Yes; my understanding is that a civil action would be possible. When we are talking about criminal sanctions, the view is that intent is an important element in the legislation. As I have said, we have always intended that intention should be part of the offence, and we are now making that explicit. The civil remedy would still available.
Let me turn to Government amendments 7, 9, 11 and 12, which relate to assessments of whether a product has been copied. The amendments will remove the word “substantially”, so that the clause instead refers to designs
“with features that differ only in immaterial details”.
We are proposing this change because industry has expressed concerns that the term “substantially” is not clearly defined in registered design law or criminal IP law, and there could therefore be uncertainty as to its meaning. The revised wording is more familiar to industry and reflects existing language used in the Registered Designs Act 1949, in the context of whether a design is new. Our amendments provide users with a familiar term and the courts with a more precise test than “substantially”. I do not detect anything in the Opposition’s proposed amendments that suggests that they have any difficulty with that clarification. Indeed, I hope that both the clarifications in our amendments—representing, as they do, the clear view of industry—will command the Opposition’s support.
Let me also comment briefly on amendments 25 and 28, which would introduce the idea of “being reckless” as to design infringement. The amendments would have two effects. First, they would introduce design infringement as a basis for the criminal sanction. However, infringement is different from copying. The new offence has been drafted so that the criminal sanction will be narrower and more focused than the civil test for infringement. The legal test for civil infringement refers to the concept of “overall impression” of a design on an “informed user”—a much less precise concept than the boundaries that we set out in the Bill for the proposed criminal sanction. For those reasons, including as a part of the offence a test based on civil design infringement is potentially confusing and would lead to greater uncertainty, which we fear could lead to a freezing effect on follow-on design.
Amendments 25 and 28 would also introduce the concept of “constructive knowledge or intention”. That would effectively require the court to conclude that a defendant had paid no regard to the probability or possibility of harmful consequences in conducting a course of action.