Lord Cameron of Chipping Norton
Finally, on intellectual property, the Bill will align our approach to copyright with that of other members. For instance, it will expand the basis on which foreign performers can qualify for rights here in the UK. It will also align our approach to geographical indications and designations of origin, which I am happy to say is good news for things such as Lincolnshire sausages, Cheddar cheese and of course Scotch whisky.
In each of these specific areas, UK bodies and businesses will benefit from corresponding treatment in other participating countries. The Bill therefore reduces a whole series of complex obstacles to trade, including copyright, patent, standards and public procurement. These points are often underappreciated, but they will benefit UK businesses and consumers alike.
Lord Collins of Highbury
The noble Lord the Foreign Secretary mentioned intellectual property. In advance of the negotiations, the International Agreements Committee highlighted two issues: first, that CPTPP rules directly conflict with the European patent convention, and accepting them could jeopardise the UK’s continued membership of the European Patent Office; and, secondly, that the CPTPP introduces a mandatory procedure for notifying the patent holder when seeking authorisation for a generic or biosimilar medicine. This would, despite what the noble Lord said, result potentially in higher medicine prices for the NHS. It is welcome that the Government listened to concerns in this area and have ensured that their existing international commitments have been protected, as well as protections for geographical indications and performers in other CPTPP countries. However, can the Minister in his response confirm that this means no risk to the NHS in terms of higher medicine prices?
I would like to focus on the changes to copyright law contained in the Bill, and the criticisms by a number of relevant organisations, including the Alliance for Intellectual Property.
There is no doubt that the treaty has brought little direct benefit to the United Kingdom creative industries. The main achievement, which the noble Lord, Lord Collins, touched on, is that the agreement regarding IP rights enabled the UK to remain complaint with the European patent convention, which was a fear to begin with.
The Bill also provides for changes to copyright laws so that foreign rights holders and performers receive payment where they do not currently. As I read it—and I may perfectly well be wrong, as may the NGO—the Bill as it stands does not limit the extension to CPTPP countries, so it allows the Government to extend the benefits to rights holders and performers in any country, whether or not a reciprocal arrangement is in place. This would be particularly important if there were to be a proposal to extend to the United States.
I understand that the IP Office has said that a consultation on extending the right to all foreign holders and performers will be concurrent with the passage of the Bill. However, if this is the case, it means that the result of the consultation will be too late for proper legislative scrutiny. So I ask, first, why the changes to copyright laws in the Bill are not limited to CPTPP countries’ rights holders and performers? Secondly, do the Government intend to extend the right to all countries, whether or not there is reciprocity? Thirdly, do the Government intend to consult on these wider rights extensions?
As I have said, this is not a trivial issue, as a widening of rights would result in a net loss of revenue retained by UK rights holders, as revenue would shift towards foreign rights holders without reciprocal arrangements. That is particularly of concern vis-à-vis the United States, which is of course a significant player in the whole recorded music industry. How we on these Benches seek to amend the Bill will depend on the Minister’s answers.
Lord Foster of Bath
My Lords, I am delighted to follow the noble Lord, Lord Marland, who, like a number of previous speakers, have thanked the new Foreign Secretary for posts to which he appointed them. I, too, wish to say my grateful thanks to the new Foreign Secretary for posts to which he appointed me—but I remind him that, on one occasion, he specifically required me to work alongside Michael Gove.
I genuinely welcome the Foreign Secretary to his new post and congratulate him on an excellent maiden speech. I suspect that I am right, although perhaps he will correct me if I am wrong, that, despite all his years in the other place, this is the first time that he has ever led for the Government in introducing a piece of legislation. It is a piece of legislation that we have mixed views about—but certainly, as others have already pointed out, because of the inadequacies of our trade scrutiny arrangements in this place, we are being asked to look at a small piece of legislation that will enable the implementation of a very large trade deal, with which your Lordships’ House has not had a real opportunity to engage.
In the words of the noble Lord, Lord Frost, we have not had the opportunity to all buy into the deal, and we are having to do it in the absence of some quite important information—information, for instance, that would be contained in the report to which the excellent chair of the International Agreements Committee has referred. We have not got access, because it is not yet ready, to the government-requested report from the Trade and Agriculture Commission. We are short of information, yet it is sadly one of the few opportunities that we have to debate the CPTPP, its processes and outcome, because we have this one Bill to look at.
