Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL]

Lord Foster of Bath Excerpts

2nd reading
Tuesday 21st November 2023 Lords Chamber

[Lord Foster of Bath (LD)]

My Lords, I am delighted to follow the noble Lord, Lord Marland, who, like a number of previous speakers, have thanked the new Foreign Secretary for posts to which he appointed them. I, too, wish to say my grateful thanks to the new Foreign Secretary for posts to which he appointed me —but I remind him that, on one occasion, he specifically required me to work alongside Michael Gove.

I genuinely welcome the Foreign Secretary to his new post and congratulate him on an excellent maiden speech. I suspect that I am right, although perhaps he will correct me if I am wrong, that, despite all his years in the other place, this is the first time that he has ever led for the Government in introducing a piece of legislation. It is a piece of legislation that we have mixed views about—but certainly, as others have already pointed out, because of the inadequacies of our trade scrutiny arrangements in this place, we are being asked to look at a small piece of legislation that will enable the implementation of a very large trade deal, with which your Lordships’ House has not had a real opportunity to engage.

In the words of the noble Lord, Lord Frost, we have not had the opportunity to all buy into the deal, and we are having to do it in the absence of some quite important information—information, for instance, that would be contained in the report to which the excellent chair of the International Agreements Committee has referred. We have not got access, because it is not yet ready, to the government-requested report from the Trade and Agriculture Commission. We are short of information, yet it is sadly one of the few opportunities that we have to debate the CPTPP, its processes and outcome, because we have this one Bill to look at.

As others have pointed out, on these Benches we are well aware that there are some benefits of the deal—particularly some significant geopolitical benefits, I would accept. But notwithstanding the rhetoric of major economic benefits, or the optimistic predictions of our new Foreign Secretary, the figures on the economic benefit show that it is very limited. After all, it was the Government’s own figures, as we have heard, that show that the increase in GDP will be only 0.1% of GDP—and I remind other noble Lords who earlier said that it was 1%. As the noble Lord, Lord Kerr, reminded us, that is up to a period up to 2040, so it is taking into account all the potential growth that would take place in the region. After all, it is a tiny fraction that we will get back in comparison to the 4% loss of GDP because of our exit from the European Union.

As we have heard, there are many concerns about the deal, such as on weak provisions on labour rights, which some argue could lead us to importing goods made by exploited labour. However, to echo my noble friend Lord Razzall, I want to concentrate on the area of intellectual property, with concerns that I raised some years ago, when I served as a member of the International Agreements Committee. The whole House has accepted on many occasions that our creative industries have become the powerhouse of the economy, and intellectual property rights and their enforcement are their lifeblood.

As the CPTPP negotiations began, the creative industries, recognising that other countries in the group with less developed creative sectors would have less concern about IP issues, made a number of recommendations about what the Government should seek to achieve. One such issue, as we have heard, was in relation to the patent grace period, raised by the noble Lord, Lord Collins, and by my noble friend. The Government were warned that the CPTPP rules require its members to have a grace period for patents, whereas the European patents convention does not. If we agreed to the rules, it would put at risk the UK’s vitally important membership of the European Patent Office. I am genuinely delighted that the Government were successful in enabling us to set aside the CPTPP grace period provisions—but, sadly, few others of the sector’s asks were achieved. I suspect that that was because we were in the position of being a rule-taker rather than a rule-maker.

When, for instance, we were negotiating with New Zealand for a trade deal, it was between equal partners, and as a result of the pressure we were able to put on, New Zealand agreed to increase its copyright term to 70 years after the death of an author. We had clout in those negotiations. But the sections of CPTPP relevant to copyright term are currently suspended, so, as a start, the sector wanted our Government to press for the suspension to be lifted. However, as the Government had no clout in the negotiations, it was not, so our creators, except where we have bilateral deals, lose out.

In the digital environment, content owners rely on a range of measures to prevent piracy and the resulting loss of economic value, but given that the CPTPP provisions that support these protections are also suspended, the sector again wanted the suspension to be lifted. It was not, so there is no protection of UK content owners in important markets such as Malaysia and Vietnam. The CPTPP has no measures in relation to artists’ resale rights, meaning that UK artists and their estates are unable to receive royalties when their work is sold on the secondary market in CPTPP member countries which have not introduced such a right unilaterally. The sector’s request for the inclusion of ARR went unanswered, and our artists lose out.

Of particular concern is that the CPTPP does not have the same firm view as the UK that creators should have almost exclusive rights on their work, underpinning their ability to generate income. The CPTPP, for example, talks of

“a balance of rights and obligations”

in the interests or promotion of technological advances. This, the sector believes—maybe the Minister could comment on this when he winds up—means that technology and social media companies could have undue influence in determining the reasonable rights of creators; again, there is the potential for those creators to lose out.

