London Olympics Bill


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Mr. Foster: I wish to echo the hon. Lady’s words. Although we are grateful for the amendments to paragraph 4—they give greater clarification of the Government’s intention—there is still a concern among many people that the commitment that the Government made at the time of the bid and the commitment that has been given subsequently that everyone in the country would benefit from the Olympic games may not be delivered, if we are not careful. It is worth recalling that, only a few days ago, in a speech entitled, “We can all be winners from 2012”, the Secretary of State said:

    “My message is simple—we can all be winners from the Games coming to Britain. Anything is possible for those who go for it. Businesses, the trade union movement and local communities need to start thinking now about how they seize the commercial opportunities the 2012 Games will provide. We are committed to ensuring that every region of the country benefits from the Olympic Games”.

It is crucial that the Minister acknowledge what the Secretary of State said.

Although I genuinely understand the concerns, it worries me that some of the briefing notes from LOCOG, for instance, talk about ambush marketers who will

    “feed off the goodwill and public excitement about the event, so as to enhance demand for the brand”.

LOCOG calls such marketing activities “parasitic”. I accept that there is a fine line between making sure that we protect the rights of sponsors, so that they are prepared to be sponsors, and ensuring that everyone else has the opportunity to benefit from the Olympics. I remain to be convinced that we have not stepped too far and gone on to the wrong side of that line. If we are not careful, the commitment given by the Secretary of State that we can all be winners from 2012 will not be delivered.

Mr. Caborn: I understand what hon. Members are saying, but I think that we have struck the right balance. We have taken on board what has been said. As I mentioned, the amendments have largely arisen from discussions with the Institute of Practitioners in Advertising and the British Olympic Association. We have taken their concerns on board, and they are reflected in the amendments. If the amendments are accepted, we will have struck the right balance. I acknowledge what the hon. Gentleman says, but we have taken third party advice and brought the resulting amendments before the Committee. Obviously, we will listen to what people say. There is
 
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further action to be taken in the Bill, as we will soon see, but we have got the balance about right at the moment.

Amendment agreed to.

Amendments made: No. 77, in schedule 2, page 33, line 24, at end insert—

      ‘(aa)   as a necessary incident of publishing or broadcasting information about the Olympic Games,’.

No. 78, in schedule 2, page 33, line 25, leave out

    ‘an artistic work, sound recording, film or broadcast,’

and insert

    ‘a literary work, dramatic work, artistic work, sound recording, film or broadcast, within the meaning of Part I of the Copyright, Designs and Patents Act 1988 (c. 48) (copyright),’.

No. 79, in schedule 2, page 33, line 27, leave out paragraph (c) and insert—

      ‘(c)   as an inclusion in an advertisement for a publication or broadcast of a kind described in paragraph (a) or (aa).’.

No. 80, in schedule 2, page 33, line 30, leave out ‘protected word’ and insert ‘controlled representation’.

No. 81, in schedule 2, page 33, line 31, leave out ‘with’ and insert

    ‘between a person, product or service and’.

No. 82, in schedule 2, page 33, line 31, at end insert

    ‘; and for the purpose of this subsection—

      (a)   the concept of an association between a person, product or service and the Olympic Games or the Olympic movement includes, in particular—

      (i)   any kind of contractual relationship,

      (ii)   any kind of commercial relationship,

      (iii)   any kind of corporate or structural connection, and

      (iv)   the provision by a person of financial or other support for or in connection with the Olympic Games or the Olympic movement, but

      (b)   a person does not suggest an association with the Olympic Games or the Olympic movement only by making a statement which—

      (i)   accords with honest practices in industrial or commercial matters, and

      (ii)   does not make promotional or other commercial use of a protected word by incorporating it in a context to which the Olympic Games and the Olympic movement are substantively irrelevant.

    (2A)   The Secretary of State may by order specify what is to be or not to be treated for the purposes of subsection (2) as an association between a person, product or service and the Olympic Games or the Olympic movement; and an order under this subsection—

      (a)   may include incidental, consequential or transitional provision (which may include provision amending subsection (2)(a) or (b)),

      (b)   shall be made by statutory instrument, and

      (c)   may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.’.—[Mr. Caborn.]

