Copyright, Designs and Patents Bill [H.L.]

HL Deb 29 March 1988 vol 495 cc696-742

8.30 p.m.

Proceedings after Third Reading resumed.

Clause 176 [Duration of rights]:

Lord Beaverbrook moved Amendment No. 132: Page 76, line 39, leave out subsection (2).

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 177 [Transmission of rights]:

Lord Beaverbrook moved Amendments Nos. 133 and 134:

Page 76, line 46, leave out ("expire") and insert ("are exercisable by his personal representatives.").

Page 77, line 10, at end insert— ("(5) Any damages recovered by personal representatives by virtue of this section in respect of an infringement after a person's death shall devolve as part of his estate as if the right of action had subsisted and been vested in him immediately before his death.").

The noble Lord said: My Lords, I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Clause 181 [Right to seize illicit recordings]:

Lord Beaverbrook moved Amendment No. 135:

Page 77, line 42, leave out paragraph (b) and insert— ("(b) that at the time when any recording is seized the person by whom it is seized leaves at the place where it is seized a notice in the prescribed form containing the prescribed particulars as to the person by whom or on whose authority the seizure is made and the grounds on which it is made.").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 183 [Forfeiture of illicit recordings]:

Lord Beaverbrook moved Amendment No. 136: Page 79, line 45, leave out ("district or").

The noble Lord said: My Lords, the noble Lord, Lord Williams of Elvel, moved an identical amendment at Committee stage in respect of what is now Clause 101, which is the corresponding clause in Part I. He said he had been advised by his noble friend Lord Morton of Shuna that the district court was not an appropriate place to deal with the matters in question. In that he was right, and I readily accepted his amendment. This amendment is necessary in Clause 183 for the same reason. I beg to move.

Lord Morton of Shuna

My Lords, it is very nice to come into the Chamber and be told that I was right. I thank the noble Lord for this amendment.

On Question, amendment agreed to.

Clause 193 [Expressions having same meaning as in copyright provisions]:

Lord Beaverbrook moved Amendment No. 137: Page 83, line 25, after ("delivery") insert ("up").

The noble Lord said: My Lords, in moving this amendment I speak also to Amendments Nos. 138 and 139. These are minor drafting improvements or corrections which do not involve matters of substance. The references to judicial and parliamentary proceedings in Clause 193 are not needed since these expressions are not used in Part II but only in Schedule 2 where the necessary references to meanings as in Part I appear in the appropriate paragraphs. The amendment to line 25 corrects a drafting error and makes Clause 193 consistent with Clause 194. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 138 and 139: Page 83, leave out line 27. Page 83, leave out line 29.

The noble Lord said: My Lords, I have spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Clause 194 [Index of defined expressions]:

Lord Beaverbrook moved Amendment No. 140: Page 84, line 8, column 2, after ("193") insert ("(1)").

The noble Lord said: My Lords, with leave I shall speak also to Amendments Nos. 141, 142, 171, and 173. These are all concerned with minor improvements to the drafting to make the cross-references to the definitions of various terms a little more specific. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 141 and 142: Page 84, line 9, column 2, after ("193") insert ("(1)"). Page 84, line 10, column 2, after ("193") insert ("(1)").

On Question, amendments agreed to.

Clause 195 [Design right]:

Lord Mottistone moved Amendment No. 143: Page 84, line 38, at end insert ("or").

The noble Lord said: My Lords, I should like to speak also to Amendments Nos. 144 and 147, which are my amendments and which go together; and Amendments Nos. 175, 176 (which is my amendment) 179, 214, 216. 219 and 225. We have understood that the "must match" exception to protection for design right is intended to prevent the abuse of design right by motor car manufacturers in respect of spare parts for motor cars. It is largely in the area of motor car spares that controversy has arisen in the past in respect of the protection conferred on industrially applied design by copyright.

While I and the CBI do not agree that there has been an abuse of intellectual property rights, the CBI is of the opinion that if there is such a perceived abuse the exclusions from design right protection should be confined to those sectors of industry where the abuse occurs. This is most easily achieved by designating certain classes of article to which the must match exception should apply. The proposed amendments permit the Secretary of State to designate classes of article, for example, spare parts for motor vehicles, to which a must match exception applies.

The Secretary of State then has the ability to tailor the effect of design right protection so that any adverse effects on consumers are eliminated. Those sectors of industry which need design right protection to justify investment in good design can obtain that protection.

This is altogether a more flexible approach than a simple minded exclusion from protection determined by activities in a relatively small sector of British industry. For those reasons I seek to omit Clause 195(3)(c) and, in effect, to replace it by my new subsection, which is Amendment No. 147.

Amendment No. 176 applies the same subsection and the same principle to Clause 243, which are the amendments to the Registered Design Act. The other amendments in the name of my noble friend the Minister, Amendments Nos. 145, 175, 179, 214, 216, 219 and 225, do not appear to me to be linked to this in any way; but perhaps that is because I am dumb. It does not seem to me that I have any objection to them. They just look like tidying-up amendments, though no doubt we shall hear more about that from my noble friend the Minister. I beg to move Amendment No. 143.

Lord Lucas of Chilworth

My Lords, since I was involved in the earlier stage in this area of the Bill, I should take exception with my noble friend on this occasion in that his Amendments Nos. 143 and 144 take away the existing provisions which were a fundamental part of this part of the Bill. It leaves the equivalent of the provisions to the Secretary of State.

I suggest to the House that once the provision is removed, those opposed to that which the Bill as currently written provides for the motor industry will lobby to keep the industry out. We shall end up with a good deal more legislation; that is, representation to the Secretary of State. Under Amendment No. 147, when he makes his orders—these will presumably be by either negative or positive resolution of each House—we shall go through a long process. The injustice that currently applies will in effect continue for a long time to come. I hope therefore that my noble friend the Minister will resist my noble friend's set of amendments in this area and leave matters as they are in the Bill.

It would be right and proper for me to correct something that I said on 1st March when we discussed this matter. I said on that occasion that the State Farm Insurance Company of America had a lawsuit against Ford in America. I owe an apology to the Ford Motor Company because the lawsuit is against the Volvo company. Nevertheless, the substance of the matter is precisely the same. It is to ensure that there is open competition in the spare parts and replacement panel industry. For those reasons I hope that what is in the Bill will be retained.

Lord Beaverbrook

My Lords, with the leave of the House I shall also speak to the grouping of amendments detailed by my noble friend Lord Mottistone. That includes Amendment No. 145 which appears on the groupings list but which my noble friend omitted to mention. All of these amendments concern the must-match exception. I should like to turn first to my noble friend Lord Mottistone's Amendments Nos. 143, 144, 147 and 176. He said these would limit the must-match exceptions to those sectors of industry where abuse has occurred. But the must-match exception is not intended to deal with abuses.

As I explained both in Committee and on Report, the must-match exception is intended to prevent monopolies arising in the first place, and to preserve the benefits of competition. Although design right is only a right to prevent copying, it is quite clear that in circumstances where a competitor has no choice but to copy if he is to produce a part which will match, then if there were no must-match exception he could be completely shut out of the market. This is not a question of abuse but of basic policy. And I have to say that this Government do not wish to create monopolies in this way in any sector of industry.

In this respect, a lot has been said about the design right proposals having been based on the needs of the motor industry. This is not the case. It is true that the problems of over-strong copyright protection first showed themselves in the motor industry, but the need to preserve competition is just as important in any sector of industry. And we should be quite clear about this: the absence of a must-match exception would enable competition in certain kinds of product to be totally frozen out. In our view that is not the way that the markets should operate. For that reason, I must say to my noble friend that I cannot accept his amendments.

I should like to turn now to Amendments Nos. 145, 175, 179, 214, 216, 219 and 225 all standing in my name. These amendments are intended to clarify the effect of the must-match exceptions to both design right and registered designs. They arise from concern which has been expressed in your Lordships' House and elsewhere that the must-match exception will effectively take away design protection in a wide range of cases where an independently designed item is subsequently used with other identical items in some larger article. It was never our intention that the must-match exception should apply in such cases. The question of whether the must-match exception applies is to be answered at the moment when the design is created, not at some later time. And the amendents are intended to put this beyond doubt.

For example, suppose that a new shape of an all-purpose strut is designed. If that is all that is designed, then it is quite clear that, at the moment of its creation, the shape or design of the strut is not dependent on anything else. In these circumstances the must-match exception should not apply because there is nothing to stop anyone else designing their own strut. In other words, there is no monopoly which needs to be avoided. Of course, the strut may subsequently be used by someone else, for example in a protective grille where there are a number of matching struts. At this point the shape of any one of the struts matches that of the others and any replacement would also need to match the others. However, in our view the must-match exception should not apply in these circumstances.

The uses to which an independently created design may subsequently be put should not affect the rights of the designer. In other words, those who design free standing things where there are alternatives should not be subjected to must-match, even where the design is subsequently used in a situation where the articles match other articles. This is the main thrust of the amendments but I should perhaps add that Amendments Nos. 179, 214, 219 and 225 are drafting amendments, consequential on the additional reference to "the author" of a design which would be introduced by Amendments Nos. 175 and 216.

For the reasons stated I must resist my noble friend's Amendment No. 143.

8.45 p.m.

Lord Mottistone

My Lords, I thank my noble friend for his careful explanation. I am sorry that he cannot go some way towards accepting my amendments. I feel sure that those who have advised me and the CBI will read what he has said with great care. I should not be surprised if this matter returned when the Bill goes to another place. However, at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 144 not moved.]

Lord Beaverbrook moved Amendment No. 145: Page 84, line 40, after ("intended") insert ("by the designer").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 146: Page 84, leave out line 42 and insert— ("(d) surface decoration.").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 147 not moved.]

Clause 198 [Duration of design rights]:

Lord Mottistone moved Amendment No. 148: Page 85, line 32, leave out from ("which") to ("an") in line 33.

The noble Lord said: My Lords, the amendment is proposed as a result of many other amendments to the clause in order to try to free it a little. In general an article would be made after the design, and this is an alternative way of extending the term. As at present drafted Clause 198 involves the use of three alternative tests to determine the period of protection provided by design rights: namely, 15 years from the end of the calendar year in which the design was first recorded; 15 years from the end of the calendar year in which an article was first made; and 10 years from the end of the calendar year in which an article was first marketed. Bearing in mind the difficulty of defining with any precision the term "marketing", the use of three alternative definitions is excessive. My amendment proposes to reduce the number to two.

In moving this amendment I am also speaking to Amendments Nos. 149 and 170 standing in my name. The latter amendment is intended to simplify the definition of the term "marketing". The definition of the term "design right" is simplified "to stop the clock running" —a phrase used by the Minister—before an article has even been designed (for example, the sale of an aircraft to an airline) and well before any real marketing takes place. I beg to move.

Lord Beaverbrook

My Lords, I should like to speak to Amendments Nos. 148, 149, 150, 151, 152 and 170. They cover the same point. Dealing first with my noble friend's Amendments Nos. 148 and 149, these would mean that the 15-year cut-off period would start only when the first article is made to the design. In the typical case of a design which starts life as a drawing and then progresses through a model and a prototype to the final article, the effect would be that the 15-year period would start when the model was made; that is, some time later than would be the case under the Bill as drafted.

But what of designs which remain on the drawing board? As long as no articles are made to the design, design right would continue to exist and that could go in perpetuity. We have set our face against perpetuity rights in the Bill with an exception for one special case. I do not believe that we should allow the possibility in design right. The incentive to bring designs to the market place would be reduced and potentially useful designs which could be exploited by others after the 15-year cut-off period could remain unused. For those reasons I must resist my noble friend's Amendments Nos. 148 and 149.

I should like to deal with Amendments Nos. 150, 151 and 152 standing in my name. They fulfil undertakings which I gave to come forward with amendments to ensure that the 10-year term of design right does not start to run until articles made to the design are in existence and are put on the market. The difficulty arises because as it stands at present, the Bill uses the concept of marketing to start the clock; and marketing includes offers to sell as well as sale itself. The result is that the 10-year clock would start when articles made to the design are offered for sale. This formula could start the clock before any articles were actually in existence, possibly even before a final design had crystallised.

The amendments on the other hand would start the clock when articles made to the design are first made available for sale or hire. It follows from this formulation that the countdown to the end of design right protection will not start until articles are in existence and are put on the market. In our view the term of design right should be 10 years in the real market and these amendments will achieve that aim.

