Intellectual Property (Unjustified Threats) Bill [HL] — House of Lords, 2016-11-23
Topic: Mixed Topics
Lucy Neville-Rolfe (Conservative, Centre-right): My Lords, this group of amendments seeks to address concerns raised in Committee about the practical application of the new threats provisions. These changes amend the discretion afforded to judges in applying the new permitted communication provisions and improve the ability to access the defences available. Both these changes particularly help to address concerns expressed about the challenges of working in an online trading environment I turn first to Amendment 3 and its family. The provisions as drafted allow that the courts may treat another, additional purpose as a permitted purpose if that is necessary in the interests of justice. I have now had the opportunity to consider the arguments put forward by the noble Baroness, Lady Bowles, and to reflect further on the evidence given by Mr Justice Birss, Professor Sir Robin Jacob and others to the Special Public Bill Committee regarding the extent of the judges’ discretion in this area. By removing the word "necessary", these amendments provide additional flexibility to the courts when considering whether a particular communication was made for a permitted purpose. The provisions still give clarity and certainty for those using the system, which is a key requirement for all stakeholders The wider discretion afforded to the courts under this amendment allows them to add to the list of permitted communications when appropriate. This would include treating the use of an online form as permitted, if that is suitable in the particular circumstances. This amendment, therefore, helps to address concerns raised about the use of particular online forms The next family of amendments relates to the defence available to rights holders, whereby they are allowed to send a threat to a trader, or other secondary actor, who is not the source of the alleged infringement, if a search for the primary actor has been unsuccessful. The amendments deal with two issues discussed in Committee. There were concerns that, first, the bar was set too high to access the defence, and, secondly, this was particularly problematic for rights holders dealing with potential infringements in an online trading environment. Under the current patents law, the test is that the rights holder must have used "best endeavours" to find the source but failed. During the Law Commission’s work, the "best endeavours" requirement was the subject of much criticism. As a result, the phrase "all reasonable steps" was used in the Bill. However, in evidence taken by the Special Public Bill Committee, this phrasing was also described as being too onerous As the BBC explained in its evidence, in the face of high-volume, low-value online infringements, the requirement to use "all reasonable steps" would be disproportionate and burdensome. It was therefore suggested that the word "all" should be left out. Compelling arguments were also put forward by the committee’s distinguished chairman, the noble and learned Lord, Lord Saville, the noble Viscount, Lord Hanworth, and the noble Baroness, Lady Bowles. On reflection, I agree that "all reasonable steps" does place the bar too high. The amendment would instead require the rights holder to simply take "reasonable steps" to find the source of the infringement. What is reasonable will depend on the circumstances. The assessment can take account of what it is reasonable for the rights holder to do in an online environment, and what is reasonable in the economic circumstances of the case There is a balance here. We need to ensure that we restrict potentially damaging unjustified threats but also that rights holders can take action to tackle infringement online when they need to. I beg to move.