This is a technical amendment to bring the Bill in line with the directive.
Industrial Designs Bill, 2000: Committee and Final Stages.
Sections 1 to 14, inclusive, agreed to.
SECTION 15.
Government amendment No. 1:
In page 12, subsection (2), line 43, after "Act" to insert "or by an application for such a right".
Amendment agreed to.
Section 15, as amended, agreed to.
Sections 16 to 19, inclusive, agreed to.
SECTION 20.
Amendments Nos. 2 and 3 are related and may be discussed together by agreement.
Government amendment No. 2:
In page 14, between lines 5 and 6, to insert the following new subsections:
"(2) Subject tosubsections (3) and (4), an application under subsection (1) may be amended, at the request of the applicant and with the approval of the Controller, at any time prior to registration.
(3) An amendment to an application for registration of a design under this section shall not be approved of by the Controller if the amendment affects the identity of the design.
(4) Where an amendment to an application for the registration of a design under this section is made the filing date of the application shall be retained.".
The amendment is concerned with enshrining in law the current practice which permits applicants to submit amendments to their applications for registration of a design. These amendments may only be submitted prior to registration and with the approval of the controller. They must not change the identity of the design in question and the controller will refuse requests for amendments which affect the identity.
This qualification in respect of identity, that is, in respect of the general appearance of a design, prevents applicants from lodging applications for a particular design and then subsequently altering the design, that is, the subject of the application, to a significant degree while retaining the original filing date. If left unqualified in this matter, this power to amend design applications could be used in an anti-competitive manner to lay claim to ownership of others' designs by changing the design and invoking the earlier filing date to claim ownership thereof. This would have the potential to undermine the entire system of registered design protection. My legal advice is that it is advisable to incorporate this provision in primary law rather than relying on provisions in secondary legislation, given the importance of the provision.
Amendment No. 3, as with the final element of amendment No. 2, seeks to ensure that, where the controller has refused an application for registration of a design, as opposed to the previous amendment which deals with requests by applicants for changes to applications prior to registration, and an amendment to the design application is subsequently permitted by the controller which does not significantly alter the design in question, in order that the design may be registered the application shall retain its original filing date. This is necessary to provide clarity in respect of this aspect of the procedure for registration of designs which has not been directly addressed by the terms of Article 11 of the EU directive. It will also facilitate applicants for registration of designs in registering their designs where they have overlooked some aspect of the application or the representation of the design. That is the background. It provides greater clarity in this important legislation.
I accept the need for these amendments on the basis that they are needed to provide greater clarity and improve the law.
Amendment agreed to.
Section 20, as amended, agreed to.
SECTION 21.
Government amendment No. 3:
In page 14, between lines 22 and 23 to insert the following new subsection:
"(3) Where an amendment to an application for the registration of a design under this section is made the filing date of the application shall be retained.".
Amendment agreed to.
Section 21, as amended, agreed to.
Sections 22 to 36, inclusive, agreed to.
SECTION 37.
Government amendment No. 4:
In page 19, lines 16 and 17, to delete subsection (5) and substitute the following new subsection:
"(5) A correction of the Register under this section shall have the effect that the error in question shall be deemed never to have been made.".
This amendment is tabled in the interests of legal clarity and as a contribution to making the Bill more user-friendly.
Amendment agreed to.
Section 37, as amended, agreed to.
Sections 38 to 62, inclusive, agreed to.
SECTION 63.
Amendments Nos. 5 and 6 are related and may be discussed together by agreement.
Government amendment No. 5:
In page 30, subsection (1), line 44 , to delete "subsection (2)”and substitute “subsection (1)”.
Amendments Nos. 5 and 6 are technical amendments to correctly align cross references within the Bill.
Amendment agreed to.
Section 63, as amended, agreed to.
Section 64 agreed to.
SECTION 65.
Government amendment No. 6:
In page 32, subsection (1), lines 6 and 7, to delete "subsection (2)” and substitute “subsection (1)”.
Amendment agreed to.
Section 65, as amended, agreed to.
Sections 66 to 88, inclusive, agreed to.
SECTION 89.
Amendment No. 7 and amendment No. 1 to amendment No. 7 shall be discussed together.
Government amendment No. 7:
In page 44, line 42, to delete "'texture or materials'." and substitute the following:
" ‘texture or materials',
(c) the substitution in section 78 of ‘the Industrial Designs Act, 2001' for ‘the Act of 1927' in subsection (1)(a),
(d) the substitution in section 78 of ‘the Industrial Designs Act, 2001' for ‘the Act of 1927' in subsection (2),
(e) the insertion of the following after section 78–
78A. (1) The copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface is not infringed by the making of a product to the design or the copying of a product made to the design.
