§ Mr. Walker-SmithI beg to move, in page 16, line 43. to leave out from beginning to "by" in line 7 on page 17 and insert:
the following provisions of this section shall apply.(3) Subject to the next following subsection—
- (a) during the relevant period of fifteen years, it shall not be an infringement of the copyright in the work to do anything which, at the time when it is done, would have been within the scope of the copyright in the design if the design had, immediately before that time, been registered in respect of all relevant articles; and
757 - (b) after the end of the relevant period of fifteen years, it shall not be an infringement of the copyright in the work to do anything which, at the time when it is done, would, if the design had been registered immediately before that time, have been within the scope of the copyright in the design as extended to all associated designs and articles.
In this subsection 'the relevant period of fifteen years' means the period of fifteen years beginning with the date on which articles, such as are mentioned in paragraph (b) of the last preceding subsection, were first sold, let for hire, or offered for sale or hire in the circumstances mentioned in paragraph (c) of that subsection ; and 'all relevant articles', in relation to any time within that period, means all articles falling within the said paragraph (b) which had before that time been sold, let for hire, or offered for sale or hire in those circumstances.(4) For the purposes of subsections (2) and (3) of this section, no account shall be taken of any articles in respect of which, at the time when they were sold, let for hire, or offered for sale or hire, the design in question was excluded from registration under the Act of 1949.Clause 10 is the rather difficult Clause dealing with registered designs. The effect of subsection (2) as drafted is that if the owner of the copyright in an artistic work applies that work as an industrial design, without previously registering it, and markets the articles to which it has been applied, he loses his copyright protection, not only in respect of the articles which he has marketed, but throughout the whole industrial field. For example, if a design is applied to a cup, it falls into the public domain, not only as applied to cups but also as applied industrially to any other article of manufacture.This penalty falls particularly severely on designs such as cartoon figures. There is a considerable demand for their use as designs to be applied to a large number of different articles. It is true that a copyright owner can protect himself by registration, but should he by inadvertence fail to do so he loses protection, not only in the sphere in which he has used his design, but in all the rest of the industrial sphere.
The Amendment is designed to make that penalty less severe. Its effect is to limit the field in which protection is lost to those articles to which at any given time the copyright owner has himself, without prior registration, applied the design and which he has marketed. The design goes into the public domain to the extent that its proprietor would have 758 received protection had he first registered it.
I should, however, add this. It is a fundamental principle of the Clause that an artistic work which is applied industrially shall not enjoy an industrial design protection for longer than the maximum period—fifteen years—obtainable by registration under the 1949 Act, and that thereafter the design as industrially applied becomes public property. The Amendment, therefore, also provides that fifteen years after the first occasion on which the design is used industrially, copyright protection is lost throughout the whole industrial field. This corresponds with subsection (1) of the Clause, in which, at the expiry of the period of registration, the same thing happens.
§ 9.15 p.m.
§ Mr. Philip BellI put forward an Amendment on this matter in Committee, which by mutual consent we thought was too complicated to deal with at that late stage. I put down the same Amendment on the Order Paper, but by some misunderstanding to which I need not refer it was eliminated from the Order Paper. I discovered that only this evening, or I should have been imposing upon the House a full explanation of my Amendment.
The Amendment which I had in mind was to provide a comprehensive register, that is to say, one in which industrial persons could register a design not only for a particular article, but for a number of articles, in one registration, and could register an associated design, that is not just one particular design, but a group of designs on the one register. The idea was in that way they would be saved from having to get protection which they were entitled to get by individual registration but would do it all in one.
I am bound to confess that that would have meant altering the Registered Designs Act, 1949, and perhaps this is not the occasion to embark upon that complicated manœuvre. However, the Amendment which my hon. and learned Friend the Parliamentary Secretary has moved has gone some way to remove what the owners and proprietors of registered designs felt might be a grievance, because, as the Bill was originally drafted, a mistake in not registering could have been very 759 expensive. Failure to register some article might have meant a big penalty ; that is to say, the owners lost the copyright not only of that article, but of associated articles, and not only of associated articles, but of associated designs, even whether there had or had not been sales of what would have been the offending articles. It is now proposed that failure to register a design means that one forfeits only the right to protest against associated designs which are in fact sold and which, therefore, are free of any restriction of the owner of the one registered design. In those circumstances, although I had hoped to go a little further on this matter, I am satisfied with the Government's Amendment.
§ Amendment agreed to.