Amendment 7

Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL] - Report – in the House of Lords am 7:00 pm ar 16 Ionawr 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Lord Foster of Bath:

Moved by Lord Foster of Bath

7: After Clause 5, insert the following new Clause—“Qualifying countries(1) Section 206 of the Copyright, Designs and Patents Act 1988 (qualifying countries, individuals and persons) is amended as follows.(2) In subsection (1)(bb) for “Rome Convention” substitute “Comprehensive and Progressive Agreement for Trans-Pacific Partnership”.”Member’s explanatory statementThis amendment would remove the Rome convention (and therefore its parties) from the definition of a “qualifying country” and substitute it with the CPTPP (and therefore its parties).

Photo of Lord Foster of Bath Lord Foster of Bath Democratiaid Rhyddfrydol

My Lords, I congratulate the Minister on his tour de force in responding to the large number of amendments in the last group. I hope that the mere two amendments in this group will make life a little easier for him.

I have tabled these amendments merely to enable further debate on an issue that, frankly, was not satisfactorily resolved in Committee. The Minister is well aware that the copyright provisions in the Bill, not least in relation to performers’ rights, have caused significant confusion and concern among rights holders. In Committee the Minister sought to clarify the position. I fear that some confusion remains, but I am enormously grateful to him and his officials for the meeting we had subsequently and for the letter that he sent to me afterwards. I say to him that I have noted that the IPO consultation on the matters we are debating today started yesterday.

The upshot, for those not familiar with what this is all about, is simple: the Intellectual Property Office and the Minister believe that changes to our copyright law contained in the Bill are necessary for our accession to the CPTPP while I, rights holders’ representatives and some legal experts do not believe that that is the case. For instance, the CPTPP requires member countries to ratify the WIPO Performances and Phonograms Treaty, the WPPT. The UK did that over 20 years ago and there have been no concerns about it in subsequent years; no one has suggested that in the way we have implemented it we have got it wrong. Yet the Government now belatedly seem to suggest that somehow or other our legislation does not meet WPPT standards regarding the protection granted to performers and phonogram producers, so the law has to be changed. I note that the IPO’s consultation on changes in this area specifically says that existing arrangements in some cases are not consistent with treaties on copyright, which seems to suggest that for a long period we have somehow not been doing what we should have been under treaties that we signed some years ago.

However, legal experts think the Government and the IPO have got it wrong. For example, they argue that we fulfil the treaty obligations by protecting performers on the basis of reciprocity, the triggering of which simply does not require any action by the Government, based on Article 4(2) of the WPPT. As further evidence that change is not needed, it should be noted that the changes in the Bill that are deemed necessary were not even referred to when the UK negotiated trade agreements with both Australia and Japan, both of which are members of the CPTPP. Surely the Minister should explain to us what specifically it is in the CPTPP agreement that requires these changes in UK law, and why they were not deemed necessary when the agreements were signed with Australia and Japan. I also note that, when Australia itself became a member of the CPTPP, it did not make any changes to its copyright framework, despite also being a signatory to the relevant treaties. Again I ask: why is it the UK’s view that our current regime is out of kilter with the measures outlined in the CPTPP agreement?

The Minister’s letter to me stated that widening the benefits to foreign performers, whether or not they are based in CPTPP countries, is required under national treatment and most favoured nation obligations under our broader treaty obligations. If I am correct, he is saying that, since we are expanding the rights because of what they believe is required under the CPTPP, we must provide those to all foreign performers. However, other member countries of the CPTPP do not do that, so why has the UK interpreted that in the way it has? Could the Minister perhaps share any correspondence with us that the Government have had from the secretariat of the CPTPP, or from signatories to the CPTPP agreement, in which they have asked to the UK to make these changes—or is it just that the UK has unilaterally decided that our framework is not compatible?

We should be concerned about this, because broadening rights, as the Government are proposing in the Bill, not just in CPTPP countries but in many other countries, is a real cause for concern. Under the current arrangements, for example, because reciprocity is not offered by the US, US performers are not entitled to receive equitable remuneration. As a result, the share of revenues collected by UK licence holders for US recordings remains in the UK and is used to invest in UK artists and their recordings. Under the proposed changes—at least until some mitigation measures are introduced—the US will benefit, to the detriment of the UK. More generally, the measures will enable more performers to fish in the pond of UK royalties, ultimately reducing the amount that we can make available to UK performers and their labels.

