act introduced important new measures to deal with the growing problems of the fraudulent use of trademarks and counterfeiting. It provided trademark proprietors with wider rights against acts of infringement and gave strong protection to registered trademarks by broadening the scope of offences to include use of a mark which is identical to, or nearly resembles, a registered trademark.
The Industrial Designs Act 2001 had four main purposes. It modernised Irish industrial design law, broadened the civil and criminal remedies available in respect of infringements of design rights, implemented the EU directive on the legal protection of designs and enabled future access for Irish designers and business to an international system of design protection under the Geneva Act of the Hague Agreement.
The remedies contained in the legislation are very effective both as deterrents to infringement and as recompense for such unlawful acts. The Act extended the protection afforded to designs to 25 years and extended the protection of copyright to registered designs for the first time in Irish law. The Act gave rights-owners greater capability to enforce their rights, through reference to the Controller of Patents, Designs and Trade Marks or through the courts, and provided a more efficient and speedier system of registration of designs. It also made user-friendly provision for invalidation and rectification procedures where persons, who are not entitled to design rights, poach those rights from rightful owners.
The main body of current Irish patents law is contained in the Patents Act 1992. This sets out the detailed procedures for the operation of our patents system as well as providing for national ratification of the European Patent Convention, EPC, and the WIPO Patent Co-operation Treaty, PCT. The Patents (Amendment) Act 2006 updated its provisions to reflect various later obligations under international agreements that had arisen since the 1992 Act. These included ensuring compliance with the TRIPS agreement of 1995, the revision of the EPC, and the WIPO Patent Law Treaty.
The Copyright and Related Rights Act 2000 provides the main legislative provisions governing the protection of copyright in this State. The Act is a comprehensive item of legislation which provided — in some cases, for the first time in Irish law — for moral rights, performers' rights, rights in performances, a database right for non-original databases and for rights and remedies against those who unlawfully circumvent technological protection measures designed to protect copyright materials. The Act's 376 sections provide a coherent legislative regime that conforms to the best standard of international practice in this area. It has regularly been acknowledged as a good legislative model. Last year, for example, the Business Software Alliance, in its annual study on international piracy losses, acknowledged that, through the Act, Ireland had one of the most stringent copyright laws in Europe.
I said I would come back to the issue of the enforcement of the protections provided by our IP protection legislation. Each of the items of primary legislation across the main areas of IP specifies civil sanctions for breach of the rights-holders' rights to be exercised by them. The measures also contain criminal sanctions by way of fines or imprisonment, or both, for more serious infringements.
The Garda Síochána and the Customs and Excise authorities play active roles in ensuring effective enforcement of the legislation. The Garda Síochána policing plan in the IP protection field has focused on high value white-collar crime, particularly trading in contraband goods. It has adopted a proactive approach in tackling IP enforcement issues, with the National Bureau of Criminal Investigation targeting the main players.
Regarding DVD piracy, its activity has been maintained at a high level, with searches being carried out countrywide by the anti-racketeering unit with assistance from Infact and IRMA. Significant quantities of counterfeit DVDs, CDs, DVD burners, copiers and scanners have been seized in recent years. The Customs and Excise enforcement action in tackling counterfeit or pirated goods has concentrated mainly on the points of importation into the State. It has seized growing quantities of products.
We are fortunate to have a well developed IP protection system in this country that has been crucial to ensuring free trade for our goods and services on foreign markets. This body of law is set to become even more important in support of our future knowledge-based society. While there are competing pressures and interests in this field at international and national level, I hope to reassure the Seanad that thus far we have provided for effective decisions through dialogue. While there are many international players in IP regulation, for Ireland, the EU role has been particularly important.
While the debate today should focus primarily on the legal and regulatory regime, it is also appropriate that the Seanad notes the effective enforcement support for those laws provided by the Garda Síochána and the Customs and Excise Service in co-operation with the relevant industries and rights-holders.
I welcome the Minister of State, Deputy Devins, and I welcome this opportunity to have this discussion on intellectual property rights. I did not realise that the Commissioner for Internal Markets and Services, Mr. McCreevy, is responsible for this whole area. The Minister of State praised the Copyright and Related Rights Act. Nevertheless, there is a body of opinion that there should be greater protection for intellectual property rights in Ireland. There has been much litigation on intellectual property in other jurisdictions, such as Australia and the United States, in recent years. The Feist Publications Inc v Rural Telephone Service case changed the interpretation of intellectual property in the US and there was a knock-on case in Canada, which led to a reinterpretation of Canadian law on intellectual property.
The Minister of State referred to intellectual property as dealing with creations of the mind, inventions, literary and artistic work, symbols, names, images and designs used in commerce. This area is dealt with by the WTO under the trade related aspects of intellectual property, TRIPS, to which the Minister of State referred. Intellectual property is divided into two categories, industrial property, which includes inventions, patents, trademarks, industrial designs etc. and copyright, which includes literary and artistic works such as novels and plays, films, musical works and other artistic works. Intellectual property plays an important role in an increasingly broad range of areas, ranging from the Internet to health care to all aspects of science, technology and literature and the arts. Understanding the role of intellectual property in these areas, many of which are still emerging, requires significant new research and study.
