Richard Caborn (Minister of State (Sport), Department for Culture, Media & Sport; Sheffield Central, Labour)

I beg to move amendment No. 76, in schedule 2, page 33, line 23, leave out ‘in the course’ and insert ‘as a necessary incident’.

David Amess (Southend West, Conservative)

With this it will be convenient to discuss Government amendments Nos. 77 to 82.

Richard Caborn (Minister of State (Sport), Department for Culture, Media & Sport; Sheffield Central, Labour)

The changes that clause 30 and schedule 2 make to the Olympic Symbol etc. (Protection) Act 1995—the OSPA—are crucial to ensure that the intellectual property of the Olympics and Paralympics is appropriately protected. The OSPA creates an Olympic association right as the principal means of protecting Olympic intellectual property.

The amendments provide more clarity on the defences available to people when using protected Olympic words and symbols, and better define the concept of association in that context. The amendments largely arise from our discussions with the Institute of Practitioners in Advertising, the British Olympic Association and other interested stakeholders over the summer.

Government amendment No. 82 helps to provide more clarity on the concept of association in the context of the Olympic association right. For example, it points towards the idea of someone creating a commercial or contractual link or other demonstration of support between a person, product or service and the Olympic games or movement as something that would infringe the association right. That is the sort of exploitation of the games that we must prevent if we are to meet our obligations to the IOC to combat ambush marketing, and if the organising committee is to raise sufficient revenues to fund the games. We hope that the amendment provides greater clarity on the concept of association and the type of mischief that we are trying to prevent.

Government amendment No. 82 also provides more clarity for people who have a legitimate right to use a protected word. That might include a bus company offering a service from Hull to London to allow people   to go and watch the sporting competition in the summer of 2012. That company must be allowed to refer to the fact that it is running services from Hull to the Olympic park. As a result, paragraph (b)(i) provides a defence for people who use protected words when making statements that accord with honest commercial practice. However, paragraph (b)(ii) prevents the gratuitous use of Olympic words. For example, we want to prevent people from using Olympic words and symbols in a context and a manner in which they would not ordinarily be used. That is to deal with people who are obviously using Olympic words only as a means of commercially exploiting the games and not in the course of legitimately advertising their product or service.

The final part of Government amendment No. 82 provides the Secretary of State with the power by order to clarify the concept of association. As has become evident during our consultation with interested stakeholders, in drafting the Bill and in debate today, the precise nature of association and what should constitute a legitimate defence for the use of controlled words are by no means straightforward. We think it prudent to give the Secretary of State the power to introduce amendments to the concept of association. Such an order would be subject to the affirmative resolution procedure. Therefore, if it proves necessary to use such a power, it will be subject to the sort of constructive debate that we have had on the Bill.

Government amendments Nos. 76 to 79 clarify the defences available to people in using controlled words or symbols, particularly in relation to journalistic use. Government amendment No. 76 is designed to allow appropriate use of OSPA words and symbols in news reporting. In particular, the defence is designed to ensure that journalists can publish reports about the Olympics, whether they are reports on the sporting competition or details of cultural festivals or other events associated with the games. However, the amendment also ensures that the journalistic defence cannot be exploited and it protects against gratuitous use of Olympic words and symbols.

Government amendment No. 77 ensures that the journalistic defence for the use of Olympic words or symbols is not simply limited to retrospective news reporting. We were concerned that the drafting of the original provision in schedule 2 meant that people who, for example, produced programmes for the events of the London games or reported on an athlete’s preparation for the games would not have a defence available to them. That was certainly not our policy intention, and the amendment is designed to clarify the situation.

While speaking about journalistic reporting, I should also make it clear that a current affairs programme about the Olympic movement will not create an association as defined here. Journalists working on such programmes will therefore be able to rely on the defence in paragraph 4(2).

