HL Deb 28 March 1995 vol 562 cc1572-83

7.31 p.m.

Lord Brabazon of Tara

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Brabazon of Tara.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Serota) in the Chair.]

Clause 1 agreed to.

Clause 2 [Creation]:

The Parliamentary Under-Secretary of State, Department of National Heritage (Viscount Astor)moved Amendment No. 1:

Page 1, line 21, leave out ("section") and insert ("sections").

The noble Viscount said: The amendment is consequential on the amendment in respect of the new clause to come after Clause 4. With the leave of the Committee, I shall speak to that amendment and the amendment to Clause 16 at the same time. I shall therefore speak to Amendments Nos. 2, 12, 14 and 15.

The Olympics association right is a very wide right since it applies to any use in the course of trade without the consent of the British Olympic Association. I believe that the Bill goes as far as it can in Clause 4 in identifying what I would call reasonable trade uses of a controlled representation and my noble friend Lord Brabazon of Tara will speak to Clause 4 in relation to his amendment. It reflects the interests of the BOA and the commitments made by the Government to the International Olympic Committee.

As I explained on Second Reading, however, concerns were expressed in another place about uses of a controlled representation by businesses in a way which might be technically in breach of the Olympics association right but do not affect the commercial interests of the BOA. I gave examples at Second Reading of companies which might choose, after the Bill is enacted and comes into force, to register themselves as, for example, Olympic Bus, Olympic Cars and Olympic Electronics.

The Secretary of State already has a power under Clause 14 to give directions to the BOA with regard to the exercise of the Olympics association right and where there is no threat to its commercial interests the BOA will be happy to consent to use. Nevertheless, the possibility of infringement would still require businesses formally to approach the BOA for consent, or the Secretary of State for a Clause 14 direction. It is anticipated that the administrative burden on the BOA and the Secretary of State could be great. The proposed amendments would enable the Secretary of State by order made by statutory instrument to provide that a specified category of uses of a controlled representation would not constitute an infringement of the Olympics association right.

If this Bill is enacted the Secretary of State, with the assistance of the BOA, will seek to identify areas where use of a controlled representation may properly be allowed without jeopardising the BOA's commercial interests. It is difficult to anticipate where the need may arise but the provision is broad enough to allow the Secretary of State to permit uses of a controlled representation: for example; for the purposes of new subsidiary companies of established companies; in the incorporation of a company under a name which was formerly its business name; for the purpose of a certain class of business—for example, florists, small restaurants; for specified trade uses for the purposes of an undertaking—for example, use in a campaign against drug taking in the Olympics.

My noble friend Lord Archer of Weston-super-Mare spoke on Second Reading with his usual eloquence about the importance of the Olympic symbol above all other sporting emblems, I entirely accept what he said. The commercial exploitation of the Olympic symbol by anyone other than the British Olympic Association is entirely unacceptable and it is already reflected on the face of the Bill. Any order made under the proposed new power will also distinguish, along the same lines, between permitted use of a protected word and the symbol.

There may be circumstances, however, where non-exploitational use of the symbol might well be appropriate. One example I referred to earlier might be in a campaign against drug taking in Olympic sports. Again, it might be appropriate to authorise limited use of the symbol by a disabled Olympics association with conditions as to its use and attribution.

Also in this respect I have heard the Olympics association right correctly referred to as a "super trade mark" since the monopoly conferred by the legislation is not limited to goods and services. That is an accurate reflection of the significance of the emblem and commitments given to the International Olympic Committee. However, if companies find that the right affects incidental use of a protected word or symbol in their business relationships in ways which have not been anticipated in Clause 4(1) it might be appropriate to except such use from being an infringement of the Olympics association right. One instance of incidental use is already identified in Clause 4(13); that is, use for the purposes of judicial or parliamentary proceedings in which use might be of both the symbol and protected words.

Since the object of this clause is therefore to provide maximum flexibility in permitting the fair use of a controlled representation it would not be appropriate to limit the Secretary of State's power to protected words alone. Neither would it be appropriate for the clause to be narrower than Clause 14 since it is Clause 14 which this provision complements by providing the ability to put the subject matter of a direction on a general statutory footing if it is appropriate.

