Draft Registered Designs Regulations 2001

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Mr. Brian Sedgemore (Hackney, South and Shoreditch): I am speaking for the first time in such a Committee after 23 years in the House of Commons. It pains me as a new Labour creep to have to make one or two mild criticisms and even ask one or two awkward questions.

I will not follow up the point raised by my hon. Friend the Member for Thurrock (Andrew Mackinlay) about the royal family. I should remind him that there are probably more royalists and monarchists in Thurrock than in any other part of the kingdom. I should also remind him that we are at war and that this is perhaps not the best time to niggle away and parade our republicanism in public, and I shall desist.

Andrew Mackinlay: I made my position clear, and if my hon. Friend reads the official record tomorrow, he will see that I did so with precision, because I anticipated that some hon. Members might not be listening. I did not say that this was a republican issue; I said that I fully accepted that her Her Majesty was the head of state and that every head of state, whether in a republic or a monarchy, needed protecting. However, we do not need to protect the first family or their cousins. We are enacting European Union legislation, but I bet that the equivalent legislation in Belgium contains no provision to cover the extended Belgian royal family and probably not even the heir to the throne, be that the Duke of Brabant or the Prince of Liege. That would not happen, because such measures are exclusive to this place and are wrong. I have not mentioned republicanism as a course of policy. The issue is neutral: the head of state must be protected.

The Chairman: Order. I remind the hon. Gentleman that he is making an intervention, not a speech.

Mr. Sedgemore: I will not say that there is whiff of treason in the air, because that would probably be unparliamentary. Perhaps we can leave the issue of the royal family. I can give my hon. Friend more serious backing for his criticisms of proposed new section 1D, which states:

    ``A right in a registered design shall not subsist in a design which is contrary to public policy or to accepted principles of morality.''

Will the Minister give us a more coherent definition of accepted principles of morality? Are we talking about conventional establishment wisdom, the morality of the Church of England or even of the Catholic church and the Pope, the consensus in Islam or something else? Perhaps she can give us examples of how the provision will work when moralities conflict. She must be aware that the moralities of the British establishment, the Church of England, the Catholic church and Islam not only conflict but, over time, change. We must ask of which age is the morality to which the document refers—is it Victorian morality, the morality of the middle ages or morality as it has been redefined since new Labour took power?

I am the vice-president of the National Secular Society, although I have not come here to preach atheism. If the society wanted to produce wallpaper or a carpet with a design that satirised Christ, would that be contrary to

    ``public policy or to accepted principles of morality''?

There is famous artistic design, which I will not describe as it would probably upset most members of the Committee and more members of the public, in which Christ is making love on the cross. If that were used in another design, would it be contrary to

    ``public policy or to accepted principles of morality''?

What about nudity? Many designs contain Greco-Roman nudity; if they were given a modern flavour, would they be within

    ``public policy or . . . accepted principles of morality''?

If a firm producing contraceptives wanted to show male genitalia on the design of wallpaper or a carpet or a mug, or something else that it made, would that come within

    ``public policy or . . . accepted principles of morality''?

Will the Minister tell us the reason for the proposed new section? What mischief is it trying to preclude? Will she tell us about some of the case law that explains exactly what that mischief is? Will she explain how the courts or the copyright people or those who oversee designs will take their decisions? I want to be helpful, and am sure that she will eventually persuade me to give my support to the document, but I have some doubts at present.

5.1 pm

Phil Sawford (Kettering): I shall raise a simple matter, and I would be grateful for advice from the Minister. It is right that we should afford protection to designers in whatever field, but I fear that these measures, as with those on trade marks and patents, could merely be a boost for the legal profession, which will surely welcome them.

For as long as most of us remember, electrical stores had two basic sections: white goods and black goods. Suddenly, all the black goods turned silver. I am sure that other hon. Members noticed that. Did that happen because our tastes suddenly changed or because we wanted a silver television or stereo rather than a black one? I suspect that it had more to do with marketing. Unless companies change the colour and appearance of their goods, how can we know whether people have bought new goods? From time to time, there is a fashion in these things, largely driven by industry to prompt sales and persuade consumers to spend money when the equipment that they have is perfectly serviceable.

I turn to proposed new section 1(2), on page 2, which refers to ``lines, contours, colours, shape''. If one manufacturer decides that the colour that everyone must have in their living room is metallic green, will the provisions mean that none of the other manufacturers can follow suit? It is known throughout the electrical industry that everyone replaces white goods—the washing machine, the dishwasher, the cooker and so on. People have no choice over that, but it is a different matter with televisions and CD players, and manufacturers use a different approach to get people to buy things.

