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SATURDAY, 15 JUNE 2013
The IP Bill - crouching judge, lurking professor
The UK IP Bill has this week been through the first and second Committee sittings, on 11 and 13 June. We commented on Monday on a couple of the amendments made. These have been withdrawn - it seems they were intended only to provoke debate. Whew.
Actually, I have been pleasantly surprised by the quality of the debate in the Lords. The right questions have been asked - though the right answers may not have emerged. On most points, the Government is clearly inclined at this stage to hold to its course.
The Delegated Powers Committee has issued a report in which it dislikes the Government's proposed enabling powers to issue future amendments by "negative procedures" and proposes instead "affirmative procedures" - a matter raised generally at the CIPA/ITMA seminar a week ago. We do not yet have the Minister's response.
Various issues were raised in relation to the proposed criminal measures, and clearly the debate has only just started. There was, however, a reassurance from the Minister (the Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills, Viscount Younger of Leckie) that 'the offence depends on the infringing product having been made “exactly or substantially” to the registered design, and this should catch only those who set out to copy a registered design, not those who make distinguishable follow-on designs.' That may well provide one element of the reassurance sought by many at the CIPA/ITMA seminar and elsewhere. The Minister's position was that "...the clause is not intended to have a chilling effect on innovation or legitimate and competitive risk-taking within business. This is something that we were very much mindful of during the drafting of the offence as our policy intention was to target only those people who deliberately use somebody else’s ideas and creativity."
On the issue of extension of the offence to UK UDR, long sought by ACID and others, the Minister pointed out that "This inhibiting effect is likely to be a particular problem in relation to functional designs, which the UK unregistered right also protects. As a functional result can be achieved only in a limited number of ways, the inhibiting effect on innovation is likely to be more serious or pronounced."
So the debate hinges as follows: (a) There is support for retention of UK UDR, not least because it is the only design right which gives (short term) protection for functional designs. That makes it dangerous to criminalise infringement of UK UDR. (b) But if you get rid of protection for functional designs (as one of the opposition amendments proposed), why keep UDR at all? Perhaps there is a way through this dilemma, but it is not immediately evident.
Adding an element of mystery to the proceedings was the reference to "the seven professors who lurk in the background to these and similar amendments". These were the "magnificent seven" who wrote a letter to the Times concerning section 52 (now repealed) of the CDPA - we can reveal their true identities, and the letter in its original form, on the IPKat here. The four patent judges, who also appear to have had a hand in the amendments, were by contrast named individually.
There are encouraging signs that the Lords would like to debate broader issues, such as the nature of protectable matter (Lord Stevenson of Balmacara, formerly at the BFI, was concerned at the protection for props following Lucasfilm) which would engage section 51 of the Copyright, Designs and Patents Act, and the policy behind periods of protection. The next debate is on 18th. We shall keep you posted, if it isn't too unspeakably dull.
Posted by: David Musker @ 11.50
Tags: criminal, criminalisation of design infringement, house of lords, legislation, registered design, uk, UK Unregistered Design Right,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA457
The IP Bill - crouching judge, lurking professor
Actually, I have been pleasantly surprised by the quality of the debate in the Lords. The right questions have been asked - though the right answers may not have emerged. On most points, the Government is clearly inclined at this stage to hold to its course.
The Delegated Powers Committee has issued a report in which it dislikes the Government's proposed enabling powers to issue future amendments by "negative procedures" and proposes instead "affirmative procedures" - a matter raised generally at the CIPA/ITMA seminar a week ago. We do not yet have the Minister's response.
Various issues were raised in relation to the proposed criminal measures, and clearly the debate has only just started. There was, however, a reassurance from the Minister (the Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills, Viscount Younger of Leckie) that 'the offence depends on the infringing product having been made “exactly or substantially” to the registered design, and this should catch only those who set out to copy a registered design, not those who make distinguishable follow-on designs.' That may well provide one element of the reassurance sought by many at the CIPA/ITMA seminar and elsewhere. The Minister's position was that "...the clause is not intended to have a chilling effect on innovation or legitimate and competitive risk-taking within business. This is something that we were very much mindful of during the drafting of the offence as our policy intention was to target only those people who deliberately use somebody else’s ideas and creativity."
On the issue of extension of the offence to UK UDR, long sought by ACID and others, the Minister pointed out that "This inhibiting effect is likely to be a particular problem in relation to functional designs, which the UK unregistered right also protects. As a functional result can be achieved only in a limited number of ways, the inhibiting effect on innovation is likely to be more serious or pronounced."
So the debate hinges as follows: (a) There is support for retention of UK UDR, not least because it is the only design right which gives (short term) protection for functional designs. That makes it dangerous to criminalise infringement of UK UDR. (b) But if you get rid of protection for functional designs (as one of the opposition amendments proposed), why keep UDR at all? Perhaps there is a way through this dilemma, but it is not immediately evident.
Adding an element of mystery to the proceedings was the reference to "the seven professors who lurk in the background to these and similar amendments". These were the "magnificent seven" who wrote a letter to the Times concerning section 52 (now repealed) of the CDPA - we can reveal their true identities, and the letter in its original form, on the IPKat here. The four patent judges, who also appear to have had a hand in the amendments, were by contrast named individually.
There are encouraging signs that the Lords would like to debate broader issues, such as the nature of protectable matter (Lord Stevenson of Balmacara, formerly at the BFI, was concerned at the protection for props following Lucasfilm) which would engage section 51 of the Copyright, Designs and Patents Act, and the policy behind periods of protection. The next debate is on 18th. We shall keep you posted, if it isn't too unspeakably dull.
Posted by: David Musker @ 11.50
Tags: criminal, criminalisation of design infringement, house of lords, legislation, registered design, uk, UK Unregistered Design Right,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA457
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