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Creative juice

Creative juice

The importance of intellectual property to Ireland’s economic, cultural and creative sectors cannot be overstated.

The term ‘intellectual property’ (IP) is bandied about a lot, but what exactly is IP? According to the World Intellectual Property Organisation, ‘intellectual property’ refers to “creations of the mind, such as inventions, literary and artistic works, designs and symbols, names and images used in commerce”.

This is quite a broad definition, and likely reflects the fact that IP exists all around us. To describe IP as omnipresent is not an exaggeration.

IP is divided into two categories: industrial property and copyright. The former is further divided into patents, trademarks, and industrial designs.

Patents protect inventions; trademarks are distinctive signs that identify (and protect) certain goods/services produced or provided by an individual or a company; while industrial designs protect the shape or ornamentation (aesthetic aspects) of a product.

To be, or not to be

Copyright, on the other hand, protects literary, dramatic, musical and artistic works. Importantly, software is protected as a literary work. Under Ireland’s primary piece of copyright legislation, the Copyright and Related Rights Act 2000 (CRRA), sound recordings, films, broadcasts or cable programmes, the typographical arrangement of published editions, and original databases also have copyright protection.

One of the key justifications for an IP system and intellectual property rights is to incentivise and reward creativity and innovation. Without the protection of copyright law, musicians, authors, painters, software writers and sculptors might be reluctant to engage in creative endeavour. The same argument applies to inventors. The existence of a patent system that grants a 20-year monopoly right to the patent holder is a clear incentive for inventive minds.

Cat’s pyjamas

A reading of IDA Ireland’s document Why Invest in Ireland is illuminating from an IP perspective. There, our inward investment promotion agency states that Ireland is in the top 15 most innovative countries in the world.

The agency then goes on to say that Ireland is home to the top five global software companies, the top ten pharmaceutical companies in the world, and 14 out of the top 15 medical-tech companies globally.

Clearly, these types of companies are very IP-oriented/dependent, while Ireland’s pro-innovation philosophy ties in with IP and the importance of protecting IP. Even more illuminating is the September 2019 report published jointly by the EU Intellectual Property Office and the European Patent Office.

The report is titled IPR-intensive Industries and Economic Performance in the European Union and covers the period 2014-16. According to this report, IP-intensive industries contribute a very significant 65% to Ireland’s GDP (the largest contribution among the 28 member states) and account for 27% of the employment in this country.

It’s a rich man’s world

When one focuses on an IP-oriented sector such as Ireland’s music industry, the statistics are equally impressive. Deloitte’s 2017 report ‘The Socio-economic Value of Music to Ireland’ (commissioned by the Irish Music Rights Organisation) highlights in clear terms, the important contribution of the music industry to the Irish economy, which in overall terms is €703 million.

The sector provides employment to 13,130 people in this country. By making important recommendations, such as the development of a national music strategy, the report points to our music industry as making an even bigger contribution to the national economy in the future.

Anne of Green Gables

The notion of copyright can be traced back to the 15th century and the invention of the moveable-type printing press by the German goldsmith and inventor Johannes Gutenberg.

The year 1450 is the year normally associated with the appearance of the printing press and, from that year onwards, a greater emphasis was placed on the notion of protecting literary works, as certain individuals were deploying the new invention for the illegal reproduction of such works.

The first fully fledged copyright statute in the world was adopted in England. The Statute of Anne came into force in 1710, and it proved to be a real milestone in the history of copyright law, becoming the foundation for further developments in this field of law, particularly in Britain and the USA.

This act recognised that authors should be the primary beneficiaries of copyright law, and established the idea that copyright protection should be of a limited duration.

In 1886, another significant milestone was reached when the Berne Convention was adopted. Inspired by the French author Victor Hugo, this multilateral convention protects literary and artistic works and sets international minimum standards for copyright protection. Significantly, 177 countries have signed up to this convention, with Ireland becoming a signatory state as far back as 1927.

Digital display

Unsurprisingly, a significant body of copyright legislation has also been generated by the EU. Up to now, 12 directives and two regulations have been adopted by the EU in the field of copyright law. The objective of these legal instruments is to harmonise copyright law across the EU28.

The most recent addition to the copyright corpus is the Directive on Copyright in the Digital Single Market (2019/790). It entered into force in June of this year, and member states must transpose it into domestic law by 7 June 2021.

The directive is a key part of the European Commission’s strategy to modernise copyright rules within the EU, thereby ensuring they are fit for purpose in the digital age.

I write the songs

This theme of modernisation is also prominent in the context of Ireland’s newest piece of copyright legislation, the Copyright and Other Intellectual Property Law Provisions Act 2019. This act was signed into law on 26 June but is still awaiting a commencement order before it comes into effect. The act makes significant changes to the CRRA, with some of these changes actually implementing copyright exceptions permitted by the 2001 Information Society Directive ( (2001/29/EC).

Performers’ rights are a distinct set of rights conferred on a performer over the exploitation of his or her performance. In the Irish copyright regime, this set of rights is protected by parts III and IV of the CRRA.

The term ‘performance’ is defined by section 202 of the CRRA as meaning “a live performance” given by one or more individuals, involving actors, singers, musicians, dancers or other persons who perform literary, dramatic, musical or artistic works or expressions of works of folklore. Section 203 of the same act confers certain exclusive rights on performers over ‘qualifying performances’.

In Ireland, the performing right in copyright music is administered by IMRO on behalf of its 13,000 members (songwriters, composers and music publishers), and on behalf of members of international overseas societies that are affiliated to it.

The chain

IMRO is committed to creators’ rights and, with global scope, represents creators along the chain of creation – from writer, to producer, to performer, to the listener. One of IMRO’s functions is to collect and distribute royalties to its members, arising from the public performance of copyright works – that is, music used anywhere outside the domestic environment.

This collection/distribution of royalties is done through its licensing arrangements with music users, and in line with the CRRA.

IP shall remain of central importance to Ireland’s economy into the future. Individual creativity, the presence of a large number of IP-intensive industries in the country, and the strength of Ireland’s creative industries (such as our music sector) will ensure the centrality of IP (and IP laws) well into the future.

The next big challenge for the Irish Government will be the transposition of the Directive on Copyright in the Digital Single Market.

Mark Hyland and Victor Finn
Mark Hyland is IMRO adjunct professor of intellectual property law at the Law Society of Ireland. Victor Finn is CEO of the Irish Music Rights Organisation