Finally, I should say a few words about my noble friend's Amendment No. 170 which I think is directed towards a similar end. My noble friend's amendment would modify the general definition of marketing. However, we think that it is necessary to deal with the starting of the clock separately and to leave the general definition of marketing undisturbed. In any event, I hope that my noble friend will feel that my amendments adequately deal with the problem of starting the 10 year clock and that, as a result, he will not feel it necessary to move his own amendment.

Lord Mottistone

I thank my noble friend. I apologise for not referring to his amendments when moving my own. Those amendments go some way towards what we are talking about but not as far as my amendment or as far as one would have wished. However, it is a good move and no doubt that matter can be pursued later elsewhere. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 149 not moved.]

Lord Beaverbrook moved Amendments Nos. 150, 151 and 152:

Page 85, line 35, leave out ("marketed") and insert ("made available for sale or hire")

Page 85, line 37, leave out ("such articles were first marketed") and insert ("that first occurred")

Page 85, line 38, leave out subsection (2) and insert— ("(2) The reference in subsection (1) to articles being made available for sale or hire is to their being made so available anywhere in the world by or with the licence of the design right owner.")

The noble Lord said: My Lords, I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Clause 204 [Assignment and licences]:

Lord Beaverbrook moved Amendment No. 153: Page 87, line 45, leave out ("acts") and insert ("things")

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 208 [Primary infringement of design right]:

Lord Beaverbrook moved Amendment No. 154: Page 89, line 8, at end insert— ("(1 A) Reproduction of a design by making articles to the design means copying the design so as to produce articles exactly or substantially to that design, and references in this Part to making articles to a design shall be construed accordingly.")

The noble Lord said: My Lords, in moving Amendment No. 154, I shall also speak to Amendments Nos. 156, 157 and 174. They all concern the meaning of the word "reproduction". When we discussed this question in Committee, my noble friend Lord Campbell of Alloway expressed the fear that, as drafted, the restricted act of reproducing a design went too wide. My noble friend Lord Stockton and the noble Lord, Lord Lloyd of Kilgerran, expressed similar worries on Report. As a result, I undertook to look at the drafting and these amendments are the result of those deliberations.

The first worry that these amendments are intended to overcome is whether reproduction is limited to copying, or whether it goes wider than that and covers the independent creation of the same design. As I said in our earlier debates, the word "reproduction" appears in the existing copyright law and has always been taken to mean copying. However, the copyright provisions in Part I of the Bill use the term "copying" rather than "reproduction" and consequently there is a danger that if we do not do the same here in design right, the word "reproduction" in Part III might be taken to include reproduction by independent creation. Since it has always been our intention that design right should cover only actual copying, I am happy to put this beyond doubt.

The second worry that was raised concerned the question of how similar to the original a copy had to be before it would infringe design right. In our view, the right test is that a copy should be either exactly or substantially the same as the original, and that is what amendment No. 154 provides. Amendments Nos. 156 and 174 are consequential on Amendment No. 154.

Finally, I should say a few words about Amendment No. 157 which would delete paragraph (b) of Clause 208(3). As I explained in Committee, the purpose of this paragraph was to make it absolutely clear that if a person copies a design in the process of producing a derivative design, he infringes design right in the original design. The example I gave was a doll, the design of which had been copied and adapted to create a toothbrush holder based on the doll. The debates in your Lordships' House have however convinced us that this does not need saying. Furthemore, since it was clear in our debates that the paragraph was being taken to be a definition of the meaning of "reproduction", with the result that a reproduction could be very different from the original, we think that the best solution is to delete the paragraph altogether. I beg to move.

Lord Lloyd of Kilgerran

My Lords, I thank the Minister and his advisers for bringing forward these amendments having regard to what I said earlier in these proceedings.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 155:

Page 89, line 11, at end insert— ("(2A) Design right is also infringed by a person who without the licence of the design right owner does or authorises another to do either of the acts mentioned in subsection (1) in relation to a kit, that is, a complete or substantially complete set of components, intended to be assembled into such an article as is mentioned in that subsection.").

The noble Lord said: My Lords, I should like to speak to Amendments Nos. 158 and 159 which are all intended to meet a point made by my noble friend Lord Mottistone. During the debate on Report on the must-match exception to design right, my noble friend expressed concern that the must-match exception would seriously weaken the protection given by design right to articles which are made in two matching parts. The example he gave was of a vegetable dish where the lid must match the body, and the body must match the lid. His concern was that this would allow competitors to take unfair advantage by making and selling lids and bodies separately.

I should say that we do not share that fear: we do not believe that the courts would fail to stop people acting in this way because anyone who is making and selling lids and bodies in pairs is clearly making and selling complete vegetable dishes. In our view it is quite right that people should be stopped from acting in this way. However, that being the case, and given that we already have a kit provision for registered designs, we felt it would be right to include a kit provision for design right to remove any lingering doubts. I beg to move.

Lord Mottistone

My Lords, I am grateful to my noble friend for having met this point which I made at varying stages of the Bill. It goes some way towards meeting the objections we had to the Bill as cast. I thank him very much.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 156 and 157: Page 89, leave out lines 12 and 13 and insert ("For the purposes of this section"). Page 89, leave out lines 17 and 18.

The noble Lord said: My Lords, I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Clause 209 [Secondary infringement: importing or dealing with infringing article]:

Lord Beaverbrook moved Amendments Nos. 158 and 159:

Page 89, line 21, leave out ("also").

Page 89, line 28, at end insert— ("(1A) Design right is also infringed by a person who without the licence of the design right owner does any of the acts mentioned in subsection (1) in relation to a kit, that is, a complete or substantially complete set of components, intended to be assembled into such an article as is mentioned in that subsection.").

The noble Lord said: My Lords, I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Clause 212 [Right to delivery of infringing articles, &c.]:

Lord Beaverbrook moved Amendment No. 160: Page 90, line 27, after ("it") insert ("has been or").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Lloyd of Kilgerran moved Amendment No. 161: After Clause 215. insert the following new clause:

("Compensation of employees fir certain designs.

Where it appears to the Registrar of Designs on an applicaton made by an employee that the employee has made a design belonging to the employer that the design is (having regard among other things to the size of the employer's undertaking) of outstanding benefit to the employer and that by reason of those facts it is just that the employee should be awarded compensation or award to be paid by the employer, the Registrar may award him such compensation or award as he thinks fit having regard to the nature of the employee's duties, his remuneration and the other advantages he derives or has derived from his employment, the effort and skill which the employee has devoted to making the design, the effort and skill which any other person has devoted in making the design jointly with the employee and the contribution made by the employer to the development and working of the design by the provision of advice and facilities.").

The noble Lord said: My Lords, this is an old friend and I am not proposing to weary your Lordships with all the arguments in favour of it. The theme is that any designer who makes a substantial design of outstanding benefit to his employer should receive some compensation. This amendment is along the same lines as an amendment introduced in the Patents Act 1977 during the passage of which I had considerable opportunity to bring forward that amendment, and I am trying to do the same with regard to design. The employee designer would be entitled to go to the Registrar of Designs and put his case and have the award made as the amendment states: having regard to the nature of the employee's duties, his remuneration and the other advantages he derives or has derived from his employment, the effort and skill which the employee has devoted to making the design, the effort and skill which any other person has devoted in making the design jointly with the employee and the contribution made by the employer".

This amendment had wide support from all sides of the House when I raised it before and I understood that the Minister was prepared to think again about it and on that assurance, I withdrew it. I beg to move.

9 p.m.

Lord Morton of Shuna

My Lords, I hope that the Minister and the Government are prepared to accept this amendment. The Minister has been extremely helpful on very many of the ideas that have been put forward from this side of the House. The noble Lord, Lord Lloyd of Kilgerran, was able to persuade a reasonable government in 1977 to adapt the Patents Act to his wishes and it would be nice if this Government, which we perhaps do not regard as quite as reasonable as the government of 1977, were to show that on this occasion we are wrong.

Lord Beaverbrook

My Lords, be that as it may, I am afraid that I am unable to be very helpful to the noble Lord tonight, but I assure him that we have given long and careful consideration to what he said previously.

As the noble Lord, Lord Lloyd of Kilgerran, has explained, these amendments concern remuneration for employee designs. When we debated two similar amendments which the noble Lord tabled on Report, I indicated that we were generally unsympathetic but that we would take the matter away and consider it. We have now given the matter careful consideration and I regret to tell the noble Lord that we do not believe it would be appropriate to do what he proposes.

As I indicated in the debate on Report, the main argument against the proposal of the noble Lord, Lord Kilgerran, is that it would impose a significant regulatory burden on industry. A firm wishing to check claims from employees would need to keep much more detailed records about who had designed what than they now do and would probably need entirely new accounting procedures to relate profitability to particular designs. There would also inevitably be time-consuming disputes about, say, the relative contributions of members of a design team, or the financial benefit deriving from a particular design. It is of course true to say that these problems also exist with the corresponding patent provision. But the difficulties there are much less extreme because there are very many fewer patents than designs. Moreover, patents have to be applied for in any event and therefore necessarily already require much of the record keeping which is required. Design right on the other hand is acquired automatically without any need to make an application and to add the burden of record keeping to keep track of employee designs would take away much of the advantage this gives, particularly to small firms.

In the light of all that, our view is that the noble Lord's amendment would place a significant regulatory burden on British industry which cannot be justified. For this reason I am unable to accept the amendment.

Lord Lloyd of Kilgerran

My Lords, that is a surprising answer to come from a Minister, in the context of social justice. It suggests that where a man creates a design and his firm might make millions out of it he cannot get some compensation. The position of a designer in a company is different from that of an inventor. A designer has little chance of promotion because of his specialist activities. To introduce what are merely procedural objections to what is, in my view, social justice in the context of industrial relations is surprising. The Minister and the Government will not be surprised when I suggest that this matter will be raised again in another place. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 218 [Licences available in last five years of design right]:

[Amendment No. 162 not moved.]

Clause 221 [Crown use of designs]:

Lord Beaverbrook moved Amendment No. 163: Page 95, line 10, leave out from ("Crown") to end of line 31 and insert ("are to—

1. (a) the defence of the realm,
2. (b) foreign defence purposes, and
3. (c) health service purposes.

(3) The reference to the supply of articles for "foreign defence purposes" is to their supply—

1. (a) for the defence of a country outside the realm whose Government is party to an agreement with Her Majesty's Government in the United Kingdom in respect of defence matters: or
707
2. (b) for use by armed forces operating in pursuance of a resolution of the United Nations or one of its organs.").

The noble Lord said: My Lords, in moving this amendment, I speak also to Amendments Nos. 164, 165 and 166 in the name of the noble Lord, Lord Lloyd of Kilgerran.

When the Crown use clauses were debated in Committee it was argued that the powers to be granted to the Crown were excessive. The powers in the clauses cover the purchase of equipment generally, not just defence equipment or equipment for the health service and I undertook to see whether this was too wide.

Having considered the point, we have concluded that the general power provided by the Bill is not in fact necessary. Accordingly, the amendment would provide a specific power limited to defence purposes and health service purposes only. However, I include foreign defence purposes in the definition of defence purposes, provided of course that there is an appropriate agreement or arrangement with the foreign government or governments—for example, NATO—or a resolution of the United Nations. The argument for extending powers to foreign defence purposes boils down to the fact that to a considerable extent there is no real difference between the categories of articles procured for UK defence purposes and those procured for foreign defence purposes.

Wherever possible equipment is standardised between ourselves and our allies—in NATO, the Commonwealth, or wherever—and all the parts have to be identical. Indeed, common stocks are often held and can be called upon in emergencies by our allies for use in their defence equipment. In these circumstances it would be impractical, even if it were not strictly impossible, to monitor which of our stocks were subject to design right and which were not. That is not to say that a careful check is not made on equipment exported—it is; but it would be intolerable for some parts to be exportable and some not. I am sure that the majority of manufacturers will understand this.

There is also a need for Crown use powers in the health service. If design right subsists in a surgical or a curative device or a prosthesis—for example, a hip replacement —and the owner of the design right insists upon unsatisfactory terms for supplying the item (for example, in price, quality or time of delivery) it is simply not practicable to redesign a substitute.

I appreciate that the question of powers in the health service is the subject of amendments in the name of the noble Lord, Lord Lloyd of Kilgerran. All I can say to the noble Lord on this matter is that we have considered it carefully and have concluded that the powers are necessary for the reasons I have given. In this respect, however, I should add that none of the remaining powers would be used without a very good reason.

