The absence of modern Irish copyright legislation has become seriously embarrassing. Ireland is in breach of various European directives and international treaties on copyright law. For example, Ireland was supposed to have enacted a law to protect databases at the start of this year but it has yet to do so.
The main piece of Irish legislation on copyright dates back to 1963 and at that time the Irish legislature could not anticipate the rapid development of computers over the following 35 years, never mind the creation of the Internet and the World Wide Web. The anachronistic and obsolete nature of Irish copyright law has meant that copyright litigation is difficult and the feeble penalties contained in the legislation for breach of copyright have been criticised by the American government as giving criminal piracy "a cheap run".
Ireland has come under increasing pressure to deal with these problems from the US, in particular to comply with the international TRIPs agreement on trade related aspects of intellectual property rights. At one stage the Americans indicated that they intended to invoke the trade dispute resolution procedures available from the World Trade Organisation (WTO).
To avoid this Ireland and the US came to an understanding that Ireland would create two items of legislation: firstly, it would pass an Act called the Copyright (Amendment) Bill 1998 by the end of July, 1998. This Bill, which received its second reading in the Dail 10 days ago, is an interim measure intended to plug some of the more obvious gaps in Irish copyright law until a complete reform of the law can be carried out.
Secondly, Ireland agreed to publish a bill, stretching to some 400 or 500 sections, to fully reform the Irish law of copyright by the end of July, 1998. The first item of legislation was published at the end of April, this is the Copyright (Amendment) Bill 1998 which increases the potential penalties for anybody convicted of an offence under the 1963 Act. A fine of up to £100,000 may be imposed and offenders may be sent to prison for up to five years.
Software piracy is common because it is so easy. The cost of making an illegal copy of a program is so low that it is difficult to measure. This means that all software publishing houses such as Microsoft are determined pursuers of software pirates and once this legislation is enacted they will expect the Irish authorities to investigate and prosecute Irish pirates.
Such efforts have been very successful in Britain. The managing director of an English computer company received a two-and-a-half-year prison sentence after his company sold 46 pirated copies of Novell software.
Anyone who is unsure of the legitimacy of the software which they sell or use should take steps now to ensure that they are not breaking the law, as it is likely that software publishers and the Irish authorities will take a very firm line with those suspected of breaches of copyright once this Bill becomes law.
Another reform contained in the Copyright (Amendment) Bill 1998 relates to the fact that if somebody is being sued for breach of copyright, then one defence is to dispute the plaintiff's ownership of the work at the centre of the claim.
Suggesting that Microsoft is not the author or owner of Win- dows 3.1 may seem foolish or desperate (as occurred in the English case of Microsoft-v-Electro-Wide 1997), but establishing copyright is expensive, especially when it involves flying executives from the US to attend at a district court in Co Tipperary (see the Irish case of Roche-v-Martin 1993).
To avoid this problem the Bill creates certain presumptions such as the presumption that copyright subsists in a work and the plaintiff in an action, such as Microsoft, will be presumed to be the owner unless the contrary is proved. These provisions will only apply to civil cases under the current Copyright (Amendment) Bill, although they may be extended to criminal cases when a more complete reform of copyright law is undertaken.
Any reform of copyright law must strike a balance between the need to protect works created by authors and the need to ensure that those protections do not become so stringent that they make it difficult or impossible for authors to create their own works.
Denis Kelleher, a practising barrister and co-author, with Karen Murray BL, of Information Technology Law in Ireland, is at dkeleher@indigo.ie.