Government amendment No. 79 makes a consequential amendment in the light of Government amendments Nos. 76 and 77. It creates a defence for using OSPA protected words and symbols in   advertising any journalistic work as described in Government amendments Nos. 76 and 77—for example, news reporting about or in preparation for the Olympics. The amendment also removes the defence in respect of using Olympic words in advertising an artistic or literary work under paragraph 4(1)(b). That is simply because if use of a protected word in a literary work is truly incidental, it should not find its way into an advertisement for that work. However, appropriate incidental use in the context of an advertisement will in any event be permitted by paragraph 4(1)(b).

Government amendment No. 80 ensures that the symbols as well as the words are caught by the defence in paragraph 4(2). Although it will rarely be the case that the use of the symbol will not create an association, we felt it was necessary to provide a defence for those rare exceptions.

Government amendment No. 78 makes the offence in paragraph 4(1)(b) consistent with other intellectual property law. In particular, it imports the definition of artistic and literary works and so on from the Copyright, Designs and Patents Act 1988, and Government amendment No. 81 simply makes the drafting in the defence in paragraph 4(2) more precise.

Maria Miller (Basingstoke, Conservative)

The Minister clearly identified the need to provide a tighter definition of “association” in the amendment, and attempted to include a definition of it. I admit that that goes some way to help to clarify the Bill’s intention. However, the Bill still includes an automatic infringement with a presumption of guilt for the use of words that are loosely associated with the Olympics. We shall cover that more fully under the amendments that we have tabled to schedule 3, but it is worth pointing out that there is a need for more clarity. I am not sure whether this amendment is entirely consistent with other amendments to schedule 3.

I remain concerned that we could inadvertently stifle the economic and social benefits that could accrue from the Olympics, and I am sure that that is not the Government’s intention. I again stress the fact that we understand the need to protect sponsorship value, but there is a question of balance. My concern is that risk-averse organisations that perhaps do not have access to extensive legal advice to unpick some of the words in the amendment could be put off overtly supporting the games. We need a more transparent approach, which we shall introduce under schedule 3, and an approach more in line with the Sydney Olympic experience, which was successful in tackling ambush marketing.

Perhaps after we have had a little more time to consider the elements of the technical document we have been given today, the Minister may want to comment more fully on a couple of points that were raised about specific association rights. The document states:

“Legislation should provide for the protection of the Olympic permanent marks ... as well as for the ‘CITY + YEAR’”.

It is specific about what needs to be protected, and we should take that into consideration. The document also states that

“it is not the intention of the IOC to overreach and/or to prevent uses of marks, imagery or designations that have nothing to do with the Olympic Games.”

The IOC is giving us a bit of leeway to be more specific, and perhaps the amendment could better take account of that.

Don Foster (Shadow Secretary of State for Culture, Media & Sport, Culture, Media & Sport; Bath, Liberal Democrat)

I wish to echo the hon. Lady’s words. Although we are grateful for the amendments to paragraph 4—they give greater clarification of the Government’s intention—there is still a concern among many people that the commitment that the Government made at the time of the bid and the commitment that has been given subsequently that everyone in the country would benefit from the Olympic games may not be delivered, if we are not careful. It is worth recalling that, only a few days ago, in a speech entitled, “We can all be winners from 2012”, the Secretary of State said:

“My message is simple—we can all be winners from the Games coming to Britain. Anything is possible for those who go for it. Businesses, the trade union movement and local communities need to start thinking now about how they seize the commercial opportunities the 2012 Games will provide. We are committed to ensuring that every region of the country benefits from the Olympic Games”.

It is crucial that the Minister acknowledge what the Secretary of State said.

Although I genuinely understand the concerns, it worries me that some of the briefing notes from LOCOG, for instance, talk about ambush marketers who will

“feed off the goodwill and public excitement about the event, so as to enhance demand for the brand”.

LOCOG calls such marketing activities “parasitic”. I accept that there is a fine line between making sure that we protect the rights of sponsors, so that they are prepared to be sponsors, and ensuring that everyone else has the opportunity to benefit from the Olympics. I remain to be convinced that we have not stepped too far and gone on to the wrong side of that line. If we are not careful, the commitment given by the Secretary of State that we can all be winners from 2012 will not be delivered.

