[Fsfe-ie] Ireland to transpose enforcement directive (aka IPRED 1)
teresahackett at eircom.net
teresahackett at eircom.net
Tue Aug 9 19:16:38 CEST 2005
http://www.entemp.ie/press/2005/20050801.htm
Proposal for New Intellectual Property Legislation
Minister for Trade and Commerce, Michael Ahern TD, Announces proposals
for new intellectual property legislation
Minister for Trade and Commerce, Mr. Michael Ahern T.D, today (Monday
1st August 2005) announced his intention to bring forward legislative
proposals to provide for several new schemes in the intellectual
property field:
* A Public Lending Right payments system for authors whose works
are lent by Irish public libraries,
* An Artists’ Resale Right payments system for artists whose
original works are resold through the art trade, and
* Transposition of the EU Directive on the Enforcement of
Intellectual Property Rights.
Minister Ahern said that the Public Lending Right and Artists’ Resale
Right schemes would provide new supports for Irish authors and artists.
He added, “These schemes will be novel in this country but both have
been in use in most EU countries for many years”.
The Government has recently approved the initiation of drafting work on
an Intellectual Property (Miscellaneous Provisions) Bill. Minister Ahern
said: “We need this new intellectual property measure to meet the
obligations arising for Ireland from three EU Directives. This Bill may
also cover some minor adjustments now required in intellectual property
law in general.”
Minister Ahern acknowledged that Ireland has had difficulties with the
European Commissions’ proposals both on the Public Lending Right and
Artists’ Resale Right in the past. He added however, “Both are now part
of European Community law and so my job at this stage is to provide the
legal basis for their implementation. On the Public Lending Right, there
had been a continuing difference in interpretation of the Rental and
Lending Directive between Ireland and the Commission, which remains the
subject of proceedings against Ireland in the European Court of Justice,
but I am confident that this Bill will resolve these differences”.
Minister Ahern said, “The new schemes involve the responsibilities of
several Ministers. Therefore, active inter-Departmental co-operation
will be needed to implement these schemes”. In relation to the Public
Lending Right scheme, implementation would be through the Departments of
the Environment, Heritage and Local Government and, for the Artists’
Resale Right, through the Department of Arts, Sport and Tourism.
Implementation of the Enforcement Directive will also require working
closely with the Department of Justice, Equality and Law Reform
Minister Ahern said that he expected to be in a position to bring the
intended bill to the Oireachtas before the end of the year.
Background Information for Editors on the proposed legislation
Obligations arising from the following three EU Directives will be
addressed in the proposed Bill
Public Lending Right (PLR)
The Rental and Lending Directive (92/100/EEC) dealt with copyright
rights arising on the rental of certain protected materials; on certain
general copyright issues; and on the rights of authors whose works are
lent to members of the public through public libraries. The last of
these obliged Member States, at a minimum, to remunerate authors for
loans of their works by public libraries, but allowed them to specify
certain classes of public library for exemption from the scope of the
remuneration scheme. With some exception (in the EU case, of Ireland,
Italy, Spain and Portugal) most western countries have some such system
in place. Ireland has in the past argued against the introduction of a
Public Lending Right here, citing our small lending pool, the expected
modest benefits for authors in relation to collection costs, and our
long-standing efforts to encourage greater use of public libraries.
Ireland’s Copyright and Related Rights Act 2000, which transposed the
provisions of the Rental and Lending Directive into Irish law, did
create a public lending right. However, the exemption mentioned above
was used to specify, in effect, all public libraries from the scope of
the remuneration scheme. This was done for the reasons of policy
mentioned in the preceding paragraph, and because it was thought that
the provisions of the Directive actually allowed such a general
exemption to be made if the circumstances in a particular Member State
justified it.
After a EU-wide transposition review in 2003, the Commission initiated
legal proceedings against several countries, including Ireland claiming
(in Ireland’s case) that, in exempting all public libraries, Ireland had
incorrectly transposed the Directive. Following a defence of our
approach on the earlier lines, the Commission issued a Reasoned Opinion
in July 2004 citing ‘insufficient assurances of Irish willingness to
respond to its concerns’. The Commission has referred Ireland to the
European Court of Justice alleging failure to implement the Directive
correctly in the matter of the Public Lending Right. Ireland recently
filed its defence in the case with the Court.
Following a full review of the situation, the Department has now
concluded that the early provision of a system of payments to authors
for loans of their works by public libraries would be required in order
to resolve the case. The proposed Bill will therefore provide the
legislative basis for introducing a practical Public Lending Right
Scheme. The proposal is to have the scope of the scheme extend to public
libraries other than those under the management or control of
educational establishments, an exclusion that is permitted by the
exception in favour of certain classes of library allowed by the
Directive and mentioned above.
Artists Resale Right (ARR)
The Artists Resale Right Directive (2001/84/EC) is due to be transposed
into national law before 1 January 2006. It creates a right for artists
in the visual and plastic arts to receive a percentage of the value of
sales of original works of art subsequent to the first transfer of
ownership of the work during their lifetimes and (for the artist’s
successors) for seventy years after their deaths, and requires the
setting up of a scheme to provide for this. In its 1996 proposal for a
Directive to harmonise legislation across the Union on the basis of a
compulsory resale right for artists, the European Commission pointed to
barriers in the internal market, distortions of competition, and a lack
of protection for the authors of original works of visual and plastic
art by reference to comparable protections available under copyright to
artists in other fields (for example, the literary field) in respect of
downstream or subsequent economic exploitation of their works.
Following a five year negotiation, in which a number of Member States
actively opposed the proposal as likely to divert art market sales
outside the EU, or prove uneconomic to administer in the conditions of
the art market in some Member States, a unanimous compromise was agreed
in late 2001, with mandatory transposition deferred to January 2006. A
derogation was included, allowing Member States that had not legislated
for an Artists’ Resale Right previously to defer implementation of the
royalty in respect of works by artists no longer living but within the
70 year extended term of the right until 2010, should they so choose.
Enforcement Of Intellectual Property Rights
The Enforcement Directive (2004/48/EC) is due for transposition before
the end of April 2006. It requires Member States to apply effective,
dissuasive and proportionate remedies and sanctions against those
engaged in counterfeiting and piracy. Member States are required to have
similar measures and remedies in place to defend right-holders’
intellectual property across the Union. The Directive covers both
‘traditional’ rights such as copyright, trademarks, patents and designs,
but also a number of other more specific rights such as geographical
indications of origin and plant varieties.
The Department is currently in consultation with the Office of the
Attorney General to establish the most effective manner of transposing
the Directive. To the extent that primary legislation is required, the
Minister intends to incorporate the relevant provisions within the
proposed bill.
Details of Schemes
The operational details of the schemes have yet to be finalized and are
the subject of ongoing discussions with the Departments of the
Environment, Heritage and Local Government and Arts, Sport and Tourism
For further information contact
Intellectual Property Unit,
Dept. of Enterprise, Trade & Employment,
Earlsfort Centre, Lr. Hatch St., Dublin 2
Tel. 6312594 Fax. 6312561/2
http://www.entemp.ie/
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