So, overall, it is not a good deal for our creative industries, many of which are worried that, by signing up to it, we have indicated a willingness to accept a lower level of protection for copyright than exists in the UK, and that it will set a worrying precedent for future negotiations. Another country might say, for example, “Well, you were happy to sign up to that level of protection with them, so why not with us?”

Clause 5 introduces a further concern, which has already been touched on. It introduces an obligation on the UK whereby foreign rights holders and performers, for works within the UK, would receive payment where they currently do not. That is fine, and one would assume therefore that the obligations will be limited to CPTPP country rights holders and performers. But the Bill as it stands, bizarrely, does not limit this extension to CPTPP countries; rather, it provides for secondary legislation that will, in due course, specify the countries to be covered. Will the Minister confirm that consultation on which countries are to be included is going to take place during the passage of the Bill? Does he at least accept that we are being asked yet again to make decisions without having all the facts, and certainly without knowing what the implications will be?

I hope that the Minister will make it clear in his response that the Government accept that the IP chapter of the agreement, including the suspension of some of the IP provisions, is deficient, is a real cause for concern among the creative industries and, frankly, is not what the UK expects from future international trade agreements.

Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL]

Lord Foster of Bath Excerpts

Committee stage
Thursday 14th December 2023 Grand Committee

[The Earl of Clancarty (CB)]

My Lords, this group of amendments concerns the arts and creative industries; although, in the case of intellectual property, not exclusively so. It therefore picks up directly from where the first day in Committee ended a week ago. I did not participate in that debate but recognise the faces of some who did around this table. It is noticeable that those in the House most closely associated with the arts—I emphasise the word “most”—do not tend to talk about copyright or intellectual property issues because it is such a technical area. I pay tribute to those—including present colleagues, the noble Lords, Lord Clement-Jones and Lord Stevenson of Balmacara, and one or two others—who, over a long time, have been keeping a watching brief on this important area. I also pay tribute to outside organisations such as the Alliance for Intellectual Property, whose briefing I am grateful for, and its member organisations.

Artists are acutely aware that a bad or compromised deal for the creative industries will directly affect the rights and livelihoods of UK artists not just in their work abroad but at home too—as was very much borne out in a debate on intellectual property in Grand Committee on 20 November in relation to new regulations. This is a corrective, in a sense, to the view of some of the public, who believe that these kinds of agreements are about conquering new markets and nothing else.

In this group I support Amendment 24, on the Intellectual Property Chapter, in the name of the noble Lord, Lord McNicol, and Amendment 28, on performance rights, in the name of the noble Lord, Lord Foster of Bath. Outside this group, I also mention Amendment 30, in the name of the noble Lord, Lord Purvis of Tweed, because there needs to be a debate on the effect of the CPTPP after the passing of the Act which also includes its implications for the creative industries. However, the concern about the extension of performers’ rights beyond this agreement needs to be sorted urgently.

My own Amendment 12 relates to the artist’s resale right, which is one important aspect of the wider landscape of concerns about rights for creators, in particular, the reciprocal rights—or potential lack of such rights—that this treaty has thrown up. Reciprocity is a key concept in much of this debate. I am grateful to the noble Lord, Lord Foster, and my noble friend Lord Freyberg for their support. Unfortunately, owing to illness my noble friend cannot be here today, but he has kindly passed on to me some notes for the speech he would have made.

The artist’s resale right is a vital element of our visual arts culture and is hugely important to our artists. It is a fundamental IP right that provides a royalty to artists on the secondary sale of their work. It has been introduced in some form in more than 90 countries worldwide, Mexico being the latest, in 2023. The noble Lord, Lord Clement-Jones, expressed it very well in Grand Committee on 20 November, when he said that he felt confident that these rights

“are now bolted fully into our intellectual and moral property rights”.—[Official Report, 20/11/23; col. GC 52.]

In the 17 years of its existence in the UK, the artist’s resale right has provided artists and estates with £120 million—moneys paid out by the not-for-profit organisation the Design and Artists Copyright Society, whose briefing for this debate I am also very grateful for. Artists invest ARR royalties into their practice which, in turn, supports the arts ecosystem. It is therefore not just individual artists who benefit but the culture as a whole, particularly since estates will also use the moneys to archive and restore work. It is important to note that, contrary to erstwhile concerns, there is no evidence that ARR has negatively impacted the UK art market or diverted sales to non-ARR markets. The UK art market is currently ranked second in the world, and ARR royalties represent only 0.1% of the market’s value.

I gave a very full speech on the artist’s resale right in the debate on 20 November on the new regulations. I refer the Minister to that. I will not say much more on ARR specifically, particularly as the Government should not need to be persuaded of the value of this right. I was very happy, in the circumstances, to back the Government in that debate on introducing the regulation that turned EU law on ARR into UK law. Of course, we now have reciprocal agreements on this right with two CPTPP member states, Australia and New Zealand, through separate trade agreements. I understand too from the letter that the noble Viscount, Lord Camrose, sent to us after the aforementioned debate that the UK is in discussion with Japan on this—a country, I believe, which does not yet operate this right. Could the Minister expand on that? Indeed, DACS has said:

“ARR should be introduced into more countries so that national artists benefit from this right, and UK artists get their due royalties for international sales”.