Up until the consultation that started yesterday, the Government had not made any assessment of what the impact would be. That means we now have to turn to the consultation that started yesterday. We were told throughout that the consultation would be on the measures contained within the Bill required for accession to the CPTPP, but I have the consultation on my iPad—or at least I will once I have entered my passcode—and, under the heading “Other intended changes not subject to this consultation”, it tells us:

“On 16 July 2023, the UK signed the Protocol … which outlines the terms … In order to comply with obligations … some changes to UK legislation are required with regard to rights in performances. These changes are necessary for the UK to accede to CPTPP and must be made before accession”.

We are arguing that that is not the case, but it is the Government’s position. The consultation continues:

“This will involve expanding the eligibility criteria for rights in performances”,

and says these changes will be made in the Bill that we are currently debating. It states:

“Both the changes in the Bill and the accompanying secondary legislation will take effect when the CPTPP enters into force”.

It then says, very precisely, in paragraph 27:

“These changes are not the subject of this consultation”.

While we were told that the consultation would tell us, belatedly, what this was all about, so we could understand it, with model examples and anecdotes provided, we now discover that what we have all waited for patiently is not relevant to the Bill that we are debating, and that the Bill will introduce a series of measures that many people believe are not necessary and are a mistaken understanding of the current situation that could have a serious detrimental impact on the UK’s creative industries. We do not know how big that will be, and the Government are asking us to take on trust that there may be some further changes coming as a result of this consultation, which will conclude long after we have finished debating this Bill in your Lordships’ House. So we will not even have the benefit of hearing from all the people who will be consulted before we make decisions.

I hope the Minister will acknowledge that the concern continues. These two amendments are merely to provide an opportunity for the Minister to clarify a situation that so many of us believe is totally and absolutely unclear —making changes that are not necessary for the sake of accession to CPTPP, which are worth considering for the future for some other reason, perhaps, but should be done totally separately from the deliberations we are having now. We should have had a clear impact assessment of these measures and justification for their introduction provided long before this stage of deliberations on the Bill. I hope the Minister will conclude by saying how this House will have an opportunity to have a further discussion on these issues when more information is made available as a result of the consultation.

Photo of The Earl of Clancarty The Earl of Clancarty Crossbench 7:15, 16 Ionawr 2024

My Lords, I rise briefly in support of Amendments 7 and 8 from the noble Lord, Lord Foster. I will say only one thing on the concerns about performance rights, because the noble Lord, Lord Foster, summarised the problem very comprehensively. Before I do, I wish to thank the Minister for his extremely prompt reply by letter to our concerns on the artist’s resale right in relation to the CPTPP that we discussed in Committee and for agreeing so quickly to set up a meeting on this, which I believe will take place on Monday. I look forward very much to that.

The single thing I will say about performance rights in relation to this Bill is to iterate a concern that Music Week, in response to the IPO consultation, raised yesterday. It highlights the importance and principle of reciprocity that the noble Lord, Lord Foster, mentioned. My understanding is that, until now, performance rights have been based on the principle of equitable remuneration, but this Bill potentially puts that in danger. There is a fundamental question—as the noble Lord, Lord Foster, said—to be asked about why the music and broadcasting industries are being put through the wringer on this when they are broadly happy with the status quo. If—and it is an “if”, because there are a number of options—the Government go down a particular route whereby, because of a reduction in the money going to US labels, US music is effectively free to play in the UK but UK music, particularly new UK music, is not, the concern is that, to quote Music Week,

“domestic acts might be squeezed out by UK broadcasters looking to save money”.

I hope the Minister will agree that that kind of asymmetric, or inequitable, scenario is one that needs to be avoided—although I am sure that that point and more will be made by interested parties in response to the consultation, which I hope that the Government will look at very closely.

Photo of Lord Leong Lord Leong Shadow Spokesperson (Business and Trade), Opposition Whip (Lords)

My Lords, I am speaking to Amendments 7 and 8, and I thank all noble Lords for their contributions.

Intellectual property, particularly copyright, plays a pivotal role in the global trade in creative content, with the UK music industry serving as a prime example of its significance. It is imperative to acknowledge the substantial impact of copyright on fostering innovation and ensuring the efficient operation of markets. Additionally, it is crucial to recognise existing obligations under international copyright treaties and ensure their full and correct implementation by the signatories of the CPTPP. While the fundamental rights encompassing reproduction, broadcasting, communication to the public and distribution are addressed within CPTPP, it is disheartening to note that member states retain the option to opt out of certain obligations. Furthermore, the non-recognition of copyright protection for the utilisation of recorded music in broadcasting and public performance remains a regrettable challenge. To comply with obligations in the CPTPP, as mentioned earlier by the noble Lord, Lord Foster, changes need to be made to UK legislation with regard to rights in performance. We share some of the concerns in the noble Lord’s contribution earlier, and we would welcome an impact assessment to help us understand some of these non-compliance cases.

