The circulation of draft legislation aimed at combating the multi-million-pound trade in software piracy in Ireland has been welcomed by the Business Software Alliance.
The Bill, which includes radical changes to copyright law, was due for publication at the end of July. The Minister of State for Labour, Trade and Consumer Affairs, Mr Tom Kitt, said yesterday that it was "on course for introduction" to the Oireachtas early in the next session. In the meantime interested parties have been invited to review a working draft of the new legislation subject to further amendment.
The most recent figures suggest 65 per cent of the software used in the Republic is pirated and the Irish information technology sector is losing £33.5 million annually as a result.The measures proposed in the 188-page document, published on Wednesday, are intended to curb this. According to Mr Kieran O'Connor, solicitor for the Business Software Alliance which represents a number of multinational software companies including Novell, Microsoft, Symantec, Lotus and Adobe, an initial overview indicates the new legislation will address many of the industry's concerns. In particular, it had fought to shift the onus of proof of piracy on companies to the defendant who will now have to prove the software was not pirated. "The new legislation will introduce statutory provisions which confer greater protection on the copyright owner and reflect global copyright standards," Mr O'Connor said.
In the past, defendants have contested the issue of copyright and prolonged legal action by forcing the prosecuting company to prove it actually owned the copyright to the software in question. Generally employed as a delaying tactic, this strategy proved very costly for companies which had to present evidence in court, and in some cases were expected to bring software developers from the US to Ireland to testify to their involvement in the original design of the software.
The new legislation will allow copyright issues to be contested separately while companies seek an injunction or damages from the offending party. Instead of getting bogged down in copyright issues, the fact that goods were pirated can be focused on separately.
Changes will also be introduced in the area of knowledge of copyright breach. Until now a defendant's awareness that the product was counterfeit had to be proven by the complainant. Now any indication of "imputed, implied or constructive knowledge" on the part of the defendant will allow the court to make a judgment in relation to his cognisance of the crime.
Criminal search powers have also been extended to allow representatives from the companies in question to accompany officials on searches of premises for stolen or counterfeit goods. Provisions for damages for a summary conviction have been increased to a maximum of £1,500 for each software copy pirated, or imprisonment for not greater than 12 months or both. Where the case is brought to the circuit criminal court the maximum penalty has been raised to £100,000, or imprisonment for not longer than five years, or both.
