I will come to that later, if I may. In Committee, Government amendments reworded the clause to ensure that it referred only to designs
“with features that differ only in immaterial details from the design”.
Amendment 3 would remove that wording. Let me explain the purpose of that to the hon. Gentleman. We do not want to set the bar lower than the Government intend, but the current wording will provide more uncertainty and the prospect of further litigation. Is there not a risk that the clause will focus on counterfeits rather than on intentional infringement and copying? Given what the Minister said in Committee, I am pretty sure that that is not what he intends.
I mentioned in Committee the fascinating and informative case of Apple v. Samsung. In the context of that court case, is there not a need to consider the design corpus and the informed user? The test for infringement of community designs is whether the later design produces an overall different impression on the informed user. I believe that that is important and would like the Minister’s view. Why is he not using that wording from community designs legislation?
The Minister might recall that in Committee I quoted the judge in the Apple v. Samsung case, who said:
“When I first saw the Samsung products in this case I was struck by how similar they look to the Apple design when they are resting on a table. They look similar because they both have the same front screen. It stands out. However to the informed user (which at that stage I was not) these screens do not stand out to anything like the same extent. The front view of the Apple design takes its place amongst its kindred prior art.”
Does the Minister accept that his current wording, which emphasises “immaterial designs”, will more than likely be concerned with counterfeits? Why has he not included in the clause the common community wording for infringement of community designs, which asks whether the later design produces an overall different impression on the informed user? That is the purpose of amendments 2 and 3.
Like other proposals, amendment 5 has been debated several times during the Bill’s passage in the other place and the House. It is essentially about consistency and the scope of effectiveness. If the Government believe—it is a big “if”, and opinion is polarised—that intentional infringement of design rights should be subject to a prison sentence of up to 10 years, why should that criminal sanction apply solely to registered designs rather than also to unregistered designs?
As I mentioned in Committee, about 4,000 designs are registered in the UK each year, and about 18,000 to 25,000 unregistered designs are lodged with the Anti Copying in Design database. I also mentioned in Committee a glaring inconsistency in the Government’s position—that is at the heart of the amendment. On the one hand, in Committee in the other place in June, the Minister said:
“SMEs…do not tend to register their designs”.
If so, what are the Government hoping to achieve with that provision? On the other hand, the same Minister said:
“The introduction of criminal sanctions for unregistered rights could lead to a negative effect on business and innovation.”—[Official Report, House of Lords, 13 June 2013; Vol. 745, c. GC395-409.]
If that is the case for unregistered designs, why is it not the case for designs that the innovator has gone to the trouble of registering? I cannot believe that the Government’s position is consistent.
In Committee, the Minister gave a practical example to illustrate his opposition to the amendment by referring to the design of a sofa. Where I come from, we call a “sofa” a “settee”—that is the proper word for that piece of furniture. The Minister said that, if a case about an unregistered design of a settee—or a sofa—were to be brought before a criminal court, it would need to establish whether the right existed and which parts of the design were original. As we discussed in Committee, surely the concept of design corpus would apply not only in the civil court, but also for the higher standards demanded in the criminal court, where the Government are pushing, and to registered designs and unregistered designs.
In Committee, the Minister said:
“We should not forget the ultimate reason for the Bill and the clause. There are small and medium-sized enterprises up and down the country in the design business that are being ripped off. Their designs do not have the protections that they require.”––[Official Report, Intellectual Property Public Bill Committee, 30 January 2014; c. 67.]
However, the vast majority of designs are unregistered, and the Government’s proposals will do nothing to help them. Small firms without resources will still run the risk of being ripped off by larger and unscrupulous businesses. Clause 13 in its original form did not address that, and the Government changes to the clause through the Bill’s passage in this House do not do so either. The Minister must accept that inconsistency, and amendment 5 tries to deal with it.
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The Minister will recall that we debated amendment 6 in Committee as a means of clarifying the precise point at which exemption from freedom of information would apply to research. The purpose of this amendment, as it was in Committee, is to seek assurance that the pre-experimental stages of research would also be covered by the clause. In Committee, the Minister explained that the Government were responding to a request from the Justice Committee to give the same specific protection as exists in Scotland although, as I also mentioned in Committee, there is a difference in the wording of the legislation in that the Freedom of Information (Scotland) Act 2002 has the additional word “substantially” included.
In responding to the Justice Committee’s recommendation, the Government said they recognise
“that the adoption of a qualified exemption for research would provide additional clarity and reassurance, both to Higher Education institutions and non-public sector research partners. We accept that despite the wide applicability of existing exemptions, the lack of a dedicated research exemption can at least give the impression that FOIA does not provide adequate protection. On balance, therefore, the Government is minded to amend FOIA to introduce a dedicated exemption, subject to both a prejudice and public interest test, as recommended by the Committee. The Government
shares the Committee’s view that this would constitute a proportionate response to the concerns expressed.”
That is a fair summary.
The Minister also said in Committee that if the Government found any
“genuine problem in the real world and that academics’ lab notes are being obtained under FOI—despite the range of protections that exist in FOI legislation at the moment—that would be something that we would review and consider.”––[Official Report, Intellectual Property Public Bill Committee, 30 January 2014; c. 77.]
I understand that representatives of the academic research community met officials from the Ministry of Justice and the Department for Business, Innovation and Skills on 4 March to discuss this matter. There remains some doubt whether the wording on the face of the Bill provides exemptions for information created during the planning phase of a research programme.
Given that context and the meeting on 4 March, will the Minister confirm that if information that is created in the planning phase of a research programme is intended for future publication—and, if it found its way into the hands of competitors, would prejudice the research programme or the research institution having an interest in the programme—such information is covered under FOI and clause 20 of the Bill? The purpose of this amendment is for the Minister to provide that clarity.
Would the Minister also respond again to the point that I made in Committee—why the wording of the Scottish FOI legislation, especially the use of the word “substantially” is not replicated in this clause. I look forward to the Minister’s response and I hope that he will look favourably on my arguments.