Viscount Younger of Leckie
Main Page: Viscount Younger of Leckie (Conservative - Excepted Hereditary)Intellectual Property Bill [HL]
Viscount Younger of Leckie Excerpts
Lord Borrie
My Lords, I am delighted that the noble Lord, Lord Clement-Jones, indicated that he supports most of the proposed amendments to this clause, and that the Minister looks kindly upon them. I take the same view but I want to discuss the amendment proposed by my noble friend Lord Howarth of Newport more fully because this is the only place in the Bill so far where we have discussed the question of balance between the interests of the owner of intellectual property and those of the wider society, as he put it. This is the third day in Committee but, right from the start of our proceedings on the Bill, the rights and values of the creative industry relating to patents, designs and copyright have not been balanced with the wider interests of society. The various things that my noble friend and, indeed, the noble Lord, Lord Clement-Jones, mentioned, including the interests of society in there being more general competition and an absence of restrictive attitudes towards intellectual property, have not been considered.
One of the most vital matters, it seems—a whole area that is not being considered—is the length of time for which intellectual property rights should last. The Government have not felt it necessary—indeed, in the wording of the Bill it is not necessary—to explain why UK-registered design rights can last up to 25 years, that an unregistered design right can last up to 15 years and that a registered community design right can last for 25 years; I am relying on a government briefing paper that I have in front of me. Surely each of those things ought to be justified if one is looking at intellectual property and the way in which it fits into our desire for a prosperous Britain and creative industry, while being concerned that others who may want to be rivals in producing similar designs or objects should be considered as well—in the interests of the consumer and of the future, not just in the narrower interests which have prevailed under these years of monopoly which I have just mentioned.
My noble friend’s amendment is clear. He gave full examples of the way in which the balance would work out. It is a vital part of the Bill, if it is to generously notice that there are things other than those with which the Bill deals.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie)
My Lords, before I begin I thank noble Lords for their engagement on the new reporting duty. This has given me an opportunity to clarify the Government’s intentions for this report. Noble Lords will, I trust, excuse a relatively long response, but many important issues have been raised during the course of this debate. I also hope that my noble friend Lord Jenkin is able to stay to hear my full response and that—how shall I put it?—a different sense of energy does not intervene. Many questions have been raised, and I will attempt to answer them all at the end.
Amendments 25F, 26, 26ZA, 26A, 26B, 26C, 27, 28 and 28ZA seek to broaden the scope of the proposed annual report and detail what the contents of the report should contain. I will address the amendments in turn. Amendments 25F, 26ZA, 26B and 26C, in the names of the noble Lords, Lord Stevenson of Balmacara and Lord Young of Norwood Green, would require the scope of the report to include an assessment of the impact of the Intellectual Property Office’s activities on job creation, in addition to their impact on innovation and growth. A direct relationship between intellectual property and job creation is practically impossible to draw. There are many different factors that will influence whether a business creates jobs. However, where there is evidence to suggest that the IPO’s activities may have had an impact on job creation, the report will indeed state this. Amendment 26C raises other questions to which I shall return later in my reply.
Amendment 26 tabled by my noble friends Lord Jenkin of Roding and Lord Clement-Jones, and to which the noble Lords, Lord Stevenson of Balmacara and Lord Young of Norwood Green, have added their names, would restrict the focus of the report to innovation and growth arising from the creation and exploitation of intellectual property. This point was raised during the Government’s consultation. In response, the Government said:
“The report will cover IPO activities which promote growth and innovation arising from the creation and exploitation of IP but the Government cannot restrict its focus to existing industries and business models. It needs to look at how the IP framework fits with technological change and the development of new business models. The report will therefore aim to present a fuller picture of the impact of the IPO’s activities on growth and innovation”.
I will explain what I mean by the expression “a fuller picture”. The report will also therefore contain an assessment of the Intellectual Property Office’s activities on growth and innovation arising from the use of intellectual property by third parties.
Let me give the Committee an example. Last year, the Government consulted on proposals to amend Section 60(5) of the Patents Act 1977 to provide an exception to patent infringement for activities involved in preparing or running clinical or field trials which use innovative drugs. This change would allow third parties to carry out a limited set of activities using another person’s patent-protected product in order to develop and assess the safety and efficacy of new pharmaceuticals. Responses to the consultation suggested that current UK legislation makes the UK a less attractive location to carry out this work compared with countries with broader exceptions. This may have economic implications for the pharmaceutical and clinical trials sectors, including loss of skills and expertise if trials are run abroad. The report will need to consider examples such as these where the use of intellectual property may help stimulate growth in the economy as a whole. I can assure noble Lords that in such cases it will indicate how the Intellectual Property Office has sought to balance the interests of rights holders and users.
Amendment 26A in the name of the noble Lord, Lord Howarth of Newport, seeks to include a requirement that the report should provide an assessment of how the Intellectual Property Office has,
“balanced the interests of rights holders with the wider interests of society”.
I am grateful that the noble Lord has defined this phrase to be not just UK-focused but global in scope. I entirely agree with what I believe is the principle behind the noble Lord’s amendment, that the wider interests of society are important in the context of IP rights. I can assure the noble Lord that the report will indicate where other policy objectives have been taken into account, alongside economic considerations—for example, where, say, freedom of speech, public health, or international development considerations have taken priority over economic ones. This is in line with the ethos of the report—transparency.
Amendment 26C, tabled by the noble Lords, Lord Stevenson of Balmacara and Lord Young of Norwood Green, seeks to place some requirements on the detailed contents of the report. Before responding directly, I should like to take the opportunity give the Committee some detail on what the report will contain. I will add that, as with all government agencies, the IPO already produces an annual report and accounts, containing an assessment of the development and performance of the organisation throughout the year, together with financial accounts. The IPO’s future plans are contained in the corporate plan published in spring each year and agreed with me as IP Minister on behalf of the Secretary of State. This plan also contains the targets that I set for the IPO and by which its performance is to be judged.
I have described the current reports and plans that the Intellectual Property Office produces. I turn now to the new reporting requirements that are the subject of this clause. I will set out the parameters of the report and give some examples to illustrate the kind of issues that would be included in it.
First, the report will provide information on legislative changes and any pre-legislative work such as consultations. Economic estimates will be taken from impact assessments. Looking back to the previous financial year, as an illustration, this would include the copyright measures in the Enterprise and Regulatory Reform Act and the designs consultation that has resulted in the measures that we have already debated in this Committee.
Secondly, the report will address the Intellectual Property Office’s activities in international negotiations and cross-border co-operation. An example is the work that is being done to deliver a unitary patent and unified patent court.