Authorisations under this clause will certainly not be a standard contract condition in government contracts. They would not be used to legitimise a contractor who had deliberately infringed a design right held by a third party. Furthermore, the powers would only be used where design right owner abuses his rights and the Ministry of Defence has undertaken that only those officers who have authority to authenticate the Corporate Seal of the Secretary of State for Defence (that is, any Assistant Under-Secretary or above, or the Principal Directors of Contracts or Patents or the Directors of Contracts or Patents) will be given the authority to authorise use of the power given under these clauses. In the Department of Health and Social Security, an authorisation would only be given at a similar level. I am happy to put those assurances on the record.

It is, I hope, clear that we have gone a very considerable way towards meeting the concerns which have been expressed and I hope that these amendments, together with the assurances I have given, are acceptable. I beg to move.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, if this amendment is agreed to I cannot call Amendment No. 165.

Lord Lloyd of Kilgerran moved, as an amendment to Amendment No. 163, Amendment No. 164: Line 4, leave out ("and (c) health service purposes.").

The noble Lord said: My Lords, I am glad to see that the Government have moved away from the position that they tried to maintain with their extensive powers for Crown purposes. Of course, I am glad to hear the assurances which the noble Lord the Minister has given. As regards all these assurances, it seems to me that many of them could easily be put into the statute. Assurances of the kind he has given may be what this present government may adhere to, but we would like to see this embodied into statute. Therefore, I should like to press my amendment in regard to the deletion of paragraph (c)—that is, the deletion of health services—leaving the powers of the Crown to be exercisable in regard to the defence of the realm and for foreign defence purposes.

The noble Lord referred to certain designs of hip joints and other things. It may be difficult for those to be dealt with by some private firm and then for the Government suddenly to decide to plunge in in order in effect to take over those designs. I can conceive of instances of that happening. It seems to be contrary to the whole philosophy of the Government of using marketable forces to take that kind of action in relation to the design of any equipment in the health service. I beg to move.

Lord Mottistone

My Lords, I apologise to my noble and learned friend for interfering the last time. I very strongly agree with the noble Lord, Lord Lloyd of Kilgerran, in the remarks that he has just made. It is not good enough to have assurances to back up legislation. The amendments of themselves are not satisfactory to industry. The assurances as such will perhaps reassure them temporarily. The CBI had meetings with the Ministry of Defence not long ago and in between the two stages of the Bill. The CBI was given the understanding that there would be a much greater tightening of the powers of the Crown than is in fact the case with these amendments.

As regards the amendment taking out the health clause, it seems to me that that is something which ought to be supported. It is all very well talking about hip replacements and that kind of thing. There is an enormous amount of electronics used in medicine these days. It could well be that the very valuable software associated with medical matters would be in jeopardy if health is given the same kind of priority as defence. As the Ministry of Defence does not seem to think that defence requires this great support, it seems to me that we have not gone nearly far enough. This is not the time to try to change matters. I am quite sure that in another place this subject will be taken up again and it will be pressed with real vigour. It is a sad situation which is not satisfactory as yet.

Lord Morton of Shuna

My Lords, I do not know what has gone wrong today. I find myself supporting the Government rather too often for my own comfort.

It appears to me that it is necessary that health service purposes should be included. Health service purposes provide a situation where the Government as operators of that service are providing, in a monopolist way, health services for something approaching at least 95 per cent. of the health care in the country. If someone said, regarding a hip replacement that they wanted something and they would insist upon it, it would be entirely wrong for some grossly excessive payment to be allowed.

It is quite wrong to apply pure market forces. I am perfectly prepared to attack that as something which it is not right to apply in all circumstances to the health service. However, people like nurses and other workers in the health service are asked to comply with their social obligations.

If business has a patent or design right, or whatever, there should be a power on business to be forced to supply the goods at a reasonable cost. I understand that is the basic purpose behind the amendments. I oppose the amendment tabled by the noble Lord, Lord Lloyd of Kilgerran.

Lord Beaverbrook

The noble Lord, Lord Lloyd of Kilgerran has disputed that perhaps my assurances may not be effective in future years. I would not dispute that the assurances I have given about how the powers will be used are not legally binding in the same way that a statutory provision would be. We are reluctant to write equivalent restrictions into the Bill not least because they are extremely difficult, if not impossible, to frame in the precise way in which statutes are written. Furthermore, writing restrictions into the Bill could be unduly restrictive in that they would be set in concrete and could prevent changes being agreed in the way in which powers should be used in changing circumstances. For those reasons, I prefer not to write any further restrictions into the Bill.

My noble friend Lord Mottistone raised a point about the use of valuable software for health service purposes. Software is not covered by design right in Part III but by copyright in Part I where there are no crime use provisions.

My noble friend suggested that the amendments tabled in my name do not go as far as the Ministry of Defence agreed that they should. The amendments were drawn up in the closest possible consultation with the Ministry and in the light of the meeting to which my noble friend referred.

Lord Lloyd of Kilgerran

My Lords, I am grateful to the Minister for his reply. At this late stage of the Bill I shall not take up the cudgels with the noble Lord, Lord Morton of Shuna. I console myself with the fact that the Government have moved away from the position that they maintained some six weeks ago. I am grateful for the support given by the noble Lord, Lord Mottistone. I shall proceed as he intends to proceed and have the matter raised in another place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 166 not moved.]

9.15 p.m.

Clause 233 [Reference of disputes relating to Crown use]:

The Lord Chancellor moved Amendment No. 167: Page 101, line 2, leave out from ("referred") to end of line 3 and insert ("to the court by any party to the dispute").

The noble and learned Lord said: My Lords, in moving this amendment, I speak also to Amendments Nos. 168, 212, 213, 223 and 224. All are consequential upon the establishment of the patents county court jurisdiction. Part III of the Bill, Clause 223, design right, and the Registered Designs Act 1949, at present define the court for proceedings under them as the High Court in England and Wales. Without these amendments, notwithstanding the establishment of the new jurisdiction, the county court will be unable to hear disputes relating to the Crown use of a design and cases under the Registered Designs Act 1949. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 168:

Page 101, line 30, at end insert— ("(6) In this section "the court" means—

1. (a) in England and Wales, the High Court or a patents county court (see Part VI of this Act),
2. (b) in Scotland, the Court of Session, and
3. (c) in Northern Ireland, the High Court.").

The noble and learned Lord said: My Lords, I have spoken to the amendment. I beg to move.

On Question, amendment agreed to.

Clause 243 [Minor definitions]:

Lord Beaverbrook moved Amendment No. 169: Page 104, line 19, leave out ("employed") and insert ("employee").

The noble Lord said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 172, 178, 215, 218 and 226. The amendments make drafting changes relating to the use of the term "employment" and related expressions in Parts III and IV of the Bill. Clause 253, which contains minor definitions used in Part III, currently contains a reference to "employed", which should read "employee". Amendment No. 169 makes the necessary alteration. Amendment No. 172 would make the consequential change to the index in Clause 244. Amendment No. 178 would bring the wording of Clause 247 into line with that used in Clauses 11 and 197.

Amendment No. 215 would provide definitions of "employee", "employment" and "employer" for the Registered Designs Act 1949 which, if your Lordships agree to Amendment No. 169, would be exactly the same as the definitions of these terms provided in Clause 243 for design right. Amendments Nos. 218 and 226 would make the necessary consequential changes to Schedule 4. I beg to move.

On Question, amendment agreed to.

[Amendment No. 170 not moved.]

Clause 244 [Index of defined expressions]:

Lord Beaverbrook moved Amendment No. 171: Page 104, line 45, column 2, at end insert ("(1)").

The noble Lord said: My Lords, I have already spoken to the amendment. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 172: Page 105, line 2, column I. leave out ("employed") and insert ("employee").

The noble Lord said: My Lords, I have already spoken to the amendment. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 173: Page 105, line 5 [numbered 4], column 2, at end insert ("(1)").

The noble Lord said: My Lords, I have already spoken to the amendment. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 174: Page 105, line 10 [numbered 9], at end insert— ("making articles to a design section 208(1 A)").

The noble Lord said: My Lords, I have already spoken to the amendment. I beg to move.

On Question, amendment agreed to.

Clause 245 [Registrable designs]:

Lord Beaverbrook moved Amendment No. 175: Page 105, line 32 [numbered 31], after ("intended") insert ("by the author of the design").

The noble Lord said: My Lords, I have already spoken to the amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 176 not moved.]

Lord Beaverbrook moved Amendment No. 177: Page 105, line 39 [numbered 38], leave out from ("article") to ("aesthetic") in line 40 [39] and insert ("if the appearance of the article is not material, that is, if').

The noble Lord said: My Lords, in moving the amendment I shall speak also to Amendment No. 217. When we discussed this part of Clause 245 on Report, a number of your Lordships criticised the drafting. These amendments are our attempt to clarify the wording. In this respect, I should perhaps say that the most important thing to note about the new Section 1(3) is that it is concerned with the aesthetic appearance of articles of the kind for which a design is to be registered, and not with the appearance of the design itself.

As I said on Report, the intention is not to deny registered design protection unreasonably but rather to restrict the Act to what we consider to be its proper field in a way which is clear. To this end the object of the provision is to deny registration in respect of articles whose aesthetic appearance is not something which matters to those who use the articles.

There are of course plenty of examples where the aesthetic appearance clearly matters; for example, furniture. And as I said on Report, if it is the case that the aesthetic appearance of farm tractors matters to farmers, or if the aesthetic appearance of scientific instruments matters to scientists, then aesthetic designs would be registrable for these articles. Even where this was not generally true, the final words of the new Section 1(3) will allow for the possibility that appearance would matter if the design in question were applied to the article. In other words, it would be possible to argue that although the appearance of those articles normally does not matter, applying the design to the article will change all that.

As to articles for which designs could not be registered, then I would suggest an ordinary wood screw as an example. Equally however there are plenty of wood screws with decorative heads whose aesthetic appearance clearly does matter to those who use them and the relevant designs would clearly be registrable. This is an important provision in the Bill and it is important that it is clear. In our view these amendments would result in drafting which is clearer. I beg to move.

On Question, amendment agreed to.

Clause 247 [Authorship and first ownership of designs]:

Lord Beaverbrook moved Amendments Nos. 178 and 179: Page 107, line 5, leave out ("a person") and insert ("an employee"). Page 107, line 8, leave out ("subsection (1)") and insert ("this Act").

The noble Lord said: My Lords, I have already spoken to these amendments and therefore I beg to move.

On Question, amendments agreed to.

Clause 248 [Right given by registration of design]:

Lord Beaverbrook moved Amendment No. 180: Page 107, line 36, leave out ("in the United Kingdom or elsewhere").

The noble Lord said: My Lords, with the leave of the House, in moving the amendment, I shall also speak to Amendments Nos. 181, 182, 220, 221 and 222. The amendments all concern the infringing act of making tools for enabling infringing articles to be made. Amendments Nos. 180, 181, 220 and 221 correct an error in the drafting.

The infringing act—in this case the making of tools —is necessarily only caught when it is done in the United Kingdom, so the present reference to the United Kingdom in subsection 3 of the new Section 7 is superfluous and the reference to "elsewhere" is wrong. However, we do not believe that it should matter where the tools are used to make articles and consequently a reference to "the United Kingdom or elsewhere" is needed later in subsection 3 after the word "made".

Having corrected that defect, we now come to Amendments Nos. 182 and 222. They would make it an infringing act to make tools for enabling the making of kits of parts, as well as the making of complete articles. As presently provided, it is an infringement to make and to trade in infringing articles and kits of parts intended to be assembled into infringing articles. It therefore seems anomalous that the making of tools should be an infringement only in relation to the making of complete, infringing articles and not in relation to kits of parts. Amendments Nos. 182 and 222 would remove that anomaly. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 181 and 182: Page 107, line 37, after ("made") insert ("in the United Kingdom or elsewhere"). Page 107, line 42, after ("0 1") insert ("or (3)").

The noble Lord said: My Lords, I have already spoken to the amendments and therefore I beg to move.

On Question, amendments agreed to.

Clause 254 [Persons entitled to describe themselves as patent agents]:

Lord Lloyd of Kilgerran moved Amendment No. 183: Page 109, line 39, leave out ("or "patent attorney" ").

The noble Lord said: My Lords, while moving this amendment, with leave of the House, I should also like to speak to Amendments Nos. 184, 185, 186, 188 and 189. As the Minister is well aware, strong representations have been made to him by eminent solicitors and by the Law Society—I have seen much of the correspondence—saying that it is quite improper and causes confusion to designate a patent agent as a patent attorney.

