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

Lord Clement-Jones Excerpts

Monday 14th September 2020 Grand Committee

[Lord Clement-Jones (LD) [V]]

My Lords, I, too, thank the Minister for his introduction and I am grateful to the noble Lord, Lord Naseby, for raising points on the Explanatory Memorandum because it means that I will not have to go through it in the rather useful way that he has done.

In preparation for this debate, it was rather dispiriting to look back on the long debates we had in January, February and March last year, sometimes in both Grand Committee and the Chamber, on the original five intellectual property EU exit statutory instruments that are subject to amendment by this single draft SI. Much of the debate then centred on the lack of adequate consultation and impact assessments, the latter of which we still do not have. In the meantime, we have the provisions of Articles 54 to 61 of the withdrawal agreement and the consequent note of 29 January from the IPO on intellectual property and the transition period. It is admirably clear about what provisions are being put into place and is very helpful in understanding the outcome of this amending SI, but sadly it is not as clear about what is not being put in place and we are giving up.

As regards the creation of an equivalent EU trademark at the end of the transition period, the note makes it clear that businesses, organisations or individuals that have applications for an EU trademark which are ongoing at the end of the transition period will have a period of nine months from the end of the transition period to apply in the UK for the same protection. The position is similar for registered Community designs and unregistered designs. So far, so straightforward, but on international registrations designating the EU, the IPO note states:

“During the transition period, international registrations for trademarks and designs protected via the Madrid and Hague systems which designate the EU will continue to extend to the UK … We are continuing to work with the World Intellectual Property Organization (WIPO) on the mechanism to ensure continued protection.”


Can the Minister give some further detail of the progress of this work? As regards rights of representation, the IPO goes on to say:

“During the transition period, UK legal representatives will continue to have the right to represent clients before the EU Intellectual Property Office (EUIPO).”


However, it goes on to say,

“The WA also states that the UK will not amend address for service rules for the comparable UK rights for a period of three years after the end of the transition period.”


This is what has given rise to huge concern among IP professionals. It is totally asymmetrical. What induced the Government to give this away? This is the loosest and most damaging of loose ends and, as I am sure the Minister is aware, trademark-intensive industries contribute £650 billion to the UK’s gross domestic product every year, providing an estimated one in five of all jobs. This will give EEA trademark attorneys a significant advantage over their UK colleagues and is likely seriously to damage the UK trademark protection industry, which is a world leader, and will be highly detrimental to UK firms and the jobs they support.

UK professional firms will be, by and large, restricted to UK-only matters with no mutual rights in Europe. While larger firms may choose to deploy satellite offices in the EEA to carry out EU work in the future, not all UK firms can afford such arrangements. UK trademark professionals will lose rights of representation before the EUIPO. There will, in consequence, be a loss of representation on IP portfolios and incoming IP work from a number of major countries and a major risk to professional livelihoods. EEA firms are being handed a completely unfair and anti-competitive advantage. The UK is not “taking back control” of its hugely valuable IP system—it is handing it over to European firms for nothing.

After significant pressure, the IPO woke up to the issue earlier this year. I was told by the noble Lord, Lord Callanan in June—in answer to a Written Questions tabled in May—that officials at the IPO were having ongoing conversations with representative bodies over how best to address this matter once the transition period ends. The Government finally got round to publishing the consultation on changing the address for service rule on 27 July. The outcome of the consultation is not yet public.

Can the Minister give an advance idea of what the conclusion will be? As the address for service provision is incorporated in the withdrawal agreement, what flexibility do the Government have? What action can be taken? Does the weakness in the UK Government’s approach to negotiations mean that there is no level playing field in prospect for three years? Is there a constructive way of resolving the matter that does not depend on breaching the agreement, as seems to be the Government’s favourite method of proceeding in other respects?

As regards patents, the IPO note goes on to talk about the European patent system, which is unaffected by Brexit. What impact will the withdrawal from the unified patent court agreement without consultation or debate in July have on the UK’s innovators and protection of intellectual property after the transition period? The Minister may have read the important warnings from the noble Earl, Lord Devon, on this subject in the Second Reading debate on the Medicines and Medical Devices Bill. What is the rationale for the withdrawal and how will it improve our intellectual property protection in the UK post Brexit? Of course, I welcome the extension of SPC system provided in the SI and described by the Minister.

Then we come to the area of the exhaustion of rights As the IPO note states in the withdrawal agreement, the EU and UK have agreed that IP rights exhausted in the EU and the UK before the end of the transition period will remain exhausted in both areas. However, what happens after the transition date as regards the legal exhaustion regime. The note provides a link only to brief guidance on parallel imports. Is the regime to be adopted still under consideration? I hope the Minister can give more detail.

On copyright, the note says:

“Continued reciprocal protection for copyright works between the UK and the EU is assured by the international treaties on copyright. This is independent of our relationship with the EU so is not addressed in the Withdrawal Agreement.”


It fails to mention the very valuable intellectual property rights—some of which were referred to by the noble Lord, Lord Berkeley—which are being foregone by the UK’s refusal to adopt the new copyright in the single market directive. There is no agreement on portability for consumers, no enhanced duties for digital platforms in use of copyright material, no improved rights for authors and performers and no enhanced rights for publishers. I entirely agree with the noble Lord, Lord Berkeley, as to the consequences. On top of that, the EU orphan works directive will no longer apply to libraries, archives and museums and the position of our collecting societies is weakened. Broadcasting from the UK will also be more difficult. What happened to the Minister’s boast to me on 2 March that the UK has

“one of the strongest copyright protection frameworks in the world,”?—[Official Report, 2/3/20; col. 389.]

Finally, there is a very large elephant in the room. There is currently no deal with the EU. Will we need to come back and amend these regulations yet again for the situation post transition? I hope the Minister is crystal clear in responding on that aspect in particular.