Thirdly, the report will discuss policy development work that has been undertaken to address the challenges facing the intellectual property system. These will change as time passes, but copyright licensing in the digital age is a good example of a current challenge that the IPO has been working on and which, therefore, the annual report would cover next year and for as long as it remains relevant.
Fourthly, the report will highlight the main outputs of the Intellectual Property Office’s economic research programme and how they relate to innovation and growth. Recent studies, for example, have examined the incentives provided by patents and the use of alternative methods of protecting innovation. The report will also summarise the findings of evaluation exercises. The first of these was published last month and concerns the Lambert toolkit, which contains model agreements and a framework for university and business collaborations. The toolkit was developed by a working group of interested parties, supported by the IPO. The research showed that the toolkit has had a positive influence on some innovative research partnerships between UK universities and businesses.
Lord Howarth of Newport
I very much appreciate what the noble Viscount has just told the Committee. It is very good news indeed. I wonder whether the information provided will include records of conversations, discussions or meetings that may have taken place. A link in the online version of the annual report would be sufficient to achieve that transparency, which would be very helpful.
Viscount Younger of Leckie
I thank the noble Lord for that question. We feel that we have gone as far as we can. Many of the meetings are highlighted on different websites, as the noble Lord will know. We have gone as far as we can to make the viewing of meetings transparent.
I will now address some of the questions raised in the debate. The noble Lord, Lord Stevenson, asked whether the annual report was not just a view about the Intellectual Property Office. He argued that it should be wider and suggested that it should be a report on how we are doing as a nation. The report will be the view of the Secretary of State, taking into account the extensive wider relationship that the IPO has with the creative and innovative industries. I hope that the earlier answers that I gave clarified and provided an answer to that general point.
The noble Lord, Lord Stevenson, made a number of references to the importance of the creative industries. He was right to do that. As I said during the passage of the ERR Act, the Government fully recognise the importance of the creative industries. They have also done much for UK creators, and are doing more, including supporting the design sector through the Bill. We are pressing ahead with the anti-piracy measures of the Digital Economy Act. We are also supporting the creative industries abroad through our growing IPO attaché network, which provides practical support to UK businesses by building relations with intellectual property agencies in host countries and improving the influence of the UK overseas. The UK now has attachés in China, India and Brazil, and is recruiting a fourth attaché for south-east Asia. However, the intellectual property system is not there to support just one sector. It is right that we look across the economy to its impact on a range of sectors. To that extent the noble Lord makes a fair point.
My noble friend Lord Jenkin suggested that it was not enough to report facts to Parliament, but that the report should set out proposed actions in a statement. As I said earlier, the report will be laid before Parliament, and publication announced by Written Ministerial Statement. I always welcome the opportunity to debate intellectual property issues with Members of the House, and it is of course open to any noble Lord to call a debate. Therefore I do not consider it necessary that we put this requirement in the Bill.
My noble friend Lord Jenkin also questioned whether exceptions would weaken the incentive to invest in intellectual property. However, exceptions can create opportunities for others, with little or no harm to the owners of rights. How does it harm an author if someone copies extracts of her work in the course of non-commercial research into it, or if blind people can read it in accessible form? The Government are introducing exceptions to create growth and value; not to transfer it between one interest group and another. The Government are looking for the right balance between many interests, as I am sure my noble friend is aware.
The noble Lord, Lord Howarth, asked how we would define what is new and what is original. In many cases, it is easier to know originality when one sees it rather than to attempt to define it. The noble Lord makes a fair point but the courts have a fairly settled approach to this so I hope that he will accept that they have the ultimate sanction on making decisions on that particular issue.
The noble Lord commented that strong intellectual property rights are not always beneficial. The Government agree with the noble Lord that a balance needs to be struck between IP rights holders and users. I know that the noble Lord has made this point in a previous debate. The report will make it clear when interests such as development are weighed against economic considerations.
The noble Lord raised an interesting point about graphene and whether the annual report would mention it. I am interested in this particular invention because when I last visited the Intellectual Property Office I was given an interesting briefing on this matter. It is one of the issues that the IPO is taking extremely seriously. However, we cannot say in advance what the report might say on individual issues, including graphene, or on particular technologies. The report will focus on the activities of the Intellectual Property Office so that, if the IPO carries out activities in an area, such as graphene, they will be included.
The noble Lord, Lord Howarth, asked how the Government would ensure that development would take place through patent thickets and he cited the example of the pharmaceutical sector. The IPO has published a report investigating the phenomenon of patent thickets and commissioned further research from academics to understand if there is a particular impact on small and medium-sized businesses. The annual report will provide an assessment of the research that is undertaken in this area. It is essential that policy is based on the best available evidence.
The noble Lord raised another interesting point concerning gene patenting and the gist of his question was whether it was right. The Government have noted with interest the judgment of the United States Supreme Court, to which the noble Lord referred. He will also understand that this particular area of patent law is governed in the UK by the biotechnology patents directive, a carefully negotiated consensus across Europe on this particular issue of which the noble Lord may be aware. Our law continues to develop on this matter with references to the European Court of Justice.
The noble Lord asked how we should protect health developments from businesses patenting medicines. The annual report will cover the activities of the Intellectual Property Office and their impact on innovation and growth, which I mentioned earlier, where these activities impact on other policy objectives. The report will make it clear how different objectives were balanced.
The noble Lord, Lord Howarth, also asked how the IPO considers global interests and stops the restriction of knowledge in the developing world. Our vision is that it must cover both incentives to invest in, for example, new medicines and, as part of wider government policy, access to medicines. The noble Lord also commented on the impact of international treaties, such as TRIPS. Where the Government are negotiating in these areas, I assure the noble Lord that the report will cover their impact.
The noble Lord asked whether the report will cover the Government as a whole. As a round-up, this is a report of the Secretary of State in respect of the IPO, and the IPO does not operate in a vacuum. The report will cover issues where the IPO works with other government departments.
The noble Lord raised a further issue concerning patents and asked whether patents were granted too easily and whether they stifle innovation. I am satisfied that the IPO only grants patents with a high presumption of validity. Its patent-granting process, the first in the world to achieve ISO quality accreditation, ensures that only those inventions that are new, take a significant enough step forward and are capable of industrial application are deemed to be worthy of patent protections. I hope that that is of some reassurance to the noble Lord.
