Bill aims at stronger enforcement of intellectual property rights

Parliament yesterday started debating a Bill to regulate the enforcement of intellectual property rights.

Communications Minister Censu Galea said the purpose of this Bill was twofold: "To ensure that those people who invest time, energy and money on some creation can enjoy protection for their investment, and to ensure that consumers enjoy quality products rather than poor quality and illegal copies."

Mr Galea said most Maltese laws were up to date, having been revised in the year 2000. This Bill transposed into Maltese law EU Directive 2004/48/EC, approved in April 2004.

He said there was a lack of awareness of intellectual property rights in Malta and the trade division within his ministry over the past few weeks had therefore conducted a new awareness campaign on intellectual property rights relating to patents and trade marks.

Parliament recently also updated legislation on the registration of patents.

This Bill, he said, was beneficial for society and those who breached the rules, such as by copying DVDs, would have to pay thousands of liri in certain instances. "The penalty has to fit the crime" he said.

Having a strong and effective regime to protect intellectual property rights was important for Malta as it redoubled its efforts to promote research and innovation.

This Bill, therefore, was aimed at promoting creativity by deterring copyright infringements.

The EU directive established a uniform structure to counter and punish those who violated intellectual property law. Therefore, anyone who broke the law here would be treated in the same way as in other EU countries.

He explained that in terms of the Bill, the court shall, upon an application by an injured party, order anyone found to have violated intellectual property law to pay the rightholder damages commensurate with the actual prejudice suffered. In setting the amount of damages, the court shall take into account the negative economic consequences suffered by the injured party including lost profits, unfair profits made by the infringer and, where appropriate, moral prejudice caused to the rightholder by the infringement. Goods found to have infringed property rights may also be recalled from the market.

Labour MP Chris Agius said this Bill was a stronger tool than available in Malta so far to counter those breaching intellectual property rights.

Trademarks and copyrights were the link between a product and its creators. A trademark immediately identified a product and violation of a trademark meant loss of revenue to the creators and loss of protection to consumers. Investment in research, innovation and creativity generated jobs, which was another reason why property rights had to be protected.

Mr Agius spoke on piracy in its various forms including piracy of software, DVDs, CDs and products such as pharmaceuticals, saying the practice could be found across the world, with the highest volumes said to be in China and Russia.

In Malta, apart from the issue of pirated films and music, it was common for students to copy textbooks, sometimes because books were out of stock or expensive.

Sometimes it was institutions who photocopied books and sold them cheaply to students. Would this law affect students? What was the situation when copying was not for commercial reasons?

Mr Agius complemented the Malta Customs Department for having been singled out by the EU as being one of the most successful in the European Union having seized two million counterfeit items in 2005.

Mr Agius stressed that while Malta needed to boost investment in research and innovation that necessited high education levels. Malta, however, was lagging in this respect compared to its EU partners. Eighty per cent of the black economy was based on such abuse and a percentage of business was willingly or unwillingly violating property rights.

Josè Herrera (MLP) said he agreed with the substance of the law. He calculated that 80 per cent of the black economy was based on violation of property rights. After drugs, the highest number of criminal prosecutions probably involved this area.

There was, therefore, need to update legislation and its enforcement. Without seriousness there would be no foreign investment. The improvement of the laws over the years meant that violations were decreasing. Although no one had been imprisoned yet, fines imposed by the courts had gradually gone up.

In due time, people might be imprisoned, but firmer action needed to be brought in gradually and prudently so as not to cause too many shocks and traumatise the market. He believed that many people did not actually realise they were breaking the law. Where there was parallel trading it was often difficult to prove that a product was counterfeit, especially when the quality was high.

Dr Herrera said he therefore felt that one needed to better regulate, though not outlaw, parallel trading.

As for the Bill itself, Dr Herrera said one needed to be careful when overseas laws were transposed. This Bill went beyond ordinary procedures and the executive powers of the judiciary as defined in the Code of Organisation and Civil Procedures. The main problem in the courts of Malta was the execution of court judgments. This Bill would be giving the judges and magistrates powers to protect the rights of intellectual property holders, through the issue of warrants, which did not apply to the owners of other forms of property. If such measures were to be introduced, they should be introduced to protect everyone, Dr Herrera said.