Strong protection of intellectual property rights allows companies that create something original to benefit from the creation through the granting of a patent. This allows the company the sole use of the creation for a set time, which is generally 20 years. A patent prevents others from using the invention until the patent has expired. Patented protection means that the invention cannot be commercially made, used, distributed or sold without the patent owner's consent. These patents' rights are in force in a court which, in most systems, holds the authority to stop patent infringement. Conversely, a court can also declare a patent invalid upon a successful challenge by a third party. Strong protection serves as an incentive for creating new works. The creation is protected under law and the creator can benefit financially from his creation. On the other hand, weaker protection allows more companies to benefit from a creation. This can be achieved through a reduction in the length of time of a patent or a change in the way a patent is granted, such as only allowing patents for certain types of inventions. If protection is too weak there is less incentive to devote time and resources to research. If a company cannot recover the initial investment it would be less likely to undertake costly research.
One of the more controversial areas covered by intellectual property is HIV and retroviral drugs in Africa. Many poorer countries cannot afford to pay the high costs of these patented drugs and want to be able to make generic copies. Drug companies claim that this is infringing their rights and typically they looked to the WTO to enforce their intellectual property rights. The subject is particularly contentious and has not been addressed but it will come to the fore.
Another contentious area is file-sharing on the Internet, particularly down-loading music. Ireland does not have much regulation in this area and there is a need for more regulation of the Internet and greater protection of copyright, particularly in respect of websites. In respect of reforming the Copyright and Related Rights Act, we should examine a minimum level of creativity. This stems from the Canadian case to which I referred, where Canadian law has changed to require a minimum level of creativity in order for an item to be protected under intellectual property protection. There is a case for similar legislation to be introduced in Ireland. There is a need to reform the Act in respect of further strengthening the protection of copyright. The Minister of State said that, in European terms, Ireland is seen as having particularly strong copyright protection. Some think we should have stronger protection.
Arising from a recent foreign case, there is a need to introduce the defence of parody so that an item cannot be declared original and therefore is not protected under intellectual property rights if it is a parody of something that has existed before. Therefore it is not infringing the copyright of the original item. There must be greater protection of educational facilities and libraries with regard to copyright protection. It is fair to argue that the patent registration process must be simplified and made less costly.
I briefly mentioned patentable drugs and I have particular and strict view on copyright protection and the protection of intellectual property rights. There is a humanitarian element to the issue in terms of developing new drugs. I am thinking particularly in terms of the difficulty with anti-retroviral drugs such as those used to treat HIV. There is a humanitarian case to be made that patents in those instances would have different time limits and perhaps would be open to other drug companies to make cheaper generic forms of the same drug.
There is also the patentability of computer programmes and copyright in that regard, which has been brought to my attention. We must have some form of standardisation introduced globally in that area as such a measure does not currently exist. There is also the regulation of trademark domain names for political and corporate entities because this is not currently sufficiently regulated either. I previously mentioned file sharing, whether it is a person downloading music or movies from the Internet. There is a whole new world pertaining to the Internet and how we deal with protecting people's intellectual property rights in that regard.
I recently did some research on the subject and there was a recent debate within the European Parliament, with it rejecting a European Union directive in the area of intellectual property rights in 2005. The Minister of State referred to a subsequent directive from 2006. Perhaps I am just confused but would the Minister of State shed some light on that subject?
It is fair to state that Ireland has pretty good copyright protection. Under the areas of health care provision, such as the drugs I mentioned earlier, and Internet file sharing, a significant body of work is required. It is nine years since we enacted the legislation and with technology in particular, everything changes so quickly that there is a danger our protections will become outdated very quickly. The Minister of State in his concluding remarks may be able to shed some light on that subject to indicate the Government's thinking on Internet protocol rights into the future.
I welcome the Minister of State. The appointment of Dr. Jimmy Devins, our Deputy for Sligo-Leitrim, to his current portfolio, which relates to intellectual property in particular, is probably one of the more important in Cabinet currently. It could be the most important Minister of State appointment by the Taoiseach in the Thirtieth Dáil. The entire future of job creation in Ireland rests entirely on the shoulders of our Minister of State whom I have known for quite a long time.
There is no pressure then.
It was a very wise choice by the Taoiseach. As somebody who was chairman of the Oireachtas committee dealing with enterprise, trade and small business for four and a half years as a Dáil Deputy, I look forward to working with the Minister of State in this area and helping him and his officials. I had the privilege and honour of accompanying the Minister of the day and the Taoiseach on many promotional trips and efforts to see what the future would hold for Ireland in general.
We are told Ireland's future prosperity depends on being able to adapt and we are also told that our aim nationally must be to build and maintain a world class knowledge-based economy and society. Equally, we must have effective means of ensuring the creation, protection, commercialisation and profitable use of intellectual property.
I welcome the Minister of State's contribution which stated:
In the field of copyright, there are proposals in discussion at Council working party level to amend Directive 2006/116/EC on the term of protection of copyright and related rights for performers and record companies. The central element of those opening proposals would be to extend the length of copyright protection for performers and producers from 50 to 95 years.