Richard Caborn (Minister of State (Sport), Department for Culture, Media & Sport; Sheffield Central, Labour)

I understand what hon. Members are saying, but I think that we have struck the right balance. We have taken on board what has been said. As I mentioned, the amendments have largely arisen from discussions with the Institute of Practitioners in Advertising and the British Olympic Association. We have taken their concerns on board, and they are reflected in the amendments. If the amendments are accepted, we will have struck the right balance. I acknowledge what the hon. Gentleman says, but we have taken third party advice and brought the resulting amendments before the Committee. Obviously, we will listen to what people say. There is   further action to be taken in the Bill, as we will soon see, but we have got the balance about right at the moment.

Richard Caborn (Minister of State (Sport), Department for Culture, Media & Sport; Sheffield Central, Labour)

I beg to move amendment No. 83, in schedule 2, page 35, line 16, at end insert—

‘Infringement 9AIn section 7(3)(a) (orders in relation to infringing goods: “infringing material”) for “, or for advertising goods or services,” substitute “, for advertising goods or services or by being displayed,”.’.   The amendment removes an anomaly from the Olympic Symbol etc. (Protection) Act 1995. At present, a person infringes the BOA’s right if, in contravention of section 3 of that Act, he or she uses a protected word or symbol in a banner or flag. However, the definition of “infringing material” in section (7)(3) does not include such banners or displays. Our amendment simply means that the court orders permitted by section 7 of the Act, such as those relating to the delivering up of goods or the erasure of infringing signs, can now apply to flags or banners using protected words or symbols that infringe the BOA’s right. Amendment agreed to.

9AIn section 7(3)(a) (orders in relation to infringing goods: “infringing material”) for “, or for advertising goods or services,” substitute “, for advertising goods or services or by being displayed,”.’.

The amendment removes an anomaly from the Olympic Symbol etc. (Protection) Act 1995. At present, a person infringes the BOA’s right if, in contravention of section 3 of that Act, he or she uses a protected word or symbol in a banner or flag. However, the definition of “infringing material” in section (7)(3) does not include such banners or displays. Our amendment simply means that the court orders permitted by section 7 of the Act, such as those relating to the delivering up of goods or the erasure of infringing signs, can now apply to flags or banners using protected words or symbols that infringe the BOA’s right.

Richard Caborn (Minister of State (Sport), Department for Culture, Media & Sport; Sheffield Central, Labour)

I beg to move amendment No. 48, in schedule 2, page 35, line 25, at end insert—

‘Enforcement 11(1)After section 8 add— “8AEnforcement by trading standards authority (1)A local weights and measures authority may enforce within their area the provisions of section 8. (2)The following provisions of the Trade Descriptions Act 1968 apply in relation to the enforcement of that section as in relation to the enforcement of that Act— (a)section 27 (power to make test purchases), (b)section 28 (power to enter premises and inspect and seize goods and documents),

11(1)After section 8 add—

“8AEnforcement by trading standards authority

(1)A local weights and measures authority may enforce within their area the provisions of section 8.

(2)The following provisions of the Trade Descriptions Act 1968 apply in relation to the enforcement of that section as in relation to the enforcement of that Act—

(a)section 27 (power to make test purchases),

(c)section 29 (obstruction of authorised officers), and

(d)section 33 (compensation for loss, &c of goods seized).

(3)Subsection (1) above does not apply in relation to the enforcement of section 8 in Northern Ireland; but—

(a)the Department of Enterprise, Trade and Investment may enforce that section in Northern Ireland, and

(b)for that purpose the provisions of the Trade Descriptions Act 1968 specified in subsection (2) apply as if for the references to a local weights and measures authority and any officer of such an authority there were substituted references to that Department and any of its officers.

(4)Nothing in this section shall be construed as authorising a local weights and measures authority to bring proceedings in Scotland for an offence.”

