Intellectual Property (Amendment etc.) (EU Exit) Regulations 2020

Lord Berkeley of Knighton Excerpts

Monday 14th September 2020 Grand Committee

[Lord Berkeley of Knighton (CB) [V]]

My Lords, I recognise that this is largely a technical instrument but it has considerable ramifications for the creative industries, so I hope the Minister will be indulgent about my ability to comprehend the finer details as I declare my interest as a composer rather than as a lawyer.

If I have understood it correctly, the central issue here is whether UK IP lawyers can represent rights holders before the IPO. I believe there is some contradiction between the EU and the British Government on this matter, with the EU saying that they cannot and our Government saying that they can. Perhaps the Minister will be kind enough to clarify that. Secondly, if there is no deal, that would see the UK’s IP legal community face greater competition than their counterparts, potentially weakening them. This clearly impacts on, or might impact on, the main issue for trademark holders, composers, writers, designers and others in the creative industries in relation to leaving the EU—their copyrights and ensuring that the high level of protection in directives is upheld.

Copyright, as the Minister said, is vital to maintaining the success of the creative industries in this country and, indeed, what they garner for the Exchequer. On a broader canvas, there is some good news. The Mechanical Copyright Protection Society—MCPS—is actively pursuing licensing in China. Last Friday’s Japanese trade deal with the UK has been heralded as going further in terms of copyright protection than the EU relationship, so I would be interested to know in exactly what way. Similarly, the Government have said that they no longer plan to implement the copyright directive agreed in the EU last year in the light of Brexit. How do they plan to ensure that services such as YouTube pay the fairer share to music creators which would otherwise have been afforded by the directive?

In 2015, the UK music industry won a landmark case against the UK Government, given their failure to award compensation for the use of music without permission on the grounds that it violated EU law. How can the UK music industry be certain that departure from the EU will not mean that copyright standards and protections will not be weakened if the standing of their legal representatives is undermined? Spotify and YouTube are welcome in many ways, but they discourage the sale of hard music. Why would you buy a £15 CD if you can access a pirated copy on the internet? If the Committee will forgive me giving a personal example, a couple of years ago I had a new piece at the Proms and to my astonishment it was available on YouTube within hours. It was certainly flattering, but very worrying because why would anyone want to record it commercially given its availability in the EU and around the world?

Our IP lawyers need strength to their elbows, not weakening of their grip. These are crucial issues for creators, so I look forward to some reassurance from the Minister.

Artistic Content: Copyright Protection

Lord Berkeley of Knighton Excerpts

Monday 2nd March 2020 Lords Chamber

[Lord Callanan]

We will continue to advocate for the rights of the creative industries. We shall see how the copyright directive is implemented and how the various enforcement regimes within it will work, but of course it is not possible for us to remain part of it, because we will not accept the jurisdiction of the CJEU in these matters. We will see how it works and will continue to keep the matter under review. It is of course a matter for this Parliament to determine how our copyright protection framework goes forward.

[Lord Berkeley of Knighton (CB)]

My Lords, at a time when royalties are being cut at almost every level—I include the BBC in this—it is more essential than ever that the creators of intellectual property are able to reap some sort of reward. What alarmed me slightly about the Minister’s replies was that he kept using words such as “hope” and “expect”. That is not so good for those of us who have to know that we can pay our bills.

[Lord Callanan]

We should be proud in this country: we have one of the strongest copyright protection frameworks in the world, as I said earlier. Many of these matters, as the noble Lord will be aware, are the subject of international agreements and we will continue to engage in those fora to make sure that creators get the value of their works.

Domestic Gas and Electricity (Tariff Cap) Bill

Lord Berkeley of Knighton Excerpts

2nd reading (Hansard): House of Lords
Tuesday 22nd May 2018 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to see that the noble Lord, Lord Young of Norwood Green, has arrived lately in his place. I am sure that he will acknowledge, however, that his recent arrival means that it is appropriate that I should speak now.

I start by declaring a relevant but past interest, having spent eight years as the chair of the Competition Appeal Tribunal. In that context, we used to debate on a very regular basis the difference between judicial review, which was not the standard by which the tribunal was making its judgment—the same applies now—and the merits-based appeal, which is the standard by which the tribunal reaches its decisions. I will have a little more to say about that later without, I hope, repeating what has already been said.

I support the principle of this Bill, subject to suitable scrutiny procedures being in place on a merits assessment. I take the points made by the noble Lord, Lord Redesdale, who said that this was plainly a politically motivated Bill, which was designed to give advantage to the Government. I am sure that the noble Lord would agree that most Bills have a political motivation. The Government are sending out a hostage to fortune, because the people will be expecting their power bills not to rise, in real terms, as a result of this Bill. If the Government let the public down in that regard, the voters will, no doubt, make their judgments on a very visible, tangible issue.

Consumers have been faced with substantial increases in energy prices. I suspect that the price increases announced last week may have had the consequences of the Bill partly in mind. The proportionality that energy costs have to average earnings is an important measure of the economic relationship between the state and its citizens. This applies especially to those who are responsible for the upbringing and care of families and to the elderly—the cohort so nobly represented in your Lordships’ House. Fuel poverty is not only a sign of a poorly organised country, it is also a basic and justifiable cause of political discontent.

