The Minister in charge of this Bill is in another place but I understand that the Parliamentary Secretary (Mr. Dolan) is prepared to deal with the Bill, if it is the wish of the House that he should do so.
Industrial and Commercial Property (Protection) (Amendment) Bill, 1929—Second Stage.
Cathaoirleach
Question proposed: "That the Industrial and Commercial Property (Protection) (Amendment) Bill, 1929 be read a Second Time."
There is nothing of very great importance in this Bill. It is an amending Bill to the Principal Act which was passed in 1927. Most of the sections here deal with the working of the office, postponing certain things that had to be done within a limited period. The period was found impracticable in working and it is considered that it ought to be extended. I might direct the attention of the Seanad particularly to two sections, one of which is Section 5, under which the powers of the Minister are clearly defined in accepting patents, and how he should deal with them. Section 7 brings in a new matter, making it necessary for a patent agent to reside as well as have his place of business in Saorstát Eireann. In Committee I intend to move an amendment to that section extending the time when it will come into operation for three months—to give three months grace to wind up business at present in the hands of the offices.
As one who took considerable interest in the Committee that was originally formed to consider the terms of the Bill before it was introduced I should like to ask the Parliamentary Secretary a few questions. He alluded to one matter, that a patent agent must reside in the Free State. Now, in the case of a great many patentees, who have no patent agent—and a great many of these patents are held by people, or may be held by people, who do not reside in the Free State, and who would not reside in it under any circumstances—I have been asked to inquire if this clause covers cases of that kind where the patentee has no agent and does not reside in the Free State. There are many such instances. I will give an instance of how the clause would work. Let us take the case of the Ford factory in Cork. There are a good many patents in connection with the manufacture of motor tractors. The people who hold the patents are naturally in America, where they live. You could not expect them to come and live in the Free State. Would they be affected in any way by the clause? I also want to ask another question. The Bill proposes to repeal several sections of the original Act. The Parliamentary Secretary has not given us any particulars as to how they affect the original Act. Would he kindly do so?
To which section does the Senator refer? I do not think it would be necessary to go into all details, except in connection with whatever sections Senators were interested.
It is the section you mentioned, in which you provide that every patent agent shall reside in the Free State. Does that cover a patentee who has no patent agent?
I would like to ask the Parliamentary Secretary for information, and whether he would develop the policy more under which the Government is taking powers to acquire and develop Government patents. Some of us feel that that is a business that could more properly be done by ordinary industrial methods, and we would like to hear from the Parliamentary Secretary some convincing reason for the rather marked change in policy that is foreshadowed by these powers.
There is power under the Act, as the Parliamentary Secretary is doubtless aware, to hold patents and licences of right, and when a patent or licence of right is endorsed, the Patent Controller has powers to fix the price at which that patent may be acquired. Will that apply in the case where the Minister proposes to acquire a patent?
This Bill is important. It contains a number of very important amendments to a very important and very technical Act, and I confess that I am in entire ignorance of the original Act and of the effect of these amendments. But in view of the fact that this very important Act was passed so recently, following upon a long consideration by a specially selected Committee, it seems to me that the Seanad ought to obtain from somebody who is responsible an explanation as to what difficulties have arisen to require these amendments so soon. A mere statement that these are only office changes, merely administrative, is not very satisfactory. That is hardly enough to justify the Seanad in making changes in an important Act which was passed only after a long consideration, after even, I think, a second edition was produced. Certainly, while having no reason for opposing the Bill, I have no reason for supporting it, except that the Minister wants it. The Parliamentary Secretary has not given us any justification for supporting a change in the law, and surely it is somebody's business to justify to the House a proposal for a change in the law. It is not entirely true, of course, to say that the present Bill deals only with administrative office matters, because it does deal, as Senator Sir John Keane has said, with one or two much more important questions than mere office questions. So far as I understand the duty of this House, it is that at least it should be convinced of the necessity of a change in the law before it consents to it.
I would like to follow Senator Johnson in his very pertinent remarks. This Bill deals with the very important question of copyright and with patents for inventions. This is a world-wide question, and it has been occupying the attention of various legislatures for many years. I think it is surely due to the Seanad that we should have some explanation as to what these changes mean from somebody who is responsible for the Bill. I have looked through this Bill, and I want to raise the point, though this is hardly the time, which might be raised on most Bills, and that is that there is very often too much legislation by reference. In this Bill there is not so much legislation by reference as is usual. Legislation by reference is a most objectionable proceeding, and hitherto most of the legislation in the Free State has been legislation by reference. The result is that the public, and even the legal profession, are confused about what some of these Bills may happen to mean. This Bill is not a particular offender in that respect, but I would like to enter my protest to this practice, and I will repeat it on every occasion that legislation is attempted by reference to Bills which this Seanad may not quite understand. I think this question of patents and copyright is a very important one, and we should have some responsible person, some Minister, to explain what we are asked to do.
