Intellectual property
IP and its proper commercialisation is the key to unlocking economic value. If strategically managed
and carefully planned, IP rights can provide an invaluable tool for almost any business. Ireland's IP law
can be split into five principal rights - copyright, patents, plant varieties, designs and trade marks.
Copyright
The Copyright and Related Rights Acts 2000 to 2007 govern copyright law in Ireland.
Ireland's copyright law is technology neutral in its terminology to ensure that it does not become
weakened or antiquated by emerging technologies.
Under Irish law, copyright subsists in i) original literary, dramatic, musical or artistic works; (ii) sound
recordings, films, broadcasts or cable programmes; iii) the typographical arrangement of published
editions and (iv) original databases. There is also a sui generis right in respect to databases, known as the 'database right'.
The term of copyright is, in general, 70 years after the death of the author, but this varies by the type
of work involved. Where the identity of the author is not known, the term is 70 years from the date the
work was first made lawfully available to the public.
Irish legislation specifically identifies computer programs as being capable of copyright protection.
The owner of the copyright in a computer program possess a number of exclusive rights.
These include rights to:
- copy the program;
- make the program available to the public;
- make an adaptation of the program; and
- authorise or license others to use in whole or in part any part of the computer program.
Irish legislation also provides authors with moral rights in their works.
Ireland is a party to the Berne Convention.
Patents
The Patents Act 1992 (as amended) brought Irish law into line with the European Patent
Convention.
Patentability requires that the invention:
- be new;
- contain an inventive step; and
- be capable of industrial application.
The life of a patent is 20 years however, in Ireland it is possible to apply for a short term patent which
lasts for a 10 year period. An invention can be patented as a short term patent if it is new, susceptible
of industrial application and it is not clearly lacking a inventive step. There are special provisions for
pharmaceutical patents which can extend the patent period.
Ireland is a party to the Paris Convention.
Plant Varieties
Plant varieties may be protected under the Plant Varieties (Proprietary Rights) Act 1980 and 1998.
Ireland is a member of UPOV (International Union for the Protection of New Varieties of Plants).
Designs
The Industrial Designs Act 2001 modernised Irish design protection. The Act broadened the definition
of 'design' and provided that a design must be new and have individual character.
Other main changes are:
- the maximum period of protection for designs registered under this Act is 25 years;
- the capacity to file a multiple application, consisting of up to 100 designs provided they all
belong to the same class of the Locarno system of international classification. In cases of
ornamentation, they are not restricted to the same class; and
- the applicant may permit publication of the design upon registration or request deferment of
publication for up to 30 months from the filing date or where priority is claimed from the priority
date.
Trade marks
Trade marks are protected under common law by way of action for passing off and also under statute
by the Trade Marks Act 1996 as amended, which implements European legislation aimed at harmonising trade
mark law throughout the EU.
A trade mark is used to identify particular goods and/or services as having a certain origin. It is usually
a word or logo but it can be almost anything, as long as it is capable of being reduced to graphic
form, including a sound, smell or shape.
Although unregistered trade marks may sometimes give rise to rights which the law will protect under
the tort of passing off, this can be uncertain and consequently difficult and expensive to enforce. The
most sensible course of action is to register your trade mark(s).
You should always consider conducting searches before launching a product in a new territory to
check who has prior rights which could be used to take legal action against you and/or your distributor.
Under EU trade mark law it is possible to apply for Community Trade Mark ('CTM') protection, which,
if granted, gives protection in every EU country just by making a single application.
Ireland has ratified the Madrid Protocol and it is possible to file an 'International Registration'
designating 'Ireland' or 'from Ireland'.
Data protection
The privacy of individuals about whom personal data is kept is governed by the Data Protection Acts
1988 and 2003, which oblige persons or bodies who are in control of personal data to comply with
basic data protection principles and where applicable, to register as a 'data controller' or a 'data
processor' with the Data Protection Commissioner. The Data Protection Acts confer rights on
individuals, as well as responsibilities on those who control and process personal data.
Irish data protection legislation sets out detailed rules concerning the processing of personal data.
Processing of personal data means performing any operation or set of operations on data whether or
not by automatic means, and includes:
- obtaining, recording or keeping personal data;
- collecting, organising, storing, altering or adapting personal data;
- retrieving, consulting or using personal data;
- disclosing personal data by transmitting, distributing or otherwise making it available; or
- aligning, combining, blocking, erasing or destroying personal data.
Under the Data Protection Acts, data controllers must ensure that data is collected fairly, kept and
processed only for a specified and lawful purpose, and is not kept longer than is necessary for that
purpose. Data controllers must take appropriate measures to maintain the security of the data. Prior
to processing any personal data, data controllers will need to ensure that certain pre-conditions are
satisfied.
The transfer of data from Ireland to outside the European Economic Area is also governed by the Data
Protection Acts. They provide that personal data may not be transferred to a third country outside of
the EEA unless that third country ensures an adequate level of protection in relation to the processing
of data or unless certain other conditions are met.
An important development in the area of data protection law is the European Communities
(Electronic Communications Networks and Services) (Data Protection and Privacy) Regulations
2003 (the 'Regulations') (as amended). These Regulations were introduced in order to give
effect to an EU Directive and have introduced new rules to allow companies to lawfully engage in
direct marketing.
Any person engaging in direct marketing in Ireland must adhere to these Regulations or face
prosecution by the Data Protection Commissioner. The new Regulations concern communications
that are not requested by the recipient, known as 'unsolicited communications', where they are made
for the purpose of direct marketing, by means of a publicly available electronic communications
service.
Data protection law is highly regulated by European and Irish law. Any companies considering doing
business in Ireland must carefully work out policies for handling personal data in order to ensure
compliance with these rules.
Registration of an Irish domain name (.ie)
The '.ie' name is Ireland's website domain.
In general, companies applying for a domain name must be able to prove a 'real and substantive
connection' with Ireland. For example - the applicant must show that it is incorporated in Ireland or
incorporated outside Ireland with either a 'place of business' or a 'branch' in Ireland.
Generally, an applicant can register a domain name for any of the following provided the applicant
complies with the relevant evidential requirements:
- personal name;
- corporate name;
- registered trade mark name;
- registered business name;
- association name;
- media publication name; or
- a discretionary name.
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