Mr. Caborn: I beg to move amendment No. 83, in schedule 2, page 35, line 16, at end insert—

    ‘Infringement

      9A   In section 7(3)(a) (orders in relation to infringing goods: “infringing material”) for “, or for advertising goods or services,” substitute “, for advertising goods or services or by being displayed,”.’.


     
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    The amendment removes an anomaly from the Olympic Symbol etc. (Protection) Act 1995. At present, a person infringes the BOA’s right if, in contravention of section 3 of that Act, he or she uses a protected word or symbol in a banner or flag. However, the definition of “infringing material” in section (7)(3) does not include such banners or displays. Our amendment simply means that the court orders permitted by section 7 of the Act, such as those relating to the delivering up of goods or the erasure of infringing signs, can now apply to flags or banners using protected words or symbols that infringe the BOA’s right.

    Amendment agreed to.

Mr. Caborn: I beg to move amendment No. 48, in schedule 2, page 35, line 25, at end insert—

    ‘Enforcement

      11   (1)   After section 8 add—

      “8A   Enforcement by trading standards authority

      (1)   A local weights and measures authority may enforce within their area the provisions of section 8.

      (2)   The following provisions of the Trade Descriptions Act 1968 apply in relation to the enforcement of that section as in relation to the enforcement of that Act—

        (a)   section 27 (power to make test purchases),

      (b)   section 28 (power to enter premises and inspect and seize goods and documents),

      (c)   section 29 (obstruction of authorised officers), and

      (d)   section 33 (compensation for loss, &c of goods seized).

    (3)   Subsection (1) above does not apply in relation to the enforcement of section 8 in Northern Ireland; but—

      (a)   the Department of Enterprise, Trade and Investment may enforce that section in Northern Ireland, and

      (b)   for that purpose the provisions of the Trade Descriptions Act 1968 specified in subsection (2) apply as if for the references to a local weights and measures authority and any officer of such an authority there were substituted references to that Department and any of its officers.

    (4)   Nothing in this section shall be construed as authorising a local weights and measures authority to bring proceedings in Scotland for an offence.”

    (2)   The London Organising Committee may—

      (a)   make arrangements with a local weights and measures authority for the exercise of the authority’s power under section 8 of the Olympic Symbol etc. (Protection) Act 1995 (as inserted by sub-paragraph (1));

      (b)   may make payments to a local weights and measures authority in respect of expenses incurred in the exercise of that power.

    12   After section 8A (inserted by paragraph 11 above) insert—

    “8B   Arrest

    (1)   After paragraph 21 of Schedule 1A to the Police and Criminal Evidence Act 1984 (arrestable offences) add—

    “Olympic Symbol etc. (Protection) Act 1995

      21A      An offence under section 8 of the Olympic Symbol etc. (Protection) Act 1995 (offences in relation to goods).”

      (2)   A constable in Scotland may arrest without warrant a person who the constable reasonably believes is committing or has committed an offence under section 8 of the Olympic Symbol etc. (Protection) Act 1995.

      (3)   Subsection (2) is without prejudice to any power of arrest which is otherwise exercisable by a constable in Scotland.”.’.

    The Chairman: With this it will be convenient to discuss Government amendments Nos. 45 and 42 to 44.


 
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Mr. Caborn: These amendments are necessary to ensure that our law enforcement agencies have a full range of powers available to them in order successfully to crack down on people who seek to exploit the games through trading in merchandise that infringes the Olympic Symbol etc. (Protection) Act 1995.

Government amendment No. 45 provides Customs and Revenue officers with enforcement powers in relation to OSPA-infringing goods entering the UK. In effect, the amendment brings Customs officers’ powers in relation to counterfeit Olympic goods in line with their existing powers for detaining other goods that are intellectual property infringements. Providing Customs officers with such powers of detention is important if we are successfully to crack down on people who attempt to import and to sell counterfeit Olympic merchandise. Customs officers will be the first line of defence against counterfeit goods entering the country and we think that this is an important and appropriate addition to our armoury to combat those who seek unfairly to exploit the games.

