London Olympic Games and Paralympic Games Bill

As my name is attached to the amendment, perhaps I may speak to it also and commend the words of the noble Lord, Lord Clement-Jones. My words would be even stronger if I were accompanied by my noble friend Lord Pendry. He is unable to be present today but the Committee will see that his name is also attached to the amendment. At Second Reading, a number of noble Lords suggested that the use in an advertisement of protected words in certain circumstances should not create an automatic presumption of guilt but, rather, a possible infringement of an association right. As the noble Lord, Lord Clement-Jones, mentioned, Ministers have said that that is what is intended. The purpose of the amendment, therefore, is to bring this schedule to the Bill into line with Ministers’ statements. But, as it stands at the moment, paragraph 3 of Schedule 4 is objectionable because it states that the use of certain combinations of words shall—I repeat ““shall””—"““be treated, in the absence of evidence to the contrary, as being likely to create in the public mind an association with the London Olympics””." That is disproportionate to the mischief aimed at—which is, of course, ambush marketing. Whatever may be alleged by Her Majesty’s Government, it is not required by the IOC in the document outlining the requirements for brand protection. The IOC referred only to the possibility of a reversal of the normal burden of proof. As the noble Lord, Lord Clement-Jones, said, the Government are doing a bit of gold-plating in this paragraph of Schedule 4, but I would say that it is a bit of gold-plating with knobs on—it goes to extremes. Unfortunately, this is not the only part of Schedule 4 where the suggestions or possibilities have been so drafted that they are more extreme than, according to their speeches, Ministers seem to have intended. Since Second Reading, Ministers, officials and the noble Lord, Lord Coe, have met Peers from all sides and have helpfully provided them with copies of the draft guidance that in due course is proposed to be made available to advertisers to aid understanding of what the Bill allows and disallows. That has been most helpful. But, inevitably perhaps, whereas examples are given of advertisements that clearly infringe and advertisements that clearly do not infringe Schedule 4, a grey area is left which commercially would make it exceedingly difficult for advertisers to know where they were. I am left, as is the industry, unhappy about the current burden of proof with the use of the word ““shall”” in paragraph 3 of Schedule 4. The Government have argued that the protection of the London Olympics association right is equivalent to such intellectual property rights as copyright, and I can see what the intention is up to a point. The Copyright, Designs and Patents Act 1988 provides a precedent for the reversal of the burden of proof. But, although I can accept fairly readily that literally original dramatic, artistic and musical work may well deserve such protection, I query giving the same degree of protection to a somewhat arbitrary list of words and expressions which can hardly be said to be the exclusive property—I hope that they do not pretend that it is the exclusive property—of the IOC, LOGOC or even the DCMS. None of those bodies can be said to be the original author of the generic words in paragraph 3 of Schedule 4, and in no way are they comparable to the artistic or dramatic works and so on protected by the 1988 Act. I very strongly support Amendment No. 69.