I bring the Bill before the House as part of a broader programme of intellectual property law reform which has been ongoing over recent years. Intellectual property rights have become increasingly important to the economy and to society in general in recent times and this has been reflected in the increased activity on the legislative front, both domestically and internationally, in the past decade or so.
On the domestic front, in continuation of the process that started with the Patents Act, 1992, and the Trade Marks Act, 1996, the Government introduced the Intellectual Property (Miscellaneous Provisions) Act, 1998, and the Copyright and Related Rights Act, 2000, both of which significantly advanced the systems of rights and remedies for the creators and owners of intellectual property. This Bill represents the last leg of this initial programme of legislative reform and, as such, marks a significant milestone in the intellectual property arena in Ireland.
I refer to the economic significance of intellectual property law. Intellectual property rights are a key factor in promoting investment in innovative activity in an economy. Innovation is a critical element in maintaining a competitive edge for an economy in the face of increasing international competition and economic globalisation. Any hopes of sustaining economic growth in the longer term depend significantly on the ability of an economy to adapt and achieve technical progress. Investment in research and development and a high valuation and prioritisation of innovative activity must be encouraged to give this country a chance of sustaining in the longer term our current economic well-being.
Intellectual property rights are an essential part of the support and promotion framework which can ensure that Irish business continues to invest in and develop innovative and creative activity. In addition to the intellectual property programme, and with a view to driving competitiveness in the longer term, the Government has established, for example, the technology foresight fund, setting aside up to £560 million or €711 million over seven years for the creation of a critical mass of world class research, initially in biotechnology and information and communications technologies.
The role to be played by industrial design in this process should not be underestimated. Design has a crucial role in the process of product development and marketing and, at a broader level, in the continued development and growth of product markets. Prior to the 20th century industrial design endeavour was recognised as protection in law in respect only of textile products.
However, the growth of society and the growth of mass production techniques across all product markets have seen the scope of industrial design protection widen dramatically to cover countless product lines. The facts are now clear – if you are in the business of manufacturing, whether by industrial or handicraft means, products for consumption then industrial design is central to your operation, right through manufacture to marketing and end-sale. To succeed in today's highly competitive and globalised markets, you must invest in quality design.
Many Irish designers have received great recognition and have had remarkable success both at home and abroad for their excellence and individuality. Irish textile fashion designers have been at the cutting edge of international design and have exhibited around the world to great acclaim. Irish crystal and glassware products are household names throughout the world and are the subject of a massive export industry. On the domestic front, Irish design expertise has blossomed and currently boasts sufficient diversity and excellence to compete successfully with the best of imported material. Our success in this area is based on quality and, to no small degree, on our Irish culture, as witnessed by a strong and vibrant craftwork and traditional handicraft industry that continues to thrive in many parts of the country. Ireland has also been at the leading edge of modern design, including the area of graphic design which is so significant in the context of the information society. The excellence and hard work that has gone into these areas must continue to be protected against the potentially devastating effects of plagiarism and this Bill aims to provide the appropriate level of support in the law, by providing strong legal remedies and criminal penalties to ensure that the necessary level of protection is achieved.
Members will recall the great work on the Copyright and Related Rights Bill in this House. While copyright law is concerned with creativity and, in respect of artistic works at least, the aesthetic expression of intellectual creations, industrial design law is also concerned with conceptual and artistic creativity. There is one significant difference, however, and that is the fact that industrial design is centered on the appearance of products rather than on the creation of individual works of art or individual self-contained expressions of the intellect. In that way, I suppose we could refer to industrial design protection as a form of ‘applied copyright' because it is concerned with practical aspects of physical products. Industrial designs are essentially the appearance of products that are made by industrial or handicraft means. They include such features of appearance as shape, contours, lines and colours. Examples of familiar designs would be the shape of a Coke bottle, the patterns used on wallpaper and carpets and the contours of crystal glassware. If we look around this Chamber we can see many examples of industrial design in the furniture, carpets and other aesthetic features of our surroundings. This Bill will protect these designs against, for example, the illegal copying of the design, the illegal sale of products incorporating the design and the illegal import or export or other use of a product incorporating the design.
