DESIGN COPYRIGHT BILL (Hansard, 16 October 1968)

§ LORD CAWLEY
My Lords, I beg to move that this Bill be now read a second time. The Bill is very short and has but one operative clause amending Section 10 of the Copyright Act 1956. It is an important Bill and one urgently required by industrialists. It is not merely a minor improvement of Statute Law. The mechanism of the Bill is not straight-forward and cannot be understood without reference to Section 10 of the Copyright Act which is itself a difficult section. I think I ought to point out that when this clause was going through the House in 1956 I raised an objection to one of the provisions, and the only way the Government of that time could meet it was to insert a whole new Schedule in the Act, which shows how complicated this section is. Your Lordships must take it from me that the Bill is as sound legally as it can be, and at this stage I shall deal only with its purpose and effect.
The Bill was promoted in another place by Mrs. Jill Knight, Conservative Member for Edgbaston, who had support from both major Parties in the House. I have little doubt that there would have been Liberal support if at the critical moment Mrs. Knight had been able to find a Liberal Member to add his name to those of her other supporters. Apart from the promoter, no other Member appears to have spoken on the Bill in another place but certain Amendments were made by the promoter in Committee. These were not concerned with the principle of the Bill and were highly technical.
The Bill is of great importance to any industry employing artistic designers and particularly to the manufacturers of toys, costume jewellery, furniture and textiles. Modern methods have loosed a rash of plagiarism. You can now have an industrial design copied very quickly. This is happening on a very large scale, particularly in Hong Kong, which is now connected to this country by a rapid air service. As I shall show, much of this copying is now quite lawful. The originator of a design may pay thousands of pounds to produce it; a plagiarist may pay hundreds of pounds for moulds to copy it. Not only is this discouraging to the point of prohibition to industrialists 1374 who commission designs, it also leads to a flood of inferior copies which may well seriouly damage this country's export trade.
Any artistic work is prima facie the subject of copyright under the 1956 Act but that Act specifically provides that artistic quality is to be irrelevant. Section 10 of that Act, however, deprives industrial designs of copyright, and if protection is required designs must be registered at the Patent Office as registered designs, with a term of monopoly of 15 years from the date of application for registration, instead of the term of artistic copy right, which is the life of the author and 50 years.
Your Lordships may ask: when are designs industrial designs? That is laid down by a Statutory Instrument (1957 No. 867), which says: 1. A design shall be taken to he applied industrially for the purposes of Section 10 of the Copyright Act 1956, if it is applied—

(a) to more than 50 articles all of which do not together constitute a single set of articles as defined in subsection (1) of Section 44 of the Registered Designs Act 1949, or

(b) to goods manufactured in lengths or pieces, other than hand-made goods.'

