Second Reading Committee
Monday 16 January 2017
[Mr George Howarth in the Chair]
Intellectual Property (Unjustified Threats) Bill [Lords]
Before we begin, it might be helpful if I remind Members that the Second Reading of this Bill is being debated in Committee, rather than in the Chamber, because it is a Law Commission Bill. Under Standing Order No. 59, Law Commission Bills stand automatically referred to a Second Reading Committee. As this is a Second Reading debate, no Member may speak more than once without the leave of the Committee. Permission is conventionally granted, however, to the Minister moving the motion to do so, at the end of the debate.
I beg to move,
That the Committee recommends that the Intellectual Property (Unjustified Threats) Bill [Lords] ought to be read a Second time.
It is a pleasure to serve under your chairmanship, Mr Howarth. I thank the law commissioners for bringing the Bill to the House in this state. It has had a consensual passage through the other place. I recently inherited the role of Minister with responsibility for intellectual property from Lucy Neville-Rolfe, who has gone to the Treasury, and I am pleased to be responsible for introducing the Bill to this House.
The intellectual property regime is crucial to the UK’s economic growth. IP-intensive industries are estimated to generate more than 25% of UK employment and 37% of UK GDP. IP is also vital to protecting and building our strong research base, creating economic growth from our fantastic universities and world-class scientific research. The importance of IP is reflected in our manifesto commitment to make the UK
“the best place in Europe to innovate, patent new ideas and set up and expand a business.”
The Bill is just one of a number of ways in which the Government are taking action to improve the IP regime. We have brought the unitary patent and Unified Patent Court one step closer, giving businesses the option to protect their inventions in up to 25 countries with a single patent. Furthermore, the Digital Economy Bill, which left the House in December, contains important IP provisions, including reforms to the penalties for copyright infringement.
Of course, improving the IP regime is not limited to legislation. The Intellectual Property Office is continually improving its services and increasing the availability of digital IP tools. We also continue to make considerable progress through international harmonisation of IP laws and practice, as well as IP education, outreach and enforcement activities on a number of fronts.
The Bill is of narrow scope but fits perfectly with the Government’s wider work on the IP regime. It gives effect to recommendations made by the Law Commission following in-depth analysis and extensive consultation. The Law Commission is a statutory independent body, tasked with reviewing the law to ensure that it is modern, fair and fit for purpose. Like other Bills resulting from the Law Commission’s work, the Bill follows a special parliamentary procedure that facilitates uncontroversial but important law reform.
I am grateful to colleagues in the other place who have given the Bill their detailed attention. Their enhanced scrutiny, as required by the special procedure, is greatly appreciated. In particular, the Special Public Bill Committee considered detailed evidence from industry, the legal profession, the IP judiciary and others. I am also thankful to the Law Commission and stakeholders who have worked together and with Government to produce and refine these much-needed reforms. As a consequence of those efforts, the Bill comes before us in very good shape.
I will briefly explain the complex and specialist aspect of our IP framework with which the Bill is concerned, namely unjustified threats—that is, a threat to sue for infringement of an IP right where no infringement has taken place or where the IP right in question is invalid. The considerable financial burden of IP litigation means that many businesses seek to avoid it at all costs. Small businesses in particular are disproportionately affected by the drain that such litigation places on their limited time and resources. The mere threat of being sued for IP infringement can therefore drive customers or retailers away from an entirely legitimate business. As a result, unjustified threats can cause significant commercial damage. To combat that, the threats provisions have existed in some form for more than 100 years. They offer much-needed protection and provide appropriate remedies to those affected by an unjustified threat.
Unfortunately, the existing threats provisions are not as effective as they should be. They are overly complex and have developed in a piecemeal fashion across the different IP rights. The law is inconsistent and difficult to navigate as a result, which is why the Government asked the law commissioners to review this area of law in detail in 2012. The Law Commission made a number of detailed of recommendations, which are reflected in the Bill. It substituted new threats provisions for old within the relevant parent Act for the relevant IP rights: patents, trademarks and both registered and unregistered designs. The main clauses repeat the same substantive law across each of those rights.