The amendment technically allows the Secretary of State to permit the use of the symbol but the Secretary of State could only do so where it would be reasonable within the spirit of the Act and the symbol will have greater protection than the words. I can assure the Committee in the strongest terms, therefore, that the Secretary of State has no intention of allowing the commercial exploitation of the symbol or any use of the symbol by anyone other than the British Olympic Association.

The amendments provide a safety net for fair and non-exploitational uses of a controlled representation. I beg to move.

On Question, amendment agreed to.

Viscount Astormoved Amendment No. 2:

Page 1, line 21, after ("4") insert ("and (Power to prescribe further limits on effect)").

The noble Viscount said: I have just spoken to this amendment with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 agreed to.

Clause 4 [Limits on effect]:

Lord Brabazon of Taramoved Amendment No. 3:

Page 2, line 40, leave out ("is") and insert ("consists of use").

The noble Lord said: In moving this amendment, with the leave of the Committee, I should also like to speak to Amendments Nos. 4 to 11 inclusive, and Amendment No. 13. Before I move on to the amendments, I think it would be appropriate to put Clause 4 as a whole in the context of the Bill.

The Olympics association right is a very wide right which confers exclusive rights in relation to the use of the Olympic symbol, motto and protected words. Under Clause 3(1) a person infringes the Olympics association right if he uses, in the course of trade, a representation of the Olympic symbol, the Olympic motto or protected word, or a representation of something so similar to the Olympic symbol or the Olympic motto as to be likely to create in the public mind an association with it.

However, there will be cases where a person may have an existing or deserved right to use a controlled representation, or where it would be proper to allow the use of a controlled representation because the user is merely involved in factual reporting or because the use would not be to the commercial detriment of the proprietor. Clause 4 therefore sets out those circumstances where the use of a controlled representation in the course of trade will be permitted. Much of Clause 4 is self-explanatory; but there are a couple of matters that I wish to emphasise in relation to the clause.

First, noble Lords will note that all existing use of a controlled representation for the purposes of an undertaking, or as part of a business or company name, may continue. Provision for this is made in Clause 4 subsections (9) and (10) respectively. Secondly, Clause 4 subsections (4) and (5) apply only to representations of a protected word, and not to the Olympic symbol or motto. As my noble friend the Minister said, my noble friend Lord Archer of Western-Super-Mare expressed great concern over the unique significance of the Olympic symbol in world sport. I certainly agree with my noble friend. The commercial exploitation of the Olympic symbol in any form and by anyone other than the proprietor of the Olympics association right is entirely unacceptable, and it is reflected on the face of the Bill.

Subsections (4) and (5) raise some difficult points. I should like to dwell on these two subsections for a short while before moving on to the amendment to Clause 4(1). Clause 4(4) provides that the Olympics association right is not infringed where one of the protected words is used in a way which is not such as ordinarily to create an association with the Olympic Games or the Olympic movement or a quality ordinarily associated with the Olympic Games or Olympic movement. Such qualities may include speed, excellence or strength.

I wish to make it clear that most uses of a protected word will be in a way which creates an association with the Olympic Games or the Olympic movement. By definition, it is with the Olympic Games and the qualities associated with the Olympics that people normally connect the words "Olympic", "Olympian" and "Olympiad", their plurals and translations and nothing else.

For use of a protected word not to be associated with the Olympics or their qualities, a user would need to show a legitimate alternative explanation. Members of the Greek community, for example, may sometimes use a protected word to create an association with their or their forebears' homeland when opening a small business such as a restaurant or a grocery. It is certainly not the intention of the Bill that Olympic Airlines creates an association with the Olympic Games unless its activities were to stray into areas rightly regarded as those of the proprietor. However, I wish to make it clear to the House that a defence under Clause 4(4) to an infringement action should be available as the exception rather than the rule.

Clause 4(5) provides that, In the case of a representation of a protected word, the Olympics association right is not infringed by use which creates an association between the Olympic games or the Olympic movement and any person or thing where the association fairly represents a connection between the two, provided the use is in accordance with honest practices in industrial or commercial matters".

