Lord Jenkin of Roding
Main Page: Lord Jenkin of Roding (Conservative - Life peer)Intellectual Property Bill [HL]
Lord Jenkin of Roding Excerpts
Lord Stevenson of Balmacara
My Lords, this group of amendments all relate to the proposed reporting duty placed on the Secretary of State in Clause 20 in relation to the creative industries. We welcome this proposal but the amendments, taken collectively, do two things: they build on the proposals in the Bill and they offer some alternatives for the focus of the reports that are to be made to Parliament.
Your Lordships will recall that the seeds of this debate are to be found in the discussions held on the Enterprise and Regulatory Reform Bill last Session, in particular the amendments put down to the Bill in Committee by the noble Lords, Lord Jenkin of Roding and Lord Clement-Jones, and others, which led the Minister to convene various meetings and, after discussion, to agree to introduce this proposal. Discussions of this type always make for better legislation, do they not? However, rereading the debate reminds me that then, as now, our aspirations were for a rather more expansive report than is currently proposed.
Like the Government, our amendments start from the position that IP is a hugely important component of this country’s economy. As the letter sent to the Times last March signed by members of the Creative Coalition Campaign said:
“Copyright is the central intellectual property right that underpins the creative and knowledge economy. Films, music, games, books, could not get made in their present quantity and quality without a robust system of copyright. It provides the legal foundation for the ability of companies to license or sell works, and to invest and to innovate”.
As we heard during the discussion of the ERR Bill, IP is at the heart of our economic success in this sector. The creative industries support around 1.5 million jobs and create more than £36 billion annually to UK GVA, calculated by the DCMS creative industries group. As a result of our belief in the importance of the creative industries, we believe that the annual report should not be limited, as the Government propose, to a view from the IPO, interesting though that undoubtedly would be. Surely the effect of the annual report should be a much broader review of the state of the copyright industries in the United Kingdom. The test is whether such a report will provide sufficient material to provide a discussion of how we are doing as a nation. It is not sufficient merely to hear how the IPO is doing in relation to its role of balancing the interests of intellectual property holders with the wider interests that the public may have in the extensive benefit that can be received from the early dissemination of information, knowledge and material.
In our view, it will be necessary for the annual report to cover plans for changes to legislation relating to IP and copyright; details of the expected impact on job creation; progress in supporting innovation; the impact of policy on economic growth more generally in the United Kingdom; engagement with other related government departments; engagement with stakeholders and details of lobbyists who have been in contact with the IPO; information concerning consumer behaviour and habits regarding the use of and access to copyright-infringing material and the subsequent economic impact; information containing manipulation of the internet search market; the impact of voluntary and non-voluntary action in tackling copyright infringement; and information about cross-border co-operation between our own jurisdiction and jurisdictions in the European Union and elsewhere. That is a long list, but it makes the point that what is needed is not so much a single point of view from the IPO but a broader conspectus of the current and future situation in this vital sector of our economy.
A report along the lines we are suggesting in these amendments will be an important first step in making our copyright industries a central part of our economic focus and ensuring that Parliament becomes better informed and can debate properly our progress. As my noble friend Lord Howarth of Newport said on Report on the ERR Bill, welcoming the Minister’s commitment that an annual report should be published by the IPO:
“It may not reach the top of the bestseller lists, but it is right in principle that the public should have the opportunity to be informed about what the current issues are and what developments in policy are or may be”. —[Official Report, 6/3/13; col. 1597.]
I beg to move.
Lord Jenkin of Roding
My Lords, along with a number of other noble Lords, I have several amendments in this group to which I would like to speak.
The noble Lord, Lord Stevenson, has reminded the Committee that the origin of some of this was in the debates on the Enterprise and Regulatory Reform Bill. One of the things we debated at some length was how far the IPO had a role to protect and promote the interests of intellectual property owners. With respect to my noble friend, we had an answer that was half dusty and half satisfactory. The dusty point was that he was not going to accept that the IPO should have that role and that was why we proposed having a director-general.
