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(a)   a specified person has made a transfer scheme, but (b)   a transfer under the scheme has not yet taken effect.

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(2)   The Secretary of State may—

(a)   require the specified person to modify the transfer scheme, in so far as it relates to the transfer, in such manner as the Secretary of State may specify,

(b)   specify the date by which the modified scheme is to be prepared and submitted to the Secretary of State, and

(c)   specify a date on which the modified scheme is to take effect if approved by the Secretary of State.

(3)   The Secretary of State may not require a specified person to modify a scheme unless—

(a)   he has consulted any person whom he thinks may be affected by the modification, and

(b)   the Mayor of London consents.'. —[Mr. Caborn.] Brought up, read the First and Second time, and added to the Bill.

Schedule 3

London Olympics Association Right

Mr. Caborn: I beg to move amendment No. 21, in page 44, line 27, leave out paragraph (a).

Mr. Deputy Speaker: With this it will be convenient to discuss the following: Government amendment No. 22

Amendment No. 10, in page 46, line 4, at end insert

'in any editorial usage including without limitation'.

Amendment No. 11, in page 46, line 5, leave out 'as a necessary incident' and insert 'in the course'.

Amendment No. 12, in page 46, line 7, leave out 'as a necessary incident' and insert 'in the course'.

Amendment No. 13, in page 46, line 8, leave out 'about the London Olympics' and insert

'including news and current affairs'.

Government amendment No. 23

Amendment No. 14, in page 46, line 8, at end insert—

'(   )   for the purposes of criticism and review, or'.

Government amendment No. 24

Amendment No. 8, in page 46, line 21, at end insert—

Amendment No. 9, in page 46, line 21, at end insert—

(2)   Subject to sub-paragraph (3), the claimant shall be entitled to the following relief—

(a)   a declaration to the effect that the threats are unjustifiable;

(b)   an injunction against the continuance of the threats; and

(c)   such damages, if any, as he has reasonably sustained by reason of the threats.

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(3)   If the defendant proves that the acts in respect of which proceedings were threatened constitute or, if done, would constitute an infringement of the London Olympics association right, the claimant shall not be entitled to the relief claimed.

(4)   An action may not be brought under this paragraph if the person who made the threat has made an application, or brought an action, for an infringement of the London Olympics association right against the threatened person in relation to the act, or proposed act, to which the threat related.

(5)   An action under this paragraph may not be continued if the person who made the threat makes an application, or brings an action, for an infringement of the London Olympics association right against the threatened person in relation to the act, or proposed act, to which the threat related.

(6)   If the defendant would be entitled to make an application, or bring an action, against a person for an infringement of the London Olympics association right, the defendant may, in an action under sub-paragraph (1), make a counterclaim for any relief to which the defendant would be entitled.'.

Mr. Caborn: Government amendments Nos. 21 and 22 clarify the circumstances in which the Secretary of State can seek to remove words or phrases from the list contained in paragraph 3 of schedule 3 to the Bill. The amendments ensure that the Secretary of State can seek to remove words from the list if she feels that the London Olympic association right is becoming too unwieldy or that it is placing an unacceptable burden on businesses or advertisers. However, the amendments do not change the position that the Secretary of State can only add to, or vary, the lists in schedule 3 where that is necessary to prevent the commercial exploitation of the London Olympics. Any proposed change to the lists must still be debated and agreed to by both Houses of Parliament.

Amendment No. 23 brings the exemptions in schedule 3 into line with those that we have provided in relation the Olympics association right in schedule 2. The exemption relates to incidental inclusion in artistic, literary or dramatic works.

Amendment No. 24 will simply remove a drafting anomaly that crept into paragraph 9 of schedule 3. It removes the word "controlled" because the concept of a controlled representation is relevant to schedule 2, but not schedule 3.

I come now to the remaining amendments that relate to schedule 3. Amendment No. 8 would delay the commencement of the provisions in schedule 3 until 31 December 2007, although it is intended that the schedule will come into force on Royal Assent. The amendment would also cause schedule 3 to expire at the end of 2012, but clause 39(8) already provides for that.

I understand that the advertising industry is concerned about the practical application of schedule 3 and the possibility that its members could unwittingly or unknowingly infringe the London Olympics association right in the period immediately after Royal Assent. However, that does not change the principle that we should prevent people from commercially exploiting the London games, whether they do so now or in the weeks immediately before the opening ceremony in 2012.