An example of use which might be justified under this clause is an hotelier who advertises accommodation within five minutes' walk of an Olympic Games venue. This will also cover incidental reporting of anything to do with the Olympics in day-to-day trade.

The use would need to be a fair representation of an existing connection, however. The clause does not, for example, permit a manufacturer to claim that his products have been endorsed by the proprietor or the Olympic movement at large when they have not. Likewise, a widget supplier could not claim on the basis of a simple supply agreement with the proprietor that he is "the supplier of widgets to the British Olympic Association".

Further, the Clause 4(5) defence should be available only where the use is in accordance with honest practices in industrial or commercial matters. Among other things, this restricts what is known in the marketing profession as "ambush marketing". An example of this would be if the British Olympic Association officially endorses a sportswear manufacturer's products, and a rival manufacturer runs an advertising campaign using former Olympic champions or other images of the Olympic Games deliberately in order to counter the benefits of official endorsement. However it is dressed up, this is not honest commercial practice, and the person who undertakes such an advertising strategy will receive no succour from this Bill.

I turn now to the amendments. Clause 4(1) is one of the exceptions stressed in Clause 4 and provides where use of a controlled representation in circumstances which would otherwise infringe the Olympics association right is permissible when it is used in literary works, dramatic works, musical works, artistic works, sound recordings, films, broadcasts and cable programmes.

The Olympic Games are public events, just like the coronation of the Queen or the forthcoming VE Day commemorations. It would. be quite unfair and totally impractical for the Bill to prevent broadcasters, journalists, photographers, artists and film-makers making reference to the Olympics without the consent of the proprietor although that is their trade. That would be censorship, and it would be unacceptable. That is why Clause 4(1) as drafted accepts the use in literary works, etc., provided the use in those works does not advertise or promote goods or services and is in accordance with honest commercial practice.

However, the Bill seeks to prevent the use of an artistic work which contains a controlled representation to sell other goods and services. It is not intended, for example, that a person could use a television broadcast, itself permitted, to advertise a product by reference to the Olympic Games, and it is not intended that a person could use an artistic work which contains a controlled representation as a design for goods such as T-shirts, sports bags and equipment. A close examination of the Bill throws doubt on whether the restriction on commercial use of a work to advertising or promotional activities covers the full range of practices by which a person who is determined to use a controlled representation might exploit a work commercially and against the spirit of the Bill.

As an example of how Clause 4(1) as currently drafted might be exploited through sharp commercial practice, it is useful to look at the artistic work exception. The definition of "artistic work" in the Copyright, Design and Patents Act 1988 is very wide. It covers among other things any graphic work or photograph, irrespective of quality. A design with the words "Olympic Yachting" and the Olympic symbols printed as part of a wider graphic design—say, involving an anchor and a rope—would be an artistic work. A user of the design would claim the Section 4(1) defence, and that would be available to him unless the design was also being used to promote goods or services as in Clause 4(1) (b).

Where there is uncertainty is whether sticking a design on a T-shirt could be said to promote that T-shirt. It is certainly the intention .of the Bill that such exploitation should be prohibited; but it is possible that the courts might hold that the design on the T-shirt is what the T-shirt is bought for and it cannot be said to be there in any subsidiary capacity to promote the T-shirt. This is too important a matter to be left in any doubt.

It is proposed therefore to replace the current provision that use in a work is allowed so long as the purpose of the work is not the advertising or other promotion of goods or services, with a new, two-pronged provision which examines the use of a work in the course of trade in relation to other goods and services. Any of the actions illustrated in Clause 3(2) of the Bill as examples of what may be use in the course of trade might also constitute use in relation to goods or services if what is being used is a work, The addition, through Amendment No. I1, of a new subsection at page 4, line 43 of the Bill makes clear beyond doubt that the affixation of a work to goods is used in relation to goods.

The amendment to Clause 4(1) provides that the Olympics association right is not infringed by use of a controlled representation in artistic work, and so on, where the person using the representation in the work does not intend that work to be used in relation to goods or services in circumstances which would involve an infringement of the Olympics association right. This would allow the proprietor to enforce the Olympics association right to prevent the use of a work in relation to other goods and services before it is actually used where that work, for example in an advertising broadcast, has clearly been created with the intention of being used in the course of trade in relation to goods and services.