There are five main parts to each clause. The first sets out a clear test for whether a particular communication contains a threat. The second sets out which types of threat trigger the threats provisions. The third gives guidance on what can be safely said. The fourth sets out remedies and defences. The fifth introduces an exemption so that threats claims cannot be brought against regulated professional advisers acting under instruction.
I hope that the Committee has found that brief explanation helpful. The provisions have been the subject of a great deal of detailed work, including at the Law Commission stage, with a wide range of stakeholders, including the Law Society, and during the Bill’s scrutiny thus far. The new provisions form just one small part of the wider IP regime that is so important for this country’s prosperity, but they are nevertheless worthy and important reforms that will make a real difference to UK innovators, inventors and designers.
It is a pleasure to serve under your chairmanship, Mr Howarth. I start by joining the Minister in thanking the Law Commission for its invaluable work. I also thank the Minister himself for moving the motion recommending that the Bill receive its Second Reading, and the Government for taking the Law Commission’s recommendations forward in this important and complex area.
Although intellectual property law is complex, it is an essential means of ensuring that innovation is rewarded. It provides a crucial source of motivation and reassurance for investors when supporting new products from which we all benefit. As someone who has spent most of her career outside of Parliament, as an engineer building and designing new things, I understand the importance of IP rights in undergirding the creation of new ideas.
UK investment in intangible assets protected by IP rights has been estimated at 4.2% of total GDP, while 50% of our investment in the knowledge economy is protected by IP rights. It is therefore welcome that the Government are taking steps to ensure that IP laws remain up to date and consistent; we can all too quickly find that legislation is overtaken by technology.
The Labour party is keen that the Government’s industrial strategy creates a fairer and more prosperous Britain; to be fair, we are keen to see some inkling of a Government industrial strategy. I will not focus on the lack of a Green Paper—or any paper on this area—but simply say that no discussion of industrial strategy can omit mention of IP.
Industries frequently highlighted as central to our national success, such as the creative industries, are often those that invest a higher proportion of revenue back into intangible assets that are protected by IP rights. Reforming current legislation to protect IP rights while avoiding an overly litigious culture is, in my view and that of my party, the right step to ensure that our creative industries, and others highly dependent on IP, can prosper.
I am less convinced, however, that the Bill makes sufficient provision to protect manufacturers from unjustified threats. In introducing the Bill, the Government claimed that
“manufacturers and importers of infringing products…do more commercial damage”
than retailers, stockists and customers. They also suggested that manufacturers, having invested in the products,
“are better placed to determine whether a threat of infringement proceedings is justified.”—[Official Report, House of Lords, 15 June 2016; Vol. 773, c. GC2.]
Is the Minister confident that the Bill will not leave manufacturers vulnerable to unjustified threats, from which others are quite rightly protected? I am sure we will all agree that this is no time to undermine our great manufacturing industries, on which our future prosperity can and should be based.
Moreover, we are disappointed that the Bill offers little in the way of alternative remedies to claimants. The greater use in recent years of alternative dispute resolution as an affordable alternative to lengthy legal battles is a positive development. Drawn-out and costly court battles invariably hand an advantage to the party with the deepest pockets, as well as supplement the incomes of lawyers—that is certainly true with respect to intellectual property. It is therefore unfortunate that the Bill offers no new remedies.
Despite those omissions, we owe a great debt of gratitude to the Law Commission for its work on the Bill. Perhaps the primary reason for changing the law is that the present arrangements are not merely deficient in certain areas but complex and inconsistent. The Bill is clearly an attempt to remedy that and to adopt what the Law Commission calls an “evolutionary approach”. The Labour party welcomes this—and, indeed, any—attempt to make the application of the law less costly, less uncertain and therefore more accessible. That has to be praised.