Let us say that one major manufacturer—we will mention no names—decides that silver is no longer in fashion and that we need a new flavour of the month. If that manufacturer introduces products in largely the same style but in a new colour, can it stop the others from doing the same? Are the regulations to do with protection, with gaining a competitive edge? I, too, am a republican atheist, by the way—that should be put in the record—and agree with points made by other hon. Members. To what extent are the regulations concerned with protecting huge multinationals with a vested interest in boosting their sales and profits, and to what extent are they to do with protecting the ordinary person in the street, who is not a member of the royal family—although we probably all are? Can a manufacturer stop all the others using the same colour in the design of their televisions?

5.6 pm

Mr. John Baron (Billericay): I would be grateful for assurances from the Minister that the implementation of the regulations will not cost industry dear. I am particularly referring to smaller businesses, which have been severely hit by a raft of regulations. As the Institute of Chartered Accountants has recently reported, the cost of implementing such regulations and measures falls disproportionately on small businesses. The cost of such measures for small and medium-sized enterprises doubled between 1999 and 2000. I would like assurances that the regulations will not add to their burden.

5.7 pm

Miss Johnson: I begin by thanking the hon. Member for Eastbourne (Mr. Waterson) for his good wishes for my operation.

Several hon. Members raised the question of the timetable for the regulations coming into force. The directive has proved to be very complicated, in legal terms, to bring into force and it took longer to draft the regulations than was initially expected. Indeed, as the hon. Member for Eastbourne confirmed, the deadline was yesterday. We do not intend to bring the regulations into force until 9 December. That change to the date is at the request of representatives of the users of the system, who wanted a delay between Parliament's approval of the regulations—should it be forthcoming—and their coming into force. The delay is designed to allow those users to warn partners and clients.

We must always think about those whose actions are affected and determined by our actions in the House of Commons. The House did not return until 15 October, so it has not been easy to consider the regulations before the deadline. It was important to make the transposition as accurate as possible, and we have done that. I will turn to the question of what has been happening in other countries in a few minutes.

The hon. Member for Eastbourne raised the question of shape and configuration. Shape and configuration could already be protected under the existing Act. The major change in what forms can be protected is that aesthetic appeal is no longer a criterion, as the hon. Gentleman commented. The cost of applications will remain at £60. There is no proposal to change that at the moment.

The test of the individual character of an item, in the context of design, concerns whether it is an entirely new design. The concept is one from design law. It requires a design to give a different overall impression to an informed user when it is compared with earlier designs. The test is subjective, but the patent and trade mark laws include similar concepts which have generally been thought to be fair, and which have been easy for users and courts to assess in the vast majority of cases. One cannot hope for more than that.

No change is being made in the matter of the exhaustion of rights, but existing law is being clarified. The exhaustion of rights will apply only in the European Community. That follows current European trade mark law. I was not sure whether in talking about exhaustion the hon. Member for Eastbourne also wanted to know about the period for which the design registration would last. A registration of a design will last initially for five years, renewable every five years for a maximum of 25. Certain existing registrations that have been subject to a 15-year limit will be able to be extended up to that 25-year limit.

I thought that my hon. Friend the Member for Thurrock (Andrew Mackinlay) might attempt to trace his lineage back to King Constantine of Greece. His discussion of armorial bearings interested me greatly. They are protected for all Paris convention countries, not only the United Kingdom. That is provided for by paragraph 2 of the new schedule A1 to be inserted into the Registered Designs Act 1949.

My hon. Friend also raised an interesting question, which several hon. Members got stuck into, about public policy and morality. Protection for designs will be sustainable by registration. The Patent Office will not be involved in decisions about what is or is not moral. Neither will I, therefore, engage with the very entertaining examples on which my hon. Friends the Members for Thurrock and for Hackney, South and Shoreditch (Mr. Sedgemore) invited me to comment. It will be for the courts to determine whether a design is contrary to morality. The item is included as a parallel to section 43 of the relevant legislation. We have tried to simplify matters, but not to change the framework of the law.

The regulations do not specify definitions of the principles in question. It is clear that those will change and evolve and that the courts' decisions about them are likely to reflect the thinking of the time. The directive makes it clear that it does not change member states' principles on morality, but allows national courts to determine the validity of rights if called on to do so.

The provision on protection of the royal family is transposed directly from what Parliament concluded was appropriate in the Trade Marks Act 1994. I was not a Member of the House of Commons in 1994, although I think that several of the hon. Members who raised this question were. I am not sure whether they supported that Act, and perhaps I shall be tempted after the debate to seek that information out. The Government have decided that consistency is appropriate in the intellectual property system. Changes of any kind raise difficulties for people working in our legislative frameworks.

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Prepared 29 October 2001