(2)The London Organising Committee may—

(a)make arrangements with a local weights and measures authority for the exercise of the authority’s power under section 8 of the Olympic Symbol etc. (Protection) Act 1995 (as inserted by sub-paragraph (1));

(b)may make payments to a local weights and measures authority in respect of expenses incurred in the exercise of that power.

12After section 8A (inserted by paragraph 11 above) insert—

“8BArrest

(1)After paragraph 21 of Schedule 1A to the Police and Criminal Evidence Act 1984 (arrestable offences) add—

“Olympic Symbol etc. (Protection) Act 1995 21AAn offence under section 8 of the Olympic Symbol etc. (Protection) Act 1995 (offences in relation to goods).” (2)A constable in Scotland may arrest without warrant a person who the constable reasonably believes is committing or has committed an offence under section 8 of the Olympic Symbol etc. (Protection) Act 1995. (3)Subsection (2) is without prejudice to any power of arrest which is otherwise exercisable by a constable in Scotland.”.’. The Chairman: With this it will be convenient to discuss Government amendments Nos. 45 and 42 to 44.

21AAn offence under section 8 of the Olympic Symbol etc. (Protection) Act 1995 (offences in relation to goods).”

(2)A constable in Scotland may arrest without warrant a person who the constable reasonably believes is committing or has committed an offence under section 8 of the Olympic Symbol etc. (Protection) Act 1995.

(3)Subsection (2) is without prejudice to any power of arrest which is otherwise exercisable by a constable in Scotland.”.’.

David Amess (Southend West, Conservative)

With this it will be convenient to discuss Government amendments Nos. 45 and 42 to 44.

Richard Caborn (Minister of State (Sport), Department for Culture, Media & Sport; Sheffield Central, Labour)

These amendments are necessary to ensure that our law enforcement agencies have a full range of powers available to them in order successfully to crack down on people who seek to exploit the games through trading in merchandise that infringes the Olympic Symbol etc. (Protection) Act 1995.

Government amendment No. 45 provides Customs and Revenue officers with enforcement powers in relation to OSPA-infringing goods entering the UK. In effect, the amendment brings Customs officers’ powers in relation to counterfeit Olympic goods in line with their existing powers for detaining other goods that are intellectual property infringements. Providing Customs officers with such powers of detention is important if we are successfully to crack down on people who attempt to import and to sell counterfeit Olympic merchandise. Customs officers will be the first line of defence against counterfeit goods entering the country and we think that this is an important and appropriate addition to our armoury to combat those who seek unfairly to exploit the games.

The amendments create a dual system whereby HMRC officers can seize OSPA-infringing goods. First, as set out in new section 12A(1), HMRC officers will be able to detain counterfeit OSPA goods when LOCOG or the British Olympic Association provide HMRC officers with notice in writing of consignments entering the country that they believe to contain OSPA-infringing articles. Secondly, subsection (8) of new section 12A provides that, if HMRC discovers items during its ordinary course of business—and not as a result of notice from LOCOG or the BOA—which it suspects are counterfeit, it may also detain those goods.

The remaining subsections of new section 12A set out in detail how the provisions will work in practice. That includes, in subsections (4) and (8), details of how the proprietor and the importer will be informed of any seizure, as well as details of the information that HMRC can pass on to LOCOG. The new section also provides HMRC with powers to provide LOCOG with samples of any seized items to help it to determine whether seized goods are infringing the provisions.

The new section includes details of the time limits by which proceedings have to be brought by LOCOG in relation to any OSPA-infringing goods. That ensures that the HMRC can detain items only for a reasonable period, in line with its powers of detention in relation to other trademark goods. New section 12A also creates a criminal offence for any inappropriate onward disclosure of data LOCOG has received from HMRC. That provision ensures that HMRC can provide LOCOG with the necessary information about the importer or owner of the counterfeit goods, but it also ensures that the information gateway is strictly and tightly controlled.

