My Lords, at the outset of Committee, it may be helpful to remind everyone why the Bill is important. The measures in the Bill support business in driving economic growth and innovation by encouraging enterprise and expanding the range of economic sectors in the UK. Absurd maze or not, the designs and patents measures in the Bill will deliver many of the remaining commitments from the government response to the Hargreaves review of intellectual property and growth, which the Prime Minister commissioned in 2010.
The Bill will achieve three things. First, it will make it easier for business to understand what is protected under design and patent law, providing greater certainty for investors and reducing costs for business. Secondly, it will strengthen IP protection, including through the introduction of criminal penalties for copying UK registered designs. Thirdly, it will make the international and European IP system work better, helping UK business to be successful abroad. These measures will help our vitally important IP-intensive businesses and I look forward to the chance to debate the detail over the course of this Committee. I appreciate the sentiments expressed by the noble Lord, Lord Stevenson, and I look forward to continuing to engage with him
and all other noble Lords on the substantive and other issues raised during our consideration of the Bill.
Amendment 1 would change the legal definition of the UK unregistered design right to mirror that of the EU Community design, as set out in the Community design regulation. The result would be harmonisation with the European design right. Although I accept that the measure would simplify the design legal regime in the UK, the change would not be welcomed by the UK design industry. I am most grateful for the support given by my noble friend Lord Clement-Jones on that.
There was almost complete support for the retention of the UK unregistered design right, in its current form, in response to the Government’s consultation. In particular, this was due to its application to some functional designs, for which the UK design right is unique. The result of this amendment, changing all elements of the current definition of the UK design unregistered right apart from its duration, would be unpopular with many parts of the design industry, because many of its designs would lose their protection.
Amendment 7 would harmonise the conditions of UK unregistered design infringement with EU law, as set out in the European directive and regulation. These are also the same conditions that apply to the UK registered design. This would be a fundamental and significant change to the application of unregistered design law in the UK. Since its introduction in 1988, a considerable body of case law has built up relating to the infringement of unregistered designs, one of the leading cases being PepsiCo v Grupo. Businesses and the legal profession have also spent a considerable amount of time in building a clear understanding of this case law.
More fundamentally, the Government are concerned about the effect that the change would have in altering the way in which infringement of the UK unregistered design is determined before the courts. The current test has been interpreted narrowly in a number of leading cases. This is in contrast to the test applied in EU law, which is potentially wider in scope. It would be troubling indeed if the change meant that existing designs were suddenly subject to infringement actions from which they were previously free. Furthermore, while the wider scope of the EU unregistered right may be justified given that it has a lifespan of only three years, the Government considers that it would be inappropriate for a right that lasts up to 15 years, as is the case with the UK unregistered design right, to enjoy wider protection. There would be serious concerns about the effect of this on innovation.
The noble Lord, Lord Stevenson, asked what the Government are doing generally to align EU and UK rights. The Government are seeking, through this Bill, to align design rights wherever possible—for example, through the changes proposed to amend the rules on commissioning and defences to infringement as a general clause. The noble Lord also raised some general points on the Government’s proposals in the Bill and their decision not to go for wholesale reform. We listened carefully to stakeholders, who told us that there was value in both the formal registered right and the less formal unregistered right, which enable certain businesses
that work in fast-moving fields, such as the fashion industry, to enjoy the right protection for them. On the basis of the arguments presented, I ask the noble Lord to withdraw his amendment.
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