Intellectual Property Bill [Lords]

James Gray Excerpts

Wednesday 12th March 2014 Commons Chamber

[Mr Wright]

It could be good news, but we are acting in the dark. The Minister said in Committee—the hon. Gentleman was there—that the Government are in implementation mode. However, the hon. Gentleman, who is a knowledgeable expert, must accept that it looks very much like the Government are making it up as they go along, with no long-term vision for the direction of IP or copyright.

The Government have been left floundering. The hon. Member for Hove alluded to the fact that they have had to be rescued by stakeholders and have reinforced the impression that IP policy is not considered a priority, despite the importance now and in future of the creative industries. That is why new clause 1 is as relevant now as when we discussed it in Committee. The Government’s handling of this important matter has been shambolic, and I should like to test the opinion of the House on it. It is important that we send out a clear message that copyright is important. It is an important driver of wealth creation in the 21st century, and what the Government have done is not good enough.

On amendments 2 and 3, clause 13 was debated at length in Committee and in the other place. I do not want to detain the House, but, as I have said several times during the passage of the Bill, it is the most contentious measure. It is a significant matter when Parliament decides to impose criminal sanctions. The provision that ensures that anybody convicted of deliberately infringing registered designs can go to prison for 10 years needs careful consideration.

Some stakeholders have stated that such a provision will have a chilling effect on innovation in this country and that, as a result, Britain will lose something of our comparative advantage and competitiveness in creativity and innovation. We should not easily give away that advantage in innovation and design. As a result of that persuasive argument from industry—from Dyson and others—the Government tabled amendments in Committee to tighten the wording of clause 13 to ensure that unintentional infringement is not captured by the new criminal sanctions.

[Mr James Gray (North Wiltshire) (Con)]

rose—

[Mr Wright]

Given that the hon. Gentleman and I have discussed the involvement of Dyson, I am happy to give way to him.

--- Later in debate ---

[Mr Gray]

I am grateful to the hon. Gentleman for mentioning that outstanding company in my constituency. Dyson now employs some 1,500 designers and does groundbreaking design work in Britain. I am also grateful to the hon. Gentleman and the Opposition for agreeing to table the amendment. The word “intentional” should be included in clause 13, but will he explain why amendment 2, which removes insignificant changes from the exemption, makes any sense at all?

[Mr Wright]

I will come to that later, if I may. In Committee, Government amendments reworded the clause to ensure that it referred only to designs

“with features that differ only in immaterial details from the design”.

Amendment 3 would remove that wording. Let me explain the purpose of that to the hon. Gentleman. We do not want to set the bar lower than the Government intend, but the current wording will provide more uncertainty and the prospect of further litigation. Is there not a risk that the clause will focus on counterfeits rather than on intentional infringement and copying? Given what the Minister said in Committee, I am pretty sure that that is not what he intends.

I mentioned in Committee the fascinating and informative case of Apple v. Samsung. In the context of that court case, is there not a need to consider the design corpus and the informed user? The test for infringement of community designs is whether the later design produces an overall different impression on the informed user. I believe that that is important and would like the Minister’s view. Why is he not using that wording from community designs legislation?

The Minister might recall that in Committee I quoted the judge in the Apple v. Samsung case, who said:

“When I first saw the Samsung products in this case I was struck by how similar they look to the Apple design when they are resting on a table. They look similar because they both have the same front screen. It stands out. However to the informed user (which at that stage I was not) these screens do not stand out to anything like the same extent. The front view of the Apple design takes its place amongst its kindred prior art.”

Does the Minister accept that his current wording, which emphasises “immaterial designs”, will more than likely be concerned with counterfeits? Why has he not included in the clause the common community wording for infringement of community designs, which asks whether the later design produces an overall different impression on the informed user? That is the purpose of amendments 2 and 3.

Like other proposals, amendment 5 has been debated several times during the Bill’s passage in the other place and the House. It is essentially about consistency and the scope of effectiveness. If the Government believe—it is a big “if”, and opinion is polarised—that intentional infringement of design rights should be subject to a prison sentence of up to 10 years, why should that criminal sanction apply solely to registered designs rather than also to unregistered designs?

As I mentioned in Committee, about 4,000 designs are registered in the UK each year, and about 18,000 to 25,000 unregistered designs are lodged with the Anti Copying in Design database. I also mentioned in Committee a glaring inconsistency in the Government’s position—that is at the heart of the amendment. On the one hand, in Committee in the other place in June, the Minister said:

“SMEs…do not tend to register their designs”.

If so, what are the Government hoping to achieve with that provision? On the other hand, the same Minister said:

“The introduction of criminal sanctions for unregistered rights could lead to a negative effect on business and innovation.”—[Official Report, House of Lords, 13 June 2013; Vol. 745, c. GC395-409.]

If that is the case for unregistered designs, why is it not the case for designs that the innovator has gone to the trouble of registering? I cannot believe that the Government’s position is consistent.

In Committee, the Minister gave a practical example to illustrate his opposition to the amendment by referring to the design of a sofa. Where I come from, we call a “sofa” a “settee”—that is the proper word for that piece of furniture. The Minister said that, if a case about an unregistered design of a settee—or a sofa—were to be brought before a criminal court, it would need to establish whether the right existed and which parts of the design were original. As we discussed in Committee, surely the concept of design corpus would apply not only in the civil court, but also for the higher standards demanded in the criminal court, where the Government are pushing, and to registered designs and unregistered designs.

In Committee, the Minister said:

“We should not forget the ultimate reason for the Bill and the clause. There are small and medium-sized enterprises up and down the country in the design business that are being ripped off. Their designs do not have the protections that they require.”––[Official Report, Intellectual Property Public Bill Committee, 30 January 2014; c. 67.]

However, the vast majority of designs are unregistered, and the Government’s proposals will do nothing to help them. Small firms without resources will still run the risk of being ripped off by larger and unscrupulous businesses. Clause 13 in its original form did not address that, and the Government changes to the clause through the Bill’s passage in this House do not do so either. The Minister must accept that inconsistency, and amendment 5 tries to deal with it.