The letter below has been sent to the Ministers for Communication and Enterprise, Trade and Innovation on behalf of our clients Digital Rights Ireland Ltd.

Dear Minister,

We write on behalf of our client, Digital Rights Ireland Ltd.

We note that, following the judgement in EMI Ltd and Ors -v- UPC, media reports have suggested that you, or your officials, intend to hold discussions with representatives of both the unsuccessful plaintiffs and Internet Service Providers.

We request, on behalf of our clients, that they be included in these discussions.

As Judge Charlton acknowledged in his EMI -v- UPC judgement, the lack of alternative viewpoints led to him ordering an injunction which had no legal basis in the related, earlier, case of EMI and Ors -v- Eircom.

Our client has, as its purpose, the promotion of defending civil and human rights particularly those arising in the context of modern communication technologies.

Digital Rights Ireland Ltd can call on experience and expertise at a national, European and world level in the areas of privacy and human rights, as well as in telecommunications and information technology. Its locus standi in the area of citizens’ rights to privacy and communications has been acknowledged by the High Court.

Our client believes that any discussions regarding legislative change should involve the widest range of interests being represented, with the aim of ensuring that any legislation drafted is done so with the benefit of all available information.

Yours faithfully,

etc

*This article was first published in the Irish Times on April 23rd 2010*

The Your Country, Your Call competition has a week to go before submissions close and the judges start to consider which of them will be awarded €100,000. The stated aim of the competition is far reaching and radical – nothing less than to “create prosperity and jobs at an entirely different level from what currently exists”, as Pádraig McKeon, Drury Communications managing director and Your Country steering group member, has said.

It has been supported by many of the pillars of the establishment. However, it is surprising given the scope of this ambition – and access to specialist knowledge – that there are still plenty of questions unanswered since the competition was launched.

Firstly, is the competition equitable to participants?

Under section 7.1 of the terms and conditions of the competition, every participant grants a “worldwide, perpetual, irrevocable, transferable, unencumbered, royalty-free, fully paid-up, non-exclusive licence” to An Smaoineamh Mór, the limited liability company running the competition.

For the winners, the consequences are total loss of ownership of their idea. Section 7.2 says that the winner (or winners) “shall irrevocably transfer, convey and assign to the promoter (or such party that the promoter may direct) all right, title and interest in and to the winning proposal and all intellectual property rights therein.”

After they pocket their €100,000, they lose all interest in an idea which will, by the organisers’ own description, “create prosperity and jobs” to an unprecedented degree. That’s a return on €100,000 of which any private venture capital company would be proud. We can imagine the winners might, as that prosperity grows in An Smaoineamh Mór Ltd’s bank account, come to feel rather like the creators of early comic book characters: cut out of the fortunes their imaginations summoned into being.

Secondly, where is all the money for this competition coming from and why?

At first glance this question seems to have been answered quite clearly. McKeon told the Value Ireland blog on March 6th: “A cash fund of just under €2 million has been accumulated via donations from 13 parties (companies and individuals) which has been lodged in the accounts of the company, An Smaoineamh Mór . . . the promoters formally presented the project to Government late last summer and asked for support in three ways – a contribution to the fund referred above; a request that the competition would have access if it needed it to the services of the State enterprise agencies in the evaluation process (if such help were required); and a commitment that Government would engage with the process of developing the two winning proposals, particularly with reference to any legislative issues that might need to be addressed. It agreed to all three requests – it will be contributing 15 per cent of the fund.”

But on March 23rd, in response to a parliamentary question from Ciarán Lynch who asked the then minister for enterprise Mary Coughlan whether she had “given or [had] undertaken to give public money” to the project, she told the Dáil: “My department is currently examining a proposal to provide funding of up to €300,000 to the Your Country, Your Call initiative from within existing resources. No funding has yet been paid by my department in respect of the initiative.” And she went on to say that “if funding is made available” she would want to ensure that it was accounted for properly.

Which is odd. Because it shows (a) the minister hadn’t made a decision to give An Smaoineamh Mór any money and (b) that the amount of money she was considering paying is any figure “up to” €300,000. It also raises questions as to what conditions may be placed on any funding. So, has An Smaoineamh Mór Ltd got €300,000 of public money in a bank account? Or not?

When I posed that question online, McKeon showed a new reticence compared to his earlier statement: “As to the status of the account today, we will not be publishing that detail during the competition.”