The next step should be to incorporate the thrust of the Bill’s provisions into the general law of competition, to bring it in line with the Paris convention for the protection of industrial property. I do not say that to criticise the Bill, but to use it as a starting point for something broader, specifically a new tort in relation to the wider issue of false allegations in trade and of problems with the general proprieties of business practice and business ethics, of which unjustified threats over IP are only one symptom.
Finally, I have some general comments on IP rights and what we know about their relation to the real economy. It has been claimed on numerous occasions that the number of patents possessed by any given company or companies within any given nation is a proxy for the level of innovation. As shadow Minister for industrial strategy, science, and innovation, it is part of my job description to engage with such claims, about which I am quite sceptical. As the innovation economist Mariana Mazzucato has argued, a
“rise in patents does not reflect a rise in innovation but a change in the patent laws and a rise in the strategic reasons why patents are being used”.
I am pleased that the Bill has been introduced to reduce the misuse of IP law to stifle competition, but we would benefit from a broader debate on how IP law can be further reformed to encourage and promote real innovation in our industries.
It is a pleasure to serve under your chairmanship, Mr Howarth. I, too, thank the law commissioners for their work and the Minister for his useful overview. I have only some brief comments.
The Scottish National party believes that a robust threats provision is a vital means of creating a level playing field with a more equal legal footing for those with fewer resources. It is a way of encouraging healthy competition and innovation in our economy. We broadly welcome the Bill’s aims and believe that putting such measures in place will enrich the law on unjustified threats, encourage compliance and deter manipulation of the legal framework.
Threats can be unjustly utilised to discredit and financially undermine legitimate competition in the marketplace. The SNP supports action to distinguish legitimate threats from unjustified exploitation. We believe that the Bill is a step in the right direction towards providing smaller companies with a more equal footing in the legal system. However, it is worth noting that the UK’s decision to leave the European Union may have an unfortunate impact on IP law. The UK Government must therefore exhaust all options to ensure that their plans for Brexit do not have adverse consequences for IP law in the UK.
This has been a good debate, during which we have been graced by the presence of my hon. Friend the Member for Rugby on his 60th birthday. Inventors and manufacturers in Rugby will have followed our proceedings with interest, and I am glad that they will have heard members on both sides of the Committee express support for the Bill. I am grateful to them for acknowledging that the Government have taken up the Law Commission’s good work. Getting the threats provisions right is important in supporting our creators, innovators and businesses—large and small—and, as I have said, I am grateful to the hon. Members who have contributed to our brief but useful debate.
Turning to some of the points raised, threats to manufacturers or importers and their equivalents rightly will not trigger threats actions. That will allow rights holders to approach the trade source of a potential infringement. Manufacturers and importers are likely to be able to assess whether a threat to sue is justified. Having invested in the product in question, they will also be more willing to challenge a threat, if required. The provisions therefore encourage rights holders to approach the most appropriate person or business while protecting others, such as retailers, from unfair approaches and unreasonable threats. Making threats to primary actors actionable would stifle the ability of rights holders to enforce their rights. We therefore believe that the Bill strikes the right balance, and there is no evidence that stakeholders want that aspect of it to change.
On remedies, the threats provisions are just one crucial part of the wider toolkit available to those seeking to resolve genuine issues, and can be used alongside a range of alternative dispute resolution measures, such as mediation, to resolve disputes without resorting to litigation. For example, the IPO itself provides a flexible, quick and effective IP mediation service, which helps parties who are in dispute to reach agreement. There is simply no evidence that the sensible current remedies are deficient.
Reform of the threats provisions is long overdue, and this small but well-formed Bill will allow us to deliver valuable change now. It will help businesses to negotiate fairly in IP disputes, provide clarity and bring much-needed consistency to the complex area of IP law. I am pleased to have had this opportunity to discuss these issues, and I commend the Bill to the Committee.
Question put and agreed to.