My noble friend Lord Freyberg has pointed out to me, with figures he researched, the particular significance of the Asian art market. This in part relates to Amendment 24’s reference to future agreements. Japan is a CPTPP member, while China and South Korea are among formal and potential applicants. Together, their art markets were worth around £10.5 billion in 2022 and are likely to continue to grow. My main question to the Minister is: what is the Government’s overall strategy for reaching agreements on this, both through this treaty with other member states, and with those outside it? Has this been broached in relation to this treaty, or will there be negotiations on the treaty so that provision for this will find a place in the chapter on intellectual property? That would be a preferable solution but if that is unrealistic, I would like to hear that from the Minister. I look forward to his reply. I beg to move.

[Lord Foster of Bath (LD)]

My Lords, I entirely support the amendment in the name of the noble Earl, Lord Clancarty, and that of the noble Lord, Lord McNicol. Noble Lords will be aware that I made it clear at Second Reading that I had real concerns that our accession to the CPTPP was done on the basis of failing to get many of the improvements sought by the creative industries. I pointed out that I suspected that that had happened because we were being a rule-taker rather than a rule-maker.

That argument was well demonstrated by the Minister, who, in a subsequent letter, made it very clear that the CPTPP was “a pre-existing agreement”, and therefore we have little choice in this matter. However, I have been heartened by a further paragraph in which he says that

“we intend to be a constructive member of CPTPP and will champion our values and priorities, including through the committees and councils set up by the agreement. Our ambition is to play a full role to strengthen the high standards of CPTPP”.

He goes on to say in a subsequent paragraph that our accession

“will not limit our ability to seek more ambitious agreements, including with CPTPP partners”.

All I would say to him is that I hope very much that we will look to find ways of improving some of the current IP protection arrangements within the CPTPP.

However, I wish to concentrate specifically on performers’ rights—an issue we debated at some length in our last session. I confess at the outset, first, that I will have to speak for rather longer than I would normally hope, and secondly, that I remain somewhat confused about what precisely the Government are proposing. I am not alone in that. I have talked to a number of organisations that are concerned about intellectual property rights and the Bill’s implications for those. They too are confused. If I have got things wrong, I hope the Minister will be able to correct me and give a clear enunciation of exactly what the Government are proposing in the Bill.

Much of this is based on the concerns of the music industry, although I acknowledge that the issue goes somewhat beyond it. It is worth just reminding ourselves that the UK music industry’s contribution to our economy is enormous: £6.7 billion last year, with exports from the industry generating £4 billion. It is an important industry and it is founded on the fact that in the UK we have an incredibly robust IP rights regime, which includes performers’ rights.

The issue is extremely complicated, as the Minister acknowledged during our deliberations in the last session. However, in terms of artists’ rights we are talking, predominantly but not exclusively, about broadcast performances. If a recording of a UK artist, composer, publisher or record label is aired on a UK radio channel, we know that royalties have to be paid via the collection agency PPL and then distributed via an agreed split between the various parties involved in that recording. If it is aired on a streaming channel, exactly the same applies, although the split may be different. However, if that recording is aired in another country, whether royalties get back to the UK depends on the deals that we have done with those countries. That might be through a free trade agreement or other international treaties, such as the Rome convention or the WIPO Performances and Phonograms Treaty—the WPPT.

Rights are often reciprocal but in some cases they can be limited. For example, Canada wanted to protect its small radio stations and capped the amount of money that they have to pay, so the amount that comes back to the UK is effectively capped. It might be supposed that the CPTPP Bill would deal exclusively with the arrangements for handling these issues between the UK and other CPTPP countries, establishing a reciprocal arrangement, just as we have done with other FTA deals. In a letter to the noble Lord, Lord Lansley, the Minister says:

“We intend to lay secondary legislation under these powers in Parliament in February 2024. This will make technical changes that are necessary, along with the Bill, to comply with CPTPP and other treaty obligations. The secondary legislation will include changes to the rights that are extended to CPTPP Parties and the performers who have a qualifying connection to those Parties. In circumstances such as these—where the UK has little or no flexibility in how it must implement its international obligations—it would be inappropriate to consult”.


I have no concern about that whatever. However, the Bill goes much further and, as the BPI says, makes significant and broad changes overall to copyright law.

In the CPTPP Bill, the Government are proposing to make changes to copyright law that would introduce obligations for performers and rights holders to receive payment for public performances in the UK of their music via equitable remuneration. This would appear to apply to either all countries or some countries. I hope that in his response the Minister will make it absolutely clear which performers and which countries are intended to be covered. At the moment, as I say, there is considerable confusion about this.