The registration of industrial designs is a reasonably rapid process but not nearly fast enough to defeat the modern copyist. Regardless of loose talk about "copyright in registered designs", registered design protection under the Registered Designs Act 1948 confers a monopoly upon a proprietor and not a copyright. The Crown cannot grant the same monopoly twice, so a novelty search has to be conducted by the Registrar of Designs, which takes time. The registered proprietor of a design can restrain even a manufacturer who at a later date independently produces his design. The courts are thus reluctant to grant interlocutory relief against infringement of a registered design—that is to say, relief at very short notice until the trial of an action or a further order. If the defendant makes any serious challenge to the validity of the registered design, it is almost impossible to obtain relief.
The author of an artistic work is in a much stronger position than the proprietor of an industrial design as against a plagiarist. The artistic work need only be original, not novel—that is, the author has not himself copied it. Proof of 1375 copying is also simple, since copies are usually of the "Chinese" variety and the onus passes to the alleged copier to prove that he thought of the artistic work independently.
The Bill suspends the operation of Section 10 of the 1956 Act in the case of industrial designs which are also artistic works for 15 years from the date of commercial exploitation and thus gives them copyright protection for a period which in practice will work out slightly longer than the registered design protection, of which owners are also able to avail themselves if they desire a monopoly as well as copyright protection. This Bill does not restore the full period of the life of the author and 50 years for normal artistic copyright. In view of the ephemeral nature of the articles concerned, this was considered to be excessive.
In 1962 the Departmental Committee under the chairmanship of Mr. Kenneth Johnston, Q.C., appointed by the Board of Trade, reported on the law of industrial designs. It has not been possible to implement its recommendations because of the length of the Bill required and the priority of other legislation. This Bill in no way conflicts with the Committee's recommendations. It represents a half-way stage. The Committee recommended the introduction of a design copyright system in which copyright would depend on originality and not upon novelty. This Bill gives effect to this.
Secondly, as an incident of this, the Committee recommended the deposit of a representation of a design at the Patent Office. The purpose of this was not to define the design, but merely as a matter of record. The Bill does not provide for this because protection is confined to designs which are also artistic works under the 1956 Act. Thirdly, the Committee also recommended as a further incident, that the Board of Trade should have power to exclude certain articles from the system. This is not in the Bill. The deviation is unimportant. It was to satisfy one of two industries and in particular footwear manufacturers, who had reservations. The footwear organisations have now told the Promoter that they are satisfied with this Bill. The only other recommendation was that the deposit 1376 should include a statement of novelty. Since this Bill is confined to artistic works, this is unnecessary.
This Bill, as well as receiving general support in another place, has the support of the Confederation of British Industry, the British Toy Manufacturers' Association Limited, the British Furniture Manufacturers' Federated Associations, the British National Export Council and the British Jewellers' Association. The promoters have had every help from those who organise the Business both here and in another place and from the Board of Trade, who made available the services of a senior official of the Patent Office, who at one time practised at the Bar, who was personally concerned with the progress of the 1956 Act and who is himself an excellent draughtsman and takes a real interest in the improvement of industrial property law. This Bill is most urgently required and I hope that it will receive your Lordships' approval.

§ BARONESS PHILLIPS
My Lords, I should first like to thank the noble Lord, Lord Cawley, for his very clear and detailed explanation of the Bill, which makes it unnecessary for me to cover the ground which he has so admirably put before your Lordships. I would merely make reference to the Johnston Committee, following the point already made by the noble Lord. The numerous recommendations of that Committee would have involved a major piece of legislation, and it has not been possible to find time for that. But the present Bill meets the need felt by those concerned for a copyright type system of protection by the simple device of amending Section 10 of the Copyright Act so as to postpone its effect for 15 years. It is true that this does not accord in detail with the Committee's recommendations, but it is much simpler to enact and operate than the Committee's scheme, which would have involved two registration systems.
The present Bill does not call for the employment of any more civil servants, and therefore I feel that those noble Lords who from time to time raise questions as to the numbers of civil servants will approve the Bill on that account. Speaking generally, there is no reason 1377 why it should not work satisfactorily to meet the needs of those industries for whom the present system is admittedly unsatisfactory. In view of the facts presented by the noble Lord, that the Committee sat some six years ago and that it has not been possible to introduce legislation on the lines recommended, this Bill is heartily supported by Her Majesty's Government.

§ LORD DRUMALBYN
My Lords, I will not detain your Lordships for more than a brief moment, but on behalf of my noble friends I should like to congratulate Mrs. Jill Knight on having been successful in carrying this Bill through another place and also my noble friend Lord Cawley on a most admirable and informative exposition of the purposes of the Bill in this House. It has been most useful to your Lordships to have this explanation. I am grateful that the Government have given the Bill the encouragement that they have given and we shall be glad to see the Bill on the Statute Book.
I should like to ask one question to check up on a minor point. In the list of those whom my noble friend recited as having been consulted, I noticed that he did not mention the Council of Industrial Design. I should think that in this case it would have been desirable to consult the Council, and I hope that they were consulted. Even if they were not, I am sure that they would agree with this Bill, but I feel that a body of their eminence should have been consulted on such a matter.

§ LORD CAWLEY
My Lords, I am afraid that I cannot answer my noble friend's question, but I will certainly inform him and the noble Baroness of whether the Council were consulted. I think that all I can do now is to thank the noble Baroness for her kind remarks, and express my appreciation for the great help that the Board of Trade have given in the progress of this Bill towards the Statute Book.