London Olympic Games and Paralympic Games Bill

My noble friend will give me chance to deploy the case. I am seeking to establish that it is not the presumption of guilt that the defendant has to refute. The evidential hurdle is much lower than that. An evidential presumption involves both sides seeing the nature of the arguments that are put forward. The charge, as it were, will have been defined by LOGOC in its representations. We will be involved, therefore, in the development of an understanding of the nature of the problem. That is different from the argument to which I think my noble friend is adhering, possibly led astray by the noble Lord, Lord Clement-Jones; that is, that, in legal terms, we are creating a presumption of guilt. We are not doing that. I shall try to explain that case more fully. I have no doubt that my noble friend will interrupt me when he finds my arguments less than convincing. My legal advice on this part of the schedule is that we have constructed a proportionate approach, which does not impose the draconian restrictions which have been ascribed to it. I shall seek to establish why we do not think that our position is draconian. I shall look more carefully at the amendment of the noble Lord, Lord Clement-Jones, after I have established that point. Schedule 4 paragraph 2 sets out what a defendant needs to do to infringe the association right that we have created. He must use a representation of some kind in the course of a trade in a manner that is likely to suggest to the public that there is an association between them, their goods or services and the London games. We have also explained in paragraph 1 of the schedule what we mean by the concept of association. It means any kind of contractual or commercial relationship. Paragraph 3 lists some of the combinations of words that will be treated as likely, in the absence of evidence to the contrary, to create in the public mind an association with the London games. We have provided the list as a guide to the sorts of words and phrases that might cause a problem. We want to help people understand where they might be in danger of carrying out an infringement. Of course, the list is irrelevant where someone benefits from any one the defences or exemptions that we have put in the Bill. Any company will be free to associate itself with the games if it does so in accordance with honest practices in industrial or commercial matters. All of that is legitimate. Editorial use of Olympic words and phrases in the media will be allowed. We are not putting any restrictions on editorial freedom. I emphasised that at Second Reading and I re-emphasise that today. Nor will we prevent anyone advertising a publication or broadcast that makes such a reference to the games. No one will infringe the right by use of their name or trademark by describing the nature of their products or services or by indicating the intended purpose of a product or service. Any incidental inclusion in an artistic or literary work, film, sound recording or broadcast will be allowed. We have already introduced those exemptions in the Bill. In addition, the Bill allows for exemptions to be made for authorised users, whether individual users or whole classes of user. Such exemptions will be provided to allow charitable and voluntary organisations to associate themselves with the games, because we recognise that such benign organisations will seek association with the games in due course. Let us assume that someone uses one of the combinations of words that we have listed, and they are not an authorised user and do not benefit from any of the exemptions that I have listed. What happens then? The person will be treated as likely to have created in the public mind an association with the London Olympics. That is not the same thing as a presumption of infringement. I know that my noble friend Lord Borrie is listening carefully. Creating an association in the public mind is not the same thing as suggesting to the public that the association is directly between the games and the product or service in question. The first test is general: do the words bring to mind the London games? The second test is much more specific: it is a link drawn between the games and the particular product in question? It is that second test that the court would need to apply and that LOGOC would have to prove. I maintain that all noble Lords who have spoken in this debate have tended to lean upon the first, general association, whereby I am seeking to establish that it is much more closely defined than that. I accept that that is a fine distinction and that in many cases the court may decide that the creation of an association is in practice the same thing as drawing that association between a product and the games. But even in those cases where the court establishes that that line has been crossed, it is important to remember how easy it will be for a defendant to overcome the presumption of association—not the presumption of guilt, which noble Lords are using in a loaded manner. This is a relatively light evidential burden, because all a defendant would need only to introduce some evidence to suggest that their use of words did not make an association with the games. If no association was being made, that would be easy and would shift the burden back to LOGOC to prove that there was an association. Far from there being a presumption of guilt, it would be necessary for LOGOC to establish that the association had been made and was sufficiently serious. So I do not accept that we have created a presumption of guilt. We have created an evidential burden that goes some way, but not all the way, towards indicating that an infringement has taken place. That evidential burden is overridden by a large number of exemptions, which I just listed, for legitimate business, journalistic or artistic use. Even where the evidential burden is relevant, it will be very easy to overcome for someone who was not trying to associate himself with the games. In adopting this approach, we are not gold-plating the requirements of the IOC—the phrase that the noble Lord, Lord Clement-Jones, used. My noble friend Lord Borrie thought that this is gold-plating with knobs on, but I ask him to remember that although my department is responsible for sport, it is also responsible for culture, and I assure him that we will resile from any device that is gold-plated and has knobs on. I do not accept his point on this. Noble Lords who have studied the IOC document that has been placed in the Library of the House will see that the IOC explicitly suggests that a burden of this sort could be adopted to protect against ambush marketing. I am grateful that all noble Lords subscribe to our attempts to deal with ambush marketing. I know that there are concerns in the industry