Jimmy Devins (Sligo-North Leitrim, Fianna Fail)

National policy strategies and reviews in recent years have placed an increasing stress on the creation and protection of intellectual property. For example, last December's framework document, Building Ireland's Smart Economy: A Framework for Sustainable Economic Renewal, points to intellectual property protection as being a top priority and points out that creative industries cannot survive in the marketplace without adequate protection from copyright infringement.

As our aim nationally must be to build and maintain a world class knowledge-based economy and society, then equally we must have effective means of ensuring the creation, protection, commercialisation and profitable use of intellectual property. There are several closely linked but distinct elements in our approach to IP, including strategies to promote its creation, protection and commercialisation. The Government is active in each of those elements. In the case of the protection of IP, it exercises its responsibilities through providing a suitable and responsive legislative and regulatory framework. It promotes the production and development of creative industries and innovation through giving exclusive rights to exploit intellectual property, while also making provisions that act as a considerable deterrent to would-be imitators and infringers. Directly related to this protection of IP through the legal system is the matter of the enforcement of that protection, to which I hope to return later.

The extent of IP legal protection has to be balanced by the Government with other considerations. The extent of the effective monopoly given in law has to be weighed against the wider economic good and the need to promote innovation. Sometimes, in seeking longer or higher levels of protection, rights owners can seem to forget that this wider public interest must be considered. Moreover, that a piece of IP exists and has been protected by, for instance, a patent or a copyright unfortunately does not always lead to its commercialisation. Again, for example, it is important that the levels of protection provided can sustain general public support and respect for rights holders' creations. This can have an important bearing on attitudes and behaviour in the fight against piracy and counterfeiting.

Intellectual property theft now is big business. Counterfeiting and piracy are pressing problems in IP protection and enforcement. Those who take the right steps to protect their creations are in a stronger position but those who do not are wide open to counterfeiting and piracy. It already is a big problem. The OECD estimated that in 2007 global trade in fake goods was worth around $200 billion and that does not include goods produced and consumed within countries. The real figure, therefore, is far higher. Counterfeiting and piracy also are rapidly growing problems. While customs services across the European Union seized approximately 75 million fake articles in 2005, that almost doubled to 128 million items by 2007. Some countries have bigger problems with counterfeiting and piracy than others but these problems now feature everywhere. The aforementioned OECD report includes customs data showing that infringing products had been intercepted from nearly 150 countries, including no fewer than 27 of the OECD's 30 member countries. Apart altogether from the scale of this problem, it is important to note that some counterfeiting, such as that of airline industry spare parts or fake or dangerous medicines, poses a direct and deadly threat to human life.

The essence of IP protection is a strong focus on having and managing an effective legislative and regulatory system. My Department has been making a sustained effort in recent years to ensure our patent, trademark, industrial design and copyright laws, among other IP areas, are kept as up to date as possible. Most of this ongoing effort arises, however, from our EU and other international obligations rather than from the purely national context. Over recent decades the increasingly international nature of IP protection rules has grown. This has facilitated and reflected the increasing levels of international trade, both traditional and Internet-based. The development of Internet-based businesses over recent years has underlined further, even for the biggest of countries, the global as against the national nature of markets and IP protection. It would now be more difficult than ever for countries or their economies to take part in the global economy without signing up to and enforcing a range of globally agreed rules.

The World Intellectual Property Organisation, WIPO, which is the UN body charged with the development of global IP rules, and the World Trade Organisation, WTO, through its trade related aspects of intellectual property rights, TRIPS, agreement, are the two main rule-making bodies at global level in IP protection. In Europe, the European Patent Office, EPO, plays a crucial role in the patents field and in the EU proper, the Office for Harmonisation in the Internal Market (Trade Marks and Designs), OHIM, promotes and manages the Community trade-marks and designs systems.

While WIPO, the EPO and OHIM variously implement operational patent, trade-mark and design protection services, they also variously generate conventions, treaties or other rules that require national, legal or regulatory changes which shape much of our domestic IP protection arrangements. However, the most important single source of rule making, here as in other fields, is now the European Union. It has established a legal competence to act vis-À-vis the member states in most areas of IP protection law, including copyright, trademarks and designs. In patents, it also has come to play an increased role in member state regulation over the past decade or so. Many of the provisions included in Irish primary legislation and many of the supporting statutory instruments made in this field over the period are in transposition into Irish law of EU directives in intellectual property.