In simplistic terms, as I see it, the plan is to extend an agreement whereby we would effectively be paying royalties to other countries and performers where there is a performance in the UK of their recording, either of the individual performer or that country, even when we have no reciprocal arrangements with them and then, at a later stage, to decide whether or not to limit those rights as, for instance, Canada has done. This could have a significant impact on the UK, with a potentially significant loss of income. For instance, we have no reciprocal rights with the United States of America, yet, until some limits are potentially imposed at a later date, we will end up paying royalties to the US and to US performers while they will pay no royalties to us for UK performances in the United States.

--- Later in debate ---

I turn to the subsidiary point about consultations. I firmly believe that a lot of the impact assessment amendments tabled on these trade Bills are intended to enable a debate about a concomitant point, rather than an impact assessment necessarily. To have an impact assessment after one year on any activity as complex as a free trade agreement seems completely unhelpful, so I thoroughly recommend that, if noble Lords are going to table amendments under the cover of an impact assessment to allow broader debate, we say two or five years, which the Government believe is the right amount of time. We will do an assessment and review of the treaty after two years, and we have committed to doing one after five years. I personally think—I am not going against government policy by saying this—that even two years is a very short period in which to see the impact of many of these actions, but I accept the fact that in some instances, we are looking at the processes that led to the action itself.

[Lord Foster of Bath (LD)]

I entirely take the point the Minister is making about the timescale for an impact assessment. Yet before we have even had the consultation on performers’ rights, the Minister is claiming that the impact will be minimal. I have not yet heard from him the justification for that claim. Also, while I am on my feet and to save interrupting him a second time, can he be absolutely clear that the details of the consultation on performers’ rights to which he referred will be available prior to your Lordships debating the Bill on Report? If we do not have those details and a clearer understanding of what is in the consultation and the implications of the Bill, we are put at a huge disadvantage.

[Lord Johnson of Lainston (Con)]

I am grateful to the noble Lord for pointing out that I am already talking about the impact, while also saying that we should not have an impact statement after one year; however, I do not think that that is fair. We are trying to have a broad gauge—is this a significant, multi-million-pound issue that needs to be confronted with urgency, or a relatively manageable amount of capital change? The instance we are looking at is not significant in relation to the music industry overall—it was a few tens of millions. I do not have the figure in front of me, but the noble Lord will understand.

That is the reason why we are having a consultation. Our estimate implies that it would not result in significant distortions of the music market in this country. Remember, this is for broadcast media. It does not include streaming, which is how most people access their music at the moment. It will result in additional artists being included, but many artists already are.

We should be aware that we often talk in these debates about the issues facing us—it is always about us. I would like us to look at the opportunities our artists will now have in terms of being protected. British music is the greatest in the world, and among the most popular. The Beatles are at No. 1 again; that must mean something. All the great bands are reforming to take advantage of these new benefits of CPTPP and the enormous revenues they will be paid, so something must be working. We should not lose sight of that. I think that my noble friend Lord Cameron of Chipping Norton told me that Blur are getting back together again. He will know more about it than me.

This is a very important issue. We must not lose sight of the fact that on the whole, these measures tend to result in additional protections which did not exist for our artists in many of these countries. That is very important. We can get lost in the detail. I am not saying that the detail is not important, but we should keep things in perspective. I cannot answer the question from the noble Lord, Lord Foster, about when the consultation will be completed. It is unlikely that we will have the consultation back by Report, which is hoped to be the second or third week of January. I am aware of the time constraints and recognise noble Lords’ comments, but we will continue to work together to find a good solution. I am extremely comfortable having further conversations with the noble Lord and other interested Peers on how we can delve more deeply into this subject. I am very sensitive to the fact that we are trying to come to the right conclusion.

Turning to some of the other key points, the noble Earl, Lord Clancarty, made a very fair comment on artists’ resale rights. We have tried to propagate this position. It is a new concept globally and so far, 90 countries have taken up the opportunity to employ artists’ resale rights. Unfortunately, very few CPTPP countries deploy ARR in their legislation. The noble Lord was right to mention Mexico, and Peru is similarly beginning the process. However, it is at an early stage and has not functioned in a way that is advantageous to our artists, so while the systems have been set up, they have not started to yield the payments we were hoping for. Therefore, we are not in a position to introduce ARR into the CPTTP, because many of the countries simply do not have that legislation to hand. It would therefore not be appropriate for what is a collective multilateral treaty that we are joining.

The noble Lord rightly asks about our strategy. I am happy to come back to him on our plans for continuing engagement, but he should be reassured that we specifically negotiated this in the Australia and New Zealand free trade deals and that we are in negotiations with Japan to see how we can implement that.

The noble Lord, Lord McNicol, asked about Japan and geographical indications. I cannot make a significant comment in reply, other than to point to our commitment to continue negotiations on this. It was a very important part of the initial negotiations and the Secretary of State at the time was determined to ensure that these principles were magnified. I, my officials and the trade team will be happy to reassure the noble Lord, I hope, that we are moving forward.