(2) The copyright in a design document or a model recording or embodying a design for anything other than an artistic work or a typeface is not infringed by the issue to the public, or the inclusion in a film, broadcast or cable programme service, of anything the making of which is, by virtue of subsection (1), not an infringement of that copyright.
(3) In this section and section 78B–
"design" means the design of any aspect of the shape or contours (whether internal or external) of the whole or part of a product, other than surface decoration;
"design document" means any record of a design, whether in the form of a drawing, a written description, a photograph, storing the work in any medium or otherwise;
"product" means any industrial or handicraft item, including parts intended to be assembled into a complex product, packaging, get-up, graphic symbols and typographical typefaces, but not including computer programmes; and
"complex product" means a product which is composed of multiple components which can be replaced permitting disassembly and re-assembly of the product.
78B. (1) This section applies where an artistic work has been exploited, by or with the authorisation of the copyright owner, by—
(a) making by an industrial process products falling to be treated for the purposes of this Part as copies of the work, and
(b) marketing such products, in the State or elsewhere.
(2) After the expiry of 25 years from the end of the calendar year in which such products are first marketed, the work may be copied by making products of any description, or doing anything for the purpose of making products of any description, and anything may be done in relation to products so made, without infringing the copyright in the work.
(3) Where only part of an artistic work is exploited as mentioned in subsection (1), subsection (2) applies only in relation to that part.
(4) The Minister may prescribe:
(a) the circumstances in which a product, or any description of product, is to be regarded for the purposes of this section as made by an industrial process;
(b) the exclusion from the operation of this section such products of a primarily literary or artistic character as the Minister thinks fit.
(5) In this section references to products do not include films.',
(f) the deletion in section 85(2) of ‘15 years' and the substitution of ‘25 years'.”.
Government amendment No. 1 to amendment No. 7:
In line 2 of paragraph (f), to delete “years'.”.” and substitute the following:
"years',
(g) the repeal of section 79 (2).”.
I appreciate Members' co-operation in regard to this extremely technical legislation. The amendments proposed in respect of paragraphs (c), (d) and (f) are technical in nature. Paragraphs (c) and (d) simply replace the references in the relevant provisions of the Copyright and Related Rights Act, 2000, to the Industrial and Commercial Property Act, 1927, which is being repealed by the Industrial Designs Bill, with references to this industrial designs legislation. They are, in essence, transitional provisions to ensure the safe legal passage between one system of law and another. Paragraph (f) simply extends the protection afforded under copyright law to the designs of typefaces in respect of industrial production of those typefaces on articles from 15 to 25 years to reflect the extension of protection of designs under this Bill to 25 years. Paragraph (e), however, is a substantive insertion into copyright law that it is required to clarify in that law the type of protection that is to be afforded to the documents and models in which designs are first recorded prior to their incorporation in products.
I remind Senators that the Industrial Design Bill is only concerned with protecting designs once they have been applied to products and does not address sketches, diagrams or other recordings of designs, including electronic recordings, before they are so applied. Under current Irish law, design documents only qualify for copyright protection where they are not used or intended to be used as models or patterns to be applied industrially to products. Where they are so used all copyright protection is denied, giving rise to concerns about compliance with our obligations under the Berne Convention to protect, in particular, artistic works. It is necessary to update the law to deal with this aspect in order to provide greater legal clarity and reflect the experience of legislators, especially in the UK, in this very complex area of the law.
We have had the opportunity to ensure that our copyright law and industrial design legislation are properly aligned. We have also had the opportunity, since the last occasion on which I addressed the Seanad, to consider the UK experience. As already stated, we are concerned here with properly aligning, in a technical context, these two important items of legislation. We spent a considerable period discussing the copyright law in the House and what we are doing today will bring greater clarity and ensure that, from a technical point of view, both items of legislation will fit comfortably together.
I concur with the Minister of State. I accept that paragraph (e) of section 7 provides substantive clarification and is necessary for the reasons he broadly outlined. As he stated, there is a need to establish clearly in the law the appropriate relationship between the system of copyright protection for design documents and protection of designs by the system of registration as industrial designs. There is also a need to ensure that industrial designs are protected by copyright against reproduction on consumer products for a limited period – 25 years – to assist industrial and product development. The sooner designs become freely available to industry in general the quicker they can be incorporated into the field of and contribute to the further enhancement of industrial design. It is also necessary to make clear that full copyright should continue to subsist in works that are of a primarily literary or artistic character – honouring our commitments under the Berne Convention on Copyright – and thus draw a line of demarcation between them and commercial industrial designs. The amendment will also help to comprehensively update and improve existing law in this complex area.