The proposed Clause 4(1A) provides that any use of a work in relation to other goods and services is an infringement of the Olympics association right whatever its original purpose. Controlled representation may be used in relation to literary or artistic works, etc., which are to any extent about the Olympic Games or the Olympic movement under Clause 4(3), which covers, for example, trailers for television coverage at the Olympic Games or the promotion of books about the Olympic Games.

Together, the amendments have the effect of bringing into play some non-exploitative uses of works as an infringement of the Olympics association right. The honourable Member for Brent, East, gave an illustration in another place of a satirical cartoon about the games being used in a teeshirt design in a campaign against the games.

Amendment No. 10 provides at page 3, line 11 that the use of a controlled representation in a work which is to any extent about the Olympic Games or the Olympic movement—that would include the cartoon—should be allowed in relation to goods where the use of the work is not for the purposes of gain for any person or loss for another.

With the benefit of my amendments, and those which my noble friend the Minister moved, I submit that Clause 4 of the Bill is a good clause. It is fair to legitimate users of a controlled representation but firm in protecting the proprietor's commercial interests. I beg to move.

Lord Archer of Weston-Super-Mare

I congratulate my noble friend Lord Brabazon on having gone through what was literally the letter of the law in order that the British Olympic Association should be properly protected. He has had to make a speech in which every single word had to be in place and everything had to be correct so that if it ever reaches the courts we are properly protected.

But let us have no doubt about why we are discussing this matter. We are here today because the British Olympic Association has been losing money year in and year out through people stealing the name or the sign. I start by thanking the Minister for giving me such assurance on the Olympic sign: the five great circles which represent the games.

I wish to tell my noble friend Lord Brabazon how much I appreciate what he has done for the Olympics association. I do not want any noble Lord to go home tonight with any doubt. The issue we are discussing is that of allowing our young people a better chance at the next Olympics. That is what this debate is about: allowing our young people to benefit from the Olympics. That is truly worthwhile. I thank my noble friend Lord Brabazon for the amount of time and effort he has expended to make sure that that will happen.

There are thousands of young children who do not have a clue that this debate is taking place. They have no idea at all. Why should they? They are out there on the tracks tonight running, doing the best they can. That is why we are here today. My noble friend Lord Brabazon keeps to the letter of the law, as I said, but the truth is that that is why we are here. I am very proud to support him.

My noble friend mentioned the problems we will have with the name. I do not want the Minister to be in any doubt about the name. If there are any doubts, they should go in favour of the British Olympic Association. One can have something like Olympic Airways. The Olympics started again in Athens in 1896 and of course Greece has a right to call its airline Olympic Airways. That is not what we are discussing today. We are discussing people who feel that they can make a few extra pounds by sticking "Olympic" on a sweat shirt or even on a restaurant. I do not want them to have those few extra pounds. I want that money to go to the British Olympic Association so that we do not have to bother the Government.

I said to the Minister when the Bill first came to this Chamber that we were not asking him for any money—not a penny. The reason for putting this Bill through is so that the Government will not have to spend any money. The clauses point to that. I say to my noble friend Lord Brabazon that if there is any doubt about stealing or using the word, I am here to make sure that the benefit of that doubt goes in favour of the British Olympic Association and not someone who is trying to make money on the side.

I thank the Minister. I am delighted that we have been able to iron out the particular problem of the word. But I do not want him to go home tonight imagining that he has pushed through the Bill and nothing will happen. Some of us will fight if we find that the British Olympic Association has been taken advantage of and we shall not hesitate to remind him.

Lord Graham of Edmonton

Having been present for the Second Reading of the Bill, I know that there is no dispute in the Chamber; this is a good idea. In his inimitable way, from his experience and knowledge, the noble Lord, Lord Archer, emphasised how necessary it is to protect a great institution. There is no argument about that.

I do have some slight concerns. I cannot recall a private measure which carried so many amendments. Obviously, they are all designed to improve it. I have no doubt at all that consultations have taken place. I am not privy to the size of the problem. I respect what the noble Lord, Lord Archer, said. Sadly, we know that commerce has entered into sport —to its detriment.