There is also a practical reason why the provisions should commence on Royal Assent. Over the coming months, LOCOG will be approaching and identifying sponsors for 2012. It needs to be able to do that in a market free from unauthorised or ambush marketing. A
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high-profile campaign that ambushed the 2012 games now could harm LOCOG's ability to attract the sponsorship that it needs, thus, in effect, preventing it from raising the money that is needed to finance the games.

Both we and LOCOG realise that there is some uncertainty, especially for advertisers, about what people can and cannot do under the new provisions. LOCOG is already working closely with the advertising industry to provide its members with advice and guidance on interpreting and applying the new provisions. Keith Mills met representatives of the advertising industry on 31 October to discuss their concerns, and last week he wrote to the Advertising Association to establish a process for how LOCOG and the Advertising Association can work together in the future.

In Keith's latest letter, he says that LOCOG will take a sympathetic view of any infringements that occur immediately after the Bill comes into force on the assumption that they are likely to be inadvertent. However, LOCOG must have the power, and reserve the right, to take action against any persistent and malicious infringements in those early months by people who deliberately exploit the good will of the games. The approach that we have adopted strikes the right balance between the need to protect the Olympic brand and the need to ensure that advertisers are appropriately informed about how the new provisions will work. I thus ask the hon. Member for Faversham and Mid-Kent (Hugh Robertson) not to press amendment No. 8 to a Division.

Amendment No. 9 would allow people to bring a claim against LOCOG if it unjustifiably threatened to bring proceedings against them for a breach of schedule 3. In essence, the amendment aims to prevent LOCOG from acting in an unjustifiably heavy-handed manner when enforcing the provisions in schedule 3. We agree with hon. Members that that is an important principle, and we have already provided for it in paragraph 10(h) of schedule 3. Paragraph 10(h) will allow people to take action in relation to groundless threats regarding the London Olympics association right in the same way in which they currently can in relation to the Olympics association right under the Olympic Symbol etc. (Protection) Act 1995.

LOCOG has already said that its enforcement of schedule 3 will be proportionate and the steps that it has already taken bear that out. The experience of previous host cities is that a sensible balance is found and the organising committee, businesses and advertisers work closely together. I am sure that that will also be the case in London. The existing provisions in the Bill, the levers that the Government have in place with LOCOG, and LOCOG's commitment in the area mean that sufficient safeguards are in place to ensure that the powers in schedule 3 are not abused.

Amendments Nos. 10 to 14 all relate to the editorial and journalistic exemptions that we have created in paragraph 8 of schedule 3 to ensure that any form of legitimate editorial or journalistic work does not infringe the London Olympics association right. The principle of a journalistic and editorial exemption is obviously crucial. The proper balance must be struck between protecting the commercial viability of the London games on the one hand and preserving
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legitimate editorial and journalistic comment on the other. In particular, we must be careful to avoid a situation in which someone is able to exploit the games commercially by hiding behind a journalistic defence.

We believe that the careful exemptions that we have crafted in paragraph 8 of the schedule achieve that. They safeguard the London Olympics association right and maintain the essential freedom of the press. The inclusion of the term "necessary incident" in our proposed editorial and journalistic exemption is designed to prevent gratuitous use of the London Olympics. We want to prevent the proliferation of advertorials, the real motive of which is commercial gain, rather than genuine editorial comment.

It is also important to remember that for the purposes of schedule 3, people create an association between themselves and the games only if, in the course of trade, they suggest a commercial or contractual relationship, or a corporate or structural connection, with the games.

It would be unlikely that most editorial or journalistic works would create such an association. However, we understand the concerns of the print and broadcast media about the issue and we have been discussing the matter with them over the past few months. I can reassure them and hon. Members that only overt and explicit attempts to create an association between a media owner, or other entities, and the Olympics will constitute an infringement under our provisions. All legitimate editorial and journalistic practices will be exempt from the provisions in schedule 3.

Amendments Nos. 13 and 14 would ensure that news, current affairs, criticism and review were all covered by our journalistic exemptions. Again, I confirm that the current drafting of the Bill exempts such journalistic practice. We have been very clear when settling the policy that underlies the Bill that all legitimate editorial and journalistic practices will be exempt from infringing the London Olympic association right. We are confident that the Bill, as drafted, addresses the concerns that hon. Members have raised.

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