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.
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In his letter to the noble Lord, Lord Lansley, the Minister says:
“UK law currently does not provide this right to some foreign nationals. The measures in the Bill will indirectly result in more foreign performers becoming eligible for the right. The government is considering whether to make further secondary legislation on the powers in sections 206 and 208 to modify how these rights are provided to foreign performers”.
In other words, at a later date we will consider whether or not to impose limits on those rights. The Minister says in the letter:
“This is a complex and significant policy issue. The government intends to consult publicly to inform its approach and ensure that it continues to support the UK creative industries and UK users of recorded music. We expect that consultation to be published very early next year, and we intend to implement the outcome of it in parallel with the coming into effect of this Bill”.
We have a situation where something that is incredibly complicated could have a huge impact on resources coming into the UK or, more likely, resources having to go out of the UK, yet we are going to find out the real outcome only when the Bill comes into effect. We have no opportunity other than perhaps this debate to discuss what is going to happen, so it is not unreasonable to ask why this is happening.
It appears—again, the Minister can correct me if I have got it wrong—that because there have been some challenges there is a view as to whether we are correctly abiding with existing treaty obligations and the Government have therefore decided to use this Bill as a vehicle to resolve these issues. There are many—BPI, for example—who do not believe that the UK has got anything wrong and see absolutely no need for this step. I am not qualified to make a judgment, but I am clear that seeking to right a potential wrong with countries outside the CPTPP member countries has frankly no place in this Bill and should be dealt with separately, as is perfectly possible. I hope that the Minister will explain why we are using this Bill to address an issue that does not directly impact on CPTPP arrangements.
One further point is that we have absolutely no idea what the impact will be. In his letter to me, the Minister says:
“We do not expect the measures in this Bill to result in significant direct impacts on UK musicians and UK record labels, or on broadcasters, public venues, or other users of music, in the UK”.
He acknowledges in that letter that
“changes will result in more foreign performers becoming newly eligible for rights in the UK”,
yet he still concludes:
“As such, we expect the direct impact of the measures in the Bill on the UK parties to be small”.
I hope that he can explain the justification for the conclusion that he has come to when we have had no consultation yet—it has not even begun—on these issues.
I have proposed Amendment 28, which requires that we publish an assessment of the impact of performers’ rights provisions in the CPTPP on qualifying individuals in the UK. The Minister has told me in his letter that his conclusion is that it will be minimal. I have no understanding of the basis of that justification and I look forward to the Minister’s explanation.
I am well aware that I have not given the most brilliantly correct analysis of the situation. Frankly, that is because I have come across no expert who can give me that explanation. I look to the Minister to clarify these matters beyond any future concerns people may have. I look forward to his response.