Before anybody goes further into the question, I was prepared to take the amendments to the Act seriatim and to give an explanation of the reason for each amendment, but I thought that on Friday evening the Seanad might not care to be wearied by details as to these changes. They are really amendments to the Principal Act. Before any other Senator speaks, I would like to explain the sections of this Bill. Section 2 amends Section 19 of the Principal Act. In the Principal Act, Section 19, the acceptance of a complete specification in London is equivalent to the acceptance of a complete specification here. The object of this provision is to save the expense of the searches necessary before the acceptance of a complete specification.
Under Section 19 (5) and the Rules it is necessary to lodge in the office, within one month of the acceptance in London, a copy of the accepted specification and drawings, certified by the London Controller. This period of one month has been found to be too short. There are a number of such accepted specifications in the office which have been lodged later than that, and consequently they cannot be proceeded with. That is the reason for extending the time. Under Section 3 a patent granted in London before 1st October, 1927, is, under Section 29, valid in Saorstát Eireann without registration here, but such patent will lapse, under Section 33, if renewal fees are not paid as they fall due. The object of Section 26 (6) is to secure that our Controller shall have on his register a complete record of such British patents. Under this sub-section he will refuse to accept the renewal fees unless all the documents that he requires relating to such patents have been lodged. Section 45 (4) as amended by Section 5 of the Bill, shows the documents which must be furnished to the Controller. It is simpler to refer to Section 45 (4) in Section 29 instead of setting out a list of the documents in full, because in that section the list of documents is set out. Under Section 4 a patent granted in London before 1st October, 1927, the date of the commencement of Part 1 of the Act, is, under Section 29, valid in Saorstát Eireann without registration here, but it will, under Section 33 (1), lapse in Saorstát Eireann unless renewal fees are paid here as they become due. The prescribed time for the payment of any renewal fee is before the expiry of the year next preceding the year in respect of which the fee is due. Under Section 33 (2), the Controller is empowered to extend the prescribed time for six months, the object being to allow patent agents to communicate with their clients all over the world as to whether they wish their patents kept alive in Saorstát Eireann or not. This period has been found to be too short, and twenty months from 1st October, 1927, is now proposed as being necessary for the business of the office.
The reason of the substitution of "any fee" for the "first fee" is as follows: the patent year of a British patent might expire on the 15th October, 1927. The first renewal fee payable in Saorstát Eireann is that in respect of the period 1st to 15th October, and is immediately due. The time for the payment of this fee as the Act stands can be extended for six months, when another renewal fee, namely, that for the succeeding patent year, becomes due before the 15th October, 1927, and the time for the payment of this fee cannot, as the Act stands, be extended, The amendment is intended to remove this anomaly. The importance of the amendment is limited by the fact that the Controller can only extend the time up to the 1st June, 1929. It is necessary to give the amendment a retrospective effect. With regard to Section 5, this amendment specifies the documents which must be lodged with the Controller in the case of a British patent. All these documents are required by Rule 51 of the Patents Rules, 1927, but it is feared that without the present amendment, Rule 51 might be ultra vires the Act. There has been, in fact, no complaint as to compliance with Rule 51. Although a British patent granted before 1st October, 1927, is valid in Saorstát Eireann without registration here, the Act makes provision for having a complete record of all British patents and entries relating thereon on our register. This is essential for the proper working of the office. This is effected by making it obligatory under Section 29 (6) and Section 45 (4) to furnish all the entries on the British register relating to the patent before the payment of renewal fees: if they are not furnished, the Controller will refuse to pay the renewal fees, and the patent lapses. On drafting the Act, it was not observed that there are no renewal fees payable in the case of Patents of Addition which are dealt with in Section 35. Consequently, there may never be a record of such British patents on our register. The proposed amendment has the effect of compelling the furnishing to the Controller of the entries on the British register relating to Patents of Addition, under penalty of lapse of the patent if this be not done. The date, 1st January, 1932, is taken as being the date before which, having regard to the payment of renewal fees, all ordinary British patents will normally be on our register, and as affording quite sufficient time for furnishing the required particulars.
As to Section 6, compared with the repealed Section 46, this section empowers the Minister to take an invention or patent and to develop it in various specified ways. The chief criticism in the Dáil was in respect of the powers of the Minister to dispose of such rights acquired by him, and to develop them commercially, without the control of the Oireachtas. It appears to have been thought that the control provided by appropriation under sub-section (3) was not sufficient. The Dáil passed the section on the introduction of the following modifications:
(a) Under (d) the sanction of the Minister for Finance is required to the sale or lease of a patent, or the grant of a licence, by the Minister.
