Clause 72 of the Intellectual Property Amendment Bill amends section 20 of the Designs Act by the addition of the following subsection:
"(3) Notwithstanding subsection (1), the rights of the registered proprietor of a registered design in the form of an integrated circuit topography shall not be infringed by a person who
(a) makes an article embodying the registered design or a design not substantially different from the registered design for private purposes or for the sole purpose of evaluation, analysis, research or teaching;
(b) imports or disposes of an integrated circuit embodying the registered design which has been unlawfully produced or an article incorporating such an integrated circuit and proves that at the time of acquiring the integrated circuit or article he or she was not aware and had no reasonable grounds of becoming aware that the integrated circuit or article embodies a registered design which had been unlawfully produced: Provided that when the person receives sufficient notice that the registered design was unlawfully produced, the person may dispose of any stock of such integrated circuits or articles but shall be liable to pay to the registered proprietor a sum calculated on the basis of a reasonable royalty which would have been payable by a licensee or sub licensee in respect of the registered design concerned."
After the publication of the Amendment Bill, it was noted that the words "for private purposes or" were accidentally omitted from paragraph (a) of the proposed amendment; these words have since been inserted.
It is submitted that, once the Amendment Bill is passed and section 20 of the Designs Act amended, the provisions will be in line with Article 35 of the TRIPS Agreement.