The word "attorney" associated with a registered patent agent, I am instructed, causes considerable confusion. I am not sure why registered patent agents would want to use the word "attorney" in that context. They have the opportunity to use the name "European patent attorney" in the context of their international obligations. I beg to move that the words "patent attorney" be eliminated.

Lord Beaverbrook

My Lords, with the leave of your Lordships, I shall speak also to the amendments quoted by the noble Lord.

Similar amendments were moved in Committee, and my noble friend Lord Dundee indicated at that time that we would look again at the question of the references to "patent attorney" in the Bill.

This is rather a difficult issue, but the fundamental point on which it turns is Section 21 of the Solicitors Act 1974. This provides that it is an offence for any unqualified person to use a title which implies that he is qualified to act as a solicitor. The Law Society contends that the use of the title "attorney" by a person who is not a qualified lawyer would contravene that section.

The Government are content to leave that question of interpretation to the courts, and I am not going to comment on it here. However, I should like to point out that while the Bill incorporates a saving to the effect that the use of "European patent attorney" by persons on the European list does not contravene Section 21 of the Solicitors Act, there is no such saving in respect of the use of the words "patent attorney" alone. It therefore follows that nothing in this part of the Bill affects any restrictions which may currently exist on the use of "patent attorney".

Clause 254 does not give any person permission to use the title "patent attorney"; it merely states that certain persons may not use the title. This may seem a little odd, but we consider it necessary for the following reasons.

In future, unqualified persons will be able to offer patent agency services. Because under the Bill, such persons will still not be free to call themselves "patent agents", they will need to adopt some other title, and "patent attorney" would be one obvious possibility. However, we believe that the use of the title "patent attorney" by persons who are not registered patent agents should not be allowed. I emphasise that this does not mean that we want to encourage the use of "patent attorney" by patent agents; it is simply a reflection of our belief that these words would in fact convey to the public the impression that the person using them is a qualified patent agent. This has come about principally through the legitimate use of "European patent attorney" by patent agents entitled to appear before the European Patent Office. I am sure that your Lordships would agree, therefore, that to permit the use of "patent attorney" by persons who are not registered patent agents would be undesirable. The references to "patent attorney" in Clause 254 are included to ensure that, whatever the position under the Solicitors Act, such persons are prohibited from using the title.

I shall just add at this point, because Clause 254 is structured so as to prohibit certain persons using the title "patent attorney" rather than positively to permit anyone to use it, the amendments proposed by the noble Lord, Lord Lloyd, would not have the effect of removing any entitlement of registered patent agents to use the title. The Bill as presently drafted gives them no such entitlement. The amendments would merely remove from the Bill any prohibition on persons not registered as patent agents from using the title, leaving this matter to be determined for them, as well as for registered patent agents, by Section 21 of the Solicitors Act.

For those reasons, I would have to resist the noble Lord's amendments.

Lord Lloyd of Kilgerran

My Lords, I am grateful to the noble Lord for what he has said. I am sure that noble Lords will agree with me that it would be brave—indeed foolish—for me to take up the cudgels with him on behalf of the Law Society, or eminent solicitors, in the presence of the noble and learned Lord the Lord Advocate and the noble and learned Lord who sits on the Woolsack. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 184 to 186 not moved.]

9.30 p.m.

Lord Beaverbrook moved Amendment No. 187: Page 110, line 3, leave out ("attornies") and insert ("attorneys").

The noble Lord said: My Lords, with the leave of your Lordships, in moving this amendment I shall speak also to Amendment No. 190. These amendments correct the spelling of the word "attorneys". My noble friend Lord Stockton moved a similar amendment on Report, and your Lordships may recall that I resisted it on the grounds that the spelling used in the Bill was correct. I have to say that I was wrong and that my noble friend was right. However, we have bought a new dictionary, we have a new person to read it and I hope that in future we will at least get our spelling right. I beg to move.

The Earl of Stockton

My Lords, I am grateful to the Minister. I should hate to think that a pair of "i's" could come between us and I am happy that he has shown himself to have the wisdom of the "y's".

Lord Mottistone

My Lords, has my noble friend noted that, as regards the title of Clause 255. the word "attorneys" is also spelt incorrectly in the margin?

Lord Beaverbrook

My Lords, no.

Lord Mottistone

My Lords, perhaps that should be corrected as well.

On Question, amendment agreed to.

[Amendments Nos. 188 and 189 not moved]:

Clause 255: [Persons entitled to describe themselves as European patent attornies, &c.]:

Lord Beaverbrook moved Amendment No. 190: Page 110, line 42. leave out ("attornies") and insert ("attorneys").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 191: Page III, line 9, at end insert— ("(5) A person whose name appears on the European list is not guilty of an offence under section 21 of the Solicitors Act 1974 or Article 22 of the Solicitors (Northern Ireland) Order 1976 by reason only of describing himself as a European patent attorney.").

The noble and learned Lord said: My Lords, in moving Amendment No. 191, with the leave of your Lordships I shall also speak to Amendments Nos. 193, 194 and 230. The purpose of most of these amendments is to group existing provisions relating to patent agents in a single schedule to the Bill. I do not expect that your Lordships would wish me to trouble you with the detail of that reorganisation.

The new Section 102A confirms the decision of the High Court in Reiss Engineering Company v. Harris. There the court held that Section 102(3) of the Patents Act 1977 permits patent agents and non-practising barristers to conduct all stages of litigation when appearing for a client on an appeal from the comptroller.

In order to put the matter beyond doubt, this amendment confirms that decision. It does not create any new right of audience. The new subsection (2) in Clause 267 provides a power to regulate the conduct of a patent agent before the patents county court. The new Section 102A(3) provides for a similar regulatory power in the patents court. Patent agents are a well-disciplined profession and I see the existence of these powers only as a longstop which I hope it will never he necessary to use.

I have for a moment passed over the amendment creating the new Section 99A to the Patents Act 1977. This amendment gives the patents court a power similar to that given to the patents county court in Amendment No. 201, to order a Patent Office report. It gives the patent court a power which otherwise only the patents county court would have had. I beg to move.

Lord Williams of Elvel

My Lords, if I may say so, the noble and learned Lord skated through the reasons for moving this amendment and I am perfectly happy to accept his word. As a complete layman in the business, perhaps I may ask the noble and learned Lord where, as a businessman, I find the European list. Is that something to which the noble and learned Lord could respond?

The Lord Chancellor

My Lords, I regret that I cannot give the precise location of the European list at the moment. I think there are copies of it in a number of places and perhaps the noble Lord would allow me to write to him on the point.

On Question, amendment agreed to.

Clause 257 [Privilege 16r communication for patent agents]:

Lord Beaverbrook moved Amendment No. 192: Page 112, line 10, leave out ("does not include criminal proceedings but").

The noble Lord said: My Lords, with the leave of your Lordships, in moving this amendment I shall speak also to Amendment No. 195. At the Report stage my noble friend Lord Mottistone tabled amendments to these clauses which sought to bring criminal proceedings within the classes of proceedings in which communications with qualified patent agents and trade mark agents would be privileged.

In speaking to these amendments my noble friends Lord Mottistone and Lord Jenkin of Roding both made the point that advice given by patent agents may be equally germane to civil and criminal proceedings, and that there is no clear justification for making a distinction between them for the purposes of privileged communications. I expressed some sympathy with this view and said that we would look again at the question. Having done so we have come to the conclusion that the reference to criminal proceedings in both Clauses 257 and 263 should be deleted so that privileges for communications with qualified patent agents and trade mark agents will extend to all legal proceedings. I beg to move Amendment No. 192.

Lord Mottistone

My Lords, I want very much to thank my noble friend for taking this up and moving the amendments.

Lord Williams of Elvel

My Lords, I am sure that the amendment is correct in what it seeks to do. The support of the noble Lord, Lord Mottistone, is right. As a layman I am always concerned about the extension of legal privilege. I wonder whether this formulation is really right. Are we to understand from the amendment that if there is a communication between a client and a patent agent which involves a Guinness-type situation, if I may put it like that, that communication if the amendment is accepted is now privileged? In other words, if there is a DTI inquiry ino a Guinness-type situation a patent agent can plead that he cannot give evidence to DTI inspectors. I think everyone understands what I mean by a Guinness-type situation. Is that what the amendment if passed would mean?

Lord Beaverbrook

My Lords, I believe that the powers of inspectors are covered under other legislation. In the example mentioned by the noble Lord —I do not want to get involved in particular cases—it would depend perhaps on whether criminal proceedings had been commenced.

The noble Lord will be well aware that very often where inspectors are appointed there is no question of criminal proceedings being commenced at that time. I suspect that it would vary very much from case to case. However, I would say that the privilege is limited to patent and similar proceedings and that the example given is unlikely to fall into such a category.

On Question, amendment agreed to.

Clause 259 [Right of audience in patent proceedings]:

The Lord Chancellor moved Amendments No. 193: Leave out Clause 259.

On Question, amendment agreed to.

Clause 260 [Effect of enactments relating to preparation of documents, &c.]:

The Lord Chancellor moved Amendment No. 194: Leave out Clause 260.

On Question, amendment agreed to.

Clause 263 [Privilege for communications with registered trade mark agents]:

Lord Beaverbrook moved Amendment No. 195: Page 115, line 6, leave out ("does not include criminal proceedings but").

The noble Lord said: My Lords, I have just spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 266 [Patents county courts to exercise special jurisdiction]:

The Lord Chancellor moved Amendment No. 196: Leave out Clause 266 and insert the following new clause:

("Patents county courts: special jurisdiction.

.—(1) The Lord Chancellor may by order made by statutory instrument designate any county court as a patents county court and confer on it jurisdiction (its "special jurisdiction") to hear and determine such descriptions of proceedings relating to patents and designs as may be specified in the order.

(2) The special jurisdiction of a patents county court is exercisable throughout England and Wales, but rules of court may provide for a matter pending in one such court to be heard and determined in another or partly in that and partly in another.

(3) A patents county court may entertain proceedings within its special jurisdiction notwithstanding that no pecuniary remedy is sought.

(4) An order under this section providing for the discontinuance of any of the special jurisdiction of a patents county court may make provision as to proceedings pending in the court when the order comes into operation.

(5) Nothing in this section shall be construed as affecting the ordinary jurisdiction of a county court.").

The noble and learned Lord said: My Lords, Clauses 266 and 267 which I am moving to delete from the Bill were marker clauses to cover the detail proposed for the patents county court. I mentioned to your Lordships on Report that the precise shape of Clause 266 was likely to change. This is the new shape of it.

I originally intended to create this new jurisdiction by adding new sections to the County Courts Act 1984. Having considered the matter and with advice, I now consider that it would be better if the more direct approach of the clauses forming part of this Bill were adopted. The new jurisdiction will therefore be created by analogy with that of divorce county courts which have national jurisdiction, rather than following the original pattern of admiralty jurisdiction which is exercised locally by combining county court districts.

This clause repeats, for the most part, those provisions which were contained in the new Section 31A of the County Courts Act.

The first subsection (identical in principle to that in Clause 266) enables one or more county courts to be appointed by statutory instrument to hear such descriptions of proceedings relating to patents and designs as may be prescribed. There has been one significant amendment to the scope of the jurisdiction order. At Committee the noble Lord, Lord Lloyd of Kilgerran, raised doubts about the desirability of including the words or other intellectual property and related matters in the new Section 31A(2)(a).

I undertook then to look again at the noble Lord's point and I have now done so, concluding that they gave an unintended breadth to the power to confer jurisdiction by referring to the words "or other intellectual property". However, I believe that it may be wise to retain the phrase "and related matters". Although they do not appear in this particular amendment, that matter may well be raised in another place. The principal purpose of the amendment is to give effect to the point which the noble Lord, Lord Lloyd, raised.

The second subsection represents a slight change from the previous provision, since it refers to an England and Wales jurisdiction rather than one defined by county court districts. In fact, since only one court will be designated, at least at the outset, this represents no change in practice. It may also be simpler as a matter of drafting. Historically, the county court's jurisdiction has been exercised primarily with regard to monetary claims of one kind or another. The range of remedies in patents and design proceedings is liable to be much wider than in ordinary civil proceedings and may be unaccompanied by any financial claim.

The third subsection makes it clear that the county court will have power to grant an injunction or order for delivery up, for example, although no financial claim is made. The fourth subsection allows for transitional arrangements covering proceedings pending in the event of any part of the special jurisdiction being discontinued. This subsection repeats the provision presently in the new Section 31A(4) of the County Courts Act. There is no change of substance proposed.

