Copyright and Performances (Application to Other Countries) (Amendment) (No. 2) Order 2024

Lord Markham Excerpts

Wednesday 12th February 2025 Lords Chamber

[Baroness Featherstone (LD)]

My Lords, I rise in support of the regret Motion of the noble Lord, Lord Clement-Jones. One of the great joys of being British is that we hold high standards and pride ourselves on fair play. We have always traditionally upheld strong intellectual property protections and advocated for fair treatment of performers.

The order should focus on fair compensation for performers and the principle of reciprocity in international copyright law. By removing or limiting payments to certain foreign performers, we risk looking like we are undermining global standards of fair pay for artists and damaging our reputation as a champion of creators’ rights, because the order limits the rights of certain foreign performers to receive equitable remuneration for the public performance and broadcasting of their work in the United Kingdom. This is particularly unfair to artists from countries that are not party, as people have said, to the Rome convention or the WIPO Performances and Phonograms Treaty—WPPT—as they will not have a legal right to remuneration and will now receive little or no payment for their work being commercially exploited in the United Kingdom, whereas other performers will.

I am sure—and I very much hope and expect—that the Government have read Equity’s cogent arguments on this issue, and I hope and trust that they will listen and act on the issues raised. As Equity pointed out, it is also unfair because this option was not consulted on properly, despite the Government’s protestation, and the Government should withdraw the SI and consult again properly on the new option. This order could even provoke retaliatory measures from affected countries. To be frank, given that the United States is now led by a heavyweight—that is the politest term I could muster—who shoots from the hip, this is even more dangerous and could lead to UK performers facing similar restrictions from abroad, and to British performers losing their right to equitable remuneration in key international markets, reducing their global earnings.

This order creates a two-tier system whereby some foreign performers continue receiving payments while others do not, even if their work is commercially successful in the United Kingdom. It undermines the principle that all artists should be fairly compensated for their work, regardless of nationality. As an addendum, if fewer performers are entitled to equitable remuneration, UK collecting societies may collect less overall, which might impact their ability to distribute royalties efficiently and affect the broader musical and entertainment industries.

In conclusion, this order undermines fair pay for performers and risks harming UK artists abroad, and it could even lead to unnecessary international disputes. So, instead of limiting performers’ rights, the UK should lead by example and ensure that all performers are treated equitably, regardless of their nationality.

[Lord Markham (Con)]

I too welcome the Minister back. As the House will know, there is a long tradition in the creative industries that, before someone has a performance, you wish them the best by saying, “Break a leg”. I feel that that might not be opportune in this case, but I am very pleased to have the Minister back. I will keep my contribution brief, because the points have been well made.

As a former director of ITV and director of a TV production company—none other than that of the noble Lord, Lord Alli, funnily enough—I understand the importance of the creative industry. Of course, it is a massive industry in the UK, contributing some $124 billion a year. I know from personal experience that fundamental to a successful creative industry is a copyright regime that has the confidence of the people, that is seen as fair, that is trusted and that is transparent. I see this almost like four legs of a chair, and the problem is that, if you wobble any of those legs, you undermine all of it.

This is a complex area—I think we all appreciate that—and I appreciate that option 0A came out of an earlier consultation, with people and the civil servants being creative in order to come up with a solution. But my concern is that, by not consulting on option 0A in such a complex area, we can get into unintended consequences. It is only when you really talk to the people at the sharp end that you understand what the true industry impact might be. As the noble Baroness, Lady Featherstone, rightly said, with this having a detrimental impact particularly on US rights owners, we are all aware of the unintended consequences it could have in what is, given all the sanctions, a very volatile situation. So we need to tread very carefully and, given that, it seems eminently sensible for us to consult the industry.

I appreciate that at this stage, regret Motions are normally seen as a bit of a slap on the wrist—I say that as a Minister myself not that long ago—but I ask the Minister to go back to the department and seriously explore whether we can do anything to take on board the view of the experts in this space. Their input is vital, and I hope that we can find a way through this.

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

My Lords, I thank all noble Lords for their warm welcome back. I am sorry that I missed some important debates while I was away, but I assure noble Lords that I watched them vigorously on television—it was absolutely riveting. I am pleased to be back and to hear that noble Lords had a constructive meeting with my colleague Minister Clark on these issues. I too welcome this debate and the opportunity it provides to reassure noble Lords, I hope, about the process that led to the order and the policy it implements. As the noble Lord, Lord Markham, rightly said, this is a complex area, but one in which we have sought to find a fair solution. That has always been the overriding aim of this consultation and of others in the past.

Noble Lords have referred to the background of the consultation process that preceded this legislation, but it is important that I set it out clearly on record. UK copyright law gives performers such as musicians and copyright owners such as record labels the rights to be paid equitable remuneration when their sound recordings are broadcast or played in public. These public performance rights are an important source of revenue for the UK recorded music sector. According to data from the BPI, the UK trade body for record labels, UK recorded music revenue from these sources was £154.5 million in 2023, which equates to more than 10% of total revenues for the recorded music sector.

However, as noble Lords have said, not every country provides equivalent protections for this copyright law. In some countries, performers and record labels—including British performers and British record labels—are not paid when their music is broadcast on the radio or played in public. Whether UK law should provide public performance rights to performers and producers from such countries was the focus of the public consultation run by the Intellectual Property Office in early 2024. A range of evidence and views were submitted in response to that consultation by creators, collective licensing societies, record labels, broadcasters and academics. I stress that the Government carefully considered the views and evidence submitted to the consultation before deciding on a way forward, and that we received a range of views.

The approach implemented by this order largely preserves the effect of the former law—option 0 in the consultation—except for some limited changes. This means that more foreign performers qualify for the right than previously—a change that was made to allow the UK to fulfil its international commitments. The noble Lord, Lord Clement-Jones, asked whether we were in effect maintaining the status quo. This SI largely preserves the effect of the law as it formerly applied at the point that the SI took effect. The SI took effect simultaneously with the changes in the CPTPP Act. The consultation also explicitly noted that the effects of that Act may be modified by this SI.

To come back to the main point, under the law as amended by this order, some foreign performers enjoy these public performance rights only where and to the extent that British performers enjoy equivalent protection under the other country’s law. The Government adopted this approach in light of the evidence submitted at consultation, which indicated that the other options under consideration would have meant substantial costs and disruption to the UK’s creative industries. I am not sure that noble Lords gave enough credence to that argument. For example, granting rights to all foreign performers, regardless of whether the other country provides reciprocal protection to British performers, would mean additional costs to the UK recorded music sector—estimated at £5.9 million per year—with no benefit to UK creators, copyright owners or the public. This could undermine continued investment in new British artists and their music.

I have listened to what people say and I appreciate that some consider it unfair to provide different treatment to performers based on their nationality. However, as I have said, this is a reflection of the treatment accorded to British performers by other countries. If they were to change their law and provide equivalent protection to British performers, then performers from these countries would automatically enjoy these rights under UK law. The Government would be pleased to see all other countries adopt similarly high standards of protection to the UK in this area, to the mutual benefit of performers from the UK and other countries. We continue to pursue that objective where and when we can. I assure noble Lords that these measures were not targeted at the US or any other country in particular. The SI implements the general principles that deliver the best outcome for the UK’s creative industries. I hope we can agree that that ought to be a priority.

I thank all noble Lords who have taken part in this debate. I hope they are in some ways reassured about the Government’s process in making this order, which we believe delivers the best outcome for the UK’s creative industries. I hope noble Lords will reflect on it and that the noble Lord, Lord Clement-Jones, will be content to withdraw his Motion.