Trade Bill

Lord Clement-Jones Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Thursday 1st October 2020 Grand Committee

Moved by

[Lord Clement-Jones]

15: Clause 2, page 2, line 23, at end insert—
“( ) Regulations under subsection (1) may make provision for the purpose of implementing an international trade agreement only if the appropriate authority has published a report reviewing the impact of any changes brought about by that international trade agreement on the existing law of intellectual property.”Member’s explanatory statement
This amendment seeks to explore issues that could be damaging to intellectual property law.

[Lord Clement-Jones (LD)]

My Lords, in the digital era in particular, intellectual property is the lifeblood of our creative and tech industries. As the Alliance for Intellectual Property points out, the UK’s IP framework has a number of features that protect UK consumers and reward UK creators and inventors. It is quite possible that our trading partners may wish to reduce or water down these protections. To ensure that the UK’s IP framework will continue to deliver significant economic benefits, it is paramount that the UK does not concede or dilute its current IP standards as part of trade negotiations; indeed, they should be enhanced.

Ensuring that we will retain or enhance these core protections involves asking ourselves the following questions for each trade agreement. For instance, on international treaties generally, will the UK encourage all our trade partners to promote both the ratification of, and adherence to, terms of international treaties for the recognition and enforcement of copyright, trademark design and other intellectual property rights? With regard to trademarks, will we resist the introduction of proof of use?

With regard to maintaining the UK’s injunctive relief powers, in the UK rights holders can apply to the civil courts for no-fault injunctive relief. Will the UK Government ensure the preservation of their no-fault injunctive relief regime? With regard to design rights, will our negotiators ensure that the current level of protection is not weakened and that such protection is available to all UK designers, particularly regarding unregistered designs? With regard to copyright, will we make sure that the copyright term of 70 years after death is preserved? New Zealand, by contrast, has only a 50-year term.

With regard to copyright exceptions, will future free trade agreements negotiated by the UK include balanced copyright exceptions and limitations, and uphold standards such as the Berne three-step test? Will we resist any adoption of US-style fair use?

With regard to the liability of online platforms, will the UK oppose any obligations under any trade agreement, particularly with the US, that would broaden liability shields for online intermediaries or digital platforms? Will the UK ensure that its negotiators work together with the US to simplify the DMCA notice and takedown provisions and embrace a sharing of best practice within the US and UK systems? The amendment in the name of the noble Baroness, Lady Kidron, which I strongly support, would give this wider and greater force regarding children.

With regard to site blocking, will the Government make sure that our site-blocking provisions for pirate sites are protected and included in free trade agreements? It seems they have not been in the Japan free trade agreement. With regard to sovereignty over exhaustion rights, will we ensure that exhaustion continues to be a sovereign issue for the UK, that it is not prescribed in any trade agreement and that there is no shift to an international exhaustion regime?

With regard to the artist resale right, the ARR ensures that UK visual artists receive a modest royalty when their work is resold on the secondary art market. Will we be maintaining the ARR and pressing for it to be included in all future trade agreements? With regard to reciprocal public performance rights, will the Government press the countries that we are negotiating with to provide for full payment for all music rights holders from the use of their works or from recordings, public performance and broadcast?

With regard to source codes, will we be preventing the mandatory transfer of source codes, algorithms or encryption keys as a condition of market access? With regard to data, will we be supporting the development of AI through aligning open government data and text and data mining rules with our own? Lastly, with regard to robust enforcement measures, the effective enforcement of intellectual property rights and infringement is crucial for ensuring the integrity of future trade agreements. Will we be ensuring that effective mechanisms for enforcement are in place so that rights holders have the ability to enforce IP laws within these jurisdictions?

These are all significant aspects of IP rights that have hitherto been relied on by our exporters and service providers. The Minister assured me at Second Reading:

“As he will know, our intellectual property regime is consistently rated as one of the best in the world. One of our priorities will be to ensure that future trade agreements do not negatively impact on standards in this area and that our regime will promote trade in intellectual property.”—[Official Report, 8/9/20; col. 747-78.]


But how will we know for sure in advance? Here is a classic example. The Chartered Institute of Patent Attorneys points out that in the UK’s negotiating objectives under “Intellectual property” on page 11, the Government commit to:

“Secure patents, trademarks, and designs provisions that: are consistent with the UK’s existing international obligations, including the European Patent Convention (EPC), to which the UK is party”.


In the corresponding US negotiating objectives, the US Government state that they will seek provisions governing intellectual property rights

“that reflect a standard of protection similar to that found in US law.”

As CIPA says:

“These UK and US objectives are not fully aligned, and a similar non-alignment may well arise in negotiations with other countries. This carries the serious risk of creating damaging uncertainty about the UK’s continuing membership of the EPC”.


Let us take two more examples. The July letter of the noble Lord, Lord Grimstone, about the New Zealand negotiations on intellectual property gave very little away. In his slightly fuller letter on the Japan agreement in September, he said:

“New protections for UK creative industries—British businesses can now be confident that their brands and innovations will be protected. We have gone beyond the EU on provisions that tackle online infringement of IP rights, such as film and music piracy.”


That is all well and good, but it is precious little information on such an important subject. We should know in advance through a specific report what the IP situation on each trade agreement will be so that we can be assured that the relevant protection and provisions are in place. That is what this amendment does.

I turn briefly to Amendment 16 on data flows to which the noble Baroness, Lady Neville-Rolfe, will be speaking and which I have signed. However, I do not want to steal any of her thunder. It is sufficient to say that this was not dealt with by the Minister at Second Reading. It supports the free flow of data and regulated access to data sets; ensuring that data can flow across borders is essential for digital trade, in particular for e-commerce consumption and supply chains and the use of data collection and data analytics through the cloud and otherwise.