I am intrigued to see that the noble Lord, Lord Stevenson, has tabled what looks like exactly the same amendment as my noble friend Lord Clement-Jones and I tabled on that Bill.
Lord Stevenson of Balmacara
If I may help the noble Lord, I asked his permission—this is an intellectual property Bill, after all—and I thought that he had granted it. If he has not, I must apologise because I wanted to have exactly that point raised as it is on the agenda later on. I thought that if he would not do it, I would.
Lord Jenkin of Roding
I am most grateful to the noble Lord for his e-mail. I did not interpret it as asking for my permission because no permission would be needed. I treated it as a matter of courtesy that he was letting me know that he had tabled a similar amendment.
At this point I should say that I am in some personal difficulty today. I am speaking on the Energy Bill later and I ought to try to get back to the Second Reading debate as swiftly as I can. I will do my best to listen when the noble Lord, Lord Stevenson, moves that amendment but I am sure that he will understand if I have to desert the Committee for the Chamber.
Returning to Amendment 25F—I have amendments in the same group—the encouraging point in my noble friend’s reply in the debates on the ERR Bill was that he described himself as the Minister with the duty to promote and encourage intellectual property. We have taken that to heart. So I say at once that we welcome the clauses in the Bill which now provide for the annual report because this seems to be a valuable addition to the armoury of measures which are necessary to encourage and promote intellectual property in all its forms.
The noble Lord, Lord Stevenson, was quite right to say that we think the report ought to go wider than the Government have so far envisaged. I attach a lot of importance to that. I am grateful to the noble Lords, Lord Stevenson and Lord Young of Norwood Green, who have added their names to our amendment. Perhaps I should have added mine to theirs but that would have meant that I would have to stay, which may be difficult in the circumstances.
The imposition of a duty to produce an annual report on the work of the IPO in that form is welcome. It reflects the words that were used by the IPO’s chief executive John Alty, when he gave evidence to the Committee in the other place,
“as ensuring the IP framework supported innovation and growth”.
These are now reflected in the words in the Bill. However, it does expose one of the difficulties we face and which was faced to some extent at the last sitting of the Committee. The IPO has always claimed that weakening copyright with more and more exceptions will generate economic growth. This attitude has fuelled the anxieties of those who depend on the protection of IP for their living.
Amendment 26, to which I am grateful that others have added their names, is intended to make it completely clear that the report has to show that it is,
“the creation and exploitation of intellectual property”,
that has contributed to growth and innovation. If it is not protected, if there are too many exceptions, the incentive for people to do the work that creates and generates IP is to that extent weakened. As the noble Lord has already said, if we are a country that has to live on its wits and depend on its inventions and innovation to keep ahead of the rest of the world—in some cases I fear that we need to be catching up with the rest of the world, but that is very much part of this Government’s whole approach to these matters—we must recognise the very important role that IP plays in all this. The issues were raised very dramatically at Second Reading by my noble friend Lord Clement-Jones; I will not repeat the words but they are at col. 858.
I will deal with the other two amendments rather more briefly. The clause says that the Secretary of State should lay the report before Parliament. I do not think that that is enough. The legislation should call for a Statement, including the findings of the report and the action the Government intend to take. It should not just be lost in the tangled undergrowth of the huge tide—sorry, I am mixing my metaphors—of written reports to Parliament, of which there appear to be an increasing number. This is sufficiently important that we should require a Statement by a Minister in the House, which can of course be subject to question and answer. It will be open then to individual Members to decide if they wish to take steps to have the report debated.
Amendment 28 seeks to demonstrate the link between the role in promoting innovation and economic growth and the protection and promotion of IP; otherwise, one may find that intellectual property and rights owners’ ability to protect and monetise their rights will be seriously weakened in what it appears will be presented in the guise of pursuing economic growth. The Government are consulting on how they define and measure the creative industries in such a way that digital and tech companies will be classified as creative industries. I look forward to my noble friend correcting me, but I am concerned that, taken together, these two things could mean that the relaxation of IP rights, particularly copyright, would actually benefit the creative industries, when in truth they would benefit US-based and, increasingly, China-based global tech companies to the detriment of the UK creatives. Therefore, this amendment is intended as a safeguard for UK creatives and to ensure that the IPO takes into account how its actions affect those who create and own intellectual property.