The amendments create a dual system whereby HMRC officers can seize OSPA-infringing goods. First, as set out in new section 12A(1), HMRC officers will be able to detain counterfeit OSPA goods when LOCOG or the British Olympic Association provide HMRC officers with notice in writing of consignments entering the country that they believe to contain OSPA-infringing articles. Secondly, subsection (8) of new section 12A provides that, if HMRC discovers items during its ordinary course of business—and not as a result of notice from LOCOG or the BOA—which it suspects are counterfeit, it may also detain those goods.

The remaining subsections of new section 12A set out in detail how the provisions will work in practice. That includes, in subsections (4) and (8), details of how the proprietor and the importer will be informed of any seizure, as well as details of the information that HMRC can pass on to LOCOG. The new section also provides HMRC with powers to provide LOCOG with samples of any seized items to help it to determine whether seized goods are infringing the provisions.

The new section includes details of the time limits by which proceedings have to be brought by LOCOG in relation to any OSPA-infringing goods. That ensures that the HMRC can detain items only for a reasonable period, in line with its powers of detention in relation to other trademark goods. New section 12A also creates a criminal offence for any inappropriate onward disclosure of data LOCOG has received from HMRC. That provision ensures that HMRC can provide LOCOG with the necessary information about the importer or owner of the counterfeit goods, but it also ensures that the information gateway is strictly and tightly controlled.

Amendment No. 48 provides trading standards officers with clear enforcement powers in relation to the OSPA. Trading standards officers will be crucial in preventing the sale of counterfeit merchandise. Clarifying trading standards officers’ powers is therefore a necessary and sensible step. The amendment provides trading standards officers with
 
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the power to make test purchases, as well as giving them the power to enter premises and inspect and seize goods. In effect, we are bringing trading standards officers’ powers for OSPA-infringing articles largely into line with the powers that they hold in relation to other trademark infringing goods.

The amendment also creates an arrestable offence under the OSPA. The trade in counterfeit goods is a lucrative and, at times, highly organised business. This is not just about a market trader with a one-off set of dodgy T-shirts. Those who trade in counterfeit merchandise are often part of a worldwide criminal network. Making the offence arrestable gives trading standards officers the ability to call on the police to use their powers and expertise to crack down on offenders who may be part of an organised criminal gang.

In amendment No. 48, we clarify that LOCOG can fund the activity of trading standards officers. That is to ensure that trading standards officers receive the necessary funds to enable them to carry out extensive and effective enforcement action.

Amendments Nos. 42, 43 and 44 relate to the commencement and end dates of these provisions.

Mr. Foster: I have only one question about the dodgy T-shirt group of amendments, as the Minister described them. I am grateful to him for his explanation and to the Government for tabling these important amendments. He referred to the fact that the amendments—particularly amendment No. 48—give powers to trading standards officers or, as they are called, local weights and measures authorities, to take various actions. Will he clarify whether he understands his amendment to mean that such an authority can take action without a request from LOCOG? The provision currently states that LOCOG may make arrangements with trading standards officers and may make payments to them for their work. I hoped that trading standards officers or the authority would make the decision to carry on and to investigate such matters once they were given the powers. The slight problem is whether trading standards officers are going to sit back and wait for LOCOG to ask them to do something and get money for it in that way. Will the Minister explain how the money flows and whether, if trading standards officers get on and do something using the powers being given to them, they can go back to LOCOG and say, “We did it. Can we have some money?” I am not clear how it works.

Mr. Caborn: If trading standards officers discovered in the normal course of their duties and actions that there was an infringement, obviously, they would act on that, but if LOCOG wants specifically to ask trading standards to take up extra work on surveillance over this period, which might be what is wanted, it will be quite legitimate for LOCOG to pay for that. Trading standards would report an infringement if they found one in the normal course of their duties, which would be paid for by their authorities. However, if extra surveillance were necessary—for example, at certain ports through which counterfeit articles could come into the country—LOCOG would ask trading standards to set
 
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that up and it would pay for it. I hope that I have said the right thing. I have been passed a note that says that the authorities could take action but might need some financial help to combat the scale of the enforcement action needed.