The fifth subsection separates the new jurisdiction from that of the county court at present. This will leave untouched in the ordinary county court any contractual disputes relating to patents which are presently dealt with there. There is no change here from the provision in the new Section 31A(5). I beg to move.

Lord Williams of Elvel

My Lords, my noble friend Lord Morton of Shuna raised certain points at the Committee stage of the Bill as regards the clauses and in particular the question of finding the right people to perform, if I may use that expression, in those courts. Having agreed at Committee stage to take the point on board and consider it, perhaps the noble and learned Lord will be able to give us a response on that matter.

My noble friend also raised the question of whether the patents county court, designated by order of the Lord Chancellor in the new amendment, has any specific and particular status as opposed to any other county court or whether it has to change its actors, as it were, when it becomes a patents county court. Perhaps the noble and learned Lord can comment on those two points.

Lord Lloyd of Kilgerran

My Lords, I thank the noble and learned Lord on the Woolsack for his reference to what I said concerning the breadth of one of the clauses. I am still unhappy that the words "or related matters" are included in the amendment. I am not sure what that means.

The Lord Chancellor

They are not in the amendment.

Lord Lloyd of Kilgerran

My Lords, I am grateful to the noble and learned Lord. I misunderstood him. Perhaps I may briefly call attention to subsection (1) in Amendment No. 197. It is stated that somehow or other limits should be provided for the amount or value in relation to any description of proceedings within the special jurisdiction of patents county courts. The assessment of limits of amount or value in relation to patents actions is extremely difficult. Frequently, when patent actions are started, one does not know what the patent will be worth. The value of the patent is not really determined until after proceedings have come to an end. I therefore wonder whether, in subsection (2)—

Lord Williams of Elvel

My Lords, I apologise. Is the noble Lord speaking to Amendment No. 196 or Amendment No. 197? I understood that the noble and learned Lord had not spoken to Amendment No. 197.

Lord Lloyd of Kilgerran

My Lords, I am very sorry to have caused confusion.

The Lord Chancellor

My Lords, the two amendments are closely related. However, I moved Amendment No. 196. We shall come to Amendment No. 197 in due course. The noble Lord, Lord Williams of Elvel, asked two questions about Amendment No. 196. He asked whether the Lord Chancellor will be able to find or nominate the right person to be a judge of this court. I do not doubt that that will be a difficult operation and one that will not be contemplated until, first, the primary legislation is in place and, secondly, an order under it is made. It will be quite difficult to find the right person but I believe that it will be possible.

The noble Lord asked whether the people who are in the county court for other purposes will be able to function in the patents county court. The answer is yes. The patents county court will be a county court. The difference between the patents court and other county courts relates to jurisdiction. The patents court will be special in its jurisdiction but that does not preclude officers being officers both of the patents county court and of another court. Whether that would necessarily be the right thing to do is a matter that would fall to be determined in detail when the precise arrangements were made.

The noble Lord, Lord Lloyd of Kilgerran, asked about Amendment No. 196. The amendment as proposed restricts the descriptions of proceedings to those relating to patents and designs and does not include the words "and related matters". I mentioned that I am still doubtful whether it ought to include "and related matters'. The noble Lord is rather against that, and it may be that his view should prevail. When one says "relating to patents and designs", that may be slightly narrow to cover all the types of action that may arise out of a patent or design. Certainly, I intend to look into that matter further as the Bill goes to another place. I beg to move.

On Question, amendment agreed to.

9.45 p.m.

The Lord Chancellor moved Amendment No. 197: After Clause 266. insert the following new clause:

("Financial limits in relation to proceedings within special jurisdiction of patents county court.

.—(1) Her Majesty may by Order in Council provide for limits of amount or value in relation to any description of proceedings within the special jurisdiction of a patents county court.

(2) If a limit is imposed on the amount of a claim of any description and the plaintiff has a cause of action for more than that amount, he may abandon the excess; in which case a patents county court shall have jurisdiction to hear and determine the action, but the plaintiff may not recover more than that amount.

(3) Where the court has jurisdiction to hear and determine an action by virtue of subsection (2), the judgment of the court in the action is in full discharge of all demands in respect of the cause of action, and entry of the judgment shall be made accordingly.

(4) If the parties agree, by a memorandum signed by them or by their respective solicitors or other agents, that a patents county court shall have jurisdiction in any proceedings, that court shall have jurisdiction to hear and detemine the proceedings notwithstanding any limit imposed under this section.

(5) No recommendation shall be made to Her Majesty to make an Order under this section unless a draft of the Order has been laid before and approved by a resolution of each House of Parliament.")

The noble and learned Lord said: My Lords, this clause introduces a number of procedural provisions for the patents county court. The order-making power to set a limit of amount in relation to any proceedings within the patents county court jurisdiction was originally contained in the new Section 31B of the County Courts Act in Clause 266 and is repeated here. So as not to confine the power to limit jurisdiction to money claims, the clause has been extended to limits of "amount and value". It could now, for instance, be applied to the value of a patent in a case where injunctive relief alone is sought. It remains to be seen, however, whether this is a desirable thing to do. What we are doing here is providing the necessary power.

The second and third subsections repeat the provisions of Section 17 of the County Courts Act. They allow a litigant to limit the amount of his claim so that his case can be heard in the patents county court. The fourth subsection allows the parties by agreement to waive the financial limit.

Perhaps I may take this opportunity to answer the question raised, a little prematurely, by the noble Lord, Lord Lloyd of Kilgerran. It is true that the amount involved in a claim may be difficult to estimate at the outset. On the other hand, one may have some idea of it. The powers in subsection (2) allow one, even if one thinks that the true value of the claim may be more than the jurisdiction limit, to go ahead so long as one is prepared to limit the amount for which judgment is sought to the amount for which the limit is set. The idea is to provide a machinery for limiting the size of matters that may be litigated in the patents county court. It follows the provisions to which I have referred, and while this is primary legislation. I think it is right to take this power. Precisely how it may be exercised may be a matter of detail to be considered later on. With those explanations I beg to move.

Lord Lloyd of Kilgerran

My Lords, I am grateful to the noble and learned Lord for his explanation of the matters that I raised rather in advance of my time. If I may say so, the noble and learned Lord has been going rather fast this evening but I never thought that I should be ahead of him by one clause at any stage in the proceedings. I should like to thank him very much indeed for the explanation that he has given.

Lord Morton of Shuna

My Lords, the position of a Scottish lawyer who talks about the patents county court is rather strange and I am very diffident about speaking. It appears to me that perhaps this provision misses the real opportunity that may have occurred in this legislation to make a material change in the procedure of the patents county court. I am referring to the opportunity to change the function of the judge from supervising in the way to which one is accustomed, that is to say a kind of adversarial system, to undertaking what is far more of an inquisitorial role, in which he would say, "This is a simple point which should be dealt with by the county court even if its value is so much", or "This is a difficult problem and it should be dealt with by the High Court, even though its value is less than so much".

That is the real point at which one should be looking in this type of provision because if a person of small means is claiming a patent and a very large company with vast financial resources is asserting its rights, so far as I can see that company can almost force the case into the more expensive court, when in fact the point to be decided may be a fairly simple one and suitable for the county court.

I am sorry therefore that the provisions do not appear to go very far towards giving the judge the power to say, "This is suitable for court A and that is suitable for court B", which would be possible if the judge were given far more inquisitorial powers.

The Lord Chancellor

My Lords, it seems to be my lot tonight to be one step behind. I think that the point raised by the noble Lord, Lord Morton of Shuna, is at least to some extent covered by Amendment No. 198 which I propose to move in a moment. However fast I go, I cannot catch them up.

The question of the inquisitorial nature of the proceedings to some extent is answered by the power to obtain a report which is given in relation, first, to the patents county court and then to the High Court itself, so that the judge will have a right to obtain a report which can affect the course of proceedings. Of course there will be scope for procedural rules for the patents county court which may further assist the matter upon which the noble Lord has commented. So, with respect. I do not think that any opportunity has been lost in the way that he suggested. I believe that, should it be thought right, all the matters that the noble Lord has mentioned can be encompassed under the primary legislative provisions that we are proposing.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 198: After Clause 266, insert the following new clause:

("Transfer of proceedings between High Court and patents county court.

.—(1) No order shall be made under section 41 of the County Courts Act 1984 (power of High Court to order proceedings to be transferred from the county court) in respect of proceedings within the special jurisdiction of a patents county court.

(2) In considering in relation to proceedings within the special jurisdiction of a patents county court whether an order should be made under section 40 or 42 of the County Courts Act 1984 (transfer of proceedings from or to the High Court), the court shall have regard to the financial position of the parties and may order the transfer of the proceedings to a patents county court or, as the case may be, refrain from ordering their transfer to the High Court notwithstanding that the proceedings are likely to raise an important question of fact or law.")

The noble and learned Lord said: My Lords, this new clause is a necessary procedural amendment to facilitate the work of the patents county court and ensure that the criteria for transfer used in relation to current county court business are suitably adapted to cover the new jurisdiction. It is an important consequence of our aim of keeping costs down in patent proceedings that there should be as few obstacles as possible in the way of transferring cases down to the patents county court. The power contained in Section 41 of the County Courts Act 1984 allowing the High Court to order proceedings to be transferred out of the county court will, therefore, by virtue of subsection (1), not apply to proceedings within the patents county court's special jurisdiction. In doing this we accept the recommendation of the committee on patent litigation that the scope of intervention by the patent court in the day-to-day management of the patents county court's business should be restricted.

Subsection (2) qualifies, for proceedings within the special jurisdiction, the considerations relevant to whether an order should be made under Section 40 or 42 of the County Courts Act, which govern the transfer of proceedings from, or to, the High Court. In considering whether an order is made the financial position of the parties shall be a major consideration, notwithstanding that the case is likely to raise an important question of fact or law.

The purpose of this amendment is twofold: to ensure that the small litigant, with limited financial resources, is not deterred from bringing his case in the patents county court by the prospect that it might be transferred to the patent court, and to ensure that the small litigant in the patent court is not financially penalised by being forced to continue his case there. The court will have a choice in the matter, and financial considerations will not necessarily outweigh the importance of any question of fact or law raised by the case.

I should add that this is not a wholly new provision. By virtue of Section 106(1) of the Patents Act 1977 the court, in considering the compensation of an employee for certain inventions, and in determining whether, and what, costs and expenses shall be awarded to any party, shall have regard to all the relevant circumstances, including the financial position of the parties.

The transfer provisions will as a whole place a not inconsiderable responsibility on the judiciary. If the patents county court proposals are to be effective, small litigants must have confidence that they can have access to affordable proceedings notwithstanding the weight and complexity of their case. I am confident that the judges of the patent court and the judges of the patents county court when appointed will exercise this provision firmly and with regard to the vital need to reduce cost and improve access to the courts.

This squarely deals with the point that the noble Lord, Lord Morton of Shuna, was raising a few minutes ago. Putting the financial position of the parties in the forefront of this provision deals with it as effectively as can be done. I beg to move.

Lord Morton of Shuna

My Lords, like the noble Lord, Lord Lloyd of Kilgerran, I apologise for getting ahead of the noble and learned Lord the Lord Chancellor. It is an unusual circumstance. Although this provision deals with the financial position of the parties—I accept that, and it is very valuable—it does not deal with patent litigation which, although fairly major, is fairly simple and should be able to be forced—whatever the financial position of the parties—into the county court if the judge thinks that that is the appropriate court. I am suggesting that the inquisitorial powers, of which I am in favour, and which are the custom in Europe, could be extended further.

Lord Lloyd of Kilgerran

My Lords, I thank the noble and learned Lord for his explanation of the procedures which provide a very valuable measure for reducing the costs of litigation for small business firms. I should like to express very humbly my appreciation of the explanation that he gave of Amendment No. 198.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 199: After Clause 266, insert the following new clause:

("Limitation of costs where pecuniary claim could hare been brought in patents county court.

.—(1) Where an action is commenced in the High Court which could have been commenced in a patents county court and in which a claim for a pecuniary remedy is made, then, subject to the provisions of this section, if the plaintiff recovers less than the prescribed amount, he is not entitled to recover any more costs than those to which he would have been entitled if the action had been brought in the county court.

(2) For this purpose a plaintiff shall be treated as recovering the full amount recoverable in respect of his claim without regard to any deduction made in respect of matters not falling to be taken into account in determining whether the action could have been commenced in a patents county court.

(3) This section does not affect any question as to costs if it appears to the High Court that there was reasonable ground for supposing the amount recoverable in respect of the plaintiffs claim to be in excess of the prescribed amount.

