Intellectual Property law

Intellectual property is the term given to describe a number of different statutory rights:

All of the above enactments share similarities: the owners of the rights that they confer are able to control the exploitation of their intellectual property for a limited period.  These similarities are not coincidental.  All of Ireland’s intellectual property enactments now implement either European enactments (in the case of copyright and trademarks) or international treaties (in the case of patents).    Thus Ireland is very limited in its ability to deviate from international norms in the protection of intellectual property.

As well as the various statutory rights, intellectual property encompasses a number of non-statutory concepts such as the law of confidence and passing-off.

The term intellectual property is something of a misnomer.   The term became popular in the years following the Second- World-War as a simple way of describing what might be better described as time-limited-statutory-monopolies.   But conflating what are really a set of statutory exceptions to competition law with a fundamental human right such as the right to property has led to considerable confusion.   This confusion has had at least a couple of detrimental consequences.  Firstly, the owners of such rights have been given entirely unrealistic expectations of what the State can do to protect their rights.  The State will never be able to control the use of a tune or an invention in the same way as it will defend someone’s home or their car.  Those who have expected that the State would be able to do so, most notably the recorded music industry, have suffered grievously as a result.   Secondly, the State which grants such monopolies has become confused as to why it is doing so.  Intellectual property rights are not supposed to be granted simply to enrich authors or inventors.  Rather the State is supposed to grant these rights so that authors and inventors are incentivised to write or invent more.   Unfortunately this basic point is often forgotten, as illustrated by the EU legislature’s recent decision to extend copyright terms from 70 years even for existing works whose authors did not require any such incentive, since their works had already been created.

Ireland is perfectly entitled to consider whether modern intellectual property laws are the best way of ensuring innovation and progress.  And such a consideration is currently underway.  However the enactment of such laws now falls within the competence of the EU, not the domestic legislature.  Article 118 of the Treaty on the Functioning of the EU provides:

“In the context of the establishment and functioning of the internal market, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements”
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