(b) Every Minister shall lay before each House an annual report of whatever he may have done under (d) and (e) (that is, in respect of disposal of State rights and commercial development), and may, if he thinks it expedient, lay a report of what he has done under the other paragraphs.
As to the point raised with reference to this by Senator Sir John Keane, as to what was the policy underlying the acceptance of the development of a patent of this kind, the Minister explained in a statement on this question that it is only in very exceptional circumstances that he would accept the responsibility conferred on him by the section. There is one such exceptional circumstance at present. The Minister has accepted a patent, as is pretty generally known, but it is not intended that a practice would be made of any such procedure. As will be seen by the section, the matter is pretty well watertight as regards the rights and privileges of the Oireachtas in keeping sufficient control over any development, and in the working of the patents under the powers the Minister gets under this section.
Would the Parliamentary Secretary answer the point I raised as regards the price to be paid for patents under licence, and with regard to rights?
They have not any rights, except they reside here, to get an entry on our register.
Cathaoirleach
Senator Barrington asked a great many questions, and if the Parliamentary Secretary cannot answer them, then they cannot be answered.
The Parliamentary Secretary, if specially asked, might be allowed to explain the Bill.
Cathaoirleach
Do you wish to speak, Senator?
I am only speaking on a point of order. Senator Barrington has asked for an explanation on a certain point, and the Parliamentary Secretary desires to give the explanation.
Cathaoirleach
As to the point of order, a Senator can only speak once on this stage of the Bill. Senator Barrington has already spoken three times. That is the point of order explained for the Senator.
Senator Sir Thomas Esmonde rose.
Cathaoirleach
I am afraid, Senator, that you are also an offender.
My only reason for rising is to ask that the Parliamentary Secretary should be allowed to continue his speech.
I will now deal with Section 7. The deletion of the words "the firm and" and "the company and"—I think this is the point that Senator Barrington wanted to refer to—in Section 62 (b) and (c) respectively, is proposed for the following reasons. Under Section 63 the conditions of eligibility to be entered on the register of patent agents clearly apply to individuals only and not to firms or companies. There is no test of eligibility for the registration of a firm or company. A firm or company must not, therefore, be registered as such. But the amendment does not affect the provisions of Section 62, that a firm cannot hold itself out as a "patent agent" unless every partner of the firm is registered. Similarly as regards a company. The words "the firm" and "the company" are not in the corresponding section of the British Act. On drafting our Act we did not observe that the introduction of these words created an inconsistency with Section 63.
This amendment makes it necessary that as well as having a place of business in the Saorstát a patent agent must also reside in the Saorstát. Under Section 66 a design registered in London before 1st October, 1927, can be entered on our register, without going through an ordinary application to register a design, if it is done within six months after the 1st October, 1927. This period has been found to be too short. A large number of applications to enter such designs on our register cannot be proceeded with owing to the lapse of the six months. The proposed amendment will extend the period up to 1st June, 1929. In our view that is sufficient time in which to have our register properly compiled. Of course, the principal work of the Controller has been the compiling of a proper register so that he would have transferred from the British Register all the necessary details as well as registering of new patents. This amendment must be retrospective in order to give the necessary power to register those we have at present on hands. Section 9 is the same as the other.
The reasons for the amendment of Section 10 are somewhat complicated. The intention of the proviso to Section 154 (1) is to enable the imposition of "licensing conditions" on the copyright acquired by an author (being a citizen of a non-Convention country). The outstanding country outside the Convention is the United States of America, and in order to facilitate the protection of copyright here a rather involved procedure has to be gone through. This was to meet our promise that we would take whatever steps might be found possible to secure that books like "My New Curate," copyrighted in America, would be put on our market on reasonable terms. An American citizen might, we considered on drafting the Act, get copyright here either by publication here under Section 154 (1) (a), or by Order under Section 175 if his book were published in America. But in the course of the preparation of the Order under Section 175 relating to America, we found that the American law gives no copyright to our authors on the ground merely that their books are published in this country. To get copyright in America they must publish and print in America, and, being aliens, they cannot even do this without the making of a Presidential Proclamation. The Presidential Proclamation will be made in return for our Order under Section 175. We have a reciprocal understanding on this point.
Since American law gives no copyright to books published here, but does give copyright to our authors of unpublished books, it is proposed to similarly restrict our Order under Section 175 so as to give protection only to the unpublished works of American authors. Since then our Order under Section 175 will not relate to published works, there will be no opportunity of applying the "licensing conditions" by means of such Order. But as we will make an Order under Section 175, in order to get the Presidential Proclamation, it is proposed to omit the words in the proviso to Section 154 (1) in order to enable us to impose the "licensing conditions," even though an Order under Section 175 be made. In a reference to (b) in the section, it has been pointed out to us that while the Convention does allow us to limit the period of an author's control over translations of his works in the manner set out in Section 154 (2) (a) as it stands it does not allow us to limit his control over performances of translations of dramatic and musical works, which is also the effect of the sub-section as it stands. The amendment is intended to make our law conformable with the Convention.