(4) The High Court, if satisfied—

1. (a) that there was sufficient reason for bringing the action in the High Court, or
2. (b) that the defendant, or one of the defendants, objected to the transfer of the action to a county court,

may make an order allowing the costs or any part of the costs of the High Court scale or on such one of the county court scales as it may direct.

(5) This section does not apply to proceedings brought by the Crown.

(6) In this section "the prescribed amount" means such amount as may be prescribed by Her Majesty for the purposes of this section by Order in Council.

(7) No recommendation shall be made to Her Majesty to make an Order under this section unless a draft of the Order has been laid before and approved by a resolution of each House of Parliament.").

The noble and learned Lord said: My Lords, this clause imposes a costs sanction on any plaintiff who brings a case in the patent court which he could have brought in the patents county court, if he recovers damages of less than a certain figure. That prescribed amount will be set by order, and I have in mind, at least initially, a figure of possibly £60,000. We seek to ensure that smaller, run-of-the-mill cases—and I have in mind here patent infringement claims for damages—are dealt with in the patents county court.

The provisions embodied in this clause all derive from existing provisions contained in the County Courts Act 1984. The precedents followed have been the costs limitation applicable to contract and tort actions commenced in the High Court and similar provisions covering Admiralty proceedings. The costs limitation will not apply in cases where the High Court is satisfied that the plaintiff had reasonable grounds for supposing that the damages he would recover would be greater than the prescribed amount. This deals with the point that the noble Lord, Lord Lloyd of Kilgerran, mentioned—that it may be difficult to assess that and it might be reasonable to have assessed it rather higher than the judge may ultimately decide.

Nor will a plaintiff necessarily be penalised if the High Court is satisfied that there were sufficient reasons for bringing the case there, or that one of the defendants objected to transfer down. Nor under subsection (1) will the plaintiff in a case which has been transferred into the High Court be penalised. I beg to move.

On Question, amendment agreed to.

10 p.m.

The Lord Chancellor moved Amendment No. 200: After Clause 266, insert the following new clause:

("Proceedings in patents county court.

.—(1) Where a county court is designated a patents county court, the Lord Chancellor shall nominate a person entitled to sit as a judge of that court as the patents judge.

(2) County court rules shall make provision for securing that, so far as is practicable and appropriate—

1. (a) proceedings within the special jurisdiction of a patents county court are dealt with by the patents judge, and
2. (b) the judge, rather than a registrar or other officer of the court, deals with interlocutory matters in the proceedings.

(3) County court rules shall make provision empowering a patents county court in proceedings within its special jurisdiction, on or without the application of any party—

1. (a) to appoint scientific advisers or assessors to assist the court, Or
2. (b) to order the Patent Office to inquire into and report on any question of fact or opinion.

(4) Where the court exercises either of those powers on the application of a party, the remuneration or fees payable shall be at such rate as may be determined in accordance with county court rules and shall be costs of the proceedings unless otherwise ordered by the judge.

(5) Where the court exercises either of those powers of its own motion, the remuneration or fees payable shall be at such rate as may be determined by the Lord Chancellor with the approval of the Treasury and shall be paid out of money provided by Parliament.").

The noble and learned Lord said: My Lords, the amendment which constitutes this new clause is derived from the recommendations of the Oulton Committee, to which I have already referred. It covers two distinct areas affecting proceedings in the Patents County Court: first, the nomination and duties of a judge and, secondly, the appointment and remuneration of advisers or assessors to assist the court, and the provision of reports by the Patent Office. This is the point to which I referred a moment ago as part of the development towards an inquisitorial procedure.

Subsections (1) and (2)(a) reflect the importance we attach to the report's recommendation that business within the new jurisdiction should only be handled by a judge with experience of patent litigation. They will ensure that not only is a suitably qualified judge appointed to each court but also that he will handle, as far as is possible, all proceedings within the special jurisdiction.

The committee envisaged that the patents judge would take charge of both the interlocutory proceedings and the trial. Subsection (2)(b) provides for this. It is not, however, our intention to cast doubt on the power of the county court registrar to exercise his general statutory jurisdiction concerning such matters as enforcement proceedings and record keeping.

Subsection (3) allows county court rules to provide for the court to have a power, on or without any party's application, to appoint scientific advisers or assessors to assist the court, or to order the Patent Office to inquire into and report on any question of fact or opinion. There already exist within the County Courts Act 1984, the Patents Act 1977 and the Rules of the Supreme Court a number of provisions covering the appointment of scientific advisers to assist the court, or to inquire and report on questions of fact or opinion, and the appointment of assessors to assist the court.

This subsection repeats the existing provisions and introduces a new power, stressed by the committee in its report, to order the Patent Office to provide a report. Such a report will be confined exclusively to technical matters, guiding the judge towards a decision but not pre-empting it. These provisions for obtaining expert assistance in patent proceedings will, we believe, help the court to deal with proceedings in an efficient and informed manner.

The provisions concerning the defraying of remuneration for providers of expert assistance reflect the principles embodied in the existing legislation. Where the court exercises either of the powers in subsection (3) on the application of a party, the remuneration or fees payable will be determined by county court rules and will be costs of the proceedings, unless the judge orders otherwise. If the court exercises either power of its own motion, the remuneration and fees will be paid out of public funds. I beg to move.

Lord Lloyd of Kilgerran

My Lords, it is well known to the noble and learned Lord that possible reduction in costs in patent cases is largely dependent on a proper definition at an early stage of the issues to be decided and upon the firmness of the judge in giving directions to that end. I assume that the noble and learned Lord will have in mind that costs in patent actions sometimes escalate if the judge is not firm about experiments that have to be made. Once one side starts having experiments there are reply experiments, but no doubt that will be taken care of in the usual way by the appointment of a very firm judge in these matters.

The Lord Chancellor

My Lords, I entirely accept the point that has been raised by the noble Lord, Lord Lloyd of Kilgerran. It may not be easy to obtain a suitable judge, but one of the characteristics that one would like to see in the judge is not only that he be an excellent judge but that he has the firmness that the noble Lord has described.

On Question, amendment agreed to.

Clause 267 [Right of audience in patents county court]:

The Lord Chancellor moved Amendment No. 201: Leave out clause 267 and insert the following new clause:

("Rights and duties of registered patent agents in relation to proceedings in patents county court.

.— (1) A registered patent agent may do, in or in connection with proceedings in a patents county court which are within the special jurisdiction of that court, anything which a solicitor of the Supreme Court might do, other than prepare a deed.

(2) The Lord Chancellor may by regulations provide that the right conferred by subsection (I) shall be subject to such conditions and restrictions as appear to the Lord Chancellor to be necessary or expedient; and different provision may be made for different descriptions of proceedings.

(3) A patents county court has the same power to enforce an undertaking given by a registered patent agent acting in pursuance of this section as it has, by virtue of section 142 of the County Courts Act 1984, in relation to a solicitor.

(4) Nothing in section 143 of the County Courts Act 1984 (prohibition on persons other than solicitors receiving remuneration) applies to a registered patent agent acting in pursuance of this section.

(5) The provisions of county court rules prescribing scales of costs to be paid to solicitors apply in relation to registered patent agents acting in pursuance of this section.

(6) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble and learned Lord said: My Lords, this amendment develops, and replaces, the second of the two marker clauses. It covers the rights and duties of patent agents in relation to patents county court proceedings.

The first subsection of this amendment restates the principle expressed in Section 60A(1) of the County Courts Act 1984, which presently appears in Clause 267. The actual scope of the provision is in fact slightly wider since Section 60A(1) would not have allowed a patent agent to conduct that part of the proceedings not within the courtroom. This amendment will put him on the same footing as a solicitor of the Supreme Court in the conduct of proceedings.

In the course of proceedings a party's legal representative may give various undertakings to his client or to the court and it is an important element in the confidence placed in that representative that there should be a sanction if he fails to make these good. Section 142 of the County Courts Act 1984 allows the county court to enforce an undertaking given by a solicitor. This amendment extends that power to a patent agent.

Section 60A(1) as it stands will not allow a registered patent agent to conduct litigation in the patents county court for reward. In order to allow for this it is necessary to disapply the prohibition on persons other than solicitors receiving remuneration in respect of a registered patent agent acting for a client in the patents county court.

The amendment at subsection (5) is needed to ensure that where a party represented by a patent agent in patents county court proceedings becomes entitled to costs against the other party, the patent agent's bill can be taxed in the same way as that of a solicitor. The County Courts Act currently provides for the county court rule committee to prescribe scales of costs to be paid to counsel and solicitors. This amendment widens that reference and allows patent agents to come under the existing scale provisions already drawn up under the rules. I beg to move.

On Question, amendment agreed to.

Schedule 1 [Copyright: transitional provisions and savings]:

Lord Beaverbrook moved Amendment No. 202: Page 125, line 42, leave out from ("I") to end of line 44.

The noble Lord said: My Lords, in moving this amendment I shall also speak to Amendment No. 203. Paragraph 7 of Schedule 1 is concerned with the subsistence of copyright in films made prior to commencement.

The first amendment in this group is pure drafting. The second limb of paragraph 7(2) is superfluous in view of the general proposition in paragraph 9 of Schedule 1.

The second amendment takes account of the fact that the sound-track of a film is treated by this Bill as a sound recording and not part of a film, which is the reverse of the treatment under the 1956 Act. The new paragraph 7A in Schedule 1 will expressly apply this new regime from commencement of the Bill to films and their sound-tracks made after the commencement of the 1956 Act. I should mention that this would have been the effect of the Bill in any event, but we thought it better to say so than to leave its effect to be teased out by interpretation of other provisions. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 203 to 208:

Page 125. line 47, at end insert— ("7A. A film sound-track to which section 13(9) of the 1956 Act applied before commencement (film to be taken to include sounds in associated sound-track) shall be treated for the purposes of the new copyright provisions not as part of the film, but as a sound recording.").

Page 127, line 44, at end insert— ("(1A) Section 18(3) (restricted acts to include hiring of copies of sound recordings, films or computer programs) does not apply in relation to a copy of a sound recording, film or computer program acquired by any person before commencement for the purpose of hiring it to the public.").

Page 129, line 48, leave out ("not so suffer modification") and insert ("to object to derogatory treatment").

Page 130, line 13, at end insert— ("21A. The right conferred by section (Right to privacy of certain photographs and films) (right to privcy of certain photographs and films) does not apply to photographs taken or films made before commencement.").

Schedule 2, page 136, line 26, leave out sub-paragraph (1) and insert— ("(1) Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe the rights conferred by Part II.").

Page 136, line 31, at end insert—

(''Incidental copying in course of use of work in electronic form

10A.—(1) This paragraph applies to work whose use in electronic form ordinarily involves incidental copying of the whole or part of the work.

(2) Any such copying which a purchaser of a copy of the work is permitted to do without infringing the rights conferred by Part II, by express or implied consent or by virtue of any rule of law, and in respect of which he incurs no further obligation as to payment or otherwise, may also be done without infringement of those rights by any person into whose hands that copy of the work subsequently comes.

(3) Expressions used in this paragraph have the same meaning as in section (Incidental copying in course of use of work in electronic form).").

On Question, amendments agreed to.

[Amendment No. 209 not moved.]

Lord Beaverbrook moved Amendment No. 210: Page 137, line 14, at end insert—

("Recordings for purposes of supervision and control of broadcasts and cable programmes

12A.—(1) The rights conferred by Part II are not infringed by—

1. (a) the making or use of recordings by the Independent Broadcasting Authority for the purposes mentioned in section 4(7) of the Broadcasting Act 1981 (maintenance of supervision and control over programmes and advertisements); or
2. (b) anything done under or in pursuance of provision included in a contract between a programme contractor and the Authority in accordance with section 21 of that Act.

(2) The rights conferred by Part II are not infringed by anything done under or in pursuance of—

1. (a) a notice or direction given under section 16 of the Cable and Broadcasting Act 1984 (power of Cable Authority to require production of recordings); or
2. (b) a condition included in a licence by virtue of section 35 of that Act (duty of Authority to secure that recordings are available for certain purposes).

(3) Expressions used in this paragraph have the same meaning as in section (Recordings for purposes of supervision and control of broadcasts and cable programmes).")

On Question, amendment agreed to.

Schedule 3 [Registered designs: minor and consequential amendments of 1949 Act]:

Lord Beaverbrook moved Amendment No. 211: Page 140, line 30, leave out from ("country)") to end of line 31 and insert (", for subsections (2) and (3) substitute—").