that the existence of a list of words and the evidential burden will have a chilling effect on creativity and that it is faced with a presumption of guilt. I have sought to refute that. The Government will do all they can to avoid that effect by explaining during the passage of the Bill through both Houses and in all other public arenas how the legislation works and who will be exempt from it. I know that LOGOC will do the same thing. Noble Lords have had the benefit of the noble, Lord Coe, explaining how LOGOC is going about its work. LOGOC is already in discussions with the industry on the production of guidance that will help everyone to understand the rights that are being created and the constraints. Those are the general observations that I wanted to make against the unfortunate phrase, ““the presumption of guilt””, which I do not accept is in the schedule. I now come to the detail of the amendment. It would take a slightly different approach to the status of the list of words in the schedule. The amendment states that the use of the words should,"““not of itself give rise to any criminal or civil liability””." It is unnecessary to state that. I have explained that the Bill does not make someone directly liable simply for using the words. No criminal offence has been created. I want to emphasise that we are trying to clear the ground here and I hope to meet the anxieties of the Members of the Committee. Let me clear up one point: Schedule 4 deals only with the civil enforcement regime for the creation of an intellectual property right and is much like trademark legislation. We are not talking about criminality here. Rather than creating an evidential burden around the use of the combination of words, the amendment tabled by the noble Lord, Lord Clement-Jones, provides that the use of such combination of words may be used as evidence by LOGOC when it is trying to prove that an association has been created. We look upon that as a pretty fine distinction because I have already shown how LOGOC will be brought into the argument and will have to establish its case in the nature of the provisions in the Bill. Once a list of words has been created on the face of the Bill and it has been stated that LOGOC may use that list as evidence of an association, the noble Lord has done what is largely already in the Bill. What would have been created is an evidential burden, although the amendment does not say so. A court would view any use of the combination of words in almost exactly the same way under the amendment as under the Bill as it stands. A defendant would, in either case, be asked to provide some rebuttal evidence showing why the use of such words was legitimate. I therefore believe that we are dancing on the head of a pin with regard to these differences. One must also consider that litigation under the schedule is likely to occur only after correspondence back and forth between LOGOC and the defendant. It seems inconceivable that LOGOC would start proceedings having had no discussion with an industry on which it is dependent to deliver much of its work. LOGOC knows how much the advertising industry will contribute to the games, so the idea that it will stomp around arbitrarily with regard to it is far-fetched, unrealistic and probably unfair to LOGOC and those responsible for it. By the time proceedings are issued, the basis of the parties’ positions will have already been canvassed. LOGOC’s reasons for saying that there is an infringingassociation will have been clearly established. It is unlikely to rely solely on the use of the words included in the list. It will be interested in whether, overall, an advertisement creates an association with the games. That is its main concern. Some of the defendant’s arguments on why no such association is created will already have been set out. If LOGOC were to seek to rely on the existing provision in these circumstances, the presumption would be rebutted. LOGOC would then be in the position of having to cite the use of words in the list as but one piece of evidence among others of an association, effectively requiring the defendant then to present evidence about why an association has not been created. In short, it would be in exactly the same position as under the amendment. I do not see how the way in which LOGOC needs to defend its position against the potential advertiser, brought before a court to discuss whether there is a real issue, is different under the amendment from what we have in the Bill. The thinking behind the amendment is that immediately there is the slightest hint of association, a presumption of guilt obtains and therefore the courts come immediately into play. That cannot be how LOGOC carries out its operations between now and the successful completion of the games. The amendment therefore has no significant practical effect on the way in which the schedule would work. In explaining how the schedule will be applied in the context of proceedings, I hope that I have given the Committee the reassurance that it requires. This is not a draconian piece of legislation which drags offenders before a court under the presumption of guilt—even a hint, at least in some of the contributions before a criminal court—with the poor offending advertiser having all the cards stacked against him. Far from it. We are dealing with a body—LOGOC—which needs to have a relationship with the industry, will proceed with considerable care and will of course have discussed the potential infringement with the advertiser. The issues will then have been thrashed out and the grounds on both sides of the case established and they will perhaps be before a civil court. This is not a draconian piece of legislation. This is a piece of legislation that gives LOGOC the necessary machinery to guarantee that rights of association with crucial aspects of the Olympic symbol are protected. I do not think that there is any doubt among us that these rights need to be protected. I have heard comments from time to time that the list is far from exhaustive and that it contains phrases that are not wholly convincing but, as I see it, we are as one as regards the broad objectives. We recognise the dangers of ambush marketing and that there has to be an appropriate procedure for the protection of the Olympic symbols and other aspects of advertising. I have spelt out how we envisage Schedule 4 working. I cannot for the life of me see—apart from the loaded phrases used in justification of the amendment which attribute to the Government an unfair concept of how this procedure will work—in the practicalities of the amendment that things would be different from the way in which we conceive them in the Bill. That is why, with an enormous degree of optimism, I hope that the noble Lord, Lord Clement-Jones, will withdraw his amendment.