The Commission's work over the years in harmonising and co-ordinating national approaches in the intellectual property field has had a powerful effect in creating and securing benefits for all member states in the Internal Market. Much has been done to harmonise the intellectual property environment across the European Union in the collective interest of member states, rights-holders and of business. New issues and proposals continue to surface. Several significant Commission proposals in this field of policy are under active negotiation at Council and in the European Parliament.

In regard to patents, reduced legal, translation and other costs are in prospect through proposals for the creation of a Community patent, COMPAT. There are also proposals to create a European patent litigation jurisdiction. The aim of these proposals is to deliver a simple, cost-effective and high-quality patent system for Europe. In the trademarks field, there is a proposal to provide a major fee reduction for trademark applicants at the Office of Harmonisation for the Internal Market, OHIM, which is the European Union's trademark agency.

In the field of copyright, there are proposals in discussion at Council working party level to amend Directive 2006/116/EC on the term of protection of copyright and related rights for performers and record companies. The central element of these opening proposals would be to extend the length of copyright protection for performers and producers from 50 to 95 years.

There are differing views and trends at global level regarding the correct approach to, and levels of, intellectual property protection. Within the European Union there is normally a limited range of views on how best to approach and address such issues, including, for example, how to consider proposals to deal in a co-ordinated way with issues such as counterfeiting and piracy. Opinions and approaches are more diverse, however, at the global level in such bodies as the World Trade Organisation's body on trade-related aspects of intellectual property rights, WTO-TRIPS, and the World Intellectual Property Organisation, WIPO. Some developing countries are still not in full compliance with their obligations to provide minimum standards of intellectual property protection in national laws under the TRIPS agreement of 1995. At the WIPO, many developing countries regularly oppose the negotiation of new conventions and treaties which would effectively raise the bar of the 1995 TRIPS standards to a new TRIPS plus level. In other United Nations bodies such as the World Health Organisation, WHO, and the Convention on Biological Diversity, CBD, there are also development-related issues arising from the links between patents, serious diseases and the ownership of biologically-based medicines.

On the other hand, the proposed anti-counterfeiting trade agreement, ACTA, put forward by Japan and the United States in 2006, is now at an advanced stage of negotiation between a group of developed countries including the European Union. It aims to agree an obligation to meet a stronger set of enforcement measures to reduce counterfeiting and piracy in trade between countries by filling gaps in existing multilateral agreements such as the WTO-TRIPS agreement and WIPO treaties, by improving international co-operation, especially at customs borders, and in providing a strong new legal framework for intellectual property protection.

Nationally, there are also differences of view in evidence when my Department puts particular proposals out to consultation. The detailed views provided by parties vary from one proposal to the next but, in broad terms, rights-holders such as authors and the film and music industries seek to maximise the number of situations in which royalties or licences are needed, the duration of such intellectual property protection and the amounts to be paid while, on the other hand, groups such as consumers and broadcasters seek to minimise the scope for such charges, the periods of protection and the levels of payments to rights-holders.

Patents, trademarks, design rights and copyright are the four main forms of intellectual property protection worldwide. In Ireland, together with various more recent amendments and a large corpus of statutory instruments, the primary legal instruments in the intellectual property protection field are the Patents Act 1992, the Trade Marks Act 1996, the Copyright and Related Rights Act 2000 and the Industrial Designs Act 2001. These provide broad, flexible and practical civil remedies for the owners of intellectual property as well as credible and proportionate criminal sanctions. Provisions on search and seizure, delivery up and disposal of infringing goods, and enhanced civil damages add up to a varied and effective toolkit against pirates. These exist to aid legitimate businesses and rights-holders in tackling piracy in the most immediate and effective manner through civil proceedings.

The main aim of the Trade Marks Act 1996 was to give effect to the European Union trademarks directive and to establish a more comprehensive set of protections for trademark owners. It provided for the Community trademarks system that operates in parallel with national systems and offers trademark owners the opportunity to register their mark throughout the Union via a single registration.

