I think I have already said I will write. In his inimitable way, my noble friend has pressed me on details. I am delighted to say that I will look into his points and write.
We can encourage the Government to do more to take up the Law Commission’s good work and progress it into Bills, if this Bill has a smooth passage. We need to resist the temptation to make it too much of a Christmas tree. I think that others have said the same thing. As the noble and learned Lord, Lord Brown, said, the Law Commission is a model of pre-legislative scrutiny, and we obviously should have proper regard to that.
As noble Lords have said, getting the IP framework right is key to supporting business, especially small business, entrepreneurs and the economy and society. I was so glad to hear from my noble friend Lady Wilcox from her own experience of pressing ahead and having success in defending her own inventions—a role model, if I might say.
We also need to prevent the misuse of threats to sue for IP infringement as a way to distort competition, so getting the IP threats provisions right is important for supporting our creators, innovators and businesses large and small.
The noble Baroness, Lady Bowles, had a number of questions on the Bill which I will seek to address. I suppose there is a flavour of being underwhelmed. I would say that the Law Commission made 18 detailed recommendations across the whole area to tackle the problems that stakeholders had identified. The Government have accepted all these recommendations, and so have brought forward changes across the whole scope of the Law Commission’s work. I think the noble Baroness felt that there might have been a missed opportunity to change the Civil Procedure Rules. The Law Commission has at all times been mindful of fitting the new provisions into the framework of negotiation and settlement set out in the Civil Procedure Rules. That was a good point to make.
The noble Baroness also asked about compliance with the Paris convention, which I am sure we shall hear some more about. This was a complex point which the Law Commission discussed in its report. However, I do not accept that the Law Commission would, after its careful work, put forward reforms which were somehow non-compliant with international obligations. That is not the case.
The noble Baroness and the noble Lord, Lord Stevenson, looked forward to a more dramatic reform—a new tort. Of course, the Law Commission’s wide public consultation received responses from lots of different stakeholders. It ranged from rights holders and industry bodies to IP professionals and members of the judiciary, and explored the possibility of a wider new tort. But it has to be said that, by a large majority, the consultees—not just the legal stakeholders who you might expect but also organisations like the BBC and Qualcomm—preferred the model which this Bill will implement. Furthermore, as has been said, the introduction of the long awaited Unitary Patent and Unified Patent Court means that change is needed. I think that makes it more urgent. Without question, protection against unjustified threats should apply to unitary patents. However, that is not going to be possible under the existing framework that we have. If we do not make the reforms that we are proposing today, we will, I fear, leave a loophole which might allow threats to be made freely regarding the unitary patent infringement.
As the noble Lord, Lord Stevenson, said, there are some wider issues here. I am keen to keep on the straight and narrow to progress this Bill but I am sure that there will be wider debates on these subjects here and, indeed, on other occasions.
The noble Baroness, Lady Bowles, also said that the Bill did nothing for threatened parties. Our businesses tell us that the problem is not that the existing threats provisions are too weak but that they are unclear, inconsistent and do not allow proper pre-litigation talks. Therefore, the measures in this Bill make it easier for all parties involved in a dispute over IP infringement to negotiate a settlement and avoid litigation. They provide a much clearer framework within which innovative businesses and third parties can operate, giving more certainty over what approaches can be made legitimately to potential infringers. I was especially interested in her US example because, in about 10 years of being head of legal affairs at a major retailer, the only time I experienced disturbing threats from an
attorney was when I was engaged in an antitrust case in the United States. You cannot believe—or perhaps you can—the aggressive nature of the call I took: not that it changed my position. The noble Baroness also said that under the legal adviser exemption you should still be able to pursue extreme or abusive behaviour. I understand her sentiment, but malpractice will remain an issue for professional regulatory bodies. The exemption applies to regulated professionals. Lawyers who go beyond their instructions will still be personally liable, so I am not convinced that a complex exception to the new legal adviser exemption is right.
I should take this opportunity to respond to the point that the noble Lord, Lord Stevenson, made at the end of his contribution when he questioned whether there was a case for an exemption for legal advisers. There are two problems. One is that suing the adviser is used simply as a tactic to play games and disrupt negotiations. That also means that the clients have to indemnify their legal adviser to cover any damages or legal costs that the adviser may face when pursuing potential infringement, which means that the client ends up paying, rather than the adviser. Industry figures say that this is a worry for small businesses and makes them reluctant to tackle alleged infringers which, as we know from my noble friend’s experience, is right for them to do. The new exemption deals with this and will therefore benefit rights holders as well as professional advisers. It exempts only advisers who are acting on their clients’ instructions in a professional capacity and are regulated in the provision of the services they provide. Where the adviser is exempt the instructing client will remain liable for making the threat, as they are now. Therefore, as we see it, no loophole is created.