The public’s dissatisfaction with energy companies is compounded by their poor performance. It happens that, last Saturday morning, I noticed in my inbox an email from npower, the company that supplies gas and electricity to my home. It set out very clearly—because it has to—that I could save a few hundred pounds a year if I moved on to another tariff. Later that day, thinking that I could save myself that money, I went on to the npower website. I got one of those responses that reads something like: “Oops; there seems to be something wrong with our website”. I left it for an hour or two and tried again, and “Oops” appeared. In the early evening, I tried again and “Oops” appeared, so I left it. On Sunday, I went to the npower website and no “Oops” message appeared. It was possible for me to go on to a site which told me clearly that I could save a few hundred pounds a year on my gas and electricity combined. I looked very carefully for the button that said something like: “Do it now”, but there was no such button, though it was well within its power to produce one. I then embarked on a parlour game, or obstacle course, depending on the view you take, and eventually, after having two cups of tea while trying to get through the exercise, I was, thankfully, able to reduce my energy costs by a few hundred pounds. However, if I had not been determined, bloody-minded and reasonably good at dealing with computers, I may well not have been able to do that.

Those very cohorts which I mentioned earlier are not being given the opportunity by the energy companies to reduce their prices as easily as possible. That means that those companies are canny about what they can do. They will take every point at their disposal, and that brings me directly to the appeal process. I said earlier that I have relevant experience, through being a member of the Competition Appeal Tribunal. The existing appeal regime enables parties to challenge decisions of sector-specific regulators, in front of a specialist body—in this instance, the CMA—and, as the noble Lord, Lord Hunt, said, this is part of the existing regulatory model in the UK. For example, as chairman of the Competition Appeal Tribunal, I dealt with Oftel and the ability to port your number when you change from one supplier to another. What had been done was not wholly unreasonable, but it was not right on the merits, so we provided a ruling that meant that you can port your number. People have been able to do that ever since, and it has become easier.

We were able to consider things as mundane as bus prices in the city of Cardiff because unfair competition was taking place. Again, we considered the matter on its merits, not by looking at points of law but by looking at when buses arrived and where the competition was on the street at the time of the arrival of those buses. That is what a merits-based appeal system achieves. Indeed, the established system is central to driving better regulatory decisions and thus the level of legal and regulatory certainty upon which all industry stakeholders depend. That is a long-winded way of saying that if there is a merits-based appeal and a decision, people know what they have to do.

Judicial review is not the appropriate standard for legal challenge to a decision that has significant consequences for competition and consumers. I suggest to the Minister that an appeal right to the Competition and Markets Authority could be inserted in the Bill by an amendment such as that alluded to by the noble and learned Lord, Lord Mackay of Clashfern, to ensure the appropriate checks and balances for price control while not delaying or frustrating the process in any way.

I do not intend to repeat everything said so cogently by the noble Lord, Lord Hunt of Wirral—I agreed with every word he said on this issue. I just wanted to add this to try to simplify matters a little. If judicial review principles are applied, the court could hold that the decision was rational but wrong, and therefore it would stand. If the CMA principles are applied, the CMA could hold that the decision was reasonably reached but wrong and therefore would not stand but would be replaced by the correct decision. Stated in that way, I believe that the proposition is unanswerable other than by allowing an appeal to the CMA.

[Lord Berkeley of Knighton (CB)]

My Lords, before the noble Lord sits down, may I ask him a quick question? I was deeply saddened to hear of his travails in trying to move his tariffs. Would he believe me if I told him that that was a relatively “short ride in a fast machine” compared to the three months and counting I have spent trying to achieve the same thing?

[Lord Carlile of Berriew]

I absolutely accept that, because two or three years ago I changed my provider, and it took me about three months to achieve.

Warm Home Discount (Miscellaneous Amendments) Regulations 2016

Lord Berkeley of Knighton Excerpts

Thursday 21st July 2016 Lords Chamber

[Baroness Miller of Chilthorne Domer (LD)]

My Lords, I am very grateful to the noble Baroness, Lady Jones of Whitchurch, for bringing several aspects of these regulations to our attention—not least the comments from the Secondary Legislation Scrutiny Committee.

Of course, as the Minister said, the Prime Minister, in one of her first speeches, made many comments on social justice, but I fear that these regulations were written before she made that speech and perhaps there has not been a chance to assimilate the new spirit that she wants to introduce. As I understand it—perhaps the Minister will correct me if I am wrong—the regulations contain several things that are less than desirable, one of which is that they cover only the next two years, whereas in last year’s spending review there was a guarantee that the scheme would carry on until 2021.

On the larger picture, it is very depressing that the long-term strategy of reducing bills through energy efficiency—particularly measures that came in under the coalition Government, such as the zero-carbon homes measure—have been put on hold and we have seen this Government back-track, not least in the recent Housing and Planning Bill. Therefore, we have a big problem. The fact that people are in severe fuel poverty and are unable to heat their homes during the winter is, as has been said many times in this Chamber, one of the biggest disgraces for a civilised society.

The funding for the years after 2018 will be based on the number of customers who have benefited from rebates. What do the Government intend to do to promote the scheme to people who can benefit from it, making sure that they do not miss out?

Finally, the Explanatory Memorandum says that the Secretary of State can conduct a review if it is thought desirable. Perhaps the Minister can say a little more about under what circumstances it will be desirable. She mentioned that there would be another opportunity for noble Lords to comment, but we feel very strongly that this review needs to happen so that we are quite clear about the effect of the regulations and so that we have another chance to push for something better.

[Lord Berkeley of Knighton (CB)]

My Lords, any of us who have witnessed genuine fuel poverty—disabled pensioners, for example, saving pennies to try to keep warm—will not fail to have been deeply moved. Therefore, in the light of what we have heard, will the Minister tell us whether it might be possible to make sure that this coming winter we are able to assist those people by bringing forward the Government’s plans?