Lord Stevenson of Balmacara
My Lords, I thank all speakers in this shortish debate. It was of high quality and we covered a lot of ground. It was particularly good that the noble Lord, Lord Jenkin, was able to stay for it. My noble friend Lord Young quipped that in these modern times perhaps the noble Lord, Lord Jenkin, given his skills, might clone himself and appear in two places at once. I quipped back immediately that that would almost certainly be, if it is not already, a crime under the intellectual property Act. It probably will be shortly and he could go to prison for trying it. We decided that that was not worth pursuing. I am sorry about that.
The debate raised a lot of issues. I thank the Minister very much indeed for his response—it was one of the best that I have heard in this Committee or in many others. He covered the ground extremely well, picked up every point and answered most of our questions in a very satisfactory way. In terms of what we are doing—trying to probe and get a sense of where the report will be coming from—I think that we are well satisfied.
However, the point is that the legislation does not quite say what the Minister said in his response. In the Explanatory Notes are simply two lines on the report in paragraph 91, which states:
“The report will cover new legislation and policy developments, including those related to copyright licensing, as well as the services delivered by the IPO”.
Given that the Minister spoke for some 10 minutes about what the report also contained, I wonder whether there is a bit of a gap between the written word and what we have heard. It may be possible to come up with a better formulation in the Bill, and we may want to come back and work further on that on Report. However, we are not far apart on this and, clearly, if the report does cover all the issues that the Minister listed, we would be well satisfied with that, in so far as it goes.
However, underlying the response was the nagging doubt about authorship. Who holds the pen in this report? That is the question we have to look at. The Minister, several times, said that it was okay because the Secretary of State would respond, not the noble Lord himself—as the Minister responsible for IP—or even the chief executive of the IPO. Later on, he changed that and said that it was “a” Secretary of State. However, there is not only one Secretary of State in the Cabinet and the Government. There is another Secretary of State, who currently has responsibility for the DCMS—although, if the rumours are to be believed, not for much longer—and who of course speaks for creators, appears at meetings speaking on intellectual property and sometimes appears with the Minister when the Minister is in his guise as intellectual property tsar. It is fairly obvious from those who attend these meetings, and I have heard a number of reports of them, that a differential approach comes across. It is impossible for the Government to have a single voice on this when the responsibilities are split. One point that has come through, in all the presentations that we have had this afternoon, is that the Government are not currently speaking for the balance of the two aspects. There is a sense here of an uncompleted need to address this issue. We might well come back to it.
The second point is that, within our debate, we picked up on a theme that has emerged in all our Committee sessions and which may run through to the end of this Bill. There is a growing unease about the way the balance is struck between the needs and rights of creators against those of wider society and between the rights of creators and of those who wish to exploit that creativity. I do not think we have settled it. I do not think it is possible to settle it in this Bill or without a lot more thought. I simply log that as being something about which we all hoped more would maybe come out in the report. This is an issue that we will have to address—if not now, then very quickly—in order to make the best of the way in which any future Government deal with intellectual property as an important sector of our economy.
As my noble friend Lord Howarth said, the most difficult question is about what our approach will be in terms of the economic return that can be earned by inventors, such that it does not squeeze out the benefits that will flow to those who wish to use and exploit those inventions. Are we thinking about intellectual enclosures or about commons? That is a very good formulation for a very complex problem, which I know that my noble friend has been dealing with for some time.
A third point comes out of this short debate. I apologise for going on at length but it is important to get it on the record. We are now satisfied that the sort of report that the Minister talked about would document very well what has happened in the Intellectual Property Office work over the year. But will it be sufficient for us to be able to address the issues of what it should be doing in future years? In other words, we have a simple written report and Written Statement—as the noble Lord, Lord Jenkin, said—simply landing in Parliament. Without the opportunity to interrogate, question and come up with ideas about what further work it might stimulate, the job will not be complete. Might the Minister think again about the point raised in the amendment of the noble Lord, Lord Jenkin, and the need not just for a report but for a Statement that could be debated? I know it is true that we can, as ordinary Members of your Lordships’ House, ask for a debate, but that is not the same as having a proper timetabled slot to look forward to, where we can consult with those outside, bring forward thoughts and events, and discuss the issue properly.
Finally, the question about how intellectual property is dealt with is so firmly in our minds that we need to think hard as we go through the rest of the Bill how we can better secure the debates that will be necessary around the wider context for this. It is true, as the Minister said, that BIS has the lead on this matter. However, without the wider community of Ministers also being engaged in it, that will not be sufficient. These are very important points to consider.
Viscount Younger of Leckie
The noble Lord’s question about who holds the pen on this report shows that everything is in the definite or indefinite article. I clarify that the Secretary of State for Business, Innovation and Skills will have the duty to report. However, the report will cover any relevant cross-cutting issues or activities, including work with DCMS or regulators such as Ofcom. I hope that that clarifies that point.
Lord Stevenson of Balmacara
I thank the Minister for picking up that point. Does it clarify it? No, but with that I withdraw the amendment.
Lord Howarth of Newport
My Lords, it is not only a form of cheating but a form of free-riding that is clearly unfair. I look forward to the Minister’s positive response to the amendment of the noble Lord, Lord Jenkin.
Viscount Younger of Leckie
My Lords, the amendment proposed by my noble friends Lord Jenkin and Lord Clement-Jones seeks to protect the distinctiveness of product packaging. The amendment relates to an ongoing concern by brand owners relating to what has been called “lookalike” or “parasitic” packaging. This is where businesses are said to mimic the packaging of brands with a reputation, whereby consumers believe that the lookalike product, normally cheaper than the branded product, shares its characteristics, such as its quality. My noble friend Lord Jenkin described the issue in similar fashion. This is considered to be riding on the coat-tails of a brand’s reputation.
The Government recognise that brands are a significant contributor to the UK economy. I can assure my noble friends that we are very much alive to the concerns of brand owners about so-called lookalike products. Indeed, the IPO has just published research that that it commissioned into the phenomenon of lookalike packaging, which we would urge all interested parties to consider. The report is publicly available and can be found on the IPO’s website. In relation to the harm that lookalike packaging does to both consumers and business, the findings were, perhaps surprisingly, fairly equivocal. In particular, although a high number of consumers felt disadvantaged by the accidental purchase of a lookalike, a substantial number saw it as an advantage. Furthermore, there is a fine line between confusing packaging and the use of “generic cues” to signal to customers. For example, the colour green can indicate “mint” on toothpaste. There is no particular business associated with this colour.
The Government are considering the findings of the report and look forward to discussing them with the industry but, as previously stated, the evidence was not convincing enough to initiate immediate action. Although the Government agree that brand owners should be entitled to preserve the distinctiveness of their products, a delicate balance exists between the proper protection of rights and the openness of the market to innovation and competition. Any proposal that changes the status quo should be considered with caution.
