Damien English (Meath West, Fine Gael) | Oireachtas source

I understand the Deputy's concerns and will try to put him at ease again, as I tried to do on Committee Stage. The patents are but one form of intellectual property rights, which term includes copyrighted trade marks, industrial designs and so forth. At national level, the various laws that govern these intellectual property rights provide saving provisions, of the type with which the Deputy is concerned, that allow the Government, if necessary, to legislate where there are public interest issues at stake. Individually, we can do that. Moreover, the Irish Constitution specifically recognises the importance of property and guarantees to pass no law to attempt to abolish the right of private ownership. However, in recognition of the principles of social justice, the Constitution provides that the State may, as occasion requires, delimit by law the exercise of such rights in the exigencies of the common good.

At national, European and international level, intellectual property rights enjoy protection that is set down under well-established and respected principles. At international level, the State is party to a number of international treaties and conventions that provide for the type of common good provision about which Deputy Tóibín is concerned. In summary, whether at national, European or international level, IP protections are not of themselves absolute rights and there exist provisions to allow states to apply derogations that allow for the suspension of part of the legal obligation which can operate to restrict some rights under certain circumstances, such as in the pursuit of broader compelling public policy reasons or for greater public interest considerations.

While I appreciate the intent of the amendment, I am not in a position to accept it as it would be wholly inappropriate to provide for the limitation of intellectual property on a blanket basis in a provision of the Patents Act. It is more appropriate that the status quoprevails, which allows for the delimitation of rights in certain express circumstances under the various IP legislative measures, EU instruments and international treaties and agreements to which the State is party. We believe there is ample opportunity to deal with the Deputy's concerns in that context.

On Committee Stage, Deputy Tóibín voiced concern about the position of intellectual property in the context of the negotiations on the transatlantic trade and investment partnership agreement. In particular, he was exercised about the necessity for governments to have the right to legislate and to implement policy in the context of public health and welfare. It is true that there are features of the TTIP negotiations, specifically those relating to investor-state dispute settlement, that are giving rise to considerable debate and some suspicion by stakeholders on both sides of the Atlantic. However, investment protection is a common feature of trade and investment agreements between nations. The EU and US follow the same principles that guide investment and seek to ensure a level playing field for investors. These principles recognise the right of governments to regulate for legitimate public policy objectives.

While the ISDS is a valid mechanism, experience of the ISDS internationally, which prompts the concerns, shows that there is much room for improvement in how the system works. This includes having safeguards against claims that are clearly unwarranted and making sure that ISDS does not serve to constrain the rights of governments to take measures for legitimate public policy reasons. The EU's negotiating mandate on TTIP includes recognition of the right of governments to take measures necessary to achieve legitimate public policy objectives, and this is a key element in TTIP.

It is clear that EU member states will seek to ensure any ISDS provisions in a future agreement will present a fair and reasonable option to which investors would have recourse for legitimate reasons and that governments would not be constrained on developing public policy measures and legislating for them in the public interest. I hope this puts the Deputy's mind at ease. I have tried as best I can to show that our Constitution and laws contain the mechanisms and protections the Deputy seeks to insert on a blanket basis.

See this speech in context