The noble Lord said: My Lords, this is purely a drafting amendment which makes no changes of substance. The amendment will introduce a form of words into paragraph 7 which will be consistent with that used in other paragraphs of Schedule 3. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 212 and 213: Page 142, leave out lines 20 to 22 and insert—

1. ("(a) in England and Wales, the High Court or a patents county court (see Part VI of the Copyright, Designs and Patents Act 1988),
2. (b) in Scotland, the Court of Session, and
3. (c) in Northern Ireland, the High Court.").

Page 142, line 23, after ("court") insert ("with respect to proceedings in the High Court").

The noble and learned Lord said: My Lords, I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Lord Beaverbrook moved Amendments Nos. 214 and 215:

Page 145, line 23, at end insert— ("(2A) At the appropriate place insert— "author", in relation to a design, has the meaning given by section 2(3) and (4);".").

Page 145, line 33, at end insert— ("(6A) at the appropriate place insert— "employee", "employment" and "employer" refer to employment under a contract of service or of apprenticeship;".").

On Question, amendments agreed to.

Schedule 4 [The Registered Designs Act 1949 as amended]:

Lord Beaverbrook moved Amendments Nos. 216 to 222:

Page 147, line 13, after ("intended") insert ("by the author of the design").

Page 147, line 19, leave out ("article") to ("aesthetic") in line 20 and insert ("if the appearance of the article is not material, that is, if").

Page 147, line 46, leave out ("a person") and insert ("an employee").

Page 148, line 9, leave out ("subsection (1)") and insert ("this Act"). Page 151, line 51, leave out ("in the United Kingdom or elsewhere").

Page 151, line 52, after ("made") insert ("in the United Kingdom or elsewhere").

Page 152, line 4, after ("(1)") insert ("or (3)").

On Question, amendments agreed to.

The Lord Chancellor moved Amendments Nos. 223 and 224: Page 161, leave out lines 35 to 37 and insert—

1. ("(a) in England and Wales, the High Court or a patents county court (see Part VI of the Copyright, Designs and Patents Act 1988),
2. (b) in Scotland, the Court of Session, and
3. (c) in Northern Ireland, the High Court.").

Page 161, line 38, after ("court") insert ("with respect to proceedings in the High Court").

The noble and learned Lord said: My Lords, I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Lord Beaverbrook moved Amendments Nos. 225 and 226:

Page 166, line 26, at end insert— (" "author", in relation to a design, has the meaning given by section 2(3) and (4);").

Page 166, line 36, at end insert— (" "employee", "employment" and "employer" refer to employment under a contract of service or of apprenticeship;").

The noble Lord said: My Lords, I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Schedule 5 [Patents: minor amendments]:

Lord Beaverbrook moved Amendment No. 227:

Page 173, line 41, leave out paragraph 5 and insert— ("5.—(1) Section 28 of the Patents Act 1977 (restoration of lapsed patents) is amended as follows. (2) For subsection (1) (application for restoration within period of one year) substitute— (1) Where a patent has ceased to have effect by reason of a failure to pay any renewal fee, an application for the restoration of the patent may be made to the Comptroller within the prescribed period. (1A) Rules prescribing that period may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient.".").

The noble Lord said: My Lords, with the leave of the House, in moving Amendment No. 226, I shall speak also to Amendments Nos. 228 and 229. The first of these amendments concerns the period during which a lapsed patent may be restored. At Report stage my noble friend Lord Stockton suggested that it might be better if the period were prescribed by rules made by the Secretary of State rather than by the primary legislation. This would make the period chosen easier to change if, in practice, it proved to be wrong; either too long or too short. I said we were happy to follow this approach but needed time to consider the precise wording and to review the transitional provisions. I trust my noble friend will find that the present amendment achieves what he intended.

The other two amendments, Amendments Nos. 228 and 229, are merely consequential drafting changes. I beg to move.

The Earl of Stockton

My Lords, I thank the Minister for following up my suggestion. This is entirely satisfactory.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos, 228 and 229: Page 174, leave out line 11 and insert ("(3) In". Page 174, line 14, leave out ("above amendment") and insert ("amendment in sub-paragraph (3)").

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No. 230: Page 177. line 29, at end insert—

("Proceedings before the Patents Court or the comptroller

17A. In the Patents Act 1977, after section 99 (general powers of the court) insert—

"Power to order report hi Patent Office.

99A.—(1) Rules of court shall make provision empowering the Patents Court in any proceedings before it under this Act, on or without the application of any party, to order the Patent Office to inquire into and report on any question of fact or opinion.

(2) Where the court makes such an order on the application of a party, the fee payable shall be at such rate as may be determined in accordance with rules of court and shall be costs of the proceedings unless otherwise ordered by the court.

(3) Where the court makes such an order of its own motion, the fee payable shall be at such rate as may be determined by the Lord Chancellor with the approval of the Treasury and shall be paid out of money provided by Parliament.".

17B. For section 102 of the Patents Act 1977 (right of audience in patent proceedings) substitute—

"Right of audience, &c. in proceedings before comptroller.

102.—(1) A party to proceedings before the comptroller under this Act, or under any treaty or international convention to which the United Kingdom is a party, may appear before the comptroller in person or be represented by any person whom he desires to represent him.

(2) No offence is committed under the enactments relating to the preparation of documents by persons not legally qualified by reason only of the preparation by any person of a document, other than a deed, for use in such proceedings.

(3) Subsection (1) has effect subject to rules made under section 258 of the Copyright, Designs and Patents Act 1988 (power of comptroller to refuse to recognise certain agents).

(4) In its application to proceedings in relation to applications for, or otherwise in connection with, European patents, this section has effect subject to any restrictions imposed by or under the European Patent Convention.

Right of audience, &c. in proceedings on appeal from the comptroller.

102A.—1 A solicitor of the Supreme Court may appear and be heard on behalf of any party to an appeal under this Act from the comptroller to the Patents Court.

(2) A registered patent agent or a member of the Bar not in actual practice may do, in or in connection with proceedings on an appeal under this Act from the comptroller to the patents Court, anything which a solicitor of the Supreme Court might do, other than prepare a deed.

(3) The Lord Chancellor may by regulations—

1. (a) provide that the right conferred by subsection (2) shall be subject to such conditions and restrictions as appear to the Lord Chancellor to be necessary or expedient, and
2. (b) apply to persons exercising that right such statutory provisions, rules of court and other rules of law and practice applying to solicitors as may be specified in the regulations;

and different provision may be made for different descriptions of proceedings.

(4) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) This section is without prejudice to the right of counsel to appear before the High Court."."),

The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Schedule 6 [Provisions for the benefit of the Hospital for Sick Children]:

Lord Beaverbrook moved Amendment No. 231: Page 178, line 37, leave out from ("copyright)") to ("be") in line 38.

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

10.15 p.m.

Schedule 7 [Consequential amendments: general]:

Lord Beaverbrook moved Amendment No. 232:

Page 182, line 26, at end insert— ("and in paragraph 10A (services of European patent attorneys) for "section 84(7) of the Patent Act 1977" substitute "Part V of the Copyright, Designs and Patents Act 1988".").

The noble Lord said: My Lords, in moving this amendment I speak also to Amendment No. 233. The paragraphs of Schedule 7 in question make consequential amendments to the Fair Trading Act 1973 and the Restrictive Trade Practices Act 1976. Amendments to these paragraphs made on Report had the effect of reprieving certain provisions and schedules to the 1973 and 1976 Acts which were to have been deleted.

However, we have now realised that these reinstated provisions include references to Section 84 of the Patents Act 1977 which is going to be replaced by provisions in Part V of this Bill. The present amendments are therefore intended to correct the references. This is not strictly necessary because the Interpretation Act would have led to the correct result, but we feel that in the interests of clarity the amendments should be made. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 233:

Page 182, line 41, at end insert— ("and in paragraph 10A (services of European patent attorneys) for "section 84(7) of the Patent Act 1977" substitute "Part V of the Copyright, Designs and Patents Act 1988".").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 234: Page 183, line 31, at end insert—

("Resale Prices Act 1976 (c.53)

16A. In section 10(4) of the Resale Prices Act 1976 (patented articles: articles to be treated in same way), in paragraph (a) after "protected" insert "by design right or".").

The noble Lord said: My Lords, the Resale Prices Act 1976 prohibits resale price maintenance. Special provision is made in Section 10 for what are rather artificially called patented articles. I say "artificially" because the meaning of that expression is extended by subsection (4) of that section to cover registered designs and plant breeders' rights. It seems to us that it should also cover design right, and the amendment would so provide. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 235:

Page 183, line 33, leave out paragraph 17 and insert— ("17. In section 57 of the Patents Act 1977 (rights of third parties in respect of Crown use of patent), in the closing words of subsection (1) (which relate to the use of models or documents), after "copyright" insert "or design right". 17A. In section 105 of the Patents Act 1977 (privilege in Scotland for communications relating to patent proceedings), omit "within the meaning of section 104 above", make the existing text subsection (1), and after it insert— (2) In this section— patent proceedings" means proceedings under this Act or any of the relevant conventions, before the court, the comptroller or the relevant convention court, whether contested or uncontested and including an application for a patent; and the relevant conventions" means the European Patent Convention, the Community Patent Convention and the Patent Cooperation Treaty.". 17B. In section 123(7) of the Patents Act 1977 (publication of case reports by the comptroller) —

1. (a) for "and registered designs" substitute "registered designs or design right",
2. (b) for "and copyright" substitute ", copyright and design right".

17C. In section 130(1) of the Patents Act 1977 (interpretation), in the definition of "court", for paragraph (a) substitute— (a) as respects England and Wales, the High Court or a patents county court (see Part VI of the Copyright, Designs and Patents Act 1988);".").

The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 241. These amendments contained in Schedules 7 and 8 to the Bill are all consequential and technical in nature. If your Lordships desire a more detailed explanation I will be happy to give it.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 236 to 238: Page 184, line 30, after ("make") insert ("and use"). Page 184, line 30, leave out from ("them") to end of line 34. Page 184, line 39, leave out fro beginning to end of line 4 on page 185.

The noble Lord said: My Lords, I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Lord Beaverbrook moved Amendment No. 239: Page 185, line 20, after ("trade mark,") insert ("service mark,").

The noble Lord said: My Lords, in moving Amendment No. 239 I shall speak also to Amendments Nos. 240 and 244. Paragraphs 25 and 28 of Schedule 7 amend the company laws of Great Britain and Northern Ireland to take account of design right. In the case of England, Wales and Northern Ireland, but not Scotland, where the relevant provision is slightly different, this is done by a restatement of the definition of intellectual property. That definition includes a reference to trade marks but fails to mention service marks. Amendments Nos. 239 and 240 remedy that deficiency.

The existing provisions in the Companies Act 1985 and the Companies (Northern Ireland) Order 1986 already refer to service marks by virtue of amendments contained in the Patents, Designs and Marks Acts 1986. Those amendments accordingly become irrelevant and are repealed by Amendment No. 244.

I should perhaps mention that Amendment No. 245 has remained on the Marshalled List in error and I shall not be moving it. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 240: Page 185, line 44, after ("trade mark,") insert ("service mark.").

The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Schedule 8 [Repeals]:

The Lord Chancellor moved Amendment No. 241: Page 187, line 53, column 3, leave out ("Sections 104 and 105") and insert— ("Section 104. In section 105, the words "within the meaning of section 104 above".").

The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 242 to 244: Page 188, line 19, column 3, at end insert ("Section 16(4) and (5)."). Page 188, line 21, column 3, after ("35") insert ("(2) and"). Page 188, line 35, column 3, at end insert ("in paragraph 1(2)(k) the words "subsection (1)(j) of section 396 and" and in paragraph 1(2)(l) the words "subsection (2)(i) of section 93".").

The noble Lord said: My Lords, I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

[Amendment No. 245 not moved.]

An amendment (privilege) made.

Lord Beaverbrook

My Lords I beg to move, That the Bill do now pass.

When my noble friend the Secretary of State for Trade and Industry commended this Bill to your Lordships on Second Reading, he described it as a long and technical one. After four months in your Lordships' House and consideration of nearly 1,300 amendments, I doubt whether any of your Lordships would disagree with that assessment. My noble friend also described it as an important Bill. Again, I believe that to be an accurate description since this Bill provides a framework of copyright and designs law which will have to last for many years. Indeed, I doubt whether many of your Lordships would welcome another copyright Bill too soon.