As well as being a party to the European Community system of trademark and design registration, we are also a party to the international system of trademark registration under the Madrid system administered by the WIPO. A further aim of the Act, therefore, was to enable ratification of the protocol to the Madrid Agreement concerning the international registration of marks and also to implement certain provisions of the Paris Convention for the Protection of Industrial Property. The Act also facilitated the registration of trademarks in respect of services.

The Act introduced important new measures to deal with the growing problems of the fraudulent use of trademarks and counterfeiting. It provided trademark proprietors with wider rights against acts of infringement and gave strong protection to registered trademarks by broadening the scope of offences to include use of a mark which is identical to, or nearly resembles, a registered trademark.

The Industrial Designs Act 2001 had four main purposes. It modernised Irish industrial design law, broadened the civil and criminal remedies available in respect of infringements of design rights, implemented the EU directive on the legal protection of designs and enabled future access for Irish designers and business to an international system of design protection under the Geneva Act of the Hague Agreement.

The remedies contained in the legislation are very effective both as deterrents to infringement and as recompense for such unlawful acts. The Act extended the protection afforded to designs to 25 years and extended the protection of copyright to registered designs for the first time in Irish law. The Act gave rights-owners greater capability to enforce their rights, through reference to the Controller of Patents, Designs and Trade Marks or through the courts, and provided a more efficient and speedier system of registration of designs. It also made user-friendly provision for invalidation and rectification procedures where persons, who are not entitled to design rights, poach those rights from rightful owners.

The main body of current Irish patents law is contained in the Patents Act 1992. This sets out the detailed procedures for the operation of our patents system as well as providing for national ratification of the European Patent Convention, EPC, and the WIPO Patent Co-operation Treaty, PCT. The Patents (Amendment) Act 2006 updated its provisions to reflect various later obligations under international agreements that had arisen since the 1992 Act. These included ensuring compliance with the TRIPS agreement of 1995, the revision of the EPC, and the WIPO Patent Law Treaty.

The Copyright and Related Rights Act 2000 provides the main legislative provisions governing the protection of copyright in this State. The Act is a comprehensive item of legislation which provided — in some cases, for the first time in Irish law — for moral rights, performers' rights, rights in performances, a database right for non-original databases and for rights and remedies against those who unlawfully circumvent technological protection measures designed to protect copyright materials. The Act's 376 sections provide a coherent legislative regime that conforms to the best standard of international practice in this area. It has regularly been acknowledged as a good legislative model. Last year, for example, the Business Software Alliance, in its annual study on international piracy losses, acknowledged that, through the Act, Ireland had one of the most stringent copyright laws in Europe.

I said I would come back to the issue of the enforcement of the protections provided by our IP protection legislation. Each of the items of primary legislation across the main areas of IP specifies civil sanctions for breach of the rights-holders' rights to be exercised by them. The measures also contain criminal sanctions by way of fines or imprisonment, or both, for more serious infringements.

The Garda Síochána and the Customs and Excise authorities play active roles in ensuring effective enforcement of the legislation. The Garda Síochána policing plan in the IP protection field has focused on high value white-collar crime, particularly trading in contraband goods. It has adopted a proactive approach in tackling IP enforcement issues, with the National Bureau of Criminal Investigation targeting the main players.

Regarding DVD piracy, its activity has been maintained at a high level, with searches being carried out countrywide by the anti-racketeering unit with assistance from Infact and IRMA. Significant quantities of counterfeit DVDs, CDs, DVD burners, copiers and scanners have been seized in recent years. The Customs and Excise enforcement action in tackling counterfeit or pirated goods has concentrated mainly on the points of importation into the State. It has seized growing quantities of products.

We are fortunate to have a well developed IP protection system in this country that has been crucial to ensuring free trade for our goods and services on foreign markets. This body of law is set to become even more important in support of our future knowledge-based society. While there are competing pressures and interests in this field at international and national level, I hope to reassure the Seanad that thus far we have provided for effective decisions through dialogue. While there are many international players in IP regulation, for Ireland, the EU role has been particularly important.

While the debate today should focus primarily on the legal and regulatory regime, it is also appropriate that the Seanad notes the effective enforcement support for those laws provided by the Garda Síochána and the Customs and Excise Service in co-operation with the relevant industries and rights-holders.