I hope I have covered the questions raised. My noble friend Lord Trenchard kindly supported me with his point about impact assessments and timeliness, for which I am grateful. He also raised specific questions which I will answer in writing.

Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL]

Lord Foster of Bath Excerpts

Committee stage
Thursday 7th December 2023 Grand Committee

These are things that will be in our supply chains and which we have a duty to look at, discuss and reflect on in due course. That is why these amendments are important. The principle behind them is that Parliament should be involved in this and have the chance to have its say. I support these amendments. I recognise, as my noble friend has done, that maybe they should be tweaked into a form that the Government find more usable and convenient. They could even be remitted to the relevant Select Committees in the first instance for them to analyse in some detail.

[Lord Foster of Bath (LD)]

My Lords, I will speak very briefly. Like others, I will declare whether I spoke at Second Reading—the answer is that I did. I entirely agree with the Minister’s earlier remarks that we should learn something new every day. When I was a member of the International Agreements Committee, I learned a great deal from some of its members who are present today and I continue to learn from them—not least the noble Lords, Lord Lansley and Lord Kerr, and my noble friend Lord Purvis.

I will pick up a very small point, which has not quite been covered, on rules of origin. As everyone is well aware, the rules of origin chapters in all our free trade agreements are incredibly complicated, as is the way in which different bodies will have to check whether they have been complied with. I notice with great interest that a report was carried out into whether the UK was suitable for membership of the CPTPP, in which CPTPP countries checked out, through a round of questions and discussions, for example, our ability to comply with its rules of origin requirements. Bearing in mind that we already have trade agreements with a number of CPTPP members—Australia, New Zealand and so on—we know that there are details in the agreement on how rules of origin will be checked out. As part of that procedure, there will be a working party on rules of origin between, for instance, New Zealand and us for its trade deal and one between Australia and us for its trade deal. I have been unable to locate details of whether there is to be a similar committee, ad hoc group or working party that will look at compliance with rules of origin. Can the Minister tell us whether that is the case?

The ultimate arbiter of whether rules of origin have been complied with will be the customs organisations in the relevant member countries. They include our customs services, which will be required to make decisions about whether to investigate particular cases in relation to compliance with rules of origin. Given the possibility that there can be goods coming from, say, Australia to the UK using the Australia free trade agreement or the CPTPP arrangements, with a slightly different rules of origin arrangement, as my noble friend pointed out, this is clearly a very complex issue for the customs authorities. Can the Minister give us an absolute assurance that appropriate support, finances, additional personnel and training are being provided to our customs services to enable them to carry out this difficult task, particularly when other member countries have had time to interrogate whether we are up to scratch but we have not yet had an opportunity to check whether the other member countries are up to scratch?

[Lord Lansley (Con)]

I take this opportunity to remind noble Lords of my registered interest as the UK co-chair of the UK-Japan 21st Century Group, in so far as Japan is a member of the CPTPP—and, as my noble friend Lord Trenchard said, not only a member but a leading advocate of UK membership, for which we are very grateful.

I am reminded by the opening speech of the noble Lord, Lord Purvis of Tweed, on his amendment, that, in the past, when we have been looking at the free trade agreements into which we have entered with Australia and Japan, in both cases we anticipated that, in time, we would enjoy the protection of our GIs in those countries. As the noble Lord, Lord Purvis, said, where Australia is concerned, that was contingent upon the Australia-EU agreement. As far as I can tell, although the Australian Government have undertaken their own study, there is no such agreement, so presumably there has been no action.

My questions are these. First, are we making any moves with our Australian friends under our free trade agreement with them to proceed, notwithstanding the absence of an EU agreement with Australia? It seems very unwise and unhelpful for us to be tied to the EU agreement. Secondly, Japan was very willing to consider it, but it was going to be considered under its procedures and that was going to take some time. Are we making progress? It would be great to know that we are. I think there is a willing and important market for UK goods with geographical indications and so on in Japan, even where Scotch whisky is concerned. I think this is the case in many other CPTPP countries, so it is quite important that we get that GI protection. I hope my noble friend can say something, if not now then at a later stage, about the progress we are making with Japan and Australia on getting our GIs recognised there.

--- Later in debate ---

[Lord Lansley (Con)]

Some of them are under negative procedures. It is a judgment, not least in this House as our Delegated Powers Committee will advise us on what judgments to make. I would not endorse a blanket affirmative procedure; it must be based on the relative significance of the decisions to be made. Just because something is laid under the negative procedure does not mean that it cannot be prayed against or objected to, but that must rest with the committee.

There is nothing in the current legislation requiring any consultation with the representatives of rights holders in this country before the definition of a qualifying country is extended. I think it would be right for that to be the case; I suspect the representatives of rights holders would welcome it. In giving the Government this wider power, this is a good moment to add this carefully constructed consultation requirement before they bring an order forward. I beg to move.

