Month: June 2011

The Irish Corporate Law Forum (ICLF) has just announced details of its inaugural conference, Transitioning to the New Form Private Company Limited by Shares: Structure and Governance under the Companies Bill, to be held on Thursday 21 July 2011 in the wonderful surroundings of the Coach House, Dublin Castle.

On 30 May 2011, the 952 sections of Parts 1-15 of the long-awaited draft Companies Bill were published by the Department of Jobs, Enterprise and Innovation. This Bill will implement recommendations of the Company Law Review Group to consolidate, modernise and reform company law in Ireland and represents the culmination of more than a decade of policy review of Irish company law. The legislation will have a significant impact on company structure and governance and is of particular relevance to directors, company secretaries, legal advisors, accountants and company formation agents.

This important conference will address key structural and governance implications for private companies including the replacement of the existing private company form with the new company limited by shares with unlimited corporate capacity and a single constitution replacing the current memorandum and articles of association. The conference will also address new procedures designed to simplify corporate governance and the implications of the Bill on the role and duties of directors and company secretaries. The full Conference Programme is here (.doc) and the Registration Form is here (.doc). Speakers include

• Dr Deirdre Ahern, Director of the Irish Corporate Law Forum and Lecturer in Law, Trinity College Dublin;
• Nessa Cahill BL, author of Company Law Compliance and Enforcement (Tottel Publishing, 2008);
• Helen Dixon, Registrar at the Companies Registration Office;
• Gordon Duffy BL, formerly lecturer in law at DCU and national examiner for company law for the Institute of Chartered Accountants in Ireland (now Chartered Accountants Ireland);
• Paul Egan, Partner and Chairman of the Corporate Department in Mason Hayes+Curran, and a member of the Company Law Review Group;
• Sinead Kelly, Associate and Professional Support Lawyer in the corporate and insolvency Departments at A&L Goodbody;
• Colm McDonnell, Partner in the Enterprise Risk Services division of Deloitte;
• David Mangan, Senior Associate at Mason Hayes+Curran;
• Deirdre Mooney, Associate and Head of Company Secretarial at William Fry;
• Declan Murphy BL, represents the Bar Council on the Company Law Review Group;
• Dr Ailbhe O’Neill BL, author of The Constitutional Rights of Companies (Round Hall, 2007) and co-editor of Corporate Governance and Regulation: An Irish Perspective (Round Hall, 2009);
• Aillil O’Reilly BL, member of the Drafting Committee of the Company Law Review Group.

The Copyright Review Committee will hold a public meeting at 8:30 next Monday morning, 04 July 2011, in the Robert Emmet Lecture Theatre, Room 2037 Arts Block, Trinity College Dublin (map here).

I will chair, and the other members of the Committee will be in attendance. We will all be in listening mode, so we hope to hear many contributions from as wide a range of interests as possible. Our speakers are

• Brian Fallon, co-founder of Distilled Media, Ireland’s largest exclusively online publisher. They operare some of Ireland’s most popular internet brands including thejournal.ie (a news website where users read, share and shape the daily news agenda) daft.ie (Ireland’s largest property website) and Adverts.ie (a local classifieds marketplace for new and used items).
• Darragh Doyle, Communications Manager of Boards.ie, Ireland’s largest online community.
• TJ McIntyre, Chairman, Digital Rights Ireland, a body devoted to defending Civil, Human and Legal rights in a digital age.

The speakers will have about 5 minutes each to explain how copyright helps or hinders them, and what impact the Committee’s terms of reference will have on them, as a way of leading to comments from the floor. In many ways, the points made, difficulties raised, and ideas floated at the discussion are most important aspect of the morning. It would be great if you could come along and have your say, but please do let us know in advance if you can.