I fully support this as people are living much longer. This has the wide support of very many of our EU colleagues.
The Minister of State also indicated:
The Copyright and Related Rights Act 2000 provides the main legislative provisions governing the protection of copyright in this State. The Act is a comprehensive item of legislation which provided — in some cases, for the first time in Irish law — for moral rights, performers' rights, rights in performances, a database right for non-original databases and for rights and remedies against those who unlawfully circumvent technological protection measures designed to protect copyright materials. The Act's 376 sections provide a coherent legislative regime that conforms to the best standard of international practice in this area. It has regularly been acknowledged as a good legislative model.
That has stood us in great stead, especially with regard to the computer industry where software and various innovations and creations have been put to such good use.
In considering our young population of boys and girls and the high-end jobs that we are now aiming to provide for them, we must now excel in this area for the future. Up to now we have had the 12.5% corporation tax rate, which has been a significant advantage in attracting multinationals. They have had a destination where they could make a reasonable profit while employing up to 100,000 people. The American multinationals include Intel, Hewlett Packard and other great companies in Ireland.
Where will Ireland go to attract inward investment for the next 25 years for the next generation? I suggest that we should be known in future as "Ireland, the innovation island of Europe". To have the ability to achieve that, I suggest we look at a particular model. If we look back through the generations, the big success story in Ireland over the past 30 or 40 years has been the institutes of education, from Letterkenny to Sligo to Athlone to Carlow. There are outreaches going from Galway to Castlebar and they have all been a shining example of how the middle and lower income earner's son or daughter could have a chance for third level education. That has given us a significant advantage worldwide, and we have never had a better generation of educated people than we do currently.
Where will all these young students find jobs for the future? As we all know, jobs in the future will be in technology and we must encourage our students and future graduates in this regard. I strongly suggest to the Minister of State that the majority of our students must go for a higher level of mathematics and science. I propose in this debate in Seanad Éireann on Ash Wednesday 2009 that the Government consider increasing by 50% the points value in the leaving certificate for mathematics and science to encourage our young students to take up these subjects. As we have been told by Science Foundation Ireland and the American Chamber of Commerce Ireland, our student levels in this regard will not be of the required numbers for the jobs that will be available when the students leave school in two or three years.
With the success of the third level institutes, we can open every IDA Ireland site throughout Ireland to facilitate research and development. Those students who take science as a subject in university must sign away their intellectual property rights in the event that they are fortunate enough to be a creator and innovator in that field. We should follow the role model of Waterloo university, located 25 miles from the city of Toronto, in what we do here. The three young men who devised the BlackBerry technology were the students who started the Waterloo Campus outside Toronto. At that time there was nothing there only marshy land and the local authority gave those three young men an option to build an incubator unit there. Many incubator units are there today, operated by world-class multinational companies. However, the difference between that site in Toronto and any other site I visited throughout the world is that the intellectual property can become the ownership of the creator and innovator. That means in the majority of cases the brains who are creators and innovators throughout America and Canada now go to Waterloo university to develop their new technologies That results in that university campus having a higher percentage of success than any other such place I have visited on my travels.
Our institutes should work with IDA Ireland, which has 82 sites throughout the country. There is a 68-acre state-of-the-art IDA Ireland site in Mullingar. All the services, including broadband and gas, are connected and there are two bus stops near the site, but there is not 1 sq. ft. of building because no project is being set up on the site. The third level institute in Athlone is a state-of-the-art complex with 6,500 students. It is a fabulous campus. In Tullamore, like Mullingar, there are IDA Ireland sites, but there is no third level institute. An outreach arm, so to speak, has been extended to what is known as a gateway destination, that of Athlone, Tullamore and Mullingar, the ATM, as it is known in the midlands.
IDA Ireland has 82 sites throughout Ireland but no one is interested in investing in them. They could all operate as outreach sites and work hand in hand with the institutes of technology. Ireland could be the innovation centre of Europe if we introduced a regulation to provide that intellectual property will be the owner of the creator and innovator. By doing that we would ensure that Ireland would be the magnet to attract young creators and innovators throughout Europe to work here. It could employ hundreds of thousands of young people who would be the creators and innovators in the future. This is one idea I have observed on my travels during the past four and a half years that Ireland could put to good use. Perhaps the Minister of State and his staff will research the opportunity that exists for this to take place.
I stress the importance of giving 50% more points immediately for mathematics and science in the leaving certificate. That would send a message to our students that if they take up those two subjects they could play a pivotal role and be centre stage in Ireland's success into the future.
The IDA Ireland sites are available and could be taken over with the stroke of a pen and it would be wonderful if they were used in the way I outlined. I understand from the Waterloo Campus that a by-law is in place stipulating that the campus success is dependent on the creator or innovator giving a licence to the campus for ten years, 15 years or 20 years, for a 15%, 20% or 30% share of the royalty for the facilities. In that way the campus can grow and develop further activities and progress and retain the concept of the genius of the creator and innovator which is central to the future of job creation. We need only reflect on the success of the BlackBerry technology, which has transformed the working lives of every person who has been fortunate enough to purchase one. Governments throughout the western world use this technology as the centre stage of their art of communication.