[Lord Foster of Bath (LD)]

My Lords, the noble Lord, Lord Lansley, suggests that I should go into great detail explaining the whole issue of performers’ rights. I will disappoint him and other Members of the Committee because I am sure that those with an interest in it know that, basically, it is about performers and, in some cases, record label owners and so on receiving appropriate payment for their performances that take place in another country. It seems absolute common sense that if we do a deal with country X, we arrange it so that if our performers perform there we get payment and vice versa. Reciprocity seems pretty fundamental.

I have produced an amendment which says that in this legislation we ought simply to say that the reciprocal arrangements are with CPTPP member countries. Having raised real concerns about our failure during negotiations to make any progress on a number of intellectual property issues or to provide some of the support that our creative industries were seeking, I nevertheless welcome that this is part of the treaty. However, the question remains whether what I am seeking—a simple reciprocity agreement—is happening. The truth is that it is not.

I am enormously grateful to the Minister, who, after I raised these issues in basic terms as I have just done, wrote to me to explain the situation. I hope he will not mind but, to save him repeating it in his speech, I will read a little of what he wrote to me:

“The changes the Bill makes are necessary for the UK to accede to CPTPP and will expand the basis on which foreign performers can qualify for rights in UK law. In addition to the Bill, the Government will be making accompanying secondary legislation under existing powers”


and various other things to make sure that it all happens. That is fine, but he went on:

“The changes in the Bill will apply not only to performers from CPTPP countries but also those with a connection to other countries that are party to relevant treaties relating to performers’ rights to which the UK is also party. This is necessary to comply with the UK’s national treatment and most favoured nation obligations in those treaties”.


He is saying that if we do something with CPTPP countries, we would have to take into account our other treaty obligations and the impact it would have elsewhere. He adds:

“Beyond these changes, however, the UK has some flexibility under its international obligations around how it provides certain rights to foreign nationals, in particular the right of performers to receive equitable remuneration (i.e. a share of the royalties) when their performances are broadcast or played in public”.


In other words, what we have in the legislation at the moment, as I understand it, are changes that mean that we take account of what is going to happen in relation to reciprocal arrangements with CPTPP member countries as well as a stack of other changes that will take place, affecting our relationship with other countries, with some possible variation in how we deal with them. I absolutely understand that it would make life very easy for the Government to sweep these things up all at once, but it leaves us totally in the dark on exactly who we are dealing with and what the implications are, particularly for the music industry. The music industry is extremely concerned about this. It has told me that it has had discussions with the Minister and officials, that it got the information about all this at very short notice, and that it was unable to make any progress with getting the Minister to see things differently.

Its argument, and that which I would make—it is exactly the same as that made by the noble Lord, Lord Lansley—is as follows. If consequential changes are necessary in relation to countries beyond those that are members of the CPTPP, there is plenty of time between now and accession—we debated this earlier and all accept it is nine months away or possibly more—for the IPO to consult on the other issues referred to in the Minister’s letter and for us then to have an opportunity to debate their implications before they are brought in. The legislative arrangements to do that are very clear.

I am deeply concerned that these proposals are coming from the IPO, which in many respects does very good work but sometimes runs ahead of things, as it did with its proposals for text and data mining, for example. They came as a huge shock, were massively opposed and were eventually withdrawn and have not gone ahead—I am grateful to the Government for doing that. I do not want a repetition of that, so I hope it is possible for the Minister to accept an amendment that says, “For the time being, let’s concentrate on reciprocal arrangements with CPTPP member countries but, separately, have consultation on all the other things that the Minister wants to achieve so we can have an opportunity after the consultation to know what the impact will be, and then we can make a decision”.

I want to see that information before I decide whether those changes are right. The Minister may already have seen some information, because the one bit of his letter that I did not read out suggests that the department has already come to a conclusion. It states, at the end:

“As such, we expect the direct impacts of the measures … on UK parties to be small”.


I do not know whether that is true. I do not know what the implications are—nor, I think, do other Members of the Committee. The Minister may have a response that reassures me that we can go ahead in the way that the Government propose, but, given the lack of consultation we have had to date on those other issues, it would be helpful to proceed in the ways that either I or the noble Lord, Lord Lansley, have proposed—both achieve the same end.

[Lord McNicol of West Kilbride (Lab)]

My Lords, I have Amendment 10 in this group. It is a short, probing amendment, and I have a few questions on it for the Minister. Again, it touches on performers’ rights. Clause 5(5) refers to

“an act done … before the commencement date”.

It is specifically about acts that have taken place in the past. My questions for the Minister are detailed, so I am more than happy for him to write to me, because I do not think this will make it through to Report.

Are there any practical impacts on the performers, and, if so, what are they? Does this date back indefinitely or is there a timeframe or time limit for when the performance act took place? Finally, is there anything that performers need to do to protect themselves with the CPTPP being put in place, or any guidance on it? Again, I am happy to support the amendments in the names of the noble Lords, Lord Lansley and Lord Foster, but I am seeking some clarification about performers’ historic acts.