This Bill is in essence modernising legislation. The fact that the landmark 1927 Industrial and Commercial Property (Protection) Act, the first comprehensive piece of intellectual property law to be enacted in the State, is still in force in respect of industrial designs is, in itself, sufficient reason to revisit this aspect of the law. The adoption of a European Union directive on the legal protection of designs in 1998 also offers both an opportunity and an obligation to overhaul the current legislation and to bring this aspect of intellectual property law into the new century.
In relation to the content of the Industrial Designs Bill, 2000, let me point out a few general facts about industrial designs and the law. It is the appearance of products that is the subject of industrial designs protection, as distinct from the function of the product. To use the car tyre as an example, it is the shape of the tyre or the contours of the thread grooves that may be protected under industrial design while the function, which in this case is to enable the car to be driven on a surface – or with new tyre designs to increase the technical control that the driver has of the car on the road – is not protected at all by the registration of the industrial design. It may be possible that the function could be patentable as an invention and thus protectable under patent law, but that is not a matter for this legislation. In that sense, it could be said that protection under this Bill is not to be given to products that re-invent the wheel. Rather, it is the aesthetic appeal of an industrial design that is protectable under this Bill. The appearance of many products can be the decisive factor in determining whether a consumer buys that product or opts instead for a competing product. In this way, a poor design might undermine the commercial potential of a very high quality product. As a result, designers will spend a lot of time and effort, and businesses a lot of money, on achieving the best possible design for their products. This investment of time and money must be rewarded to encourage its continuation.
The most effective and transparent manner in which to protect industrial designs is through a system of registration. This offers legal clarity and certainty and provides a system of accessible and concise information on the existence of rights and on registered rights holders. The production of evidence of registration greatly assists the designer in moving quickly and decisively to obtain legal redress, through an injunction for example, to prevent the infringement of his or her rights and to stop the continuation of such infringement. The existence of a public register also offers the public and businesses important information on pre-existing rights and the expiry dates of such rights. This is very useful information for future planning and expenditure decisions of directly competing industries and of industries and businesses that rely on designs to provide the best possible finish for their own product.
As part of the update of existing law, this Bill clarifies the legal position regarding authorship and ownership of industrial designs and provides a clear statement of the rights that attach to the registration of the design under the new law. These provisions offer significant support to the designer in prosecuting and defending his or her rights in civil legal cases. The existing system of law is also amended to allow invalidation actions to be taken before the Controller of Patents, Designs and Trademarks on less restricted grounds than in the current law. This should prove useful, practical and cost-efficient in terms of time and expense for users of industrial designs.
The Bill includes new provisions on the restoration of protection of designs that has lapsed despite due diligence on behalf of the owner in maintaining the registration and provides an exception which permits prior use of a registered design to be continued in specific circumstances, even after the design has been registered under the new law. These provisions will facilitate operation of sensible and reasonable law in practice and will assist the smooth transfer to the new regime of protection, particularly for those who have already committed time and resources in good faith to the exploitation of a design and subsequently find that they have no right to use the design.
The Bill restates in a clearer, more comprehensive manner the civil and criminal remedies that exist under the current law and improves them. The civil remedies include access to injunctions and damages and delivery up of infringing products. They also contain protection for those who, unaware of the existence of rights to a design, innocently infringe the right. The Bill proposes strong criminal penalties along the lines of those in the recent copyright legislation. This brings consistency across intellectual property law in this respect and a coherent approach to protection of the various forms of intellectual property. The Bill also provides for a system of compulsory licensing, a mechanism to allow the manufacture of a product where demand for that product is not being met or is not being met on reasonable terms.
One of the principal aims of this Bill is the implementation of the EU directive on the legal protection of designs that was adopted in 1998. It is important that this directive is implemented at the earliest possible date to demonstrate that our recent commitments to bring Irish intellectual property law into line with international commitments are being met. The Bill proposes that many of the legal definitions in the directive be directly transposed into our law. This will eliminate any possibility of incorrect or inconsistent application of the directive. The Bill also introduces new novelty and individual character tests, which are fundamental to the directive. The revised novelty test effectively means that in general, a design must not have been made available to the public within the European Economic Area prior to application for registration in order to qualify for protection. This is a much broader novelty test than exists under current law and is a significant development in terms of the achievement of a single market within the European Union.