This is one idea I want to bring to the Minister of State's attention. It is something I feel strongly about and not enough is being done about it. Science Foundation Ireland, Enterprise Ireland, IDA Ireland and former Ministers for Enterprise, Trade and Employment know exactly what is the successful format in this regard. This idea would complement the huge success of the institutes of technology throughout the country. We owe a vote of thanks to the teaching staff, the boards of management and all those administrators who have handled our institutes since they were first set up. The institutes have transformed rural Ireland. They have transformed the lives of the sons and daughters of middle income to lower income earners, who previously would not have had a chance to go to university. I say that as one who has hard experience in this area. Poor men's daughters and sons born in Ireland are the brainiest people anywhere in the world and they did not get a chance until now. I pay tribute to the vision of the Governments that put these institutes in place. They have served our country way beyond our wildest dreams.
Now we must move to the next step. We must put in place the necessary regulations and policies and provide the necessary tools to encourage young creators and innovators throughout Europe to work here. Ireland would be an attractive destination for such activity. Such an initiative, coupled with the 12.5% corporation tax rate, which is still in place and will be for the long term, would give us a huge advantage. The smaller the country, the easier it is to implement such an initiative. Conversely, the larger the country, the more difficult it is to do so because universities, in the main, will not want this departure. Such activity is the lifeblood of income for them also.
The IDA Ireland sites could be available with the stroke of a pen to facilitate such activity and it could happen quickly. It could be responsible for a great number of young people getting employment into the future. We are advised that research and development is important for the future. It is the driving force that is needed to gel the pieces together. We can do that, North and South. This could be a Thirty-two County initiative. It would be wonderful for our friends in the Six Counties and the other part of Ulster to be involved in it. My parish in Castlepollard bounds the Ulster border. Would it not be wonderful and uplifting to have this as a Thirty-two County initiative? What a wonderful opportunity it would be to demonstrate our friendship and for the North-South bodies, one of which I am privileged to be a member, as well as being a member of the Good Friday Agreement committee. If we were to introduce this initiative, the island of Ireland, with Thirty-two Counties, would be the innovation island of Europe.
I give the Minister of State that idea today and I hope that in the very near future we can revisit the subject of intellectual property rights, ascertain what progress is being made on it and see how we can assist the Minister of State and his officials on this country's future, which depends to such a large extent on the Minister of State's portfolio.
I welcome the Minister of State. I also welcome his words. It was interesting to listen and read what he said.
In response to what Senator Cassidy said about mathematics and science, it was interesting to hear the American Chamber of Commerce Ireland speak about the need for mathematics and science graduates last week, and the figures show there are fewer mathematics and science undergraduates attending university, with an increase in the numbers pursuing arts, business and law degrees. We must encourage more students to study those subjects. Senator Cassidy's suggestion of giving extra points for those subjects at leaving certificate is novel and well worth supporting.
I like what the Minister of State said about the need to ensure we can convert the fruits of our research into saleable products. That is the interesting part. They are saleable and there are some great successes. I can think of two such developments I mentioned previously — Senators Cassidy and John Paul Phelan talked about others. One is a development from Trinity College, chaired by Dr. Patrick Cunningham who is the chief scientific adviser. The company is called IdentiGEN and it uses DNA technology to identify the ability to trace animals right back to source at birth. It is usually used for beef but can be used in a much wider way. The product is now being sold in the United States. Another idea which is being sold very successfully in the United States is from a company from Cork called Nualight which provides modern refrigeration lighting. Both were developed from research which took place in universities and are well worth supporting.
I mentioned Dr. Patrick Cunningham. Dublin will be the European City of Science in 2012. I know the Minister of State is fully behind that and it is something we must support and encourage because it can put us to the forefront of where we are going.
Mr. Charles Handy, in 1992, said: "Business today depends largely on intellectual property, which resides inalienably in the hearts and heads of individuals." Mr. Lester Thurow, an American management professor went so far as to suggest in 1997 in an article in the Harvard Business Review that intellectual property rights have become more important than manufacturing products or dealing in commodities. It is fair to say that knowledge is the key to the creation not only of business wealth but also, to a much wider extent, of national wealth.
The recent trend of UK companies moving to Ireland appears to have been prompted in part by the British Government proposals raised last year to change the taxation of UK firms' overseas earnings, in particular passive income such as intellectual property rights. It shows, in some way, the importance many businesses are now placing on intellectual property rights.
It is a major issue, particularly given the massive number of fake goods coming into Europe. The EU reports that 80% of these fake goods were made in China. India has also built up an industry which produces the vast majority of fake pharmaceutical products. In 2006, seizures of such products rose by almost 400%.
I am surprised at the situation in Europe. I was in Italy last year and could not believe the range of fake products being sold. They were being sold openly and there did not seem to be any steps being taken to control the situation. There seem to be European Union regulations and rules which apply in some countries but not in others. I have even heard of instances where the Chinese fakes are so convincing that electronic goods have an EU energy efficiency label and safety stickers on them.
