Intellectual Property Bill [HL]

Lord Sheikh Excerpts

Wednesday 22nd May 2013 Lords Chamber

[Lord Sheikh]

My Lords, I must begin by congratulating and extending a very warm welcome to the noble and learned Lord, Lord Walker of Gestingthorpe, to your Lordships’ House. It is a pleasure for me to follow his maiden speech in today’s debate. He brings with him an excellent array of credentials in the field of law, the depth and quality of which I think we all agree was reflected in his marvellous contribution today.

The noble and learned Lord was called to the Bar at Lincoln’s Inn, where he served as treasurer in 2010. That holds personal resonance for me, because my brother and niece were also called to the Bar at the same Inn of Court. He has built a career filled with remarkable achievements in the legal profession, including appointment as a Queen’s Counsel in 1982 and serving as a High Court judge and as a Lord Justice of Appeal. Most notably, his career as a judge culminated in his appointment as one of the original Justices of the Supreme Court on its inauguration in 2009.

The reverence for the noble and learned Lord’s work has stretched even beyond these shores. He served as a non-permanent judge of the Hong Kong Court of Final Appeal. He is also a strong family man with four children, and last year he celebrated his golden wedding anniversary with his wife Suzanne. With his legal expertise and undoubted other qualities, he will be an invaluable addition to your Lordships’ Chamber, and I commend him on his maiden speech.

I am pleased to speak in the Second Reading of the Bill, as it has personal resonance for me. I briefly talked about the matter in a speech that I made in your Lordships’ House following her Majesty’s most gracious Speech. On that note, I declare an interest in that I was previously the chairman and chief executive of an organisation that arranged insurance schemes for the protection of patents and copyrights. I therefore have first-hand knowledge of how part of an organisation’s resources and finances are often utilised for the purposes of intellectual property.

I have been heartened by our Government’s commitment to reforming intellectual property law ever since coming to power. We have seen a strong and consistent desire to see the changes through in the interests of removing obstructions for businesses and ultimately assisting economic growth. Ian Hargreaves and his panel should be commended for their work, particularly in the light of the Government accepting the majority of its findings and recommendations. The legislation in this area, as the report stated, is falling behind what is needed and must be reformed to make the most of today’s challenges—and, indeed, those of the future.

At the very heart of the Bill is the concept of helping to release innovation that is otherwise being stifled by current intellectual property laws. For me, some of the key proposals that will no doubt provide the greatest returns are those intended to allow a greater degree of flexibility to aspiring designers and creators. The Government made clear in their response to the Hargreaves report that they are concerned at the extent to which businesses and entrepreneurs are restricted and prevented from realising their full potential due to the heavy chains and shackles of outdated legislation.

I believe in the free and competitive spirit of the market and everybody’s right to reap the rewards of their creations, but I also realise that innovation and creativity do not always come from completely original, alien concepts; they are also bred from inspirations, from the merging, adapting and fine-tuning of ideas. I am very supportive of limiting the protection of trivial features of design both to curtail overly opportunistic designers from making unreasonable claims and to clear up uncertainty where cases are taken before the courts.

I also believe strongly in the provisions enabling a right of prior use by third parties of designs that are subsequently registered by others. Again, that is a concept based on fairness and the recognition that substantial work is often undertaken before the process of legal registration. It also allows for what the Department for Business, Innovation and Skills has referred to as the “limited exploitation” which such third parties should rightly be entitled to in the circumstances. However, it is also crucial that we implement measures to ensure that our talents here at home are adequately protected and thus encouraged to develop further.

I am particularly pleased to see provisions being made to amend the Freedom of Information Act for continuing programmes of research intended for future publication. I believe that the increased transparency provided by the Freedom of Information Act has, on the whole, been good for the public, not least in the name of political accountability. However, in some circumstances, such disclosure will inevitably pose a threat to the integrity and potential economic gain of such research. When the Justice Select Committee looked at this matter last year, it was informed by Universities UK that there was strong concern across the country about how such early releases of information are threatening the competitiveness of our universities against each other and, perhaps more importantly, internationally.

Freedom of information is a concept introduced on the basis of it being very much in the public interest, and I would argue that this tweaking of the original legislation takes it even further down that road. A natural extension of this is the introduction of protection from infringement in relation to acts undertaken privately and, in particular, in teaching and experimenting. It simply does not make sense for activities undertaken with no commercial purpose to be susceptible to laws designed to protect designers from commercial loss, and it is good to see that the Bill takes note of this.

In order adequately to protect our designers and creators, we must also ensure that the law is accessible to them and properly serves their interests. The Bill makes very clear that the deliberate copying of a registered design is to be rightly designated a criminal offence that is dealt with by criminal courts, and clearly outlines the conditions and circumstances in which an offence is to be considered as such. This is perhaps the most important advance made by the Bill, giving designers the concise guidance they need, further deterring those who look to produce and sell counterfeit products, and helping to bring the law in this area uniformly into line with that of breaching copyright and trade marks. I am also pleased that time has deliberately been taken to ensure appropriate lines of defence for those accused of such offences. This is a firm policy that still ensures that genuinely innocent individuals who unintentionally break the rules will not be caught by it.

As well as ensuring strength and clarity in intellectual property laws, it is also crucial that we streamline internationally where possible. We live in a globalised world, and these laws must reflect that. The power which the Bill provides for ratification of the unitary patent court agreement will provide an essential step in seeing this beneficial mechanism finally implemented. The opportunity for businesses to create single EU-wide patents for products, rather than separately across all countries, as well as to litigate where necessary in one unitary court covering all countries, will reduce costs and administration substantially. In fact, the Intellectual Property Office estimates that this will benefit UK business by about £40 million per year. The negotiations on this have been long and arduous for all countries involved, and we must now seize the opportunity to make it happen.

I am sure all the noble Lords in this House will agree that small businesses form the backbone of our economy and will be the driving force behind our economic recovery. I am therefore supportive of any and all measures designed to help SMEs better utilise the systems of protection that are available to them. In this vein, it is long overdue that we accede to the Hague agreement, and I am extremely pleased to see this included in the Bill. The current anomaly whereby companies can apply for protection covering only the whole of the EU has been hampering our small businesses for too long. They are unlikely to require such wide protection and often find it difficult to meet the costs of such a substantial registration. The Hague system is a sensible system, and it is about time we implemented it in the United Kingdom, both in the name of simplicity of administration and, even more importantly, in giving our small businesses a route to target specific markets with their products and services. It will also enable us to encourage other countries to sign up, thus opening up our markets further.

Finally, the proposed IPO opinions service for UK-registered designs seems to be the most obvious and progressive step forward in furthering direct government support for innovation, particularly given the success of the existing service, which has proved both cheap and efficient to use, and with the vast majority of opinions requested being issued within the target timeframe of three months. In 2010, the IPO conducted a survey of the users of its opinions service, and 70% declared that they would be in favour of the service’s expansion. Several reviews, including Hargreaves, have found that the expense and time needed to resolve intellectual property disputes can actually prevent small businesses from making proper use of their rights, and thus act as a barrier to innovation. Therefore, such a service can be a valuable tool in helping to avoid costly litigation. Such a service will help to ensure that intellectual property remains the preserve of innovators, rather than those with the deepest pockets.

Reform of our intellectual property laws is long overdue. I believe that the Bill provides the clarity, transparency and overall efficiency that our innovators need to help them flourish and realise their full potential in assisting our economic growth.