If property rights are “the Cinderella of the fundamental rights provisions of the Irish Constitution,” copyright may be its glass slipper, seeking its proper owner. The underlying rationale for copyright in Irish law is rarely examined, despite statements from the bench that place it on a constitutional footing. This would make Ireland distinctive amongst common law jurisdictions and may impact on the copyright regime in ways that may surprise those accustomed to looking to the UK and US for guidance.
In Phonographic Performance Ireland Ltd. v Cody, Keane J (as he then was) said:
Section 60(4) of the [Copyright] Act of 1963 provides that no right in the nature of copyright “shall subsist otherwise than by virtue of this Act or of some other enactment in that behalf”. The right of the creator of a literary, dramatic, musical or artistic work not to have his or her creation stolen or plagiarised is a right of private property within the meaning of Article 40.3.2° and Article 43.1 of the Constitution of Ireland, 1937, as is the similar right of a person who has employed his or her technical skills and/or capital in the sound recording of a musical work. As such, they can hardly be abolished in their entirety, although it was doubtless within the competence of the Oireachtas to regulate their exercise in the interests of the common good. In addition and even in the absence of any statutory machinery, it is the duty of the organs of the State, including the courts, to ensure, as best they may, that these rights are protected from unjust attack and, in the case of injustice done, vindicated. The statements in some English authorities that copyright other than by statutory provision ceased to exist with the abolition of common law copyright are not necessarily applicable in Ireland.
This article examines the issues that arise from this statement. What was the history of copyright in England? What is the position of copyright in other common law countries? How do other constitutions deal with copyright? Can we find a basis for copyright in Irish constitutional theory and practice? Is it therefore correct to say that intellectual property, and specifically copyright, is a property right in Irish constitutional law? What difference does it make that copyright law has a constitutional basis?