Intellectual property rights are key to our competitiveness. Europe has repeatedly said it needs to see much better protection of intellectual property rights in emerging economies, especially in China and Russia. This is crucial to Irish companies doing business in such countries. We are now seeing China responding to these concerns. It no longer wants to be branded as the world's number one counterfeiting country for such products.
There is an interesting recent case in Ireland regarding intellectual property rights, which is the case of Irish Distillers Limited v. Cooley Distillery plc and is very important to the subject of intellectual property rights. It illustrated that even where a look-alike product is clearly branded with a name that is quite different from the brand it is copying, this may not be enough to defend an application for a temporary injunction where the overall visual impression is very similar.
In the Cooley case, Irish Distillers, which produces Jameson, was granted an injunction preventing Cooley Distillery from using labels on its St Patrick brand that were judged to be so similar to Jameson labels as to lead customers to believe the St Patrick whiskey was part of the Jameson family of products. A lawyer from Matheson Ormbsy Prentice Solicitors said:
This decision highlights the risk of a court restraining the sale of a look-alike product even where the look-alike features a highly distinctive trademark element or brand name of its own, where the product appearance is similar and the method of consumer choice could lead to confusion. From a brand owner's perspective, this decision may make it easier to bring successful temporary injunction applications in respect of look-alike products going forward. For those designing look-alike products that will be sold on supermarket shelves, care must be taken that including a distinctive brand name is not the only distinguishing feature they rely on.
This case shows how businesses now have the power to stop this more subtle type of copying and intellectual property right infringement. It also shows that businesses must be aware that there if there is a likelihood of confusion on the part of the public between two labels on a product, then a court may grant an injunction against that product. It is a very significant progression for the area of intellectual property rights in this country and shows how importantly we take any infringement of these rights.
Ireland, as part of the European Union, has a major part to play in progressing these rights, particularly in developing economies. Therefore, I welcome what the Minister of State said today and the areas he covered, which he did very well. I can remember when legislation on this issue passed through the House in 2000 and 2006. The Bills took a long time to pass because we took an in-depth look at the issues.
The legislation has been very successful and has placed us at the top and in a high regard for those considering investing here because it has the possibility of being able to protect their investment rather than their losing it as might otherwise have happened. I am pleased to hear the Minister of State's words today. We cannot do any more than encourage him to continue along the line he is going and strengthen the legislation, if it is possible to do so.
The Minister of State, in his contribution to this wide-ranging debate, pointed out the current situation regarding legislation and intellectual property, the role which Ireland plays in terms of international organisations such the EU and the European Patent Office and its role within the World Trade Organisation. To develop legislation in this area further we must distinguish between the commercial application of intellectual property, such as the production of a good or the development of a new process, and the creative use of intellectual property, which is in need of separate legislation, possibly through the Department of Arts, Sport and Tourism.
I listened intently to Senator Quinn's contribution, which concentrated, rightly, on the commercial application of intellectual property. In his contribution, the Minister of State pointed out that research and development is pinpointed in the smarter economy document released before Christmas. If we are to recover and sustain such recovery in our economy, the development through research and development of new pieces of intellectual property will be a key component of the new economy we hope for and aspire to in the future.
It is important our own legislation has sufficient protections in that regard, as well as the international fora in which we are involved, in terms of protecting Irish international patents. It has been to our detriment as a society and economy that in the past we have tended to buy in commercial expertise and the intellectual properties that go with it through our use of foreign direct investment. We could do better and learn from, in particular, the Scandinavian example where government policies over decades and generations have been directed towards trying to encourage people in those countries to develop a mindset whereby new intellectual property and goods and services are produced as a result.
Much has already been said in this debate about the economic importance of intellectual property. I would like to mention the creative side of things, which I accept may be outside the Minister of State's brief but which needs to be looked at in the context of new legislation. There is an ongoing debate about creative intellectual property and the production of songs, poetry and paintings, who actually owns them and secondary rights in terms of royalties. As I said earlier, there needs to be separate legislation on this issue which is not necessarily the remit of the Department of Enterprise, Trade and Employment. Nevertheless, this is an issue in which, as a country, we have expertise.
People have skills and are plying their trades and earning foreign income from the country. The band U2 is an obvious example, notwithstanding the fact that many of its members choose to pay their taxes in the Netherlands. There was a time in the 1970s when the pop group Abba was a larger foreign earner for Sweden than the car companies Saab and Volvo combined.
That might happen again.
If we are talking about intellectual property, especially in the creative area, the legislation needs to be very strong in this regard.
There have been moves in the European Union to lengthen the copyright period beyond the lifetime of the producer of the creative work. This is unfortunate. The time behind a lifespan should be quite narrow, perhaps 20 years or so, because it tends to benefit people who have not been involved in the creation of the work. I hope our legislation will bear that in mind.
There could be an argument that our taxation system takes that somewhat into account with the artist exemption scheme. However, we are reaching a stage where this scheme, as open-minded as it was at that time, needs to be looked at. People involved in the creative arts need to be more secure in terms of their source of income rather than how, or if, they will be taxed because the reality is that many people in the arts do not earn sufficient income to be taxed. I would like attention to be devoted to this particular area.