In particular, the Government do not agree that the amendment is an appropriate addition to the suite of protections already available to brand owners. The amendment would unduly broaden the scope of the rights currently enjoyed by owners of intellectual property relating to product packaging and upset the balance to which I have referred. In particular, the amendment would prohibit the use of packaging that tells consumers that a product has similar qualities to those of a competitor’s product, even where that is true and consumers are not misled in any way. The law already provides for the protection of distinctive packaging. Let me explain why.
First, where packaging is distinctive, it may be registered as a trade mark. It is an infringement of a registered trade mark where use of a sign takes unfair advantage of its reputation—the riding on the coat-tails that I mentioned earlier. Given sufficient reputation in the marketplace, this protection can apply to even simple examples of packaging, such as the colour purple, which Cadbury currently has protected as a trade mark for chocolate products.
Secondly, noble Lords will, I am sure, be familiar with the remedies under the common-law tort of “passing off”. The case of Penguin v Puffin is an example of the redress that is available under this tort when a competitor sails too close to the wind in mimicking rival packaging. There is a more recent example, where the threat of legal action from Diageo, the makers of Pimm’s, over the use of the term “Pitchers” by Sainsbury’s resulted in an agreement over new packaging for the Pitchers product.
A number of questions have been raised. My noble friend Lord Jenkin of Roding stated that there was plenty of evidence that parasitical lookalike packaging misleads consumers. I refer him to the report recently commissioned by the IPO, to which I alluded earlier in my speech. The study, called The Impact of Lookalikes: Similar Packaging and Fast-moving Consumer Goods, is very long—more than 400 pages—but the results cover a wide range of issues. The Committee might find it useful if I highlight some of the findings, as the issues were raised today.
Lord Borrie
My Lords, I want to intervene in a small way. I had a certain nostalgic feeling when reference was made to setting up a director-general of intellectual property because I was once the director-general of fair trading for some 16 years and I enjoyed that. I enjoyed the fact that the legislation that applied to me directed everything in a sort of pyramid set-up, whereby I was at the top of the pyramid and everybody else was down below. That was rather enjoyable, but surely my noble friends who have put forward this amendment must realise that it is terribly dated now. In the 1970s and 1980s, as each old-fashioned nationalised industry became privatised, a director-general was set up—for example, of Ofgas, Offer or Ofcom. They were all set up as sort of clones of the director-general of fair trading with specialised functions. However, roughly from the 1990s, into this century, all these offices have been remodelled on what I might call more private enterprise bases, whereby there is a board, a chairman and a chief executive. The same person can no longer be both chairman and chief executive in either private enterprise or the public sector.
Bodies that have been set up in recent years to do a job of this sort, to act as offices to receive public concerns and complaints and to bring forward policy, have been set up in the more modern way. If I may put it in simple terms, previously there has been an “Office of” something or other. Now there is the Financial Services Authority—or, rather, the Financial Conduct Authority—and the new competition body is not called the Office of Fair Trading or “Office of Competition” but the Competition and Markets Authority. It has a board, a chairman and chief executive. I am simply saying to my noble friends that I am not sure that I care for this amendment anyway, for the reasons given by my noble friend Lord Howarth, but it is technically not an up-to-date way of doing it.
Viscount Younger of Leckie
My Lords, Amendment 28AA would create a new statutory role of “Director General of Intellectual Property Rights”, with a duty to promote intellectual property rights. A very similar amendment to the Enterprise and Regulatory Reform Bill was proposed by my noble friends Lord Jenkin, Lord Clement-Jones and Lady Buscombe, who is not in her place today.
The functions of this new role are already being carried out. As Minister for Intellectual Property, I have a role to champion the IP system as a whole. That includes the vital role of not only protecting the interests of IP rights owners but considering the different interests of future businesses, consumers and other users and creators of IP. A balanced IP system promotes strong and competitive markets, and encourages innovation and creativity.
My role as IP Minister is to create and sustain the best possible balance. I am supported in this role by the IPO, whose objectives I set through its annual corporate plan. The IPO is responsible for promoting innovation by providing a clear, accessible and widely understood IP system that enables the economy and society to benefit from knowledge and ideas.
In particular, I am supported by the chief executive of the Intellectual Property Office, who is a director-general within the Civil Service. The chief executive is appointed by the Secretary of State. He or she is directly accountable to the Secretary of State, to me as the responsible Minister and to the Permanent Secretary as the principal accounting officer. The chief executive is responsible for the administration of the relevant statutes, in this case the Patents Act 1977, the Copyright, Designs and Patents Act 1988, the Trade Marks Act 1994 and associated legislation. He or she also advises the Secretary of State on all aspects of national intellectual property, related EU and international legislation and on relevant policy issues. It seems to me that these are precisely the tasks that one would expect a director-general of IP to perform, and we have a director-general doing them.
We have heard the suggestion that a director-general for IP owners is needed to convince holders of IP rights that the Government are supportive of their interests. The Government have already introduced or supported a wide range of beneficial measures, from enhanced R&D tax credits and incentives for animation to longer copyright for music performances, and from easier access to justice through the courts to encouraging a new IP crime unit in the City of London Police to tackle online IP crime. It is clear that we have done much for IP-intensive industries, as my noble friend Lord Clement-Jones acknowledged in the Grand Committee on the ERR Bill. I appreciate his general support today—when compared, perhaps, with his views during the passage of the ERR Bill—and I am grateful.
The need for balance in IP policy has been recognised for many years. For example, when the current Copyright, Designs and Patents Bill was debated in the other place in 1988, the former honourable Member for Sedgefield, Tony Blair, said the following:
“The difficult balance that we have to strike … is between ensuring that industry has a proper incentive to invest and recognising that the consumer must be protected against the lack of competition that will inevitably come from copyright protection. If we protect industry too much the consumer will suffer through the abuse of monopoly, and if we give too little protection to industry it will lose the incentive to invest. Our task is not to choose between the interests of industry and the consumer but adequately to balance those interests”.—[Official Report, Commons, 25/7/88; col. 38.]
I am most grateful to the noble Lord, Lord Howarth, for clarifying that point earlier in this debate.
The duties of the proposed director-general are significant in what they do not include. There is no duty to consider the impact on consumers, other businesses or the advance of research. He or she need not have regard to the benefits of competition, and the development of high-quality evidence does not appear to have been given priority. These are not optional extras but important considerations in their own right. Although the Government understand the intention behind the amendment, we do not believe that this additional role is necessary. In addition, I am not fully convinced that a role that does not acknowledge the balance of interests necessary to good intellectual property policy would benefit creators, rights owners or the UK.