I mention in particular the position under the directive of industrial designs that constitutes spare parts used for the repair of complete products. Existing Irish law does not make specific provision with respect to spare parts. Therefore, if a design of a spare part meets the criteria for protection under the existing Irish law, it shall be protected. The terms of the directive include provisions that deny protection of the design of spare parts that are not visible during normal use of the product and the Bill implements that aspect of EU law. Our current Irish law makes no specific provision preventing the registration of spare parts used for the repair of complex products to restore their original appearance, so the opportunity has been taken in the Bill to regularise this position and to liberalise the market for the production of spare parts in Ireland. This means that while there would be no protection for a spark plug in a car as it is not visible during normal use, there would only be limited protection for, say, a wing mirror. For example, Ford could prevent other manufacturers from using the design of the Ford mirror in their cars but Ford could not prevent a spare part company making mirrors for the purpose of replacing damaged mirrors on Ford models. This is a very good provision in relation to consumers and the economy in general.
On the international front, the Bill enables the ratification and implementation of the Geneva Act of the Hague Agreement on the International Registration of Industrial Designs. This treaty was concluded in 1999 and provides for the establishment of an international registration system for industrial designs that is likely to attract large membership among the member states of the World Intellectual Property Organisation and will offer the possibility of protection for Irish designers in many different countries through a single application. Under current arrangements, Irish designers would have to apply individually to each country, pay each country a separate fee and probably hire local legal expertise to assist in achieving registration in those countries. There are obvious cost and time savings involved in having access to a central, dedicated system that will operate to high standards of performance and will process applications more efficiently than the currently available options offer. The regulations that I will, in time, bring forward to effect ratification of the Geneva Act of the Hague agreement will require the positive approval of both Houses of the Oireachtas. The Bill will also ensure that Ireland's industrial design law is fully compliant with the agreement on Trade Related Aspects of Intellectual Property Rights, colloquially known as TRIPS, annexed to the World Trade Organisation agreement. These developments will permit Irish business to fully participate in the various international systems for protection of industrial designs and Irish society to avail of the undoubted benefits they offer.
It is my intention that regulations made under this Bill in the future will facilitate e-business, including electronic payments and, eventually, electronic filing of applications. It is critically important that Irish business and the Irish public have quick, secure and cheap access to information on registered intellectual property rights.
Procedures and enhanced systems to enable the Patents Office to meet that challenge and to bring the industrial designs registration system into the modern era are currently being prepared and will be developed on a structured basis over time. In practice, it is my intention that designers will, in time, be able to apply for registration electronically and access the designs register on-line via the Internet. At present a person seeking information on registered designs must request the relevant information by post or must visit the Patents Office to physically view the paper-based register of designs. This is most impractical and does not permit electronic searching of the designs database or timely access to information for Patents Office users. Indeed, this process will need to be reflected in respect of all areas of intellectual property services, in line with the improved access to public services to be provided in the future. Only then can we say we have truly implemented e-government in this area of public services.
I appreciate that this debate is not the most light-hearted and deals with technical material but it is important, as are the other areas of intellectual property which we have dealt with in previous legislation. I emphasise that while the Industrial Designs Bill is only one element of the overall ongoing programme of reform of intellec tual property law in Ireland it is, in itself, a very significant step forward. It will have a significant beneficial impact on design industries and craft businesses, which rely heavily on the protection of the law to underpin the substantial investments they make in developing designs, but will also impact on virtually every producer and product market. The Bill will also contribute to the modernisation, simplification and user-friendliness of the Irish legal code, as well as enabling Ireland to meet all its EU and international obligations in the industrial designs area. It will serve to promote and encourage innovation and creativity in the development of products and will offer the possibility of appropriate financial reward for those who engage in and invest in the creation of intellectual property. This Bill achieves a fair balance between the need to encourage and protect innovation and ensure that the interests of consumers are respected. I commend the Bill to the House.