I refer to the production of goods and services and copyright in regard to medicines and pharmaceuticals. This country benefits from a very vibrant pharmaceutical industry. Some 13 of the 15 top industries are based in Ireland.
It is eight out of ten.
That is even better. Copyright in the production of new medicines does not have a very positive worldwide use. We need only look at the incidence of AIDS on the continent of Africa and at how the existence of copyright and the insistence of many companies to earn full profit from such copyright has led many thousands, if not millions, of people to needless deaths.
Whether through our own legislation or, more importantly, in whatever regulations in which we are involved in establishing, I would like to see the development of criteria whereby copyright for medicines can be relaxed in incidences of epidemics and pandemics. The fact that does not exist at present means the balance is very much on the side of the copyright holder which tends to be the pharmaceutical multinational. That is very much to the disadvantage of the people suffering the illness. If we could contribute to this debate through our own experience and if we could develop a base for the pharmaceutical industry, our views would be listened to more than most.
This is a useful debate which I hope will inform the development of new legislation. I look forward to the Minister of State and the Department presenting such legislation. I refer again to the idea of having separate legislation, possibly from the Department of Arts, Sport and Tourism, to look at the area of creative intellectual property.
I welcome the Minister of State. As Senator Cassidy and other Senators said, this is a very important subject. When one asks people about intellectual property rights, they will ask what it is. Few people know what intellectual property rights is about. However, the Minister of State set it out very well. He said:
The concept of intellectual property covers a wide range of creations of the human mind from the inventions, symbols and designs used in industry to literary and artistic works such as novels, paintings and films. Over the centuries, various societies came to recognise that it was in the public interest to recognise these as being the property of the people who created them and, consequently, the wider modern concept of intellectual property rights became more widely used. Today, intellectual property rights consist of concrete protections such as patents on inventions, trademarks and industrial designs, as well as copyright on artistic works such as books, films, music and paintings.
Senator Quinn spoke about fakes and so on. It is only right that we strengthen intellectual property rights and I congratulate the Minister of State in this regard. Senator Cassidy asked an important question about where we go from here. Over the past ten years, various sections of our workforce have diminished, including our cottage industry, manufacturing industry and, to a degree, our tourism industry, although that could be rectified. We have lost heavily in regard to our manufacturing and cottage industries because our cost base has become too high.
We now talk about high-level jobs and about more funding going to research and development. I agree with Senators who said we need to invest heavily in research and development, in particular in science and mathematics. There are great opportunities here. Senator Cassidy mentioned the IDA, universities and regional technical colleges. This country is well covered with third level facilities ranging from universities to regional technical colleges and we must invest heavily in them.
When one thinks of what can be done from wave and wind energy, there is a great opening here for innovation. The Government must create jobs in this area. There is a great opening to create new models which we could test. We have access to the ocean, hills and wind. There must be opportunities.
I compliment the Minister of State. We need to invest heavily in research and development because we have lost many of our manufacturing and cottage industries. Our tourism industry can be rectified. I wish the Minister of State well.
One of the things which will ruin what we have come to regard as intellectual property is piracy which has been brought to my notice on a number of occasions. I have had an interest in the music business for quite some time. The products of struggling artists, especially in the area of traditional music, are being pirated.
On a recent visit to Scotland, I spoke to Jimmy Shand junior. I have a great interest in the music his father played. He was very famous and a great favourite in Ireland, especially among accordion players. Much of the music of Jimmy Shand senior has been pirated. On that visit, I produced a CD but Jimmy junior was not aware that this CD was on the market. It had certainly not come from the publisher who dealt with his father's music or, indeed, his music. That is an example of what is going on.
The same is the case with videos and DVDs. Even films currently showing are pirated. A person goes into a cinema with a camera, records the film, downloads it onto a DVD and sells it. People who buy that type of material are encouraging people of that ilk to carry on with that practice, which should be done away with. People who pirate copyrighted property should suffer the full rigours of the law because they are destroying the livelihood of honest artists. Everything possible must be done to eliminate this practice from our important entertainment industry. The late Joe Dolan was from Mullingar and no matter what part of the world one was in, if one mentioned Mullingar, people knew it was his town. He made the town famous and was responsible for many people visiting it and the surrounding lakes. He put the town on the tourism map. However, even his music, and that of people like him, has been pirated. Everything that can be done to eliminate pirating must be done and severe penalties must be imposed on those involved in it.
The same goes for copying paintings, whether copies of rustic scenes or portraits. Some art fakes have found themselves up for sale when properties are sold and others have appeared in art sales. This must be eliminated. I wish the Minister of State well in his endeavour to stamp out the theft of intellectual property because such theft damages the arts and the work of individuals.
I welcome the Minister of State, Deputy Jimmy Devins, and congratulate him on his words of wisdom.
This debate about the protection of intellectual property is happening at a time of exceptional global economic and financial turbulence and for that reason it is essential we explore areas of opportunity. The area of intellectual property protection is of immense importance and growth.
