Intellectual Property Bill [HL]

Earl of Erroll Excerpts

Wednesday 22nd May 2013 Lords Chamber

[The Earl of Erroll]

My Lords, the excellent maiden speech by the noble and learned Lord, Lord Walker of Gestingthorpe, suddenly reminded me of something from about the time when I had just about finished my A-levels. My parents were great friends with the late Lord Jauncey of Tullichettle, and they were having lunch with him in Edinburgh when he was just an advocate. I found him struggling with some simple chemistry and science books. I had done physics, chemistry and maths. He was struggling to understand polymers, because he was taking a case regarding coatings on razorblades. I gave him a quick rundown on polymers and polymer coatings, at the end of which he said he understood it perfectly and went on to win his case. He suggested to me that I ought to become an advocate and a patent lawyer. Probably one of the bigger mistakes in my life is that I did not take his advice. Still, I have ended up in other places.

One of the interesting things about the Bill, as people have pointed out, is the anomaly of the silos in government. The copyright and culture side of it sits in DCMS, while the other stuff, which generates huge amounts of jobs, industry and work, sits in the IPO, which comes under BIS. However, the two things are basically related. When we talk about the creative industries, where does the creativity cross over between the two? There are a lot of anomalies as a result of this approach of splitting the area into two when it comes to legislation. There is a principle, I think, that we cannot have two departments sponsoring one Bill, or something like that—I am not quite sure how it works. As a result, we get a dichotomy, a mismatch, and all these things.

The noble Lord, Lord Borrie, for instance, is worried that 15 years is too long to protect an unregistered design. Well, an unregistered copyright, which may be generated purely by accident—after all, you get copyright simply by writing a letter, even if no one intended ever to make any money off it—lasts for the life of the author plus 70 years, which causes huge problems elsewhere and does not advance the cause of other intellectual property and research there. There is a complete mismatch between the two, and the whole area needs some proper, maybe philosophical, thought about it in order to rationalise it.

I ought to declare an interest. I am an adviser to Flexeye Ltd, whose software is being used very cleverly by a major manufacturer to try to protect its intellectual property and designs where it is manufacturing in foreign countries and it knows that people are going to try to rip it off and make copies. How you control access is an interesting and important problem. As people have been pointing out, there is a huge amount of money in this area.

I shall run through the clauses quickly. Clause 4, on fair use, which is essential and very good, says that we can use these things in teaching and in other areas and for private use. That is very good and it is obvious, so why could we not also have had it in the other Bill with regard to cultural copyright? If it is needed in one Bill, why not in the other? The fair use provision is essential.

Then we have Clause 7, about prior use. It should not apply if someone inadvertently uses something. There is a defence for the person whose design is being used; the third party has to prove that it is not copied from the design. The trouble is that if the design that they are copying from is unregistered, how do you prove that they copied it from that design unless you actually find evidence of that? I can see an opportunity for a nice little business looking at unregistered designs, getting some money and then invoking the prior use clause so that you actually have use of it. Then if you wanted to extend the use, you would have to enter into an arrangement with the person who had the registered design. You could use this exemption for registered designs to get an advantage. That needs looking at.

Clause 13 is also about copying. It applies to registered designs: why not to unregistered ones as well? Again, there is a constant mismatch in the Bill between registered and unregistered. DCMS sees no such difference regarding copyright; copyright is copyright, whether it is registered or unregistered. Maybe we should apply the Bill’s principles in the Copyright, Designs and Patents Act where it applies to copyright, or maybe we should apply that Act’s principles here. I find that mismatch difficult.

I reinforce what the noble Lord, Lord Clement-Jones, said about 2D and 3D. I am not quite sure how the legislation applies here, but we now have 3D printers, so copying something in three dimensions now is not a problem. As for the idea behind the discrepancy between the two, we can make 3D copies cheaply now; the printers are only around £2,000.

On Clause 16, a quick note was passed to me from the Law Society of Scotland. This has already been said, but I am going to say it more precisely to reinforce it. The note said that it would be very nice if one division of the court of first instance of the unified patent court could in fact, should they win enough cases, be the Court of Session in Scotland. I wanted quickly to reinforce that.

I was most intrigued by the provision in paragraph 3 of the Schedule to extend the period to a year and a day. Why do they suddenly want the extra day? You do not get that in leasehold; you do not get it in lots of other laws. I could envisage a renewal period, or whatever it might be, being rolled forward by a day all the time. I thought there was a very good reason for ending it on the 365th day, or whatever, and then starting it again on day one. I just hope they do not introduce this principle elsewhere, because it could lead to chaos.

I very much welcome Clause 19, which is about protection from requests under the Freedom of Information Act for research. This is long overdue, because there have been some very difficult cases. I think that at the moment you are required to have a commercial reason not to disclose. We have to have it for pure research and other things because we do not know how long it will be before some of this stuff is useful. This whole business of an academic moving from one establishment to another and then requesting information from the previous establishment because he knows it is there can cause a lot of problems to people’s credibility and the amount of investment in some of those data sets being gathered for research.

In general, the Bill is very good, and I look forward to seeing it progressing.