As others have pointed out, on these Benches we are well aware that there are some benefits of the deal—particularly some significant geopolitical benefits, I would accept. But notwithstanding the rhetoric of major economic benefits, or the optimistic predictions of our new Foreign Secretary, the figures on the economic benefit show that it is very limited. After all, it was the Government’s own figures, as we have heard, that show that the increase in GDP will be only 0.1% of GDP—and I remind other noble Lords who earlier said that it was 1%. As the noble Lord, Lord Kerr, reminded us, that is up to a period up to 2040, so it is taking into account all the potential growth that would take place in the region. After all, it is a tiny fraction that we will get back in comparison to the 4% loss of GDP because of our exit from the European Union.
As we have heard, there are many concerns about the deal, such as on weak provisions on labour rights, which some argue could lead us to importing goods made by exploited labour. However, to echo my noble friend Lord Razzall, I want to concentrate on the area of intellectual property, with concerns that I raised some years ago, when I served as a member of the International Agreements Committee. The whole House has accepted on many occasions that our creative industries have become the powerhouse of the economy, and intellectual property rights and their enforcement are their lifeblood.
As the CPTPP negotiations began, the creative industries, recognising that other countries in the group with less developed creative sectors would have less concern about IP issues, made a number of recommendations about what the Government should seek to achieve. One such issue, as we have heard, was in relation to the patent grace period, raised by the noble Lord, Lord Collins, and by my noble friend. The Government were warned that the CPTPP rules require its members to have a grace period for patents, whereas the European patents convention does not. If we agreed to the rules, it would put at risk the UK’s vitally important membership of the European Patent Office. I am genuinely delighted that the Government were successful in enabling us to set aside the CPTPP grace period provisions—but, sadly, few others of the sector’s asks were achieved. I suspect that that was because we were in the position of being a rule-taker rather than a rule-maker.
When, for instance, we were negotiating with New Zealand for a trade deal, it was between equal partners, and as a result of the pressure we were able to put on, New Zealand agreed to increase its copyright term to 70 years after the death of an author. We had clout in those negotiations. But the sections of CPTPP relevant to copyright term are currently suspended, so, as a start, the sector wanted our Government to press for the suspension to be lifted. However, as the Government had no clout in the negotiations, it was not, so our creators, except where we have bilateral deals, lose out.
In the digital environment, content owners rely on a range of measures to prevent piracy and the resulting loss of economic value, but given that the CPTPP provisions that support these protections are also suspended, the sector again wanted the suspension to be lifted. It was not, so there is no protection of UK content owners in important markets such as Malaysia and Vietnam. The CPTPP has no measures in relation to artists’ resale rights, meaning that UK artists and their estates are unable to receive royalties when their work is sold on the secondary market in CPTPP member countries which have not introduced such a right unilaterally. The sector’s request for the inclusion of ARR went unanswered, and our artists lose out.
Of particular concern is that the CPTPP does not have the same firm view as the UK that creators should have almost exclusive rights on their work, underpinning their ability to generate income. The CPTPP, for example, talks of “a balance of rights and obligations” in the interests or promotion of technological advances. This, the sector believes—maybe the Minister could comment on this when he winds up—means that technology and social media companies could have undue influence in determining the reasonable rights of creators; again, there is the potential for those creators to lose out.
So, overall, it is not a good deal for our creative industries, many of which are worried that, by signing up to it, we have indicated a willingness to accept a lower level of protection for copyright than exists in the UK, and that it will set a worrying precedent for future negotiations. Another country might say, for example, “Well, you were happy to sign up to that level of protection with them, so why not with us?”
Clause 5 introduces a further concern, which has already been touched on. It introduces an obligation on the UK whereby foreign rights holders and performers, for works within the UK, would receive payment where they currently do not. That is fine, and one would assume therefore that the obligations will be limited to CPTPP country rights holders and performers. But the Bill as it stands, bizarrely, does not limit this extension to CPTPP countries; rather, it provides for secondary legislation that will, in due course, specify the countries to be covered. Will the Minister confirm that consultation on which countries are to be included is going to take place during the passage of the Bill? Does he at least accept that we are being asked yet again to make decisions without having all the facts, and certainly without knowing what the implications will be?
