My Lords, as has already been said, all of us around the House can welcome Amendment 84A. This has been a troubled point that has caused difficulty in another place as well as in Committee and here, so we welcome what has now been drafted. We think it does the trick, given what it was intended to do, so we are happy to put our weight behind it. However, it will be obvious from the short debate that we have already had on this rather complicated set of amendments on a rather complicated part of the Bill that not everybody is happy with the direction of travel here. It is important to reflect for a second on why that is.
The debates are really all about whether the Government are right to delete Section 52 of the Copyright, Designs and Patents Act and whether, by so doing and so ending the current regime of registered designs, which, as has been said already, has lasted for a good number of years, the Government have really and fully considered all the issues that flow from that decision. Implications would arise for products that are or are about to be put out of rights protection under the present registered design period of 25 years, and that will in future be copyright for a period of 70 years after the death of the designer. That is a substantial change.
As the noble Baroness just said—and I have a lot of sympathy for this—there is growing concern that the whole approach, which is reflected by this proposed change, goes against where good sense would suggest the issues are going to go in the future. Some countries have very little legal protection for copyright, and what there is is very weak, and others are moving in different directions from us. What is the point of trying to tie down longer periods during which protection could be offered if you cannot also put forward the necessary arrangements under which that protection is to be guaranteed?
There is of course a case, and a very good one, to be made for letting industrial designers have the same protection for their efforts as are available to composers, writers and the like. However, there are still some very real questions on this issue, which have led me to put down the amendment, which would delay the implementation of Clause 66 and give us time to consider two very different and rather important issues. The first is whether this is the right decision, and if so how and on what basis it will be introduced. We have not been given the detail here, we have not seen the draft regulations, and we are not aware of the timescale that the Government have in mind.
Secondly and more importantly, a lot of what is being argued, or will I think be argued by the Minister when he comes to respond, relates to the exceptions and changes that have been forecast by the Hargreaves review to the way in which copyright and copyright exceptions are organised. This point was made by the noble Lord, Lord Clement-Jones, in relation to 2D design representations of 3D designs. So much of
what is going to change could, with the right sort of regulatory framework brought in under the Hargreaves exceptions, allow some guarantees and support for those involved. However, we simply do not know enough about it, so surely it would be better to see those regulations, take them through the due processes in this House, agree them in their original form or as modified if that is thought appropriate, and then consider whether Section 52 should be changed and the new regime brought in.
I will give a bit more detail on this. I asked the Minister in Committee, although I did not get much of a reply and he has not included any further detail in the letters I have received so far, why this proposal was not preceded by a consultation with stakeholders and why the impact assessment that has been published has very little detail about the impacts that will be implemented by its changes.. The impact assessment, although it is not complete, admits that the reform of Section 52 will harm consumer welfare, as classic designs—those that are more than 25 years old—will be remonopolised. Replicas that are currently available at some 15% to 20% of the price of an original will no longer be available, but no opportunity has been taken to consult consumers. Moreover, there are those who argue that the impact assessment significantly underestimates the other costs that will arise, partly because of its focus on furniture and three-dimensional design, and because it fails to acknowledge that section’s immunising effects on certain secondary uses.
3.30 pm
The Government believe that the change would encourage innovation and investment in design, but this is supported by the very flimsiest of arguments in the impact assessment, and no new evidence is offered to explain why the balance of interests between designer and owner, and competitors and consumers, should be drawn differently today from how it was in 1988 or indeed in 1994-95, when the Government successfully negotiated to retain Section 52 of the Copyright, Designs and Patents Act. As I have said, I am also concerned that we have no real idea yet what, when Section 52 is repealed, the transitional arrangements will be on existing stocks and on articles and designs such as wallpaper that are out of copyright but which will now gain a further period of protection.
Turning to the detail of the amendments, Amendment 84ZC would offer some comfort to museums, teachers, publishers, photographers and film-makers. At present, they can rely on Section 52 to justify the inclusion of their images of mass-produced designs in catalogues, books, PowerPoint slides and films. In the case of a number of art publishers, this freedom represents the difference economically between a viable publication and one that could not occur. For museums, it allows the inclusion of images of such designs on websites and indirectly facilitates education in design.
Amendment 84ZD seeks to protect “follow-on designs”—that is, designs that build on designs and use them to create new and innovative materials. This is threatened by the proposed repeal of Section 52 because of the strict test of copyright infringement that will, in effect, be applied henceforth to the use of any design from the 20th century. The test of infringement
of copyright is the reproduction of any original part of the copyright work; it does not matter how much the use has added. That means that copyright can impede the use of design contributions that draw upon but add to and transform a design.
In contrast, in European design law the test of infringement of design rights is whether the user’s design produces a “different overall impression” on an “informed user”. This test means that there will be no infringement where a second-generation designer draws on existing design features but produces something that is transformed into a new design. If copyright protection is to be extended in time, as the Government propose, we think this is a preferable test. Establishing impediments to follow-on designers is a reckless move, particularly in the middle of a recession.
I argued in Committee that we need to be very careful here. It is well known that designers build with and on the design ideas of their predecessors. I believe that the extension of copyright term to “life plus 70” will make this much more difficult because of the sheer length of the term and because copyright protection is in many ways stronger than design protection. In my view, this issue has not been given sufficient weight, as we need to give careful consideration to the needs of future generations of designers.
This is a complicated area and I have dealt with it in some detail, but it is very important that we hear absolutely clearly from the Government how and in what terms they intend to proceed with this process. Nothing that I have heard today suggests that there is a good case to be made for that, and I hope that the Minister will be able to reassure us.