Actually, there are lots of “details” we don’t know about An Smaoineamh Mór’s accounts. We don’t know who those earlier-mentioned 13 parties (companies and individuals) are. A list of 87 names is provided on the Your Country, Your Call website as a non-exhaustive indicator of contributors, but not all have given money. We don’t know which of the named and unnamed contributors have provided money and if so, how much. We don’t know what the financial contributors’ relationship with the State is, though we do know from public records that two of the State-supported banks, AIB and Bank of Ireland, are in there somewhere. We don’t know, therefore, how much public money is in that €2 million “cash fund”.

That’s a lot of don’t knows. We’ve been promised since February that they would all be revealed “in the coming weeks”. Those weeks are still coming.

Finally, is the competition equitable to taxpayers? An Smaoineamh Mór Ltd is recognised as a charity by the Revenue Commissioners on the basis of its memorandum and articles of association. But those same documents allow for the company to establish for-profit subsidiary companies.

As already mentioned, it will own all the intellectual property in the winning entry or entries. It intends to establish a vaguely defined “something” to create jobs, and prosperity. But jobs and prosperity don’t occur in the abstract. They are the happy side effect of a highly profitable business.

Under what statutory power is the Minister considering funding a privately owned company (backed by undisclosed persons) with public money – completely outside the normal enterprise support institutions and structures – with the intended aim of developing a vastly profitable business or industry without any known provision for a return on that investment for the State?

And if there is such a power, how could it be in the public interest to use it?

There seems to be no end to the debt of gratitude the Irish (and now, the English) legal profession owe to the managing director of Ryanair.

He has clarified the words of a suitable jurisdiction clause on websites to confer jurisdiction within the EU. See HERE for how he did it. (This writer has adapted those words below to accommodate his purposes and intentions. Feel free to appropriate the clause without attribution, but on terms of repudiation of liability by this writer for such use).

He, (we are now back talking about the managing director; (see what happens when you eschew words like “aforesaid”)) has promoted (indirectly) the use of interrogatories in Irish practice and procedure.

He has generated legal work for members of the profession (with more to come in England).

These are not insignificant benefits. Why is the Chairman of the Bar Council silent in the presence of such merit?

The words:

Disputes arising from the use of this website and the interpretation of these Terms of Use of the McGarr Solicitors website are governed by Irish Law. All disputes relating to these Term of Use and the use of the McGarr Solicitors Website are subject to the exclusive jurisdiction of the courts of Ireland.”

John Breslin has received a letter. Read the letter HERE. His post is interesting, and, as Paul observes, raises unanswered questions. What springs to mind is the challenge in trying explain the issue to the Irish Supreme Court (or any court) if the need arose.

PS. Having seen what happened to Raj Persaud, I expressly confirm I got my tip on this topic from a member of my office team. (I have no desire to find myself investigated like Raj or pursued for what momma saw, or thought she saw).

It is far from our wish to add to the general hint of ridicule which has accompanied the reports of the former Minister for Justice Michael McDowell SC and Richard Nesbitt SC, chairman of Arnotts, as they argued over the finer points of knitwear on behalf of Karen Millen and Dunnes Stores respectively.

However, this case, in which judgement has been reserved, is the first major test of the application of a 2002 European Union Directive to the fashion industry. Other, similar, cases are pending its outcome. If the Directive is found to protect Karen Millen’s knitwear design then other retailers at the budget end of the fashion spectrum (Penneys springs immediately to mind) may find themselves and their business model in hot water.

It is worth considering for a moment the broader question as to whether the implementation of intellectual property protections for clothing designs is in the interests of the public or even the fashion industry as a whole.

The New York Times reported in April on a study by two law professors, Kal Raustiala of the University of California, Los Angeles, and Chris Sprigman of the University of Virginia. In it they consider the “pirate paradox�?. The key to this paradox is that there are very weak IP protections for fashion designs. Yet the industry thrives, and continually produces new and innovative designs.

The authors argue that copying may well be one of the engines of innovation in the fashion business- that each spot on the fashion foodchain (crudely, from designer to high-street to budget) looks down on the next and that people will abandon clothes sooner than would otherwise be the case if they see the next layer down starting to wear them.

Thus, in seeking to freeze copying (or ‘homages’ as the industry frequently seems to prefer terming it) for three years the EU Directive may have the unintended consequence of stifling innovation in European fashion.

One final thought occurs. During the course of the hearing it was suggested that Karen Millen’s designers themselves may have been inspired by others further up the foodchain. It is possible that, even if successful, High Street chains may rue setting a precedent which could come back to bite them.