Will the Minister respond to the following questions, as mentioned earlier by the noble Lord, Lord Foster? Why is the extension of rights in sound recordings and performance to foreign nationals not covered under this consultation? At the same time, can the Minister share with the House when the results of this consultation will be published? Will there be a statement on collective management organisations, given their importance for the income of composers, performers and rights holders? Can the Minister also confirm that UK musicians are able to tour throughout CPTPP member states without any barriers and checks?

Photo of Lord Johnson of Lainston Lord Johnson of Lainston Minister of State (Department for Business and Trade)

I am extremely grateful to the noble Lord, Lord Foster, for bringing this amendment, for the discussions and dialogue we have had, for the correspondence I have enjoyed with the noble Earl, Lord Clancarty, and for the excellent summation by the noble Lord, Lord Leong—I was about to say “my noble friend” because he is a good friend—who asked some key questions. I am afraid I do not have the answer to the final question that the noble Lord, Lord Leong, asked about the touring rights of artists. I will write to him on that; it is a very good point, and we very much hope that clearly the additional facilities that we have, in terms of temporary business entry for CPTPP countries, may include this. I hope it will and I will confirm this.

Some good points have been raised. In response, first, I will say that the desire to treat performers equitably is the right thing to do. Currently, there are a number of performers who are excluded from receiving the 50% mandatory royalty payment, simply because they come from another country or their work has not been registered in the appropriate fashion. The consultation, which started yesterday and will report on 11 March, is not specifically a consultation on the CPTPP, because we wanted it to be a far wider consultation around the principles of broadcast rights—but clearly it will reflect on the discussion we are having now.

Understanding the difference between how we operate artists’ performance rights today and how they will operate under CPTPP has been an interesting process. The reality is that we are doing this as a result of our treaty obligations and the most favoured nation principles, extending these rights to other countries that may not necessarily reciprocate. But it is more subtle than that, so I will explore this a little further. Given how music is produced now, nearly all of it is released simultaneously. In my view, apart from music that is defined and not released on a global scale—although, of course, fundamentally it is, given how it is published using modern media and communication techniques—nearly all music, or a huge amount of additional quantity, would already be in the market, even if we did not have this specific extension to the most favoured nation status of the other countries. It is important to highlight this. As a result, we may be slightly confusing the cornerstone issues here. However, the consultation will give us an opportunity to take a step back and frame how we want to manage artists’ performance payments for broadcast media. Reflecting the letter I wrote to the noble Lord, Lord Foster, that is not a significant amount of overall payments in numeric terms—the majority of music revenues are generated through streaming and other sales.

I am happy to have further conversations on this. As the Lords Minister covering CPTPP, I am clearly comfortable with participating in a proper and deep discussion on the responses to the consultation. I do not share some noble Lords’ concerns about the effect this will have on the industry; that is not because I do not take this seriously but because I believe that the CPTPP measures themselves will have an effect. The additional applicable countries with most favoured nation status will not necessarily create the effect that some noble Lords suggest. That is because of how the world of music production has changed—it will broadly entitle more artists to be perceived to be in CPTPP countries.

I do not know whether I have explained this with any more clarity, but I take very seriously the points of the noble Lord, Lord Foster. I have been privileged to engage with him on this matter. We are having a consultation, and we will review this very seriously. I do not think there is any political mileage one way or the other in this. We want to get to the right outcome that supports the UK music industry, and ensures that our artists are properly rewarded and that the British music industry is not disadvantaged in any way. I believe that signing up to this agreement will benefit our artists, allowing them better protections in these markets than what we may have to offer in return. In this instance, on a technical point, I ask the noble Lord to withdraw his amendment for those reasons.

Photo of Lord Foster of Bath Lord Foster of Bath Democratiaid Rhyddfrydol 7:30, 16 Ionawr 2024

My Lords, I am grateful to all noble Lords who took part in the debate, and of course to the Minister for his response, although I confess that I was somewhat disappointed with it. I asked a series of questions. Why were these issues not covered when we did trade deals with Australia and Japan? I got no answer to that. I asked why Australia did not change its ways of dealing with this matter when it joined CPTPP, and which countries within CPTPP are operating in the way that the Government now want the UK to. I further asked a simple question about why we were told that the consultation—which the Minister has now said is so important on this issue—specifically says that the decisions we are taking within the Bill are not part of it. He hinted that there is a possibility of further consideration of this, and I look forward to finding a way of doing that. I say to all noble Lords that my fear is that the decisions will now be made by the Government long after your Lordships’ House has had any opportunity to have further involvement in making decisions on this issue. Nevertheless, I beg leave to withdraw.

Amendment 7 withdrawn.

Amendments 8 to 14 not moved.