Enterprise and Regulatory Reform Bill

Memorandum submitted by The Alliance Against IP Theft (‘the Alliance’) (ERR 22)

About the Alliance

The Alliance Against IP Theft (‘the Alliance’) represents UK-based trade associations who have an interest in ensuring that the contribution IP rights make to the UK economy and society is understood and that these rights can be properly protected. With a combined turnover in excess of £250 billion, our members include representatives of the audiovisual, music, video games, software, and sports industries, branded manufactured goods, publishers, retailers and small designers.

The Enterprise and Regulatory Reform (ERR) Bill and Intellectual Property

The ERR Bill contains two clauses which will change intellectual property law.

1. Clause 55

Clause 55 amends Section 52 of the Copyright, Designs and Patents Act (CDPA) by extending the protection of artistic craftsmanship in classic designs from the current period of 25 years to the life of the originator plus 70.

The Alliance supports this change as a positive step for those designers and designs but also seeks clarification of the application of Section 51 CDPA to "works of artistic craftsmanship" and other designs of a literary or artistic character, such as sets, props and costumes for stage and film. In addition, to date "works of artistic craftsmanship" has not been legally defined. For example, the Government may need to introduce a provision which allows for the exclusion of designs for certain articles from the effect of Section 51 (as under the pre-1988 regime). This is because Section 51 was intended to address functional articles such as exhaust pipes, not works which derive their value from their creative nature. Without such a provision, the repeal of Section 52 will have limited benefits for classic designs.

This improvement must not be confused with unregistered design rights (UDR) protection which still only lasts for 3 years under EU law and for 15 in the UK (or 5 before a license of rights can be applied for and granted). So whilst we all welcome these proposals, they can’t be seen as a substitute to ensuring that 3-dimensional designs are given full parity of rights with the drawings and documents from which they are created.

This is because Clause 55 does not deal with the wider disparity in the level of protection afforded to UDR. This lack of parity between design rights and other intellectual property rights, such as copyright, means that designers are unable to rely on criminal sanctions for deliberate infringement.

The IPO is currently looking at this issue in more detail and therefore a debate around Clause 55 would be a useful moment to highlight the inequality in protection afforded to designers.

What is needed?

· Clarification as to what is a ‘work of artistic craftsmanship’ leading to a legal definition

· Acknowledgement from the Minister that this Clause has limited benefit to UK designers, the majority of whom have created new designs since 1988

· Assurances that the lack of legal protection afforded to designers will be addressed in a separate piece of legislation

2. Clause 56

According to the Intellectual Property Office, Clause 56 has been included to allow the Government to ensure existing penalties for copyright offences are maintained when amending existing exceptions. At present, if a new exception to copyright is being introduced or an existing exception widened (both of which being subject to the exhaustive list contained in the Copyright Directive) then they can be introduced through Secondary Legislation via the European Communities Act. However, if they wish to narrow or remove an exception this procedure may not be available. Narrowing or removing an exception could result in a new criminal offence being introduced or the number of people caught by an existing offence being widened; if that offence carries a maximum penalty of more than two years in prison, then the EC Act cannot be used as criminal penalties for breaching exceptions, when varied through Secondary Legislation under the EC Act are limited to two years. Theoretically, therefore, the passing of Clause 56 means that, in the future, in cases where such penalties need to be maintained this could now occur.

If this is the genuine intention behind Clause 56 then it has the support of the Alliance. However, we are extremely concerned that, leaving aside the assurances we have received from the IPO as to its purposes, it is very broadly drafted making its actual application unknown; we question why it has been felt necessary to use such generalised, loose language to address a very specific legal flaw.

We are also very concerned that such a move may encourage the Government to ‘bundle’ reform of a number of exceptions, leading to a single SI bringing in a number of different changes and amendments to UK Copyright Law. 

Such a move would have a serious impact on Parliament’s ability to scrutinise legislation properly given SIs cannot be amended and must be either accepted or rejected in their entirety.  Any changes to copyright exceptions must not be ‘bundled’ in this manner as they are by nature each very distinct, have differing impacts on different industries and do not have the same objectives – for example some are designed to narrow an exception while others to widen.

These differences are currently evidenced by the fact that those reforms proposed in the recent Copyright Consultation have each required separate impact assessments and we anticipate any further reforms similarly requiring separate IAs.

What is needed?

· Clause 56 to be amended in order for the intent of the Clause to be more accurately reflected in the language of the Bill

· A Ministerial Undertaking as to how the Clause will be used specifically to reassure Parliament that the Government will not attempt to change copyright law by bundling proposed reforms into a single SI.

June 2012

Prepared 29th June 2012