My Lords, guarantees in Committee are a luxury that Ministers cannot afford. I appreciate the words that he said.
It is a very different kettle of fish with Amendment 24. It is almost difficult to know where to start because the skittles of the argument fall in almost every single case by reference to copyright. On the problematic starting point, the registered design right is of course quite straightforward to prosecute because of the registration but copyright is not so easy. There are relatively few prosecutions for breach of copyright. There would be relatively few unregistered design right prosecutions if my amendment was accepted.
The important thing is the factual basis and establishing the facts. Of course, those prosecuting have the burden of proof on their arguments. That is where it starts from and it is analogous to copyright. There is no register of copyright. There may be one in the States but there is not one here. On the difficulty of knowing when something came into existence, not every 2D document has the date on it saying exactly when it was created and so on. There are matters of fact to be established. Again, it is very similar in copyright to unregistered design rights.
On the point about the inhibiting effect, that is absolutely splendid but I cannot see that that is any greater than would be the case with copyright in 2D. In some respects, you could argue that because 2D is more thematic than 3D, 2D has a much greater inhibiting effect because you can extrapolate from 2D into 3D to a much greater extent. When you spin off and think about software or things of that sort, much of which is covered by copyright, establishing the date, genesis and all those aspects of software creation is fraught with difficult issues but nevertheless people are entitled to the protection of criminal law. That means that those who cynically exploit copyright or design—copyright certainly and trade marks sometimes—are prosecuted.
The fashion industry is not much different from that. I feel quite strongly about this. The Minister mentioned that the fashion industry uses unregistered design but one must think about the economic issues associated with copying of designs in the fashion industry and the cynical way that rip-off retailers take advantage of the original designs by fashion houses and so on. That is an absolutely clear-cut area where the protection and deterrent effect of the criminal law would be extremely useful. I did not make the claim that the voluntary register with ACID would be the killer argument but this is all about evidence. Will it be
possible to mount prosecutions using evidence of copied designs or infringement of unregistered designs? The evidence of a register, albeit a voluntary one, would still be extremely useful.
Finally, I am sure that the Minister can recognise that I am somewhat frustrated by the rather circular argument being employed here. The Minister said that this should not apply to unregistered 3D because 2D is not the same, being closer to theft—that is an entirely circular argument. I do not quite see that theft of a 3D design and theft of a 2D design are morally different. In many ways they are not different factually. Why should either of them be closer to theft? I find that a rather interesting argument to mount.
I hope that the Minister will reconsider this issue. It is a matter of huge importance to 350,000 designers, who would cheer the Minister in the streets and bear him aloft through Westminster if he acceded to this, which I am sure would be a great attraction to him. I very much hope that between now and Report he will reconsider but, in the mean time, I beg leave to withdraw the amendment.