As the Minister of State indicated, paragraph (f) of the amendment merely updates the term of copyright protection for typefaces from the existing 15 year period to one of 25 years in order to reflect the extended term of protection to be given to registered designs under the Bill. As I outlined on Second Stage, we support the Bill.
Amendment No. 1 to amendment No. 7 agreed to.
Amendment No. 7, as amended, agreed to.
Section 89, as amended, agreed to.
First and Second Schedules agreed to.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."
I take this opportunity, as I did on Second Stage, to acknowledge the contribution of the Minister of State. This Bill is yet another brick in the wall of property protection. The intellectual aspect of such protection is dealt with under the Copyright Act and the creative aspect will be dealt with under the Industrial Design Bill. This sends a powerful message to the rest of the world and particularly to our European Union colleagues that Ireland is the place to be if one wishes to be innovative and creative and have one's creativity protected. I wish the Minister of State well with the Bill.
I concur with Senator Mooney. Much good work has been done in this area and due to the efforts of the Minister of State we have greatly improved the law and fulfilled our European Union obligations. As stated on Second Stage, we were obliged to comply with a time limit in passing this legislation but also that we would be allowed some leeway. I believe we have overrun the target date, but not by much. I wish the Minister well with the Bill, which is a necessary measure. I concur with Senator Mooney's assertion that Ireland is the place to be. We have placed ourselves at the forefront in respect of this area.
I agree with what has been said but I wish to make a number of points in respect of the legislation. We have created an environment which proves that Ireland is still at the forefront in the necessary areas in order to ensure that when the current climate of economic uncertainty passes in the beginning or middle of next year, companies that are considering relocating or expanding their research and development or industrial research operations will look favourably on the laws we have put in place and take them into account when deciding where to locate. In my opinion this legislation will be central to ensuring that companies involved in the areas to which it relates will consider Ireland and the favourable environment we have created here.
With regard to the point made by Senator Coghlan, we were due to complete and pass the Bill by 28 October. We are not doing too badly by passing it today, 7 November, and we have come a close second to the Italians in relation to incorporating the relevant directive in our domestic legislation.
I thank the Minister of State and his officials. I am sure Senator Coghlan will concur that the Minister of State has always been open to allowing Members from all sides of the House access to the advice he receives. It is important to recognise that fact because this is a facility which is not extended by every Department. I wish we could see more progress in this regard from both a Government and an Opposition point of view.
It would be particularly remiss of me not to concur with the remarks Senator Cox has just made. I thank the Minister of State and his officials for their kind assistance throughout the proceedings on the Bill.
I sincerely thank Senators for their comments. I concur with their remarks about my officials. I am privileged to hold quite a busy portfolio which incorporates responsibility for consumer affairs, labour and trade. I have been given the task to oversee important changes in intellectual property legislation and when we began our work on copyright law my first reaction was that it would take some time to meet the challenge involved. However, I agree with Senators that we have been very well served by the relevant officials who have, in my view, provided tremendous help to everyone.
We ploughed through the copyright legislation but it is important to make the point, as a number of Senators did, that the Copyright Act and the Industrial Design Bill follow on from patent legislation, which protects inventions, and trademark law. We have put in place a good system of intellectual property legislation by passing the Copyright Act and the Industrial Design Bill. In the area of copyright, we have provided protection for literary, music and dramatic works and films, broadcasts and recordings. That was a significant achievement, not just in terms of its importance for artists but also for its effect on the economy. The Bill before us will provide for the protection of the appearance of products and will support product development and design and innovative activity and creativity in general.
The support and input of Senators is much appreciated. We can be proud of the corpus of intellectual property legislation we have put in place. However, this was not achieved without a great deal of effort on all our parts. I thank you, a Chathaoirligh, and Members for that because we have done a lot of the ground work in this Chamber.
We should underline not only the artistic and creative significance of this measure but its economic significance. At a time when the economy is under some pressure, it is important we leave no impediments in the way of going forward. As far as I am concerned we have done our work regarding this element of the Government's programme of work and my officials will support me in that. We have put strong intellectual property legislation in place. As Senator Cox said, the Italians barely beat us to it on this directive but we can be proud of our work and hopefully those who come after us will appreciate that we laid solid groundwork in this legislation. I thank Members for their comments, particularly those relating to my staff.
Question put and agreed to.
Sitting suspended at 3.35 p.m. and resumed at 6 p.m.