Intellectual Property in the new Programme for Government.
The new government is in place and the Taoiseach has promised to “hit the ground running” with the programme, Government for National Recovery 2011-2016.
What will the programme deliver for the IP-sensitive sectors?
A good deal of the respective election manifestos of Fine Gael and Labour is preserved in the programme (see blog February 27).
The programme adopts the recommendations of the most recent report of the last government, Trading and Investing in a Smart Economy. This document identified opportunities in ten economic sectors, including software, the creative industries, life sciences, clean technology, and “silver” technologies – all of which are highly IP-sensitive. As technology progressively drives development in every sector however, IP grows in importance right across the economy. With each successive policy document, this fact can be seen more clearly, even when it is not explicitly acknowledged.
The digital economy
The digital games industry is again singled out for support, as is the development of Ireland as a “digital island” and first-mover in the development of information technology. Key technology areas where innovation can be applied are to be targeted. Ireland is to be a leader in the emerging market of cloud computing.
The ICSC
The development of the International Content Services Centre is retained – “to make Ireland a world leader in managing intellectual property”
Bringing innovation to market
The National IP Protocol, proposed by the Innovation Taskforce last year, is to give predictability to the terms on which IP created in universities can be accessed by enterprise. The Labour proposal for a network of Technology Research Centres has also been adopted, to help bridge the gap between research and commercialisation.
Copyright reform
The US-style “fair use” defence to copyright infringement, proposed in the Fine Gael manifesto, surfaces again, with a promise to “pioneer” such a model within the EU. In fact Ireland will not be the first in Europe to propose this. It has been mooted in the UK and forms part of the current Hargreaves review of IP law. The Dutch Government too has been interested in it for a number of years, and has recently been called upon by the Dutch Labour Party to deliver on its promise to initiate discussions at European level about a fair use defence for user created content.
Hidden away in a section of the document entitled “Communications” is the undertaking to:
“review and update Intellectual Property legislation currently in place to benefit innovation, develop a National Intellectual Property protocol [already mentioned in the document] to give clarity about terms on which business can access IP created in Higher Education Institutions, and clarify legislation relating to online copyright infringement and enforcement of rights relating to digital communications”.
It is difficult to read this as a broad promise to review the IP regime. However, combined with clear statements made in the Fine Gael manifesto, it does appear to signal at least an attempt to address the file sharing problem, if not a wider piece of legislation along the lines of the UK Digital Economy Act. The fact that it is classified under the heading of Communications may indicate that Pat Rabbitte’s Department will take the lead.
Implementing EU Directives.
It is particularly interesting to find this: “The situation can no longer be tolerated where Irish Ministers enact EU legislation by statutory instrument”. It is undoubtedly the case that a wide view has been taken in recent years of the extent to which EU directives can be transposed by way of secondary legislation. The guidelines were laid down by the Supreme Court in Meagher v Minister for Agriculture [1993 1IESC2] and Maher v Minister for Agriculture & Ors [2001 IESC32], but the boundaries have been stretched at times. The Artists Resale Right is an example of a measure which ought to have had the benefit of primary legislation, and which has proved problematic because of the minimalist approach dictated by the need to rush it through by Ministerial regulation.
Of course primary legislation is far more demanding of time and resources than the statutory instrument. With a shrinking public service, there may be a price to be paid in terms of long delays for banishing the statutory instrument to its proper place in the order of things.