[Lord Johnson of Lainston (Con)]

I again thank noble Lords for their input. The noble Lord, Lord Purvis, referred to my declaration of interests and asked about my interests in Malaysia. I do not have any interests in Malaysia, but I have had interests there, which serve to highlight the points I tried to make about trade. My interests are very clearly listed on the Lords’ register. I have small shares in fund management businesses but, as I said, I do not believe there is any conflict relating to this debate. I am always very cautious in that area, so I like to make everything as transparent as possible. I apologise for not making my declarations at the beginning of the debate.

I will now cover the important points. It is important to reaffirm that, as I committed to at Second Reading, the Intellectual Property Office will undergo a full consultation and report early next year on the effects these changes will have on artists and the industry itself in the United Kingdom.

[Lord Foster of Bath (LD)]

I am sorry, but although it will report early next year, that will be after we have concluded all our deliberations on the Bill.

[Lord Johnson of Lainston (Con)]

That is true of the House of Lords process, but I assume that, by then, the Bill will be in the other place, so there will be an opportunity to reference the consultation. My point is that the consultation will not have an effect on the treaty in the sense that we are able to take ameliorative action as a nation. I am grateful to the noble Lord for raising this, but it is not necessary to make amendments to the CPTPP Bill. We want to take time to decide the best course of action relating to how artists are compensated for their works being broadcast on broadcast media.

I am very comfortable with the principles around the consultation process, and I hope that noble Lords will be reassured that I have taken a significant personal interest in ensuring that we get into this debate with all the details that it presents. It is not necessarily as straightforward as it may appear. I admit to coming to this at First Reading and thinking, “This seems an extremely reasonable affair; shouldn’t all artists receive 50% of their broadcast rights?” Further investigation shows that the situation is much more complicated, with different artists having different concepts of rights, particularly in America, which has the largest market in relation to this, and certain revenues being able to be captured and retained in the UK, rather than repatriated, and so on. A very relevant point was raised to do with reciprocity.

If I may, I will explain to noble Lords, who know more about these subjects than I do, that joining CPTPP fundamentally changes an important principle in how we assess artists’ rights. The copyright Act extends rights to performers who are nationals of or who give a performance in a “qualifying country”, the principle being that you will qualify for the protections if you are a British citizen or if you perform—as I am sure the noble Lord, Lord Foster, regularly does—your musical extravaganzas in the United Kingdom or in countries that are specifically linked via the Rome convention, for example. The secondary legislation to the CPTPP will change this. It requires that we introduce a new basis of qualification which is linked to where the music is first published. To qualify, you do not have to be either a citizen of a CPTPP country or doing the performance in a CPTPP country, so long as it is first published there. There are grace periods around that too.

It is not as simple as saying that artists’ remuneration and royalty payments are extended to everyone in the world, because that is not the case. For example, a US citizen giving an original performance in the US and registering it there would not qualify if it was then broadcast on UK media. It is important to understand that there are some nuances. I give way to the noble Lord, Lord Foster, if he has a technical point.

[Lord Foster of Bath (LD)]

I was not going to intervene, although I was tempted. The Minister is 100% right that this is incredibly complicated. There is the issue of a UK session musician who performs on an American record that is then first performed elsewhere. The complications are enormous. The problem is that the proposed changes also have enormous potential implications, none of which we have had the opportunity to debate or fully understand the impact of on the UK music industry, which is confused about this. All I am asking the Minister to do is accept that there is something incredibly complicated, but it can and should be dealt with separately.

[Lord Johnson of Lainston (Con)]

I am grateful to the noble Lord for his understanding of the complexity of this. I hope I have been able to explain to noble Lords the different principles in what we currently look to in our copyright Act and what we are signing up to in the CPTPP. It is certainly navigable. Regardless of accession to the CPTPP, it is already complicated, and there are specific agencies to make sure that these royalties are properly collected and stored.

I am reluctant to accept these amendments today and ask noble Lords who have proposed them to withdraw them, but I am very comfortable with having further discussions. It would be helpful for us to have a good discussion with the IPO so that people feel comfortable that the consultation is going in the right direction and that the right levels of input are being prescribed. The tertiary changes that we may wish to make to protect our music industry and artists would not necessarily be linked to this trade Bill, but they are important.

I am glad that I have managed to highlight and explain the new approach on who is eligible for these resale rights, because I think in the first instance it was assumed that everyone would be. That is not the case. It is important to differentiate that. We are signing up to a new approach in the CPTPP and this clearly forms part of our treaty obligations. It is very relevant that we debate that in some depth.

The noble Lord, Lord McNicol, raised a very good point in his amendment. I hope I can reassure him that this is not retrospective, but it would make sense for performances undertaken before the date to qualify. However, you would not be paid royalties for qualifying performances that were broadcast before the date. Otherwise, everyone would claim for past performances over the 70 years that IP goes back to—that would be totally impractical and inappropriate and is not what we are suggesting at all. Our legal advice is clear that the cut-off date is the day on which this comes into force. Anything following that point would qualify. Historic performances are clearly part of the IP record, but you would not receive royalties for anything from before that point. I hope that reassures noble Lords.