This is an illustration of the fact.
If the Senator studies the Principal Act and the amendment he will see that the amendment clarifies the position considerably from the manner in which it is left by the Principal Act. Coming to Section 11, the expression "British Dominion" is not clearly defined in the Act. In Section 3 it is merely defined as including certain countries. In preparing the Orders under Section 175 a doubt consequently arose as to whether such Orders could be made applicable to British protectorates or territories. The proposed amendment is intended to remove this doubt. With regard to sub-section (b) of the section, under the Convention we are bound to restrict the period of copyright we give to foreign works to the period of copyright allowed by the law of the country of origin of the works. As Section 175 stands, we must give them the same period as the Act gives to our own citizens. The amendment is intended to give us power to comply with the Convention. We are bound by the Convention and want power to comply with it. Section 12 makes it clear that the copyright in notes issued by the Currency Commission belongs to the Commission; and also makes such copyright perpetual instead of the ordinary period, under Section 156, of the life of the author and fifty years after his death.
The statement made by the Parliamentary Secretary will be of great assistance to Senators in their study of the original measure, and also of the Bill which is now proposed. I would like to assure the Parliamentary Secretary he will find the more frequently he comes here, what those of us who have come here recently have found, that the Seanad takes itself very seriously. A statement upon a code of this description is very necessary and will be of great assistance to us, because, in addition to the amendments which are proposed in the Bill, I am sure other amendments will be introduced by members of the Seanad. I cannot conceive anything which would be of greater assistance to Senators than the perusal of the statement which has now been made by the Parliamentary Secretary. I would ask the Seanad to pass the Second Stage of this Bill, because this amending Bill will introduce very considerable improvements in the Principal Act. Senator Johnson has questioned the propriety of introducing amendments so early to an Act which was passed only in the year 1927. That Act of 1927 is a code of laws governing a new function of the Free State in dealing with patents, copyright and business generally. After two years of working, of course it has been found that amendments were necessary. I am greatly surprised that the necessary amendments are not much more numerous. Still I am sure that the officials who have been in charge of this Department of Industry and Commerce and who have been working this Act for two years, are quite satisfied that, as far as they are concerned, the amendments now proposed are sufficient. We will have, of course, other amendments to propose. Perhaps the House will bear with me while I state that this amending Bill contains two new principles which really I think are very useful. In the first place, the State takes to itself power to acquire a patent. That is a function of Government. I do not know of any State, certainly I believe there is no sovereign State, which has not the power to acquire patents and which does not frequently exercise that power. I was rather amused in listening to the statement that was made in the Dáil and repeated here, that this section is not intended to be of general application. I can imagine the Minister and the officials trembling in the presence of a horde of new inventors who are going to come up offering to sell them patents. However, I think that section is a desirable section.
There is another section in this Bill introducing a new principle which is advisable and necessary, namely, that persons who apply for patents shall be resident in this country, citizens of this State, and resident in this country. When I say persons who apply for patents I mean agents through whose hands the application for patents comes. Now the purpose of that is perfectly plain. It is that any patents affecting this country are to be dealt with by people in this country, and they are not to be flung about like a shuttlecock between patent agents in other countries who have not the same interest in this country which agents resident in Ireland and citizens of Ireland would be disposed to have. Therefore, I am greatly in favour of that section, and I would like to know from the Minister whether he would adopt an extension of that principle. I am informed that English agents can render this section, as it stands or amended as it may be, entirely nugatory by the very simple device of preparing all specifications, plans and papers in London, Paris or New York and sending them here to a solicitor who would simply hand in the papers. The Parliamentary Secretary will correct me, I am sure, if I am wrong, but I am told that there has been a decision to the effect that a solicitor in this country is empowered to hand in papers and make applications for patents.
Cathaoirleach
I do not like to interrupt the Senator, but these are only Committee points. We can deal with these points on the Committee Stage.
Well, before the amendment is prepared I was anxious to know from the Parliamentary Secretary whether, when he has considered this matter, he would accept such an amendment. Of course, I do not want to have the answer now. He may want time to consider it. I think these are the main points to which I want to refer. I am anxious that this Bill should go to the Committee Stage because I have already one amendment to propose, and I have now suggested another amendment.
I want to know from the Parliamentary Secretary if under this Bill the Minister can avail himself of the provision in force for endorsing a patent and fixing the price compulsorily at which he can acquire any patent?
I do not think the Minister has compulsory powers. I do not think there are compulsory powers to acquire patents.
Question—"That the Bill be read a Second Time"—put and agreed to.