There is a general consensus both within your Lordships' House and in the outside world that the law of copyright and designs is due for reform. On some issues there is broad agreement on what needs to be done. Unfortunately, on many other issues the consensus rapidly breaks down. There arc many differing views on the right way forward. In any discussions on intellectual property there is an inherent tension between the creators and the owners of rights on the one hand and the users on the other. One side wants very strong protection. The other is inconvenienced by the rights and often presses for their dilution. Indeed, someone who is both a supplier and a user of intellectual property may be in the position of facing both ways and arguing for greater protection for his intellectual property while at the same time pressing for restrictions in the rights of those whose works he uses.

This has been therefore sometimes a controversial Bill although not usually on party political lines. Some of the livelier debates have been conducted between your Lordships on the same side of the Chamber rather than across the Floor. Given these factors and the technical complexity of the Bill, it is perhaps not surprising that this Bill has occupied your Lordshps for seven days in Committee, for four days on Report and for a considerable time today. I believe that the time and effort have all been worthwhile. What was a good Bill is now a very good Bill. If, as I trust, your Lordships agree that this Bill should pass, it will go to another place much improved.

The overall structure and content of the Bill has not changed greatly. There have been only three major additions. First, the provision of a rental right; secondly, the removal of the limitation on fair dealing in respect of commercial research. Last and not least, there has been the provision of a perpetual royalty right for Great Ormond Street Hospital in respect of Peter Pan. Although there have been few major changes, significant changes have been made to the drafting in some of the detailed provisions.

Amendments made to the Bill now total several hundred. They have been prompted almost entirely by comments made in debate in this House. I believe that this reflects great credit upon your Lordships. Our debates have been well informed and of a consistently high standard. This has been commented upon by those who have listened to our deliberations or who have read them in Hansard. As evidenced by the number of amendments we tabled both on Report and today, we have shown ourselves willing to listen to what your Lordships have said and to act when we believe that a good case has been made. The powers of argument and persuasiveness deployed so skilfully in the House have made every case seem a good one. We have had to look at everything very carefully indeed before coming to our conclusions.

It must be said that the debates in your Lordships' House have proved most helpful in our considerations. Many useful suggestions have been made for small changes. Comments have been made which caused us to go back to square one and to re-examine our policy. Sometimes that exercise has shown us that we were wrong; sometimes it has confirmed us in our view. Either way the exercise was worthwhile.

In expressing the thanks of the Government for the care and patience and not inconsiderable expertise that your Lordships have expended on this Bill, it is perhaps invidious to single out individuals; but I feel obliged to mention one or two. On the Benches behind me I should like to mention my noble friends Lord Stockton, Lord Mottistone, Lord Lucas of Chilworth; my noble and learned friend Lord Hailsham and in the later stages my noble friend Lord Jenkin of Roding. They have all made significant contributions. I have not been able to accede to all their wishes as often as I might have liked. However, I am nevertheless grateful for their contributions. I am also grateful to my noble friend Lord Dundee who has helped me so much on this Bench.

On the Cross-Benches we have had the great benefit in Committee of the noble and learned Lords, Lord Denning and Lord Simon, with contributions at various stages from the noble Lord, Lord Hacking. From the other side there have been significant contributions from the noble Lords, Lord Howie of Troon, Lord Gray, Lord Willis and Lord Lloyd of Hampstead, who showed considerable understanding of the complexities of the Bill. We have also had the noble Lord, Lord Kilbracken, whose crusade to improve the drafting of the Bill has prompted a large number of amendments.

I record my thanks also to the noble Lord, Lord Lloyd of Kilgerran, who has played a major role in the proceedings. He has given the benefit of his considerable experience in the field of intellectual property, which combined with his unfailing courtesy and eloquence has done much to facilitate consideration of the Bill.

Last but by no means least, there are the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna. They made their intentions clear at the outset. The noble Lord, Lord Morton of Shuna, promised us that the Opposition would take a full and active part. In the first debate in Committee, the noble Lord, Lord Williams of Elvel, indicated that he would thoroughly probe our intentions to ensure that we all knew what the Bill was about. Both pledges have been amply fulfilled. Many changes to the Bill flow from the persistent probing of noble Lords opposite. Their questioning has been impeccably fair, invariably courteous and, in spite of the complexities of the Bill, seldom based on misunderstanding and misconception.

Some 18 months ago in the debate on the Third Reading of the Financial Services Bill the noble Lord, Lord Williams of Elvel, made some kind remarks welcoming me to this Bench, although promising me some faster bowling in the future. I do not know about the pace on the Bill, but there has certainly been some spin. Noble Lords opposite kept up a barrage of tricky deliveries. Like all good bowlers, they have hunted in pairs. My relief at seeing the noble Lord, Lord Williams of Elvel, leave his place for a short while was always tempered by the realisation that the noble Lord, Lord Morton of Shuna, was coming on fresh to renew the attack.

I pay tribute also to the immense amount of persistence and hard work that my officials at the Department of Trade and Industry have put into the Bill. It has been a monumental task, which has involved them in giving up many nights, evenings and weekends. I thank them for the help that they have given to me, to other noble Lords and to many outside interests that have been pressing us to change provisions in the Bill.

We have all spent a long time on the Bill. I believe that it has been time well spent. It is a Bill that strikes the right balance between protection for the originator and the need that the market has for access to intellectual property of all kinds. It will provide us with a framework of intellectual property law, especially in regard to copyright and designs, that will serve the economy well in the years to come. The Bill is even better equipped to fulfill that function as a result of your Lordships' exhaustive and at times exhausting consideration. I commend it to the House.

Moved, That the Bill do now pass.—(Lord Beaverbrook.)

10.30 p.m.

Lord Williams of Elvel

My Lords, when the Bill was first introduced into your Lordships' House it gave us considerable problems in that it was a large Bill which covered a number of subjects and introduced a number of new concepts. As the debates have continued, we on this side have better understood the Government's intentions. As a result of our spin bowling, to use the Minister's expression, we have managed to encourage the Government to improve the Bill. That this has happened is due not to the fact that my noble friend Lord Morton of Shuna is an expert at the googly but to the Government's receptive attitude to arguments put forward in genuine good faith by the Opposition and by members of my own party who for one reason or another have felt it necessary to put forward various points from experience in their own lives.

The first point on which I congratulate the Government is their attitude towards the debates in your Lordships' House. It is an excellent and, in my short experience of your Lordships' House, an unparalleled example, of the way a government can introduce a Bill which is not of a party political nature and say at the outset, "We are prepared to accept all reasonable arguments." They have allowed us, as the Opposition, to feel that we are joining in the creation of proper legislation, rather than simply opposing such legislation that the Government put forward. Therefore, as I have already said, I congratulate the Government on their attitude.

There are many points in the Bill with which we, the Opposition, are not wholly satisfied. I am sure the noble Lord would be the first to admit that some of our points have not been accepted by the Government and no doubt will be debated when the Bill goes to another place. However, we are encouraged by the Government's concessions to reasoned argument and we very much hope that that open-mindedness will continue in another place.

We were especially pleased that the Government were able to accede to the rental right in copyright which we felt was an important provision. Then there was the blank-tape levy which we thought that we should support and which will no doubt be debated in another place. In that connection we still feel that the Government's position is somewhat illogical. There are of course many technical points in the Bill which will similarly be debated elsewhere.

However there are three major doubts that we still retain about the Bill, all of which relate to employee rights, which we have discussed at some length but on which we have thus far failed to reach agreement. First, there is the whole concept of design right. In that respect we believe that there may be a different point of view which, again, will no doubt be argued in another place. Secondly, there is Crown copyright. That is another issue which I think still needs a certain amount of airing. Thirdly, there is the smaller issue—although not small in terms of its impact—that arises under Clause 36 which concerns the photocopying of material in educational establishments, namely; which percentage should be appropriate for which quarter? We should merely like to reserve our position on that issue—certainly as a party we would wish to do so.

I am most grateful to the Government for the Peter Pan amendment. In my view this was a remarkable example of how government and opposition can work together to achieve an objective which all our advisers said was "outrageous", and really should not happen. Nevertheless, it was for a desirable end and I think all noble Lords would agree that here was an occasion when Parliament could perhaps put its stamp on a Bill by saying, "This is something we want to do and even though it is outrageous in terms of legality and precedent, nevertheless we believe it is desirable and we want it to go through."

I am most grateful to my noble friend Lord Morton of Shuna—who has a googly which the noble Lord, Lord Beaverbrook, knows well!—and to my noble friend Lady Birk for their support in what have been long and arduous Committee, Report and, indeed, Third Reading stages. I should also like to express my thanks to all my noble friends on these Benches who have participated in the debates.

However, above all, I must say that I am grateful to the noble Lord, Lord Beaverbrook, who has conducted himself in a manner which is in the best traditions of your Lordships' House. He undertook the Bill. I believe that it is the first time that he has taken a large Bill through the House. He has conducted himself in an exemplary manner. He has always been courteous, kind and understanding. For the Opposition, as we are without large battalions of civil servants behind us, that means a great deal. On this Bill—if I may say so without disrespect to him—the noble Lord has made his reputation in the House.

I have also to echo what the noble Lord said about the officials in the Department of Trade and Industry, who have been unfailingly co-operative. They have supplied the noble Lord with immediate briefings—if I may put it like that—on especially difficult spin bowling so that he has been able to fend off our googlies without any problem.

We wish the Bill well. We believe that the Bill is better, having gone through the debates in your Lordships' House, than it was when it started. There will no doubt be amendments and further debates in another place. Nevertheless, we believe that the Bill is a good Bill in that it restates the law of copyright; it makes certain major amendments to patent law, and it makes the whole issue of intellectual property more coherent for the layman than it was before the Bill was produced. We therefore wish it well. In particular, if I may say so very personally, I am grateful to the noble Lord, Lord Beaverbrook, for the work that he has done.

Lord Lloyd of Kilgerran

My Lords, perhaps I may briefly but nevertheless sincerely thank the Minister for his kind words about me. Perhaps I may presume to congratulate him on his courtesy, competence, good humour and tolerance at all times when dealing with the massive Bill with its 1,300-odd amendments. I also once again add my thanks to his hard-working officials who have been so helpful not only to Members of the House but to people from industry and law firms who came to consult them. I also thank those who from time to time supported some of the statements that I made in the House.

I leave with one sense of disappointment. As an honorary associate member of a trade marks institute, who was its guest of honour last week, I was asked why the Bill, which refers so frequently to trade marks, does not yet have the words "trade marks" in the Title.

The Earl of Stockton

My Lords, this has been the first major Bill in which I have taken part. I am grateful to noble Lords on all sides of the House for their help and forbearance in my efforts. As a book and magazine publisher, I may perhaps echo the words of my noble friend the Minister and say that it is now a fine Bill. To have been part of its creation has frequently been a pleasure and has always been an education.

Lord Lucas of Chilworth

My Lords, I begin with the DTI press notice of 30th October, which started by saying: A Bill which will provide an improved system of protection for intellectual property until well into the next century has been published today, 30th October". I think that this is the point with which the noble Lord, Lord Williams of Elvel, finished: this has been a long and fascinating Bill. Whether it lasts, as we all hope it will, well into the next century, time alone will tell, because there are always developments.

I may perhaps be personal. I turn, if I may, with clue respect to your Lordships' House, to the Box on my left. I should like to say to the officials "Thank you very much". Undoubtedly, under the guidance of the Minister in charge, the officials have been unfailingly courteous, unfailingly helpful and diligent. They must have given up a great deal of time.

This has been a long Bill. The noble Lord, Lord Beaverbrook, the Minister in charge, and I worked together for a short while. Perhaps I personally may congratulate him for the manner in which he has conducted proceedings in your Lordships' House. That I personally have not got quite what I wanted does not matter overmuch. He has listened, talked with us and come to a conclusion different from the one I reached.

The important point, as the noble Lord, Lord Williams said, is that none of us has been antagonistic. We have put forward alternative views which the Government have considered. On occasions the Government came to different conclusions. I do not think that matters. The important thing is that the department and my noble friend were open-minded. They listened and talked to us. I thank them very much.

I know full well that this Bill goes to another place in very much better shape than when it entered your Lordships' House. That is undoubtedly due to the efforts of my noble friend Lord Beaverbrook and his officials.

Lord Beaverbrook

My Lords, I should like to thank all noble Lords for their kind words and to echo all your Lordships' views in saying how much we appreciate the contribution of my noble and learned friend the Lord Chancellor. We appreciate seeing him here at this late hour of the night when he has so many other matters to attend to.

On Question, Bill passed and returned to the Commons with amendments.