The Government is rightly in the business of promoting and protecting innovation, research and development and of offering protection on patents, inventions, trade marks, industrial design rights and for copyright on artistic work. We have witnessed a new industrial revolution in this area over the past decade or more, one that is likely to continue in the foreseeable future, albeit there are world economic difficulties. This area will not be affected to the same extent as other areas. I fully support the concept of intellectual property rights. I envisage Ireland will continue to experience innovation and development, with new markets being created and endless scope to share in further development.
Ireland may have been found wanting with regard to the various industrial revolutions of the past. We were just a small island nation in the 1930s and 1940s compared to America, Germany and other developing wealthier nations. However, Ireland is totally different today. In the recent past we have built up a knowledge base, a highly skilled workforce and resources necessary for progress and development. We compete easily with other countries on the world stage. For example, from 1995 to 2005 we competed with and compared favourably with other countries. It was often said we boxed above our capacity and we often won out in competition with other leading destinations for foreign direct investment and developments.
We can compete too in the area of intellectual property. The essential element for developers in this area is the required protection. This is a complicated area and no one person, perhaps, has a clear handle on the state of play. I am not sure any acid test has been carried out with regard to what legislation is applicable. Is it the law of the country where innovation has taken place or does it relate to where there are other European applications? The complications are significant.
I know the Minister of State shares an interest with me in the area of pharmaceuticals where there has been a level of ambiguity with regard to the protection applicable. Perhaps the Minister of State has information in this regard, but we do not know what test cases have been taken in this area nor what the outcome of those cases has been. One thing I do know is that the regulation of such areas has come under scrutiny and been found wanting in the past. It is easy in hindsight to say we should have provided such and such a power or put such and such a regulation in place.
While I like to consider myself relatively young, I have some experience under my belt. I have found that no matter what provisions are in place, it is only when we come to the acid test we realise there is scope for improvement. It is only looking back after experience that one realises one should have made certain other provisions.
I have read some of the documents from the Department of Enterprise, Trade and Employment and am aware of the good work being done by the Tánaiste and Minister, Deputy Mary Coughlan, and her Ministers of State, Deputies Devins and McGuinness, in this area and congratulate them on the launch of the document on innovation last year. I commend them too on their targeting of companies that will bring innovation enterprise and research and development here.
The development of the smart economy ties into this in so far as it identifies the measures that will help promote economic stabilisation and the restructuring of the economy over the coming years and the framework to set them out. With regard to our economy and industrial development it is fair to state that we are at a point in our national history where we have never been able to see more clearly how we should be able to achieve, compete and be somewhat as successful as we have been on the road we travelled over recent years. We know Ireland has undergone a huge transformation and we are now a pulsating economy.
As I stated at the outset, all of us expect the country to feel some of the tremors of the turbulence of the present global economic and financial difficulties. Having stated this, equally we should acknowledge the success of our economic performance and the dividends that came out of that performance in so far as we were able to attract foreign direct investment. We have been hugely successful. We have trade links and markets and most importantly we have the entrepreneurial capacity to drive projects. We have established a reputation for our ability to succeed.
Having stated this, it is very important that whatever can be done within the confines and jurisdiction in which the Minister of State operates and in the globalised markets which operate it is important we have a Minister of State with responsibility for innovation such as Deputy Devins who is leading in the field of intellectual property protection. Whatever we can do to attract this very important factor in the development of our economy over the next period is worthy of the support of this House to ensure we can continue to attract the very important area of what is often referred to as "blue chip" research and development facilities and industrial designs.
I was Chairman of the committee which brought through the Copyright and Related Rights Act some years ago. It was complex legislation and at the time the amount of data coming through was mind boggling and we wondered whether we would ever get through it or address the variety of issues contained in it. We were able to do so and were successful. We ventured into a new area which warranted address by legislators. In the area of intellectual property, we are in uncharted waters and we can do the same and come out on top.
Many important points and contributions were made by Senators on the protection of intellectual property. I take this opportunity to thank all the Senators for their contributions.
Several interventions reflected the view, which I share, that intellectual property is becoming more important to the country's future. Already, the creating, licensing, protection, commercialisation, use and enforcement of intellectual property is very important to our economy. The way forward for our country towards developing a knowledge society means intellectual property needs to become more important still. The Government, business and universities and institutes of technology among others will all have to work more closely together on many aspects of intellectual protection.
Although copyright is just one of several major forms of intellectual property protection, it was a particular focus for Senators' interventions. Increasingly, the rate of change in digital technologies and internet developments and business models has been throwing up new legal issues and redefining older ones in copyright. That said, it is fair to state that to date we have been fortunate that our main legislation in this field, namely, the Copyright and Related Rights Act 2000, has proved to be quite resilient, as we hoped it would be at the time of enactment.
I will refer briefly to some of the points raised by Senators. Senator John Paul Phelan was correct to state that in the EU software as such cannot be patented under the European patent convention. This contrasts with the situation in the United States where it can be registered. The Senator was also correct to state that the European Parliament voted down a draft EU directive proposal in 2006 which was to provide patents for some copyright protection. Commissioner McCreevy accepted this outcome and postponed a further effort on this front until later.