12.45 pm

Mr. Foster: Time is pressing, so I shall not delay. The point is that trading standards officers, who are a function of local government, will be given new powers for a relatively short time—although quite a long time during the run-up to the games; certainly longer than the period of the games—and will have additional duties to perform. Under normal circumstances, that would be reflected in the local government financial assessment in some way or other. Presumably, the Local Government Association will take up that issue.

I should like to be clear. The Minister seems to be saying that the trading standards officers will try to get money out of the local government financial settlement for their normal duties. If LOCOG wishes them to do something extra, they could get funding for that extra over and above their new powers. I think that the Minister said that. If he just says “yes”, we shall all be happy.

Mr. Caborn: Yes.

Mr. Foster: Thanks.

Amendment agreed to.

Amendment made: No. 45, in schedule 2, page 35, line 25, at end insert—

    ‘13   After section 12 (forfeiture) insert—

    “12A   Detention by Revenue and Customs

    (1)   The proprietor may give notice in writing to the Commissioners for Her Majesty’s Revenue and Customs—

      (a)   stating that at a time and place specified in the notice, goods which are infringing goods, material or articles are expected to arrive in the United Kingdom—

      (i)   from outside the European Economic Area, or

      (ii)   from within the Area but not having been entered for free circulation,

      (b)   specifying the nature of the controlled representation by reference to which the goods are infringing goods, material or articles, and

      (c)   requesting the Commissioners to detain the goods.

    (2)   The Commissioners may detain goods to which a notice under subsection (1) relates.

    (3)   But the Commissioners may not detain goods—

      (a)   imported by a person for his private and domestic use, or

      (b)   to which section 89(3) of the Trade Marks Act 1994 applies (Council Regulation 1383/2003/EC).

    (4)   If the Commissioners detain goods to which a notice under subsection (1) applies they shall as soon as is reasonably practicable—

      (a)   give written notice of the detention and the grounds for it to the person in whose name the goods were presented or declared to customs, and

      (b)   give the proprietor notice that the goods have been detained, specifying in respect of the goods such information as is available to the Commissioners about—

      (i)   the nature of the goods,

      (ii)   their number,

      (iii)   the place where they were manufactured,

      (iv)   the place from which they were sent,


 
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      (v)   the name and address of the person by whom they were sent,

      (vi)   the name and address of the person mentioned in paragraph (a),

      (vii)   the name and address of the person to whom they were to be delivered, and

      (viii)   the name and address of the person who holds them during detention.

    (5)   The Commissioners may provide samples of detained goods to the proprietor on request, in which case he—

      (a)   may use the samples only for the purpose of determining whether they are infringing goods, material or articles,

      (b)   must return the samples to the Commissioners as soon as is reasonably practicable, and

      (c)   must inform the Commissioners as soon as is reasonably practicable whether the goods are infringing goods, material or articles.

    (6)   The Commissioners may permit the proprietor on request to inspect detained goods (in which case he must inform the Commissioners as soon as is reasonably practicable whether the goods are infringing goods, material or articles).

    (7)   The Commissioners shall release goods detained in pursuance of a notice under subsection (1) if—

      (a)   the Commissioners think that initiating process in proceedings under section 6 in respect of the goods has not been served during the period of 10 working days, in the case of non-perishable goods, or 3 working days, in the case of perishable goods, beginning with the date on which the notice under subsection (4)(b) was received,

      (b)   the Commissioners think that proceedings under section 6 in respect of the goods have been withdrawn, have lapsed or have terminated without an order being made in respect of the goods by virtue of section 7, or

      (c)   the Commissioners are informed by the proprietor that the goods are not infringing goods, material or articles.