However, I wonder whether the noble Lord, Lord Brabazon, can enlighten me on one point. The noble Lord, Lord Archer, referred to enormous sums of money which perhaps had been denied, filched or stolen. Can he say whether there are any figures available, or was that just a phrase? I accept that there are people who have deliberately taken advantage and dishonestly used the symbol, the words and the symbolism.

Lord Archer of Weston-Super-Mare

I am grateful to the noble Lord for giving way. Perhaps I may give a classic example. At the Olympic Games, the badges are brought out. They are the badges that every child wants to have. All children want an Olympic badge. They can then say that they have been to the Olympic Games. They can show that they were there and they can wear a badge with pride. The Olympic Games are so protective of the five circles that when Coca Cola, by mistake and quite genuinely, put five tiny circles on its bottles, even though Coca Cola was sponsoring the Olympics every single bottle was called in at a loss to the company of around £.; million. That was on one product and one set of five circles. So if anyone should come along with his own hamburger or bottle and put on it five circles, a great number of children will say, "This is the official one which will help me get a gold medal." That is what they say. That is how they think at that age. I and many other noble Lords thought like that at that age.

Lord Graham of Edmonton

That is a classic illustration of losing mineral rights. I take the noble Lord's point. But I should like clarification on one point. This measure controls what happens to that very precious commodity in this country. To what extent have comparable steps been taken under the law of other countries? We have jurisdiction only over what we say here. But can the noble Lord, Lord Brabazon, inform us of the extent to which what we are doing is right and is being genuinely and altruistically promoted? We know that it is not a waste of time. But what about people in other parts of the world—the great areas of population of America, China and Asia? I am at one with the noble Lord, Lord Archer, in saying that if there is a buck to be made, it should be made in the name of, given to and used by thebona fideOlympics association.

Perhaps I can remind the noble Lord, Lord Archer, why I take such a great interest in these matters. Besides knowing him and respecting his athletic prowess for many years, one of my early friends was a D'Oyly Carte singer, a girl called Sybil Evers. She married Harold Abrahams and they came to live in the Hoddesdon, Hertfordshire area about 40 years ago, beside the McWhirter twins. Harold Abrahams and Sybil Evers were not only great people whom I respected for their prowess, but also they were great ambassadors. As the noble Lord, Lord Archer, said, at the time of the Olympics, everybody is proud to find not only some means of identifying with the athletes and the country, but also with the concept. Therefore, with those few words from these Benches, we warmly support the ambitions and wish the amendments and the Bill well.

8 p.m.

Viscount Astor

On behalf of the Government I should like to say that I am grateful for the support of the noble Lord, Lord Graham, and what was said by my noble friend Lord Archer. I should say to my noble friend that if he could still run as fast as he can speak forcefully, he would probably win a gold medal in the next Olympics.

The amendments that we have been discussing this evening are important. They close a loophole that may have been available to an unscrupulous user and again protect the rights of others with the amendments that I moved earlier. We are satisfied that the Bill, as amended, will satisfy both the interests of Olympic sport in this country and legitimate concerns raised in another place regarding existing and fair uses of controlled representation.

Perhaps I may say one thing to the noble Lord, Lord Graham, which really adds to what my noble friend Lord Archer said. In order to bid for the Olympic Games the Bill must be enacted. But much more important than that, by enacting the Bill, as I said at Second Reading, money will be able to flow into the British Olympic Association which will enormously improve our chance of bringing Olympic medals back to this country.

Lord Addington

Before the noble Lord puts the amendment to the Committee, from these Benches I should like to say that we too support the Motion. The amendments seem to be reasonable and positive and I hope that the Committee does not object to them.

Lord Brabazon of Tara

I am grateful for the general support for the amendments from all those who have spoken, particularly my noble friend Lord Archer for his usual vehement style of supporting the Olympic movement, for which he is famous. I am delighted to know that he will monitor the situation carefully and ensure that nobody tries to infringe the Olympic right and symbol, to which we are all so attached.

