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Today will see the delayed second reading of the Intellectual Property Bill in the House of Commons. We’ve previously highlighted the main provisions of the Bill on IPcopy including our issues with Clause 13 (criminal sanctions for the copying of registered designs).

Clause 13 in its current form doesn’t appear to achieve what its supporters claim it does and I contacted my MP over the weekend in the hope that he will might help secure amendments to the wording of the Bill. A copy of my email is below. Feel free to adapt it if you wish to contact your own MP. You can find your own MP here.

The association Anti Copying in Design (ACID) are of course big supporters of Clause 13 of the IP Bill and actually are pressing for it to be extended to cover unregistered design rights. They are even quoting Churchill today on Twitter in an effort to drum up support for their position. Well, two can play that game! Here’s another Churchill quote that sums up my feelings about Clause 13: “Oh no, no, no!”

Email to MP (sent 19/1/2014)

The Intellectual Property Bill is due to receive its second reading in the House of Commons tomorrow. The Bill contains a number of proposals aimed at modernising intellectual property law in the UK, from making design ownership clearer through to paving the way for the introduction of the Unified Patents Court. However, it contains, at Clause 13, a proposal to make the copying of a registered design a criminal offence.

Clause 13 has been the subject of some fairly intense lobbying from certain design associations such as ACID. However, there are some fairly large question marks over this clause. The main issues have been discussed quite widely by IP Federation, the CBI and the IP Bar Association. I have also discussed issues relating to this clause on the intellectual property blog IPcopy (of which I am the editor). Links to two articles on IPcopy which set out a lot of concerns are noted in the Links section below.

However, I’d like to focus on one issue here: does Clause 13 actually capture the intent of the legislators? I think we can fairly safely conclude the answer here is “no”. It can be seen that the intention expressed in paragraph 50 of the explanatory note of the Bill (http://www.publications.parliament.uk/pa/bills/cbill/2013-2014/0102/en/140102en.pdf) has not been reflected in the wording of the clause. In particular, the need for “deliberate copying” to have occurred is not present in the clause as currently before the House.

It is the recommendation of CIPA and other professional and industry bodies that the wording of Clause 13 needs changing so that only deliberate copying is made a criminal offence¹. Without clarification the provision runs the risk of damaging business.

I hope that you will raise these issues when appropriate and help ensure that the wording of the Bill is amended. Further discussion on these points will almost certainly issue in the next few weeks but if you require any additional information or would like to discuss this Bill then please contact me at the details above.

Unregistered designs

The above discussion focusses on registered designs within Clause 13 of the IP Bill. There have been discussions prior to this point (see for example the discussions during the Bill’s passage through the House of Lords) about adding unregistered design rights to the Bill. Any such potential amendment to criminalise the copying of unregistered designs should be totally resisted. The nature of unregistered designs would make it extremely difficult for third parties to work out whether the right even existed in a design and whether the term of protection had expired or not (by definition such designs are unregistered and so there is no way of checking when they came into existence).

Yours sincerely,

Mark Richardson

Links

Intellectual Property Bill – http://services.parliament.uk/bills/2013-14/intellectualproperty.html

IPcopy article – https://ipcopy.wordpress.com/2013/12/03/criminal-courts-as-a-forum-for-design-infringement/

IPcopy article – https://ipcopy.wordpress.com/2013/12/10/clause-13-copying-informed-users-and-design-trolls/

Chartered Institute of Patent Attorneys (CIPA) Press release – http://www.cipa.org.uk/pages/whatsnew/article?2DBA46E5-FA9D-4388-9507-30C35B0C716C

¹ It should be pointed out that although I am discussing the potential amendment of Clause 13 here it would be my preference that the clause is deleted in its entirety. However, we appear to be too far down the road for such a change to occur. I am therefore hoping we can make the best of the sub-optimal inclusion of this provision in the Bill by ensuring it is worded more clearly!

Mark Richardson 20 January 2014