I hope that the Minister will make it clear in his response that the Government accept that the IP chapter of the agreement, including the suspension of some of the IP provisions, is deficient, is a real cause for concern among the creative industries and, frankly, is not what the UK expects from future international trade agreements.
This Bill will enable the necessary changes to UK law, which I welcome, so that all is ready when the treaty comes into operation—the changes needed for IP, government procurement and technical barriers to trade here so that the different conformity assessment bodies of the CPTPP, spread across different CPTPP states, will be treated on an equal footing. The impact assessment prepared by the Department for Business and Trade for the Delegated Powers and Regulatory Reform Committee explains that a new delegated power is envisaged for such conformity assessment bodies and that Clause 5(3) of the Bill amends the existing delegated powers arrangements in Section 206(4) of the Copyright, Designs and Patents Act 1988. The new Bill gives the Secretary of State powers in Clause 2(1) to make statutory instruments to amend the subordinate legislation which places conditions on the location of the CDPA’s national treatment of conformity assessment bodies.
On IP, I welcome the extension to the eligibility criteria by which performers can qualify for rights in respect of their performances in the UK. The UK welcomes talent, and the digital provisions of the CPTPP have been welcomed as open and enabling by trade lawyers. The CPTPP departs from the trade deal with Europe primarily in its lighter protection of personal data in favour of a free flow of data. This is an area where Britain will be instrumental in championing the reforms needed to meet our data protection needs. That is another reason for bringing our influence to bear when we become the 12th member.
The final issue I want to mention is copyright. It is a difficult area, but I hope noble Lords who are perhaps more expert in it than I am will be able to explore why we again seem to be extending a power for Ministers to enable a country to be treated as the qualifying country, which will then allow rights holders to access what is called equitable remuneration in this country as though they were UK rights holders, in a way that appears to be wider than necessary for CPTPP countries and rather wider than has been the case in the past.
Those are simply issues that I hope we will have the opportunity to turn to in Committee, but I do not want any of them to detract from the fact that I very much welcome the CPTPP accession and all that goes with it, and the potential it offers. I am very glad that the Government have brought this legislation forward for that purpose.
Lord Holmes of Richmond
There is a lot in the agreement concerning IP and copyright. I specifically ask the Minister: as currently drafted, does the agreement offer equal rights for UK performers to assert their copyright and other IP rights in other nations as it does for internationals to assert such rights in the UK? I am not sure it is entirely clear in the current draft.
Lord Johnson of Lainston
On intellectual property, it is important that the CPTPP provisions commit parties to a minimum level of IP standards. This is not uncommon in plurilateral trade agreements, which often seek to set a baseline on which parties can build, and the UK’s accession to CPTPP will not limit our ability to seek more ambitious trade agreements with others, including those that are CPTPP members. We intend to be a constructive member and to champion our values and priorities, particularly through the committees and councils set up by the agreement.
I believe that the noble Lord, Lord Foster, asked a question around grace periods. The UK has signed up to the IP provisions in CPTPP, which is required of all members. We have agreed with the CPTPP parties that the UK will comply with Article 18.38 on grace periods only once the necessary amendments to the European Patent Convention and Strasbourg Patent Convention have been made, in line with Article 18.38 of the CPTPP, and not before. There is a process that we are going through on this point to ensure that all the necessary grace periods relating to IP provisions are aligned.
The noble Lord, Lord Razzall, raised some justifiable points around the principles of copyright, as did the noble Lord, Lord Holmes, who asked whether there are reciprocal rights for our artists in CPTPP countries. There absolutely are; I reassure him that this is the whole point of signing up to this trade agreement. It is a free trade area rather than a country-specific free trade zone, so the reciprocity of the membership is entitled fundamentally to all the members. I am extremely keen to promote that. However, there will be a change in the artists’ rights paid for performances broadcast over media in the UK—not over the internet—and we are applying this to all countries which sign up to these measures in the World Trade Organization. As the noble Lord, Lord Razzall, rightly raised, we are embarking on a consultation which will enable us to ensure that we set the right level of protection for our music industry and for our artists. But fundamentally, the idea of giving our artists half their royalties, as we do here for UK artists and broadcast artists of many other countries, strikes me as a very fair and equitable thing to do and very much part of the spirit of the agreement. However, the consultation will inform us appropriately whether we have that right and I look forward to it being reviewed.