Clause 13 - Offence of unauthorised copying etc. of design in course of business

Part of Intellectual Property Bill [Lords] – in a Public Bill Committee at 12:00 pm on 30th January 2014.

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Photo of David Lammy David Lammy Labour, Tottenham 12:00 pm, 30th January 2014

I want to probe the Minister further on the significant introduction of intentionality, which adds a state of mind to the issues we are considering. He is right to explain that it is a well established legal concept, but the potential problem is that, in adding that state of mine, we can get into a legal hinterland with a lot of litigation attached.

There are concerns, frankly, that we should simply allow the Bill to apply to deliberate infringement of unregistered designs, which would bring it into parity with existing trade mark and copyright law. In a sense, introducing an extra state of mind, which is what mens rea does, is unnecessary. Does the Minister foresee a lot of litigation on this issue? The Committee will be taking an important step if it moves in the direction of intentionality in such a way. Are we, as it were, copper-plating the legislation?

This measure is different to copyright law as set out in section 107 of the Copyright, Designs and Patents Act 1988 and section 92 of the Trade Marks Act 1994, under which simply the intent to act is sufficient—the actus reus—as is established in criminal proceedings. I want to probe the Minister further on the introduction of intentionality and to put on record the concerns of those in Anti-Copying in Design that the Bill will make it far harder to land on those who seek to copy in such a way.