The noble Lord, Lord Young, raised some important points, some of which I may have addressed earlier. He suggested that the IPO is efficient at registering but does not champion IP rights. As I mentioned earlier, the Intellectual Property Office is under my control as Minister for IP. I do not know about my transition from Ivan the Terrible to Peter the Great but reiterate that I am a proud Intellectual Property Minister. However, importantly, I do not agree that it is my role to champion current IP rights holders over future ones or to have one set over another.
The noble Lord, Lord Young, questioned what the IPO has done to support rights holders and IP businesses. As I mentioned earlier, the IPO is taking a wide range of actions to help business. I refer noble Lords to my lengthy letter last week, which set out some of these activities on business support and enforcement. I have here—which I can wave, Chamberlain-style—a copy of the IPO achievements for 2012-13. Noble Lords are most welcome to read it.
The noble Lord, Lord Young, asked if intellectual property should be embedded in considerations across departments in Whitehall. Having the IPO as the centre of IP expertise and policy in government, to which departments can turn, helps to facilitate this. Furthermore, IPO policy officials actively reach out to other departments—DCMS and the Ministry of Justice, to name but two—on cross-cutting intellectual property issues. This system works for a wide range of policy areas and is the norm.
My noble friend Lord Clement-Jones said that the Government and the IPO must show that they have the interests of intellectual property holders at heart. He is right. The Government have done much, including extending the copyright term in music performances and the tax incentives for research and development in animation, which I mentioned earlier.
The noble Lord, Lord Howarth, said that the Government should not be championing intellectual property rights to the detriment of others; in other words, he was focusing on the public interest balance. Again, this is absolutely right. The IPO acts in the public interest, running the IP system in order to maximise innovation and creativity in the widest possible sense.
I hope that on the basis of the information I have provided, specifying in some depth the role of the chief executive of the IPO, as well as my own passion for the role as IP Minister, the noble Lord will withdraw his amendment.
Lord Young of Norwood Green
My Lords, I have not quite struck a consensus in Committee on this occasion. Even those who were supportive before seem to have decided that the ship was going down. Nevertheless, it has been a useful debate.
Of course, I concur with the critics, such as my noble friend Lord Howarth, who talked about the importance of getting the balance right between IP rights and public interest. I would not demur from that and I would not say that this is a perfect amendment. However, if nothing else, it has again required the Minister to define the way that, as the IP Minister, he acts within his department and with other departments. In that respect, it has been useful. It was unfortunate that he referred to Chamberlain, as his career was terminated rather abruptly, so perhaps he should choose another analogy in future when he is waving a piece of paper. Nevertheless, I take the point that he made.
The noble Lord, Lord Clement-Jones, was right to say that we will judge the Government by their actions. The reference to the Digital Economy Act brought a feeling of nostalgia and I hope that we will see it fully enacted. Nevertheless, I thank noble Lords for participating in the debate and, taking into account those responses, I beg leave to withdraw the amendment.
Lord Howarth of Newport
My Lords, I support my noble friend Lord Stevenson of Balmacara in his proposal that the Government should publish a document of some sort setting out their thinking in relation to the suite of exceptions that they propose to legislate for. It will not be satisfactory if the first opportunity that Parliament has to consider these exceptions is in the highly constrained circumstances in which we consider unamendable orders, in fairly brief time, in Committee.
It would be very helpful if the Government would lay out their thinking in a report and better still—essential, I would suggest—if Parliament had the opportunity to debate that report, so that when we come to consider the specific orders and enact legislation on them, we do so in the context of a proper understanding of the thinking and strategic purpose of the Government. The Government have some very delicate and difficult judgments to make, exception by exception, and Parliament needs to take responsible decisions. Parliament will be better educated, and better placed to make appropriate judgments on this, if we have the opportunity to go through the preliminary stage that my noble friend suggested. The report need not be quite as ambitious as the one that he proposed in his amendment, which would set out,
“the government’s long term plans for the future of intellectual property in the United Kingdom”.
That could be quite a bulky document. However, if the report is focused on the issues raised in the exceptions for which the Government are minded to legislate, it would be very helpful to Parliament and to others as well.
Viscount Younger of Leckie
My Lords, I understand that the noble Lords, Lord Stevenson and Lord Young, are keen to discuss the Government’s plans on copyright exceptions arising from the Hargreaves review and their copyright consultation. The Government have already made their vision for the future of intellectual property very clear. They have endorsed the recommendations of Professor Hargreaves after his thorough report. We want to see a framework that maximises growth across the economy, not just for industries that are users of the intellectual property framework but for everyone.
I will set out for your Lordships a number of documents that establish the Government’s strategy for intellectual property. These include the report by Professor Hargreaves himself, published in May 2011; the Government’s response accepting the professor’s recommendations, published in August 2011; an international intellectual property strategy published in the same year, as well as an IP crime strategy covering a five-year cycle; and, most recently, the Modernising Copyright document, to which the amendment refers, which flowed directly from the Government’s response to the Hargreaves review and their subsequent copyright consultation that ran from December 2011 to March 2012. Taken together, the documents very clearly lay out the Government’s vision for intellectual property as an essential element of growth, and back up that vision with real plans for the next five years. Those plans are reflected in the IPO’s corporate plan, which I, as the Minister for Intellectual Property, have signed off.
I also remind noble Lords that the previous Government conducted many of their own reviews, such as the Gowers review, Digital Britain, Creative Britain and the 2009 copyright review. Following this number of reviews, now is the time for action and implementation, and I am pleased to say that this Government are now moving to implementation.
I am very grateful to the noble Lord, Lord Stevenson, for his engagement and interest in the Government’s plans to implement their proposed changes to copyright exceptions. This work, as the noble Lord is aware, is being taken forward not in the Bill but through secondary legislation, which we will all have ample time to debate. However, I understand why the noble Lord has raised the issue and recognise that while many are in favour of the proposed changes, some stakeholders still have concerns. Therefore, I will now try to respond.
First, the noble Lord asked for more information about the timetable for the technical review of copyright exceptions that the Government are conducting. As the noble Lord indicated, the IPO is seeking comments on the first set of draft exceptions by 17 July and has offered open meetings in the week of 8 July. This first set of technical drafts covers proposed new exceptions on private copying, parody, quotations, and changes to the existing exception for public administration. The next set of technical drafts will cover education, preservation and archiving, research and private study, and text and data mining. It is my intention that these will be published before the end of the week.