My noble friend was also kind enough to give the noble Lord, Lord Graham, an indication of the kind of money that may be involved in the protection of the Olympic rights. It is not just the money that would have been lost before the passing of the legislation, but it is also the money that has been foregone by the difficulties that the Olympic Association experienced in marketing the Olympic symbol and the Olympic name to potential sponsors because of its inability to offer concrete exclusivity to such commercial sponsors. There was always a danger that somebody else would come along and devalue the sponsorship which was bought by well-meaning, commercial organisations in order to help the Olympic Association.

We shall not know until the legislation is passed and until the next Olympic Games how much it will be worth to the British Olympic Association. Like my noble friend Lord Archer I hope that it will be worth a good deal and go towards helping some of our young Olympic athletes to win gold the next time round.

The noble Lord, Lord Graham, asked about the situation overseas. The Bill only deals with the situation in this country. It covers the question of imports and therefore any goods which are imported from another country which attempt to infringe the Olympic symbol, will be caught by the Bill. Anyone who wants to import goods will have to negotiate an arrangement with the British Olympic Association, which will no doubt be able to charge for the proper use of that. Similar legislation exists in many countries throughout the world including, in Europe, Germany and Spain. I hope that with those words of explanation the Committee will be pleased to accept the amendment.

On Question, amendment agreed to.

Lord Brabazon of Taramoved Amendments Nos. 4 to 11:

Page 2, leave out lines 42 and 43 and insert: ("(b) the person using the representation does not intend the work to be used in relation to goods or services in circumstances which would involve an infringement of the Olympics association right,").

Page 2, line 45, at end insert: ("(1A) The Olympics association right is not infringed by use of a controlled representation where—

  1. (a) the use consists of use of a work of any of the descriptions mentioned in subsection (2) below, and
  2. (b) the use of the work is not in relation to goods or services, provided the use of the representation is in accordance with honest practices in industrial or commercial matters.").

Page 3, line I, leave out ("subsection") and insert ("subsections").

Page 3, line 1, after ("(1) (a)") insert ("and (1A) (a)").

Page 3, line 6, leave out ("(1) (b)") and insert ("(1A) (b)").

Page 3, line 7, leave out ("advertising or other promotion of') and insert ("any use in relation to").

Page 3, line 11, at end insert: ("() For the purposes of subsection (1A) (b) above, use of a work in relation to goods shall be disregarded where—

  1. (a) the work is to any extent about the Olympic games or the Olympic movement, and
  2. (b) the person using the work does not do so with a view to gain for himself or another or with intent to cause loss to another.").

Page 4, line 43, at end insert: ("() In this section, references to use of a work in relation to goods include use of a work on goods.").

The noble Lord said: With the leave of the Committee I shall move Amendments Nos. 4 to 11, to which I have already spoken,en bloc. I beg to move.

On Question, amendments agreed to.

Clause 4, as amended, agreed to.

Viscount Astormoved Amendment No. 12:

After Clause 4, insert the following new clause:

Power to prescribe further limits on effect

(".—(1) The Secretary of State may by order made by statutory instrument specify additional cases in which the Olympics association right is not infringed.

(2) Without prejudice to the generality of subsection (1) above, the matters by reference to which a case may be specified under that subsection include—

  1. (a) the description of controlled representation used, and
  2. (b) the description of persons by whom a controlled representation is used.

(3) An order under this section may contain such supplementary and transitional provision and savings as the Secretary of State thinks fit.").

On Question, amendment agreed to.

Clauses 5 to 15 agreed to.

Clause 16 [Burden of proof]:

Lord Brabazon of Taramoved Amendment No. 13:

Page 9, line 38, after ("(1)") insert (", (1A)").

The noble Lord said: Amendment No. 13 is consequential upon my earlier amendments. I beg to move.

On Question, amendment agreed to.

Viscount Astormoved Amendments Nos. 14 and 15:

Page 9, line 38, after ("above") insert ("or any case specified under section (Power to prescribe further limits on effect) above").

Page 9, line 39, after ("subsection") insert ("or case").

The noble Viscount said: With the leave of the Committee I shall move Amendments Nos. 14 and 15en bloc. I spoke to them with earlier amendments. I beg to move.

On Question, amendments agreed to.

Clause 16, as amended, agreed to.

Clauses 17 and 18 agreed to.

House resumed: Bill reported with amendments.