I hope I have covered the points raised. I am very grateful for noble Lords’ input on this important, sensitive and complex area. As is often the case in dealing with noble Lords in this Room, we are talking not about party-political or even political issues but issues of detail that have great ramifications. I see that the noble Lord, Lord Lansley, is keen to intervene as I may not have covered his points. The order of this is that the first statutory instrument gives the Secretary of State the power to make the changes, after which there is the consultation, and then the second instrument makes the changes. I hope that helps answer his initial point on the order of activity.

--- Later in debate ---

[Lord Lansley (Con)]

Just to be clear, what my noble friend has said may satisfy the noble Lord, Lord Foster of Bath—is that “Bath” with a short or a long “a”?

[Lord Foster of Bath (LD)]

It is “Bath” with a short “a”.

[Lord Lansley (Con)]

Try to read that one in Hansard. However, my noble friend has not given me the assurance that I am looking for in the changes to the definition of a qualifying country.

Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL]

Lord Foster of Bath Excerpts

Report stage
Tuesday 16th January 2024 Lords Chamber

Moved by

[Lord Foster of Bath]

7: After Clause 5, insert the following new Clause—
“Qualifying countries(1) Section 206 of the Copyright, Designs and Patents Act 1988 (qualifying countries, individuals and persons) is amended as follows.(2) In subsection (1)(bb) for “Rome Convention” substitute “Comprehensive and Progressive Agreement for Trans-Pacific Partnership”.”Member’s explanatory statement
This amendment would remove the Rome convention (and therefore its parties) from the definition of a “qualifying country” and substitute it with the CPTPP (and therefore its parties).

[Lord Foster of Bath (LD)]

My Lords, I congratulate the Minister on his tour de force in responding to the large number of amendments in the last group. I hope that the mere two amendments in this group will make life a little easier for him.

I have tabled these amendments merely to enable further debate on an issue that, frankly, was not satisfactorily resolved in Committee. The Minister is well aware that the copyright provisions in the Bill, not least in relation to performers’ rights, have caused significant confusion and concern among rights holders. In Committee the Minister sought to clarify the position. I fear that some confusion remains, but I am enormously grateful to him and his officials for the meeting we had subsequently and for the letter that he sent to me afterwards. I say to him that I have noted that the IPO consultation on the matters we are debating today started yesterday.

The upshot, for those not familiar with what this is all about, is simple: the Intellectual Property Office and the Minister believe that changes to our copyright law contained in the Bill are necessary for our accession to the CPTPP while I, rights holders’ representatives and some legal experts do not believe that that is the case. For instance, the CPTPP requires member countries to ratify the WIPO Performances and Phonograms Treaty, the WPPT. The UK did that over 20 years ago and there have been no concerns about it in subsequent years; no one has suggested that in the way we have implemented it we have got it wrong. Yet the Government now belatedly seem to suggest that somehow or other our legislation does not meet WPPT standards regarding the protection granted to performers and phonogram producers, so the law has to be changed. I note that the IPO’s consultation on changes in this area specifically says that existing arrangements in some cases are not consistent with treaties on copyright, which seems to suggest that for a long period we have somehow not been doing what we should have been under treaties that we signed some years ago.

--- Later in debate ---

I do not know whether I have explained this with any more clarity, but I take very seriously the points of the noble Lord, Lord Foster. I have been privileged to engage with him on this matter. We are having a consultation, and we will review this very seriously. I do not think there is any political mileage one way or the other in this. We want to get to the right outcome that supports the UK music industry, and ensures that our artists are properly rewarded and that the British music industry is not disadvantaged in any way. I believe that signing up to this agreement will benefit our artists, allowing them better protections in these markets than what we may have to offer in return. In this instance, on a technical point, I ask the noble Lord to withdraw his amendment for those reasons.

[Lord Foster of Bath (LD)]

My Lords, I am grateful to all noble Lords who took part in the debate, and of course to the Minister for his response, although I confess that I was somewhat disappointed with it. I asked a series of questions. Why were these issues not covered when we did trade deals with Australia and Japan? I got no answer to that. I asked why Australia did not change its ways of dealing with this matter when it joined CPTPP, and which countries within CPTPP are operating in the way that the Government now want the UK to. I further asked a simple question about why we were told that the consultation—which the Minister has now said is so important on this issue—specifically says that the decisions we are taking within the Bill are not part of it. He hinted that there is a possibility of further consideration of this, and I look forward to finding a way of doing that. I say to all noble Lords that my fear is that the decisions will now be made by the Government long after your Lordships’ House has had any opportunity to have further involvement in making decisions on this issue. Nevertheless, I beg leave to withdraw.

Amendment 7 withdrawn.