This will leave one remaining exception: that for disabilities. However, noble Lords may be aware that the UK is currently involved in discussions in Marrakech to agree a treaty on improving access for the visually impaired to published works. Therefore, it may be necessary to await the outcome of that important work before issuing proposals to update the disability exemption. I am sure that all noble Lords support this important work, which has the aim of facilitating access to books for visually impaired people across the world.
On the time available for public comment, the Government are keen to ensure that sufficient time is provided for all the technical drafts to be considered properly. Therefore, the same time to comment—six weeks—will be allowed for each technical draft. If any noble Lords here today wish to respond to the technical review exercise, the Government will be very happy to hear from them. In addition, I will be happy to meet any noble Lords who have a keen interest in this area.
I now turn to how, subject to satisfactory completion of the technical review exercise, the Government plan to bring the draft legislation before this House and the other place. These are statutory instruments, but the Government have committed to lay them before each House for affirmative resolution. This will provide an opportunity for Parliament to comment and to express its views. The noble Lord expressed concern about the time to debate the issues. I do not share the noble Lord’s fear that there will not be enough time for discussion on these issues. This House and the other place do not seem to shy away from debates on copyright. Copyright exceptions have already been the subject of debate on the Floor of both Houses in the context of the ERR Act and have been scrutinised by not one but two Select Committee inquires. However, I recognise the great interest in this area and, as I indicated, during the passage of the Enterprise and Regulatory Reform Act, the Government remain open to the idea of additional debates on the draft regulations if there is a desire from Members of this House and of the other place. I am happy to repeat that offer here today.
Lord Clement-Jones
My Lords, I was not planning to speak on the amendment but the noble Lord, Lord Young, made such a good fist of the arguments that I wanted to say that this matter needs serious examination. In fact, when one looks closely, one sees that this is a relatively mild amendment because it does not really constitute exemplary damages. It simply rolls up royalties into a lump sum that otherwise could have been awarded by a court. Exemplary damages are rather tougher. Indeed, many rights holders complain that the provisions of the amendment would be inadequate when all they are going to get is just the equivalent of a royalty when, in fact, an infringement has taken place over a long period. One could go a lot further, but as a first step and as a way of stimulating discussion this is an interesting amendment.
Viscount Younger of Leckie
My Lords, Amendment 28AC would allow for the awarding of damages in copyright infringement cases that compensate a plaintiff for the infringement, as well as the additional damages allowed in some circumstances for copyright infringement. This is already catered for by Regulation 3(2) of the Intellectual Property Regulations 2006—SI 2006/1028—and damages may be awarded at the court’s discretion.
Copyright gives the creator of a protected work the right to control certain acts, such as how and when the work is copied or when it is issued to the public. Most cases of copyright infringement fall under the remit of civil law and are dealt with by the civil courts. Infringement can be a criminal matter, particularly where it is carried out deliberately and/or it occurs on a commercial scale. The UK legal system does not generally have principles of punitive damages in the civil courts. In some circumstances this is possible for blatant copyright infringement, but these provisions are rarely used. Civil remedies in UK law are aimed at settling disputes and provide restitution and compensation, while punishment is the purpose of the criminal courts.
Intellectual property law is complicated and in many circumstances it is possible for an individual or business to infringe accidently. As a result, although it is possible to obtain additional or exemplary damages for copyright infringement in some circumstances, this is not something that the Government intend to introduce more widely. In particular, the introduction of further exemplary damages for design rights and patents would almost certainly have a negative impact on innovation, as industry would become more nervous about infringement when developing new products. Further damages would also create a perverse incentive for some individuals and organisations to take legal action that might otherwise be inappropriate.
An important principle of UK law is ensuring that the level of penalty is proportionate to the level of wrongdoing. The Government believe that furthering exemplary damages could allow for disproportionate sanctions to be imposed on those who unintentionally infringe IP and would not support rights holders, or protect or enforce their rights. Above all, we have seen no evidence that exemplary damages work where they are available in other countries.
The noble Lord, Lord Young, questioned whether the UK Government are doing enough on enforcement. I am delighted that this gives me an opportunity to provide some highlights of what I regard as a serious and important matter. The UK’s legal system convicts pirates and counterfeiters, and 80% of criminal cases under IP legislation in 2009 led to a guilty verdict. In 2009, the UK convicted nearly eight times as many copyright offenders as in 2002. The assets seized from IP criminals were £21 million in 2010-11, which was more than twice the previous year’s figure. Figures vary from year to year, understandably, but there is an increasing trend in the value of assets recovered since 2004-05.
The noble Lord, Lord Young, spoke generally about whether the current system is working. To address his first question, we simply have not seen the evidence that the UK’s penalties are ineffective deterrents. UK piracy is relatively low, and Ofcom research suggests that it is not rising. That is not to say that we are complacent. However, I ask the noble Lord to withdraw his amendment.
(c) make provision for applying this Part, or any of its provisions, to any country of a specified description;(d) make provision for the application of legislation to a country under paragraph (b) or (c) to be subject to specified restrictions.”
Viscount Younger of Leckie
My Lords, I will set out why the Government have tabled minor and technical amendments to this clause. The Committee will be relieved to know that my speech will be brief on this occasion.
Clause 21 is intended to simplify the way in which the UK currently meets its international obligations to extend copyright protection to works from other countries and their citizens, delivering clearer information for users. This need arises from the fact that the UK is a signatory to a number of international copyright conventions and treaties. This obliges the UK to extend copyright protection to works and performances created by citizens of other member countries, or to works that originate in other member countries. These obligations are reciprocal: UK copyright holders benefit from the same protection in those countries.
However, it became clear after the Bill was introduced that the clause as drafted would not provide the Government with the flexibility to extend as much, or as little, of the Act as is appropriate. The policy behind Section 159 is for protection to apply only where it is offered in return. This very much depends on which international agreements those other countries have signed up to, and whether they have opted out of some elements. The purpose of the Government’s technical amendments to this clause, therefore, is to better define the powers to extend only parts of the provisions of the Act to citizens and works from other countries, and where the United Kingdom is obliged to do so.
Amendment 28K is consequential and removes text that has become redundant, because the Bill will automatically ensure protection in future for works from the Channel Islands and the Isle of Man. I beg to move.
Lord Stevenson of Balmacara
My Lords, I am sure that there will be little response to the Minister’s brief but adequate explanation of these amendments. He also tried to write to us to explain what he was doing, but unfortunately the letter did not reach us until this morning. However, I have had the benefit of a brief read of that. It seems to us a sensible amendment, and we wish it well.
Viscount Younger of Leckie
I am grateful for the brief contribution from the noble Lord, Lord Stevenson. I have nothing further to add.