    (8)   The Commissioners may detain goods which they think, having regard to the nature of the goods and to information provided by the proprietor, may be infringing goods, material or articles; and if the Commissioners detain goods under this subsection—

      (a)   they shall as soon as is reasonably practicable invite the proprietor to give the Commissioners a notice that the goods are infringing goods, material or articles,

      (b)   they shall, when giving an invitation under paragraph (a), give in respect of the goods such information as is available to them about—

      (i)   the nature of the goods,

      (ii)   their number,

      (iii)   the place where they were manufactured,

      (iv)   the place from which they were sent,

      (v)   the name and address of the person by whom they were sent,

      (vi)   the name and address of the person in whose name the goods were presented or declared to customs,

      (vii)   the name and address of the person to whom they were to be delivered, and

      (viii)   the name and address of the person who holds them during detention,

      (c)   they may provide samples of the goods to the proprietor on request in which case he —

      (i)   may use the samples only for the purpose of determining whether they are infringing goods, material or articles,

      (ii)   must return the samples to the Commissioners as soon as is reasonably practicable, and

      (iii)   must inform the Commissioners as soon as reasonably practicable whether the goods are infringing goods, material or articles,

      (d)   they may permit the proprietor on request to inspect the goods (in which case he must inform the Commissioners as soon as reasonably practicable whether the goods are infringing goods, material or articles),


 
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      (e)   if no notice is given in accordance with paragraph (a) within the period of 3 working days beginning with the date on which the invitation under that paragraph is received, the Commissioners shall release the goods, and

      (f)   if a notice is given in accordance with paragraph (a), the Commissioners shall proceed as if it were a notice given under subsection (1) above (and as if the goods were detained in pursuance of that notice), but—

      (i)   subsections (4)(b), (5) and (6) shall not have effect, and

      (ii)   subsection (7) shall have effect as if the reference to the notice under subsection (4)(b) were a reference to information under paragraph (b) above.

    12B   Section 12A: supplementary

    (1)   Section 90 of the Trade Marks Act 1994 (c. 26) (regulations as to form of notice, &c.) shall have effect in relation to a notice under subsection 12A(1) or (8)(a) above as in relation to a notice under section 89(1).

    (2)   A person who is or was an officer or employee of the proprietor, or who acts or acted on the proprietor’s behalf, commits an offence if he discloses information provided in accordance with section 12A(4)(b) or 12A(8)(b) other than—

      (a)   for the purpose of, or with a view to the institution of, proceedings under section 6,

      (b)   for the purpose of complying with an enactment,

      (c)   in pursuance of an order of a court,

      (d)   in a form which ensures that the identity of no person to whom the information relates is specified or can be deduced,

      (e)   with the consent of each person to whom the information relates, or


 
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      (f)   with the consent of the Commissioners for Her Majesty’s Revenue and Customs;

    and sections 19(3), (4), (7) and 55(1) of the Commissioners for Revenue and Customs Act 2005 (c. 11) (defences and penalties) shall have effect in relation to this subsection.

    (3)   Section 139(1), (2), (3), (4), (7) and (8) of the Customs and Excise Management Act 1979 (detention of goods: constables, &c.) shall apply in relation to goods liable to detention in accordance with section 12A above as in relation to things liable to forfeiture—

      (a)   with the substitution of a reference to this Act for a reference to the customs and excise Acts, and

      (b)   with any other necessary modifications.

    (4)   Section 144 of that Act (protection of officers) shall apply in relation to the detention of goods in accordance with section 12A above—

      (a)   with the substitution of a reference to proceedings under section 6 above for the reference in section 144(1) to proceedings for condemnation, and

      (b)   with any other necessary modifications.

    (5)   In section 12A “working day” means a day that is not a Saturday, a Sunday or a bank holiday (within the meaning of section 1 of the Banking and Financial Dealings Act 1971 (c. 80)).”.’.—[Mr. Caborn.]

Schedule 2, as amended, agreed to.

Clause 31 ordered to stand part of the Bill.

Further consideration adjourned—[Claire Ward.]

Adjourned at thirteen minutes to One o’clock till this day at Four o’clock.

 
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