As I have said, Clause 20 is a very welcome step forward and I would not want anything I have said to detract from that. But, as the noble Lord, Lord Stevenson, said, it needs to make it more explicit that the objectives are dependent on safeguarding the rights of IP owners.
Lord Jenkin of Roding
“Lookalikes
(1) A person (“A”) shall not, in relation to any goods or services, use any features of packaging, marking, labelling or decoration in such a way that the public is likely to attribute to A’s goods or services the reputation of another person (“B”) or the qualities or reputation of B’s goods or services.
(2) For the purposes of subsection (1) it is immaterial whether there is any similarity between the goods or services of A and those of B.
(3) Subsection (1) shall not apply to features of packaging, marking, labelling or decoration that are commonplace.”
Lord Jenkin of Roding
My Lords, it has long been my ambition to appear on the screen in two different places, but I think that is impossible. I have been looking to see whether other members of my family might appear on the screen at the same time. We have not achieved that. We do not set out to do that but it would be nice if it happened.
Amendment 28A deals with the long standing problem of lookalikes: products that are designed to look like well known branded products, with the intention—certainly the effect—of confusing the customer. For me, this is a very familiar problem. Many years ago I worked for what was then the Distillers Company, which had a number of very famous brands of spirits. It had a museum of lookalikes containing literally hundreds of bottles from all over the world that had been specifically designed to make them look like some of the Distillers Company’s well known brands, on which of course it had spent a great deal of money on advertising and had built up a very strong brand loyalty. One that I always remember looked exactly like a bottle of White Horse whisky until you looked very closely and saw that it was not a horse but an elephant. But from the other side of the bar you could not have possibly told the difference. There was another bottle of whisky that had “Scotland” in very large words on it and if you looked at it very closely, it said, “Label printed in Scotland”. There were hundreds of others.
This is not the first occasion that this subject has been raised in this House. On 24 February 1994, my late friend Lord Reay tabled an amendment during the passage of the Trade Marks Act about what he called unfair competition. I spoke in that debate, as did a number of other noble Lords. My noble friend Lord Strathclyde, who was then the Minister, recognised the problem but proposed no action. On 17 March 2000, we had the Second Reading of a Private Member’s Bill presented by my noble friend Lord McNally, the Copyright, etc. and Trade Marks (Offences and Enforcement) Bill, which was specifically directed at this problem of lookalikes. In the end he was persuaded to withdraw the Bill so nothing was done.
I have here—and I have no doubt other noble Lords will have seen similar things—a whole collection of what is sometimes called parasitic copying. Brands of margarine have a different word on the top but they look exactly like the very well known brands that are advertised by companies. There are shampoos, shower creams and lotions—all these things are well known. There is plenty of evidence that they do mislead consumers. My wife is a very careful shopper but on one or two occasions in the past few years she has been misled and come back home and said, “Oh, that is not what I meant to buy”, but it looked exactly like the one that she did mean to.
Lord Jenkin of Roding
My Lords, I listened with great interest to my noble friend giving his answer, and I hope I shall be forgiven when I say that I have not read all 400 pages of the IPO report. From his description, it seems to provide “not conclusive evidence”. I am moved to say to my noble friend that, yes, of course some customers will be happy that they bought a lookalike product because it was cheaper. However, why did it have to look like the branded product? Why could not the own-label product be designed not to give the impression that it is riding on the coat-tails of a well known branded product? Of course some consumers will buy it deliberately because it is cheaper. I find that evidence very misleading. Consumers have bought a lookalike because it looks like the thing that they have always bought but is cheaper, so they like it. Why buy a lookalike? Why do supermarkets not design their own product? The answer is that it would not sell. There would not be a market. Lookalike products are crucial to their marketing. That is cheating. However, I will look very carefully at what my noble friend said, and perhaps take advice from some of the people who have more time than I do and have read the 400-page IPO report. In the mean time, I beg leave to withdraw the amendment.