Intellectual Property Bill [HL]

Lord Borrie Excerpts

Wednesday 22nd May 2013 Lords Chamber

[Lord Borrie]

My Lords, I add my welcome to the maiden speech of the noble and learned Lord, Lord Walker of Gestingthorpe. It was a very valuable speech and from his remarks I understand that he will be able to take part in the Committee stage of the Bill. He will be very welcome there and, no doubt, in the other debates that he will take part in as he chooses. I was not surprised that the consultation document said that the law relating to design is complex and difficult to understand. It went on to say that it is difficult to enforce the law relating to design. I therefore suggest that the Government’s proposal in Clause 13, whereby civil remedies are given the benefit of criminal sanctions, provided there is a deliberate breach of a registered design, will be an extremely helpful addition.

The consultation document dealing with this matter referred to SMEs as the people—mostly designers—who are likely to lack the resources to challenge infringement themselves. In the debate on the gracious Speech, I ventured to suggest that a major problem for SMEs was not getting paid by their suppliers, a loss of cash flow and so on. I suggested that a public official is needed to assist them. It is rather a similar proposition that I make now—namely, that with registered designs it should be possible for SMEs and other designers to have the benefit of a public official to put forward the possibility of a criminal charge against deliberate infringements. The public official in this case will be trading standards officers up and down the country. I declare an interest as a vice-president of the Trading Standards Institute.

One of the things that I want to make clear today is that, over the years, I have also had a long interest in competition policy or competition law and the need to deal firmly with anti-trust or anti-competitive practices. The new body that we in this House set up—together with the other House, of course—the Competition and Markets Authority, will be a much more significant body than those that it replaces; it will be very powerful.

I want to make it clear that, in relation to intellectual property, there is sometimes a tension between the general importance of competition in promoting efficiency in the provision of goods and services and the value of intellectual property. As many people have already said in today’s debate, the invention of new products and new designs and other outcomes of creative talent in the industry requires intellectual property. However, I suggest that intellectual property rights may be inherently anti-competitive because they create barriers to entry into the market by others who are not the first people, and therefore have not managed to register their property rights. If the intellectual property is particularly powerful and lasts for an unduly long time, surely it is anti-competitive and not what we in this House, with this Bill, are encouraging with regard to people who are granted intellectual property.

Once obtained, intellectual property rights, whether patents, copyright or registered design, can all operate initially as being pro-competitive, of course, but if the protection continues for too long, beyond a reasonable time, clearly that restricts competition from other parties and people. For that reason, I have some doubt about the proposition in the Bill that unregistered designs should receive the benefit of intellectual property rights along with registered designs. It is interesting that an unregistered design lasts for 15 years. That is a monopoly position for 15 years, which may be less than justified. In relation to unregistered designs, and indeed other aspects of intellectual property, are the Government content with the period of benefit that the owner of the patent, design or whatever it is has for its invention and its creative outcome?

One very welcome provision in the Bill, as other people—although not all of them—have said, is the obligation on the Intellectual Property Office to give a non-binding but none the less authoritative opinion. The validity of the design is then given a firm basis, with an opinion available that will not be costly. I noticed that the consultative document talks about a modest fee of £200. As this has not been referred to today, I do not know if the Minister could confirm whether that is the intention, but clearly that is a very modest sum compared with any sort of legal action that someone would otherwise have to bring for infringement. The Federation of Small Businesses, which no doubt has written to many of us on the subject of intellectual property, feels very strongly that the service has helped with regard to patents, where it has been available for some time, and could be very useful regarding designs, enabling one to get a firm opinion from an authoritative body without having to go through court proceedings.