Last month, to maximise the potential of digital industry in Ireland, the Minister for Jobs, Enterprise and Innovation, Richard Bruton T.D., set up a Copyright Review Committee to identify any areas of Irish copyright legislation that might create barriers to innovation and to make recommendations to resolve any problems identified. The Committee consists of yours truly (TCD), Prof Steve Hedley (UCC), and Ms Patricia McGovern (DFMG Solicitors). Our review is similar to, but more limited than, Digital Opportunity, the review of intellectual property law and economic growth conducted by Prof Ian Hargreaves for the UK’s Intellectual Property Office. Rather than looking at the full range of intellectual property issues that Hargreaves did, our terms of reference have a much tighter focus on copyright and innovation; we have been asked to

• examine the present national copyright legislation (also here) and identify any areas that are perceived to create barriers to innovation,
• identify solutions for removing these barriers and make recommendations as to how these solutions might be implemented through changes to national legislation,
• examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context, and
• if necessary, make recommendations for changes to EU Directives.

We have issued a call for submissions, the closing date for which is now 5:00pm on Thursday 14 July 2011. We are delighted with the response so far; but, as the Minister for Research and Innovation, Sean Sherlock T.D., highlighted this afternoon, we are particularly interested in receiving submissions from users of digital content and from start-up companies in the digital environment. Moreover, as Minister Sherlock also emphasised, we have to date

… received very little empirical evidence on the economic effects of copyright policy, and in particular on the economic effects of possible changes to existing copyright law. I think it is important that the Review Committee should receive more submissions setting out and/or building on such economic evidence.

We hope to publish a Consultation Paper and to invite further submissions on it, and to submit our final Report to the Minister before the end of the year.

As part of the current consultative phase of our work, there will be a public meeting about the Review at 8:30am on Monday 4 July 2011, in the Robert Emmet Lecture Theatre, Room 2037 Arts Block (map here), Trinity College Dublin. Attendance is free and open to anyone interested in the work of the Committee, but registration is necessary.

To make a submission, or to register for the public meeting, please email the Review.

Finally, please note that this Review is separate and distinct from the parallel consultation – in response to the decision of Charlton J in EMI Records v UPC [2010] IEHC 377 (11 October 2010) – on amending the legislation to allow rights-holders to seek injunctions against intermediaries such as ISPs whose services are used by third-parties to infringe copyright.

In March, I blogged about the dubious legality of the second Employment Control Framework, which the outgoing government had introduced to control employment in the third level sector. It was misguided and controversial (eg, Liam Delaney here, and here | Dermot Frost | Bernie Goldbach | Aidan Kane | Stephen Kinsella | Rob Kitchen | James McInerney | Donncha O’Connell | Stefano Sanvito | Ferdinand von Prondzynski, passim, but esp here, here, and here). After some discord and delay, that framework has now, it seems, been greatly revised to resolve many of the contentious issues (see Revised ECF 2011-2014 June 2011 (pdf)).

Tom Boland, Chief Executive of the Higher Education Authority, said that the revised Framework “provides reasonable flexibility to the higher education institutions to manage their staffing requirements”; and the public response has been largely positive. For example, in today’s Irish Independent Katherine Donnelly writes that Ministers softened their approach after an outcry from colleges about ‘Soviet-style’ controls, which greeted the original proposals published earlier this year. Again, in today’s Irish Times, Sean Flynn points out that the revised framework removes the onus on colleges to notify the Higher Education Authority of appointments which are funded from external sources, and gives colleges additional flexibility on promotional posts. And, in today’s Irish Examiner, Niall Murray reports that Mike Jennings, general secretary of the Irish Federation of University Teachers accorded the revision a cautious welcome. Similarly, Ned Costello, Chief Executive of the Irish Universities Association, said that “the revisions acknowledge that the response to the national financial crisis must be balanced by according universities the flexibility to manage their resources to best effect”. Moreover, über-critic Ferdinand von Prondzynski concluded:

The new revised framework is still not entirely unproblematical, but most of the objectionable aspects of the original have now been removed. This is a welcome development for the higher education system.

This is all well and good, but whilst the new framework addresses many substantive concerns, my doubts about its legality remain. Although it seems likely that the necessary ministerial consents were obtained this time around, I am not convinced that the still-expansive framework is justified by the provisions of the Universities Act, 1997. Nevertheless, since the sector is prepared to live with the new framework, its legal dubieties are likely to go unchallenged.