[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


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


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