The noble Baroness, Lady Bowles, also said that she felt the remedies were not sufficient. I was interested to hear her remarks, but I do not believe that there was evidence in the Law Commission’s extensive consultation —the working group discussions—for extending the remedies, which we believe are effective, clear and well understood.
My noble friend Lord Hodgson, in a wide-ranging intervention, reminded us of the problem of Henry VIII powers and asked about the situation in the Bill. Stakeholders were keen that law on permitted purposes could evolve, so it is not a wide power. The courts must have regard to the exemptions that already exist, and the Bill sets out limits regarding what may not be a “permitted purpose”. He was also concerned that it addresses bullying of small firms by big business and the provisions provide a much clearer framework within which businesses and third parties can operate. We believe that this clarity helps SMEs to navigate the law. Less complicated provisions also mean that less complicated legal advice is required, so there is a proportionately bigger saving for SMEs. The new provisions are clear that the rights holders must be sure that the right is valid before making threats. They cannot just bully people, and the threats provisions exist to ensure that threats of infringement action are not misused. ADR was also mentioned by a couple of noble Lords, and I am sure that people will want to understand the context with regard to ADR at the next stage.
I was glad that my noble friend Lord Lucas joined the discussion today. He added the issue of copyright to our debate, and I am very grateful to him for sharing his own experience in such detail. It is of course outside the scope of the Bill, but it might be helpful if I make a few observations. We needed to repeal Section 52 of the CDPA to give the full term of copyright to artistic works, whether industrially manufactured or created as one-offs, and to meet legal obligations, which have been made very clear. Guidance has been published for effective businesses and this is a living document, which we can refine to explain terms such as works of artistic craftsmanship, as the need arises.
We cannot speculate as to what individual companies will do in terms of threats of legal action, but I do not agree that all defences have been swept away by this appeal, as he perhaps suggested. A range of copyright exceptions still apply—indeed they were the subject that we debated on my first day as Minister. Photographers can rely on Section 62 if their work of artistic craftsmanship is in a public place, so that is not restricted to sculptures. It is also not the case that a photograph of a painting of a street scene will now infringe the rights of creators in all cases bar sculptures.
We have put transitional provisions in place for those who had pre-existing contracts, so they have a little more time to adjust, but I am of course happy to provide further clarification if my noble friend would find that helpful.
My noble friend asked what we are doing about aggressive invoicing. I am aware that there are some firms of solicitors who are still in the habit of contacting alleged copyright infringers with a financial offer to settle out of court. We must remember that when carried out properly this approach is legal. The Solicitors Regulation Authority has shown itself able to act effectively where firms repeatedly step over the line and we support their efforts in that regard. The IPO has published guidance on what its users should do if they receive a notice alleging that infringement has taken place using their internet connection. The Government remain a great supporter of the Get it
Right from a Genuine Site campaign, which sends out notifications which never ask for money but instead educates the internet user about the consequences of infringement and where they can access content legitimately. This work is very important in upholding respect for IP and ensuring that our creators get the return on their inventions.
My noble friend Lord Hodgson asked about guidance on the changes. There will of course be extensive guidance on them. He suggested that perhaps this should be a standalone measure, but the Law Commission has decided to include the provisions in the relevant parent Acts. I suppose this is, again, a point about good regulation. Not only is it less likely that changes are missed that way but it ensures that the parent Acts remain a one-stop shop for relevant law on each right. I hope I have understood correctly what my noble friend was asking.
I believe that reform of the threats provisions is long overdue and I am delighted that we have been able to find some parliamentary time to progress this important Law Commission Bill. It will deliver the changes desired by stakeholders. It will help business negotiate fairly over IP disputes, while protecting those businesses which can be most harmed by unjustified threats. It will provide clarity and bring much-needed consistency across a complex area of IP law. As a result, the reforms in the Bill will help us, in some measure, to deliver our manifesto commitment to make the UK the best place in Europe to innovate, to patent new ideas and to set up and expand a business.
As the noble Lord, Lord Stevenson, said, the provisions of the Bill will be subject to a special procedure—a new one for me—and I very much look forward to taking advantage of your Lordships’ considerable expertise in carrying forward the debate. I look forward to constructive and helpful scrutiny in this interesting area, of the kind which I know, from working with your Lordships previously, we can certainly expect. I commend the Bill.