Schedule 2 - Olympic symbol protection
London Olympics Bill
12:15 pm
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.