My Lords, Amendments 2 and 5 address various points in relation to the qualification criteria in the Bill. I will first turn to Amendment 2, which would change the definition of qualifying country in relation to the meaning of “original” in Section 213(4) of the Copyright, Designs and Patents Act 1988.
The amendment would change the definition to the United Kingdom and European Economic Area. In practice, that will mean adding Iceland, Liechtenstein and Norway to what is currently proposed and removing a number of countries—I hope that noble Lords will bear with me and not succumb to slumber as I read the whole list. Those that would be removed are: Anguilla, Bermuda, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Channel Islands, Falkland Islands, Gibraltar, Hong Kong, Isle of Man, Montserrat, New Zealand, the Pitcairn Islands, Henderson, Ducie and Oeno Islands, St Helena and Dependencies, South Georgia and the South Sandwich Islands and the Turks and the Caicos Islands.
The amendment would mean that the geographical areas used in the definition of “commonplace”, which is under debate here, and “qualifying country”, which is in Section 217(3) of the Copyright, Designs and Patents Act 1988, would be different. This would create an anomaly in the Act and a level of complexity, which the Bill, on principle, is trying to remove.
I would like to pick up on some points that the noble Lord, Lord Young of Norwood Green, made because he asked for and deserves a more substantive answer on the reasoning behind the decisions that we made. Aligning the geographical coverage and qualification is a logical harmonisation. Legal rights should be subject to the same eligibility tests wherever they arise. Otherwise, examples of unfairness would occur. It will make it easier for a person to know whether they qualify for an unregistered design right and it will help to resolve disputes more quickly. It will be easier for businesses and users to understand how they can qualify for an unregistered design right.
Furthermore, I want to explain why the Government were consulting on changing the definition of “commonplace”, as in Clause 1, to cover the whole of the EEA, even though the Bill is only amending coverage in the EU. Following the consultation and on further reflection, the Government came to the conclusion that an additional layer of complexity to the law would be created in the eligibility criteria for design right if the geographical areas were different for the definition of “qualifying country” and for “commonplace” to which the noble Lord alluded.
Similarly, Amendment 5 would introduce a new definition. It proposes a change to the requirements for businesses that qualify for unregistered design right, specifying that the business must have,
“a real and effective industrial or commercial establishment”,
in any qualifying country.
The current definition of a business that qualifies for the UK unregistered design right includes the requirement that it must carry on a,
“‘substantial business activity’” in a qualifying country”.
The term “substantial business activity” is already used elsewhere in the Act—for example, for qualification criteria for copyright performances in Section 206. The term is not defined in the Act, but does not appear to have been the subject of significant case law, which suggests that the term has not caused problems in practice.
Although the wording suggested in Amendment 5 has its basis in EU law, the Government believe that to introduce this term into UK law could create confusion and uncertainty about the qualification criteria for unregistered design rights. The Bill is trying, where possible, to reduce complexity in the law. The Government believe that these amendments would lead to additional complexity, not reduce it.
The noble Lord, Lord Young of Norwood Green, asked whether there was a definition of “commonplace”. There is no statutory definition in terms of its meaning. However, the word “commonplace” has to be tested objectively in the design field in question. The case of Fulton v Totes puts a gloss on the meaning of the territorial extent of “commonplace”, suggesting that the UK market is relevant. Therefore, the Bill seeks to clarify the territorial scope of the definition of commonplace and align it with qualification requirements. I ask the noble Lord to withdraw his amendment.