Unequal properties

NET RESULTS:A FEW WEEKS ago, I attended an event organised by William Fry Solicitors to mark World Intellectual Property Day.

There were a number of ironies inherent in such an event. The idea of intellectual property (IP) needing to be marked by a special day, first of all. Does it really need a special publicly-recognised day, like mothers, fathers, Christmas or Valentine's? If so, can we expect a line of greeting cards targeting the day that would mark major IP occasions? "Good luck on your special day" cards, as your infringement suit goes to court? A line of tasteful condolences selections to ease the loss of royalties after failing in same?

Then there is the fact that the day was being especially marked by a firm of solicitors notable for fighting major IP cases on behalf of large companies. I don't think this is a surprise, any more than I would be if the day had been marked by a conference of large software makers or musical rights organisations and music publishers.

It just more or less underlines the realities about the way in which IP is acknowledged and protected, versus the niceties that are trotted out to persuade us that we need special courts for IP cases, special protections and punishments, ever more protection, protection, protection.

We are told that IP protection and strong laws promote innovation and creativity by ensuring the protections and promise of financial rewards are there for those who innovate - the little guy, the little company.

But the truth is that IP protection and strong laws are there to protect the big companies, the large organisations, the folks with deep pockets and litigious inclinations whose occasional actions in the courts guarantee that the little guys and the little companies almost never go to court to avail of the protections we are told are there for people like them.

Internationally, the cases where a small guy has taken on the big guys over IP are so rare as to be notable.

Across the EU, the more common situation is a legal mano a mano between big companies over IP. That's certainly the case in Ireland, if you look at the special Commercial Court here, set up in 2004 to fast-track commercial disputes in the name of cleaning up protracted and messy battles, and keeping Ireland attractive as a business environment.

Now, there are many good things about this approach as it gets commercial disputes out of the way faster and more efficiently which benefits companies, markets and Ireland Inc.

The general rule in Ireland is that the Commercial Court can only be used by companies when the value of the claim in the dispute is at least €1 million, so it is reserved for the big cases. However, the court can choose to fast-track IP cases which do not have to reach that €1 million marker.

That might seem like an admirable way to - yes - protect and nurture the little guy and the little company, as an IP dispute can basically disembowel a small company unable to finance a prolonged legal case. But the reality is that the kind of IP cases that have been taken up are all big names - Karen Millen vs Dunnes, for example, and big pharma cases.

They have every right to go to court and defend their IP and there are many Irish law firms that rightly have strong reputations for going to bat for such clients. But I do not know of a single instance where the Commercial Court has been used by a small-sized innovator, nor do I know of firms rushing to try and give, say, pro bono support to the small guys who cannot afford a legal battle over IP that may nonetheless have great ethical merit.

And, excuse my cynicism, but I cannot help but note that the kind of Irish IP case involving little guys that does get fast-tracked involves cases of online filesharing, a classic big business versus tiny individual harangue. Historically, decisions in this State have gone against the small individuals - typically students, sharing files.

Last summer, the head of the Commercial Court, Mr Justice Peter Kelly, required internet service providers to release the names of 23 individuals suspected of file sharing to IRMA, the Irish Musical Rights Association.

This was before any individual had been proven to have done anything wrong. In addition, the tactics, premises and procedures used in Ireland to get user identities have been disallowed in other jurisdictions.

Fairly and justifiably protecting IP is indeed important, but let's get real. On evidence, what I see are lots of existing laws and proposed European legislation that facilitates the big boys and defines innovation only as a spoil awarded to the company that can afford the best legal team. That isn't generally the small company or the individual innovator.

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