DRAFT INTELLECTUAL PROPERTY (AMENDMENT ETC.) (EU EXIT) REGULATIONS 2020

Chi Onwurah Excerpts

Wednesday 9th September 2020 General Committees

[Chi Onwurah (Newcastle upon Tyne Central) (Lab)]

It is a great pleasure to serve under your chairmanship, Sir David. I welcome the Minister to her first SI Committee; it is a pleasure to shadow her. Science is an area on which there is general agreement in our aims, if not always in our implementation, approach and support for it. The Opposition’s aim is that the UK should be the most innovative nation in the world. Although our fourth place is something to be proud of, it is not something to be satisfied with.

As the Minister said, intellectual property makes a significant contribution to the UK economy each year. The 2017 report by the Intellectual Property Office estimated that UK firms invested £133 billion in knowledge assets, compared with £121 billion in tangible assets. A really important distinction often overlooked is that much of our property and business assets are in intangibles and IP, as opposed to bricks, mortar and manufacturing. The sector is estimated to represent 4.2% of total GDP. As the IPO has noted, it is growing UK investment in intangible assets that is protected by intellectual property, rising by £23 billion since the millennium.

The Minister said that intellectual property laws have been seamlessly—perhaps she did not this emphasise this enough—harmonised across Europe for many years, with much of the UK’s legislative framework in this area composed of EU regulations and directives that are shared across the 27 member states. These rules have protected businesses and benefited consumers. This is not just a debate about academic legal terms; it will have very real effects and will help support many of our constituents. It is the shared, for example while abroad —although obviously travel abroad is much limited these days.

Labour recognises that the purpose of the statutory instrument is to address a semantic issue and move the implementation date of several regulations from the exit day to the end of the IP competition day. We acknowledge that this measure is important and will ensure that a series of key rights remain in place until the end of the transition period, enforceable where necessary. We also recognise that the Government’s intention is to provide a degree of certainty to businesses between now and the end of the year by amending the existing 2019 regulations, which will ensure that UK and European Union proprietor rights remain in place at the end of the transition period and are fully protected for their duration. We welcome that.

However, we are concerned that existing sensible harmonised and reciprocal protections will cease to be available to UK nationals, residents and businesses after the transition period. The Minister spoke a good deal and very well on the rights of UK citizens and businesses in the UK. We are concerned about the rights of UK citizens and businesses within the European Union.

The Conservative party once claimed to be the party of business and, as such, the Government must understand that providing certainty for only the next three months is not really any certainty at all. Businesses of all sizes across the UK, and European Union businesses wishing to trade effectively with us, remain in the dark on what the future regime will look like. Many have told me how worried they are that they are not going to be able to plan to ensure that their intellectual property is protected immediately following the transition period.

Despite many rounds of negotiations, as we are all too aware, the Government are yet to make any progress on a future relationship with the European Union, which is causing huge uncertainty for businesses, which, as we all know, have already been hit hard by the unexpected coronavirus pandemic. This lack of progress puts UK businesses at a huge disadvantage.

As things stand, UK trademark attorneys will no longer have a right of representation at the European Union Intellectual Property Office, but European economic area practitioners will still continue to be able to provide an address for services before the UK Intellectual Property Office, which may lead to UK businesses and good jobs leaving for the European Union. The Minister and I have corresponded on this issue, and I have met the Chartered Institute of Trade Mark Attorneys, for whom this issue is really important—as it is for those who depend on those jobs.

The Government have said that the rights of representation before EU institutions and courts are the preserve of the single market, but it is deeply concerning to UK businesses and the Labour party that the Government will not include that as a part of the UK’s approach to negotiations with the European Union. What is the Minister doing to address that imbalance, which will give an advantage to European Union trademark attorneys and put ours at a significant disadvantage? What is she doing to support UK IP practitioners? We acknowledge and welcome the consultation that the Government ran over the summer, but time is fast running out and we need action.

The political declaration, which the Government co-produced with the European Union, makes an explicit commitment to seek enforceable and reciprocal intellectual property protections,

“going beyond the standards of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights and the World Intellectual Property Organisation conventions”.

Unfortunately, we have seen the Government rowing back on some of the principles laid out in their own political declaration, which has left businesses unsure about what they can rely on the Government to deliver. Will the Minister take this opportunity to confirm whether harmonised IP and copyright-related protections are still a key negotiating objective of the Government, and give us an update on what progress has been made in this area of negotiations?

Businesses in the UK benefit from automatic database protections that are a unique feature of European Union law. Labour is pleased to see that this statutory instrument recognises the importance of that provision by extending it to the end of the transition period for all European economic area nationals, residents and businesses. However, it is unclear what protections will be available to businesses that, for example, might have multiple sites across the European Union, with shared databases being accessed across borders. That could lead to the absurd situation where one outpost was automatically protected by the harmonised European Union legal framework and another was covered by a UK limited legal framework. What are the Government doing to ensure that does not happen?

Equality and support for the disabled is one of our core values in the Labour party and something we take very seriously, so it is concerning that the proposed legislative change would lead to blind or visually impaired people in the UK having no automatic right to accessible format copies of materials under the widely celebrated European Union directive 2017/1564. As the UK is not currently party to the Marrakesh treaty, the additional opportunity to secure the right outlined here will not be available immediately after the transition period comes to an end without a bespoke agreement. Can the Minister be clear about what steps she is taking to ensure that there will not be a negative impact on blind, visually impaired or otherwise print-disabled people when we leave the transition period?

Finally, some businesses have communicated to me their concern that the sheer number of European Union trademarks that need to be converted into UK rights before the end of the transition period will place additional pressure on the registrar, and that gaps in cover could therefore occur. Can the Minister reassure those businesses that the Government have taken all necessary steps to ensure that the UK IPO is adequately resourced and ready to deal with the added red tape that comes from the predicted 700,000 trademarks that now need to be transposed? Can she tell us how many have been transposed to date?

Will the Minister take this opportunity to outline what consideration she has given to how the UK and the European Union, whatever the future trading relationship looks like, can co-operate and exchange information on issues of intellectual property, copyright and approaches to trademarks design and patents, as laid out in the political declaration?

Labour has always supported intellectual property; it was the last Labour Government that transformed the Patent Office into the Intellectual Property Office in 2007, and 30 years earlier it was a Labour Government that introduced the Patents Act 1977. We are happy to support the Government as a constructive Opposition on this issue, when they are right, and there are many examples of that within this SI. However, we have also raised many questions about how the UK will move forward following the end of the transition period. It is vital that British businesses, IP practitioners and consumers get the answers to these questions as soon as possible, so that they can navigate any future relationship in just 118 days’ time, and potentially at a time when we see a resurgence of the pandemic. I thank the Minister in advance for her response.