A couple of Senators, including Senators John Paul Phelan and Boyle, raised the issue of drugs. The TRIPS agreement has been amended to facilitate easier compulsory licensing of drugs to deal with various health emergencies. For its part, the EU adopted a regulation to help member states in this regard. I am pleased to state that last year we introduced regulations to facilitate Irish exporters if they were asked by overseas firms to produce and export drugs to countries where there were health emergencies involving HIV and malaria. As I stated in my opening speech, it is true that there are tensions and unresolved issues at UN level between the WHO, WIPO and the WTO TRIPS agreement.
Senator Cassidy mentioned the idea of developing Ireland as an innovation island of Europe and this is something to which we would all subscribe. He also mentioned the institutes of technology and the very important part they can play in our educational system. I concur entirely with him. As a former chairman of the Institute of Technology Sligo I am a great believer in the value of the institutes.
Senator Cassidy and other Senators raised the matter of the difficulties we face with regard to students taking up mathematics and science and then progressing to engineering or science at third level and I am examining this issue. I have met many groups and certain opinions are being developed which I hope to bring shortly to the Cabinet committee on science, technology and innovation with my colleague the Minister for Education and Science. This area is vital for the future of the country. We must have students taking mathematics and science so we can produce scientists and engineers in the coming years.
I endorse Senator Cassidy's proposal that innovators need to be able to benefit from their creations and inventions. This is why our intellectual property legislation in trademarks, patents, designs and copyright exists. However, there is the challenge that inventors need to be aware of the need for this and they must take more steps to encourage people to protect their inventions. In that regard, Enterprise Ireland, IDA Ireland and Science Foundation Ireland are working together with the universities, institutes of technology, principal investigators and their staff to protect intellectual property. I pay tribute to Enterprise Ireland and its technology transfer offices, which are now located in all institutes of technology and universities to help facilitate the protection of ideas developed through our outstanding principal investigators.
It is important that young people are aware of intellectual property. In that regard, I draw attention to the fact that World Intellectual Property Day will take place on 26 April this year. The Irish Patents Office will hold an essay writing competition to encourage an interest in and awareness of invention. I look forward to other bodies following its example.
Senator Quinn raised some issues, particularly the problem associated with mathematics and science. He is correct that there is a major problem with fake goods. It is important to note that and it is vital that tough legislation in this regard is enforced by the Garda and the Customs and Excise, as is the case. In no way can we be complacent. With regard to intellectual property protection legislation and the equally important area of enforcement, our position is worth defending.
Senator Boyle rightly pointed to the strategic importance of intellectual property protection. It is true there are different views and philosophies on the balance between respecting the monopoly rights protection period and the need to promote innovation and the development of new knowledge.
Senator Glynn raised a very important issue regarding DVD and CD piracy. In recent years, entertainment industry representatives have continued to raise the extent of DVD and CD piracy in Ireland and have highlighted its cost to the sector and the viability of legitimate retail and rental outlets, which have recently experienced trading difficulties. In late 2007, the Minister for Justice, Equality and Law Reform set up an interdepartmental committee on this subject comprising representatives from several Departments, including mine. The group met industry representatives and invited submissions from the public. It held discussions concerning the issues arising and reported towards the end of last year.
In its report, it made a wide range of recommendations on operational improvements and legislative changes, which are being pursued vigorously. I have assured the industry that I intend to introduce at the earliest opportunity further provisions or refinements that are necessary and that could strengthen our copyright and casual trading legislation. While I am glad to reiterate this assurance to the Seanad, I am also pleased our ongoing contracts with the film industry have not pointed to our legislation in this field being particularly weak. The priority for action, as identified in the report to the Minister for Justice, Equality and Law Reform, was improved co-ordination in respect of enforcement, and that has been addressed.
Senator Callely stated that we have been boxing above our weight for a number of years and I agree completely. In the area of intellectual property and in life, no one person has a monopoly of wisdom and that is particularly true in the area of intellectual property. We must all work closely together and my Department and I are open to suggestions which Senators might make. We work very closely with the EU authorities in this area.
Senator Callely raised the issue of research and development, which is very important. The future of our country depends on it. This morning I was present at the launch of a programme to allocate over €25 million for five strategic research clusters at various third level institutions. It involves industry representatives, researchers and principal investigators working hand in glove to develop ideas that will, I hope, lead to the development of patented products and, ultimately, jobs.
This debate has highlighted the growing importance of intellectual property protection. Protection is just one of several policy elements in the intellectual property field, ranging from its creation to its use. Reference was made to the central role of the law and regulation in intellectual property protection and the international nature of most intellectual property rule making. There is a very important supporting role for intellectual property enforcement authorities.
Many important points were made by Senators, to which I have attempted to respond. If Senators would like to raise any particular issue, I would be more than willing to meet them. This debate has confirmed that we have a proven and well developed protection system in place. While that system of rules, together with its associated enforcement support, has evolved over the years to deal with new issues, as needed, I trust Members will agree we are in a good position as we look to the future.
Sitting suspended at 4.05 p.m. and resumed at 5 p.m.