Amendment No. 48 provides trading standards officers with clear enforcement powers in relation to the OSPA. Trading standards officers will be crucial in preventing the sale of counterfeit merchandise. Clarifying trading standards officers’ powers is therefore a necessary and sensible step. The amendment provides trading standards officers with   the power to make test purchases, as well as giving them the power to enter premises and inspect and seize goods. In effect, we are bringing trading standards officers’ powers for OSPA-infringing articles largely into line with the powers that they hold in relation to other trademark infringing goods.

The amendment also creates an arrestable offence under the OSPA. The trade in counterfeit goods is a lucrative and, at times, highly organised business. This is not just about a market trader with a one-off set of dodgy T-shirts. Those who trade in counterfeit merchandise are often part of a worldwide criminal network. Making the offence arrestable gives trading standards officers the ability to call on the police to use their powers and expertise to crack down on offenders who may be part of an organised criminal gang.

In amendment No. 48, we clarify that LOCOG can fund the activity of trading standards officers. That is to ensure that trading standards officers receive the necessary funds to enable them to carry out extensive and effective enforcement action.

Amendments Nos. 42, 43 and 44 relate to the commencement and end dates of these provisions.

Don Foster (Shadow Secretary of State for Culture, Media & Sport, Culture, Media & Sport; Bath, Liberal Democrat)

I have only one question about the dodgy T-shirt group of amendments, as the Minister described them. I am grateful to him for his explanation and to the Government for tabling these important amendments. He referred to the fact that the amendments—particularly amendment No. 48—give powers to trading standards officers or, as they are called, local weights and measures authorities, to take various actions. Will he clarify whether he understands his amendment to mean that such an authority can take action without a request from LOCOG? The provision currently states that LOCOG may make arrangements with trading standards officers and may make payments to them for their work. I hoped that trading standards officers or the authority would make the decision to carry on and to investigate such matters once they were given the powers. The slight problem is whether trading standards officers are going to sit back and wait for LOCOG to ask them to do something and get money for it in that way. Will the Minister explain how the money flows and whether, if trading standards officers get on and do something using the powers being given to them, they can go back to LOCOG and say, “We did it. Can we have some money?” I am not clear how it works.

Richard Caborn (Minister of State (Sport), Department for Culture, Media & Sport; Sheffield Central, Labour)

If trading standards officers discovered in the normal course of their duties and actions that there was an infringement, obviously, they would act on that, but if LOCOG wants specifically to ask trading standards to take up extra work on surveillance over this period, which might be what is wanted, it will be quite legitimate for LOCOG to pay for that. Trading standards would report an infringement if they found one in the normal course of their duties, which would be paid for by their authorities. However, if extra surveillance were necessary—for example, at certain ports through which counterfeit articles could come into the country—LOCOG would ask trading standards to set   that up and it would pay for it. I hope that I have said the right thing. I have been passed a note that says that the authorities could take action but might need some financial help to combat the scale of the enforcement action needed.

Don Foster (Shadow Secretary of State for Culture, Media & Sport, Culture, Media & Sport; Bath, Liberal Democrat)

Time is pressing, so I shall not delay. The point is that trading standards officers, who are a function of local government, will be given new powers for a relatively short time—although quite a long time during the run-up to the games; certainly longer than the period of the games—and will have additional duties to perform. Under normal circumstances, that would be reflected in the local government financial assessment in some way or other. Presumably, the Local Government Association will take up that issue.

I should like to be clear. The Minister seems to be saying that the trading standards officers will try to get money out of the local government financial settlement for their normal duties. If LOCOG wishes them to do something extra, they could get funding for that extra over and above their new powers. I think that the Minister said that. If he just says “yes”, we shall all be happy.

Richard Caborn (Minister of State (Sport), Department for Culture, Media & Sport; Sheffield Central, Labour)

Yes.

Don Foster (Shadow Secretary of State for Culture, Media & Sport, Culture, Media & Sport; Bath, Liberal Democrat)

Thanks.