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

Lord Stevenson of Balmacara Excerpts

Monday 14th September 2020 Grand Committee

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, it has been a good, if brief, debate and has raised lots of important issues that I am sure we will be addressing over the months to come as matters progress. Like the noble Lord, Lord Clement-Jones, I am grateful to the other speakers for raising issues that, perhaps, we do not need to go back into, given that we are looking forward to the Minister’s responses to the broader points made by the noble Lord, Lord Berkeley. How welcome it is to have a creative presence in our discussions—not that we are not creative, but I mean creative with a capital C. I am also grateful for the comments on the detailed Explanatory Memorandum notes because we do not need to go through them in detail. I think the answers will be relevant to the questions I would have asked as well.

Like the noble Lord, Lord Clement-Jones, I recall the earlier debates surrounding the initial SIs on these matters. I do not want to go into too much detail on this point but I am still left with the view, which I think he referred to, that we seem to be offering quite a lot to European colleagues and former partners, both as regards the rights that they would enjoy up to and including the transition period and potentially beyond, but also in subsequent legal actions and representation issues. The asymmetry was not accidental but deliberate, and my challenge then, which I do not think I got a full response to, was that this whole approach being taken by the department seemed in some senses based on a misunderstanding. That is, if an attractive offer was made to the EU member states on all the intellectual property issues that we have been discussing this evening, we would land a better agreement after the transition period; in other words, the withdrawal agreement would be transmitted into a chapter within the free trade agreement which would be broadly as generous to us as it was to our European colleagues. That does not look quite so easy now. Certainly—plenty of discussions are going on in another place this evening—we may well not be in the same position later this week as we are today. That said, I still wonder whether the Minister could take on this issue and explain why he thinks that this set of arrangements, which in a sense are not touched by this SI because they merely reinforce what was done earlier in the year, are not really out of scope with where I think he wants to be, which is making sure that the British intellectual property industry is standing on its own two feet, able to defend its rights and its practices anywhere in the world, and to obtain the benefits from that.

I have now ranted a little about the broad arrangements, but as regards the particularities of this that we would like answers to, the points made by the noble Lord, Lord Berkeley, are important. Is there an issue here about how representation in Europe will be managed in the future that will affect adversely our creatives? If there is any concern about that, the Minister should make that clear, and if not, he should be equally clear about that.

The noble Lord, Lord Clement-Jones, made a point about consultation and the lack of an impact assessment. Again, we see very limited consultation and no detailed work on the financial implications of the decisions. It may not matter on the narrow issue relating to this SI, but I hope that this is not a precedent for future work. These industries are important to us, they are extremely valuable to our economy, and they deserve to be consulted. If I may make a general point, one of the problems with the Intellectual Property Office is that it has come from a place where it was a passive recipient and documenter of activity in intellectual property, and it has yet to establish itself as the foremost champion of those who work in the creative industries, which is what they need. I would be grateful if the Minister could comment on that.

I would also like more detail on the broader issues touched on by the noble Lord, Lord Clement-Jones, at the end of his peroration. We have been through this in Oral Questions, but I do not think I have had a full and consistent response from the Minister. The copyright directive, which will come into force shortly in Europe and should fit within the withdrawal agreement area, is important for all the reasons that the noble Lord, Lord Clement-Jones, gave us. Consumers would actively benefit from portability, but that has gone. The question about whether the lack of activity in the copyright directive regarding what have previously been protected bodies, such as the major social media companies, which are able to argue that they are not publishers of other work, would have been attacked by the recommendations in the copyright directive on matters such as child protection. Are we not concerned about that, and if we are, how will that be resolved? We never seem to see legislation coming on online harms. Unless that deals with that effectively, we will be missing a huge trick.

The noble Lord, Lord Clement-Jones, also mentioned important issues to do with orphan works. I, too, think it would be a pity if we cannot get some of the value out of that that was in the copyright directive. It may be politically astute for the Government to say that it is nothing to do with this, but I hope the Minister will reassure us that the important issues raised by the copyright directive will not be ignored simply because of political expediency.