In his September letter on the Japan agreement, the Minister said that cutting-edge digital and data provisions had been agreed. Again, how are we to judge? How are we to judge, too, the impact of any safe harbour or privacy shield provisions on our wider digital economy, especially in the light of Schrems II? Already, the Government’s consultation on a national data strategy with its promise to remove legal barriers to data use are problematic. We have heard from the noble Lord, Lord Agnew, that the Government Digital Service is carrying out a risk assessment. What impact will that have on our trade agreement negotiations?

All of this argues for a specific impact report prior to a trade agreement being signed in respect of data flows. I shall leave the Minister to the mercies of the noble Baroness, Lady Neville-Rolfe. I beg to move.

[Baroness Neville-Rolfe (Con)]

My Lords, I shall speak to Amendment 16 in my name, which requests a similar report on data. I thank the noble Lords, Lord Clement-Jones and Lord Stevenson of Balmacara, for their support. I in turn support Amendment 15 in their names on intellectual property. This is an issue on which we have worked together over many years, and of course the Minister, my noble friend Lord Younger, is something of an expert on IP, so I am hopeful of making progress and look forward to his response.

Our amendment on data is possibly even more important than that on IP, if that is possible. Data is like the electricity on which it depends: it allows everything to work and permits communication and analysis across the world. Data flow now underlies almost every aspect of our lives from financial services to the food supply chain, from defence to the music industry. The cloud is everywhere; it has made some people very rich, and has radically changed the market valuations of the world’s companies—here I refer to my own registered interests.

However, unlike IP where there are well-established international frameworks and bodies, in data there is inadequate international alignment of standards, and that has led to disputes between the EU and the US, as I know only too well as a former Minister with responsibility for data. The combination of the GDPR and the European Court ruling on Schrems caused huge problems that we solved with the EU-US Privacy Shield Framework. Led by my right honourable friend Matt Hancock and my noble friend Lord Ashton of Hyde, who is now of course our esteemed Chief Whip, we put the GDPR and associated changes on to the UK statute book so that the UK would be declared equivalent to the EU and data could continue to flow after EU exit. We still await clarity on that equivalence decision, which is important to many sectors and is a matter of much concern to the EU Scrutiny Committee on which I have the pleasure of sitting.

--- Later in debate ---

[Viscount Younger of Leckie (Con)]

To answer the second question from the noble Baroness, we could well be. I think I have said, in other respects, when we do finally leave the EU after the transition period, because we will have left the EU it will be up to us to look at our standards and raise them if we think that is right. On the way forward on online harms, which is very close to the heart of the noble Baroness, I reassure her that there is a lot of cross-departmental work going on here. Although this is DCMS-led, I reassure her, on behalf of my noble friend Lord Grimstone, that the DIT and other departments are working together on the way forward, bearing in mind the White Paper.

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his response. It was useful to be reminded by the noble Baroness, Lady Neville-Rolfe, of his antecedents. I remember many happy hours discussing copyright exceptions—I think it was from 2013 onwards —and I am sure it was one of the Minister’s favourite jobs at the time, with all the minutiae of intellectual property involved.

This has been a relatively short but, I hope, well-argued debate and I am grateful to those who supported not only my Amendment 15 but Amendments 16 and 34, which I strongly support as well. If we were looking for an order of priority, Amendment 34 in the name of the noble Baroness, Lady Kidron, is the absolute touchstone for this debate. She referred to putting an intentional red line in the negotiations, a very powerful phrase. The noble Lord, Lord Sheikh, said that children’s safety should not be traded away again, which really emphasises the importance of this. The point was made that we do not yet have all the legislation we need in this area, therefore any negotiations need to take account of future legislation. It is a really tricky one. The Minister has a wonderful bedside manner and used the word “reassure” on a number of occasions, but this is a really difficult and important area. Personally, I am not 100% reassured and if the noble Baroness wanted to bring her amendment back on Report, many of us would give her a great deal of support.

Turning to data, I agree with my noble friend Lord Fox: the one thing giving business sleepless nights is the whole issue of data adequacy and data flows. Post Schrems, that is a really difficult area. The Minister mentioned it and the noble Lord, Lord Agnew, answered a Written Question from me recently about the taskforce. It is urgent that we should have those guidelines in place. It is not adequate that people should simply have to rely on standard contractual clauses, especially for small business, as it will imply that they have to take a great deal of legal advice. I should say that since I no longer charge by the hour, I have no direct personal interest in that. However, it is a serious area and I hope it is being taken on board at speed.

On the IP front, there was a kind of multiple-choice questionnaire which I hope the Minister will use in future negotiations to tick or cross, as the case may be. The big problem is that this all demonstrates the feeling that the scrutiny process is inadequate, whether on continuity agreements or new agreements. The Minister says that the amendments would require another 11 reports, or whatever the tally would be, but that demonstrates a theme that has run through Second Reading and Committee so far: that the level of scrutiny we are being given over free-trade agreements is inadequate. Whether on things such as IP and data, which are crucial to business, or things which have a greater moral and societal foundation, as in the amendment of the noble Baroness, Lady Kidron, this is about the opportunity for scrutiny not being adequate at this point.

I will obviously withdraw the amendment, as we are in Grand Committee, but we are, in a sense, still back with the feeling that we have to go much further on scrutiny. If that involves 11 reports, so be it: these are important agreements for our future. I beg leave to withdraw the amendment.

Amendment 15 withdrawn.