HC Deb 25 July 1988 vol 138 cc80-2

'(1) An application for an order under section 98 (order for delivery up in civil proceedings) may not be made after the end of the period six years from the date on which the infringing copy or article in question was made, subject to the following provisions.

(2) If during the whole or any part of that period the copyright owner—

  1. (a) is under a disability, or
  2. (b) is prevented by fraud or concealment from discovering the facts entitling him to apply for an order,
an application may be made at any time before the end of the period of six years from the date on which he ceased to be under disability or, as the case may be, could with reasonable diligence have discovered those facts.

(3) In subsection (2) "disability"—

  1. (a) in England and Wales, has the same meaning of the Limitation Act 1980;
  2. (b) in Scotland, means legal disability within the meaning as in the Prescription and Limitation (Scotland) Act 1973;
  3. (c) in Northern Ireland, has the same meaning as in the Statute of Limitations (Northern Ireland) 1958.

(4) An order under section 108 (order for delivery up in criminal proceedings) shall not, in any case, be made after the end of the period of six years from the date on which the infringing copy or article in question was made.'.—[Mr. Butcher.]

Brought up, and read the First time.

Motion made and Question proposed, That the clause be read a Second time.—[Mr. Butcher.]

Mr. Deputy Speaker (Sir Paul Dean)

With this it will be convenient to discuss the following: Government new clause 8—Order as to disposal of infringing copy or other article.

Government new clause 9—Jurisdiction of county court and sheriff court: Part I.

Government new clause 10—Period after which remedy of delivery up not available under Part II.

Government new clause 11—Order as to disposal of illicit recording.

Government new clause 12—Jurisdiction of county court and sheriff court: Part II

Government new clause 13—Order as to disposal of infringing article, &c.

Government new clause 14—Jurisdiction of county court and sheriff court: Part III.

Government amendments Nos. 164 to 169, 174 to 177, 180 to 183, 185 to 190, 193, 195 to 198.

Amendment No. 279, in clause 288, page 133, line 40, leave out from 'court' to end of line 5 on page 134, and insert 'before which a person is charged with an offence under section 58A may, whether he is convicted of the offence or not, if it appears to the court that he has in his possession, custody or control any goods or material which are

  1. (a) good or material in respect of which any offence under section 58A has been committed; or
  2. (b) goods of the same description as those in respect of which the offence was committed, or material similar to that in respect of which the offence was committed, bearing a mark identical to or nearly resembling that in relation to which the offence was committed; or
  3. (c) goods or material which fall within paragraph (a) or paragraph (b) of section 58A(1) and whose resemblance to the goods or material bearing a registered trade mark is such as to satisfy the court that they have been created with the intent mentioned in paragraph (b) of section 58A(2) (whether or not the creator is before the court);
order that the goods shall be forfeited and destroyed or otherwise dealt with as the court may think fit.'.

Government amendments Nos. 199 to 203.

Mr. Iain Mills (Meriden)

The Minister knows my strong views on counterfeiting and the need for forfeiture. It is highly desirable to ensure that all articles identified as counterfeits are removed from circulation. As I understand it, clause 288 allows for forfeiture only when a person has been convicted.

I am grateful to the Minister and his officials for listening to my comments on the matter when we met recently, and I had hoped that he might have had some sympathy or a more wide-ranging power. It is important to summarise the fact that forfeiture should not be altered on the sole ground that counterfeit goods have been found under the present powers in the Bill. If the goods are counterfeit, forfeiture should be possible.

7.30 pm
Mr. Butcher

My hon. Friend's amendment would make it possible for a criminal court to order forfeiture of a person's property whether or not he had been convicted of an offence. Such provisions appear in earlier clauses in relation to copyright and performance rights, but not here in relation to counterfeits.

There is a fundamental difference between counterfeits and articles that infringe copyright or performance rights. Counterfeits are essentially trade mark infringements that are created or used with the purpose of passing them off as being genuinely associated with a legitimate user of the mark in question. Whether that additional element is present is a question for the court to determine, and it cannot do so on the basis of goods or materials alone. It depends on the state of mind of the accused. If there has been no conviction, we can see no way in which the courts could, in law, distinguish between counterfeits and purely civil trade mark infringements. It would be wholly wrong to give criminal courts jurisdiction over purely civil infringements. That is the function of the civil courts and the procedure applying there.

For that reason only, I cannot accept my hon. Friend's amendment as drafted.

Question put and agreed to.

Clause read the Second time, and added to the Bill.

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