Fringe elements

Wilf StevensonWilf Stevenson on the threat to competition posed by Coalition plans to deal with design copying

‘Criminal Designers’.

It could be a credible song title, or even the name of the band itself. But in a few years time there could be a lot of them about.

In the Intellectual Property (IP) Bill currently at its Committee stage in the House of Lords, the government want to create a criminal offence of ‘unauthorized copying’ of designs. People who copy designs or who trade in products derived from copied designs may be prosecuted and if found guilty can be imprisoned for up to ten years.

The arguments for and against criminal sanctions for designs have been extensively aired over recent years. Proponents feel that current civil enforcement is expensive for small innovators, and that current civil sanctions are not dissuasive to large infringers. Opponents are concerned that the whole basis of design registration in the UK is unsound and a dangerous basis for taking criminal sanctions, and that there is also a risk of stifling competition in useful products.

A major concern is that the proposed provision could turn into a tool to be used by unscrupulous companies to the detriment of UK designers. It is inexpensive to register a design in the UK, especially as there is no effective examination of the design in the process. An unscrupulous company could apply to register designs it copied from a UK designer and then threaten that individual with criminal sanctions for producing their own design! 

The prospect of defending a criminal action might be enough to make the designer give in. But what sort of fairness does that speak to?

Some commentators wonder how stockists of Samsung Galaxy products might have behaved, when Apple made allegations about the possibility that Galaxy had infringed their design rights. Had the Bill been law by then, at that point, all dealers and holders of stock of Samsung Galaxy products would have faced criminal liability (including potential imprisonment) if they had made an incorrect judgment call as to whether the product did in fact infringe Apple’s registered design. 

One can only imagine that this would have done extremely serious and, as it turned out, unnecessary harm to Samsung’s business in the UK; and to all the shops and stores that retailed their products. 

So much for the government’s trumpeting of itself as a supporter of competition and an opponent of unnecessary regulation.

Lord Wilf Stevenson of Balmacara is a Shadow Business, Innovation & Skills Minister in the Lords

Published 13th June 2013 

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