Lord Young of Norwood Green
My Lords, I thank the noble Lord, Lord Clement-Jones, for his comprehensive contribution, as well as my noble friend Lord Howarth. I think that they have covered the waterfront on this one. The only thing I would add is: can the IP Minister tell us what has happened to the Digital Economy Act? I look forward to his response. Basically, we support the premise that is contained in this amendment.
Viscount Younger of Leckie
My Lords, I thank my noble friend Lord Clement-Jones for his amendment. This amendment and the following one fall within the remit of the Secretary of State for Culture, Media and Sport. However, as I work ever more closely with my colleagues in DCMS where there is some crossover in policy, I am more than happy to discuss these amendments today.
The Government recognise the opportunities presented by the lending of e-books by public libraries and recently commissioned an independent review of e-lending in libraries in England, led by William Sieghart, which my noble friend Lord Clement-Jones referred to. Noble Lords will be aware of the public lending right—PLR—scheme which enables authors and other rights holders to receive payments in exchange for their works being loaned out free of charge by public libraries.
More than 23,000 authors, illustrators, photographers, translators and editors who have contributed to books lent out by public libraries in the UK receive PLR payments each year, up to a maximum of £6,600 per rights holder. This is, in effect, compensation for the mandatory nature of the PLR scheme. Rights holders are automatically included in the scheme, although some authors waive their right to receive PLR payments.
At present, e-books, audiobooks and e-audiobooks—which I shall collectively call e-books for convenience—are outside the scope of the PLR scheme. This is regardless of whether those books are downloaded on library premises or downloaded remotely, such as at home. It is very important to note that public libraries are able to lend e-books, both on library premises and remotely, without the PLR scheme being extended. Library authorities offering e-lending reach appropriate agreements to license the lending of e-books by contracting the services of third party aggregators who liaise with publishers on rights holders’ behalf.
Lord Young of Norwood Green
I welcome that nugget of information but it is a nugget in that there is quite a lot more in the Digital Economy Act. I was taking the opportunity to ask generally and I quite understand that that requires a complex answer. If the Minister will write to us with more information, it will be eagerly received.
Viscount Younger of Leckie
I was attempting to give a fuller answer in that I, too, understood that it was a slightly more complex question and that is why I would like to give a holistic answer covering the noble Lord’s general point about the timing and the rollout of the Digital Economy Act.
My noble friend Lord Clement-Jones asked why we should not just provide a token amount of remuneration in respect of PLR. By EU law, remuneration must be more than merely illusory. Although the UK has a degree of discretion as to the amount, the European Commission’s case law has said that it must be real and reflect the loss of remuneration, so the availability of funding is relevant to any extension. My noble friend also asked what the implications were if these changes were not made. To clarify that point, library authorities can continue to lend e-books without the extension of PLR.
The noble Lord, Lord Howarth, asked whether the issue is one of cost and, if so, whether a token amount can be paid. My noble friend Lord Clement-Jones made a similar point. The financial implications must be given consideration but I assure noble Lords that the Culture Minister is giving this proper consideration even as the challenging economic circumstances continue. With this in mind, I hope that my noble friend will withdraw his amendment.
Lord Clement-Jones
My Lords, I thank the Minister for that quite complex reply. I thank the noble Lord, Lord Howarth, for his support, and the noble Lord, Lord Young. I liked his question about what has happened to the Digital Economy Act. It is one of those mysteries, like “Who killed Cock Robin?”.
The Minister seemed to be saying that it is far easier to implement the Digital Economy Act for onsite e-lending than it is for remote e-lending. If I have elicited that as a response, we can at least start sorting out the wheat from the chaff. It sounds as if 26 June is a very significant date for whether or not we are going to be able to implement that part of the Digital Economy Act. I shall put on my party clothes if, on the 26 June, we know that there is going to be something in the budget for PLR under Section 43 of the Digital Economy Act. I shall put on even more party clothes if, after four years, we start issuing letters next year under the initial obligations code. The fact that it has taken four years to implement an Act will perhaps be in the Guinness book of records, although the noble Lord, Lord Borrie, who has a great memory for these things, may remember other Acts that have not been implemented. However, it is good news on that front. It sounds as if there is some willingness to implement the Act as far as that is concerned.
I am rather baffled that the Government should commission a report by somebody extremely distinguished, with a very distinguished advisory panel, which came to some very clear conclusions about remote e-lending, and then shuffle the whole thing off into a piece of research. I am sure that that is very frustrating for all concerned. The Minister talked about the bodies that were involved, including the publishers, but the authors—the ALCS and others—really need to be involved in this process. In many respects, all this is happening behind a somewhat closed door as far as the writers are concerned, but they should be involved. Clearly I am not going to get very far with that until the results of the survey are put together.
On the legal issue, not all libraries have reached an agreement with aggregators. There will be continuing infringement until we have either proper, blanket licensing—via the aggregators, publishers or whatever—or we have something in the Digital Economy Act, or another instrument, to bring remote e-lending within PLR. The situation will continue to be very unsatisfactory. I heard exactly what the Minister said about the status of remote e-lending under the copyright directive. I am not an expert on that directive but I doubt whether it is beyond the wit of man to find a way through that and to find some satisfactory way of including remote e-lending in PLR if the budget is there.
However, the number of hard copy or print books which are subject to PLR is diminishing over time, so the pool of money required to compensate authors—the Minister said that £6,600 is the limit under PLR—may not necessarily grow, because there will be a compensating diminution in the number of printed books taken out as against the quantity of digital lending. I would not be at all surprised if this required no additional funding and it was simply a matter of political will to recognise that the technology is moving in a particular direction and to make sure that authors are compensated as much for the loan of digital books as for the loan of print books. However, we will not get much further today. I thank the Minister for his considered reply and beg leave to withdraw the amendment.
Lord Stevenson of Balmacara
My Lords, I declare no current interest in this matter, although I was director of the British Film Institute when the Copyright, Designs and Patents Act was enacted. I was also author of a minor monograph that is still in print.
The amendment troubles me. Section 73 of that Act is only one component of a complex web of regulation that provides equilibrium in the UK broadcast market. It ensures that consumers who have already paid for PSB content through the licence fee or indirect taxation can get access to publicly funded content through a cable platform at no additional cost. It is true that Section 73 is a relatively old provision created when the cable industry was in its infancy. It is also true that the cable industry is in a different position than when Section 73 was conceived. However, the age of something should not determine value. Attempts to delete old things from existence can surely give no Member of your Lordships’ House much comfort.
