[ILUG] Irish Constitutional Challenge to Software Patents

[Eamon O'Tuathail]

http://www.oasis.gov.ie/government_in_ireland/referenda/constitutional_refer
endum.html
"The Irish Government cannot introduce legislation in Ireland that conflicts
with Bunreacht na hEireann (the basic law or Constitution of the country).
Sometimes it is necessary therefore, to change or amend the Constitution. "

http://www.oasis.gov.ie/government_in_ireland/government_and_politics_at_eur
opean_level/european_institutions/european_laws.html
"A treaty is ratified when it becomes part of the law of the Member States.
In Ireland, our Constitution requires that in order for a new EU treaty to
be incorporated into the law in Ireland, the people of Ireland must agree in
a referendum."

Put another way, when a proposed treaty is not passed in a referendum, it is
the Irish Constitution, and not the proposed treaty, that is the law of the
land. See Nice I. Hence the great effort to get Nice II passed. 

The Irish Constitution incorporates the various European Treaties (due to
the previous referenda) and I think you will find that whatever is decided
about software patents will be in agreement with those treaties, and hence
the Irish Constitution. I don’t think anyone is planning a referendum on
software patents. 

Even at a European level, if there were a battle between the European
Convention on Human Rights-ECHR (Free Expression, rights of authorship) and
the European Patent Convention-EPC, you would see the ECHR triumph. Rather
than a battle, I think you will see that the courts interpret the EPC in
such as a way as not to conflict with the ECHR. 

Dermot McGahon writes:
> I think that you are barking up the wrong tree trying to find a
> free speech or constitutional argument to support your case.

I believe software authors do have fundamental rights to creative freedom. 

> Keep this in mind: if I wanted a complicated kernel module written,
> I wouldn't let a barrister take care of that for me. If I wanted a
> complicated intellectual property problem dealt with, that is
> exactly who I would go to.

I would categorise what I wrote as similar to a requirements document - it
is always good to have end-users involved in these. As to the substantive
legal research needed, I certainly agree with you, it would be barristers
who do that. Were software patents to be introduced, Irish software
companies facing infringement charges will be prepared to fight in court and
provide the necessary funding for the barristers - then we will see what
they come up with. It is standard legal practice to explore absolutely every
means of defence - the barristers no doubt will welcome any helpful
suggestions (and dismiss those that are ridiculous). 

With regards,

Éamon Ó Tuathail
Tel: 01-2350424
mailto:eamon.otuathail at clipcode.biz
http://www.clipcode.biz