However, the amendment gives the Government a chance to look again at the objective of Section 73 and to ask themselves whether the outcomes it delivers today are still relevant to their public policy objectives. I acknowledge that the recent TVCatchup case referred to by the noble Lord, Lord Clement-Jones, raises legitimate concerns about the use of Section 73 as a defence for the retransmission of free-to-air PSB channels online.
I understand that the Government are currently looking at how Section 73 might be amended and tightened to ensure that the beneficiaries of the clause are the intended platforms that are acting within the law. Perhaps when he responds the Minister will again put on his DCMS hat and let us know what progress is being made in that review, and indeed what progress is being made on the communications White Paper—another of the vanishing opportunities for the Government to intervene in these areas, which has been promised since 2010. It seems that we are no nearer to a publication date.
However, apart from the TVCatchup issue, I understand that Section 73 continues to provide PSBs and consumers with the most efficient route to access the PSB channels that most cable subscribers want and who equally do not want to have to pay twice for. Some noble Lords may be aware of the ongoing row between the PSB community and the Sky platform about the level of fees paid to broadcast on the commercial satellite platform. Indeed, one of the major gripes that PSBs have at the moment—and I understand that they been lobbying for this through the communications review process—is that they want to see an end to fees that they have to pay to platform providers to carry their content.
However, when setting out the Government position in his speech to the Oxford Media Convention in January 2013, the Culture Minister said:
“I welcome the steps Sky have taken so far to reduce retransmission fees to a much lower level. But we want them to go further, taking into account the undoubted value that PSBs offer to satellite platforms and their viewers, so that there’s a level playing field: zero fees either way”.
This would, indeed be a good outcome for consumers. However, the question remains of how to draft a clause to ensure that there is a level playing field between all platforms, with zero fees either way.
Unlike publicly funded platforms and unlike BSkyB, cable has never charged PSB channels to carry their content. Given that this zero charge/zero pay policy is the policy outcome required by the Government, and we understand that this issue will be considered in some detail by the Government when their communications White Paper is eventually published in the summer, the amendment seems somewhat previous, as well as contrary to consumer interests.
While the recent TVCatchup case may indeed require an adjustment to the current law, abolishing the clause entirely, as the noble Lord, Lord Clement-Jones proposes, seems entirely contrary to the interests of 4 million cable customers who access public service content, at no cost to those broadcasters, through the cable platforms. I hope that the Government will firmly resist the amendment.
Viscount Younger of Leckie
My Lords, the amendment would repeal Section 73 of the Copyright, Designs and Patents Act 1988—in short, the CPDA—and thereby remove the copyright exemption for the retransmission by cable of certain public service broadcasts, known as PSBs. The UK television industry is a great success story. We are world leaders, producing great programmes and formats that are then sold the world over. We want to see the continued success and growth of this vibrant, important sector of the economy.
Section 73 of the CDPA is just one part of the overall framework that supports the availability of TV and investment in television programming in the UK. This framework consists of a variety of rules and regulations that affect the production and availability of public service programming and its relationship with the services or platforms that carry it. These include the obligations on PSBs to offer their content to all relevant platforms, the rules governing payments by broadcasters for technical platform services, and the powers for regulators to compel these services to carry PSB content.
Lord Young of Norwood Green
My Lords, we support in principle the amendment of the noble Lord, Lord Clement-Jones, and would be interested to hear the ministerial response.
Viscount Younger of Leckie
My Lords, I listened carefully to the speech of my noble friend Lord Clement-Jones. In so doing, I was multitasking and was able to calculate that my noble friend has pledged to dress himself up in no fewer than three layers of party clothes, which, I imagine, must be quite an impressive sight. Given that this is the last amendment that I will be speaking to in Committee, I want briefly to thank all Peers who have contributed and engaged in Committee on the Bill. I realise that there will be more to speak about on Report and I look forward to further discussions.
The effect of the amendment tabled by my noble friend would be to increase the maximum penalty for online copyright infringement to 10 years’ imprisonment. While I recognise that there appears to be a discrepancy between the penalties obtainable from the two offences of online copyright infringement, with a maximum of two years’ imprisonment, and physical copyright infringement, with a maximum of 10 years under the Copyright, Designs and Patents Act, I cannot support harmonisation of the two offences, given my understanding of the area.
Prosecutors are already using our current fraud legislation to obtain convictions for online infringement, with substantial penalties, up to a maximum of 10 years’ imprisonment. The existing legislation allows for effective prosecutions to be made without reliance on any specialist intellectual property knowledge. Last year, for example, the owner of the website Surfthechannel—which linked to pirated copies of films and TV—was sentenced to four years in prison on two counts of conspiracy to defraud, more than the two years available under the CDPA.
The important economic aspect of this was addressed by the Digital Economy Act when it came into force in 2010. This raised financial penalties on digital offences to £50,000, in line with physical copyright theft. The Government have no evidence to support the suggestion that an increased sanction for online copyright infringement would either increase the number of prosecutions brought forward, increase the length of sentences passed down to those found guilty of infringement or deter more people from infringing. We have not consulted on this and we have no plans to do so.
With existing legislation already providing the necessary penalties and prosecutors having a range of options already at their disposal, at the present time I see no reason to increase sanctions under the Copyright, Designs and Patents Act, despite there being a slight discrepancy. In particular, changes should not be made without carrying out the appropriate consultation to gather evidence of the impact.
I hope that this has clarified the Government’s position to my noble friend, and I ask him to withdraw his amendment.
Lord Clement-Jones
My Lords, although the Minister has thanked everyone for their part in Committee, he has, sadly, ended on a somewhat stony note because he is saying that it would not be appropriate to introduce something without consultation but has absolutely no intention of entering into a consultation. That slightly puts one in a cul-de-sac in all this.
The Minister’s statement directly contradicts the experience on which I have been briefed by FACT and the BPI in terms of their ability to use fraud legislation and common-law conspiracy. Clearly, they either have not put their case sufficiently to the IPO or the IPO’s evidence is at variance for some reason. Perhaps it is talking to a different set of prosecutors. However, on a couple of occasions, as well as talking about party clothes, I have said that I am very much in favour of evidence-based legislation. I am very keen that we should have the evidence and that we do not legislate without it.
If we need further discussion and evidence, I very much hope that the Minister will be open to that despite the advice that he has received that the fraud legislation is relatively straightforward to use. That is certainly not what I have been told and I would not have tabled an amendment if I had believed that. The discrepancy is not minor but one of eight years, which is significant, especially if you were locked up for that period. You would, quite honestly, notice the difference.
However, the hour is late and we have had a good trot at a number of issues raised in Committee today and I beg leave to withdraw the amendment.