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.
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However, legal experts think the Government and the IPO have got it wrong. For example, they argue that we fulfil the treaty obligations by protecting performers on the basis of reciprocity, the triggering of which simply does not require any action by the Government, based on Article 4(2) of the WPPT. As further evidence that change is not needed, it should be noted that the changes in the Bill that are deemed necessary were not even referred to when the UK negotiated trade agreements with both Australia and Japan, both of which are members of the CPTPP. Surely the Minister should explain to us what specifically it is in the CPTPP agreement that requires these changes in UK law, and why they were not deemed necessary when the agreements were signed with Australia and Japan. I also note that, when Australia itself became a member of the CPTPP, it did not make any changes to its copyright framework, despite also being a signatory to the relevant treaties. Again I ask: why is it the UK’s view that our current regime is out of kilter with the measures outlined in the CPTPP agreement?
The Minister’s letter to me stated that widening the benefits to foreign performers, whether or not they are based in CPTPP countries, is required under national treatment and most favoured nation obligations under our broader treaty obligations. If I am correct, he is saying that, since we are expanding the rights because of what they believe is required under the CPTPP, we
must provide those to all foreign performers. However, other member countries of the CPTPP do not do that, so why has the UK interpreted that in the way it has? Could the Minister perhaps share any correspondence with us that the Government have had from the secretariat of the CPTPP, or from signatories to the CPTPP agreement, in which they have asked to the UK to make these changes—or is it just that the UK has unilaterally decided that our framework is not compatible?
We should be concerned about this, because broadening rights, as the Government are proposing in the Bill, not just in CPTPP countries but in many other countries, is a real cause for concern. Under the current arrangements, for example, because reciprocity is not offered by the US, US performers are not entitled to receive equitable remuneration. As a result, the share of revenues collected by UK licence holders for US recordings remains in the UK and is used to invest in UK artists and their recordings. Under the proposed changes—at least until some mitigation measures are introduced—the US will benefit, to the detriment of the UK. More generally, the measures will enable more performers to fish in the pond of UK royalties, ultimately reducing the amount that we can make available to UK performers and their labels.
Up until the consultation that started yesterday, the Government had not made any assessment of what the impact would be. That means we now have to turn to the consultation that started yesterday. We were told throughout that the consultation would be on the measures contained within the Bill required for accession to the CPTPP, but I have the consultation on my iPad—or at least I will once I have entered my passcode—and, under the heading “Other intended changes not subject to this consultation”, it tells us:
“On 16 July 2023, the UK signed the Protocol … which outlines the terms … In order to comply with obligations … some changes to UK legislation are required with regard to rights in performances. These changes are necessary for the UK to accede to CPTPP and must be made before accession”.
We are arguing that that is not the case, but it is the Government’s position. The consultation continues:
“This will involve expanding the eligibility criteria for rights in performances”,
and says these changes will be made in the Bill that we are currently debating. It states:
“Both the changes in the Bill and the accompanying secondary legislation will take effect when the CPTPP enters into force”.
It then says, very precisely, in paragraph 27:
“These changes are not the subject of this consultation”.
While we were told that the consultation would tell us, belatedly, what this was all about, so we could understand it, with model examples and anecdotes provided, we now discover that what we have all waited for patiently is not relevant to the Bill that we are debating, and that the Bill will introduce a series of measures that many people believe are not necessary and are a mistaken understanding of the current situation that could have a serious detrimental impact on the UK’s creative industries. We do not know how big that will be, and the Government are asking us to take on trust that there may be some further changes coming as a result of this consultation, which will conclude long after we have finished debating this Bill in your
Lordships’ House. So we will not even have the benefit of hearing from all the people who will be consulted before we make decisions.
I hope the Minister will acknowledge that the concern continues. These two amendments are merely to provide an opportunity for the Minister to clarify a situation that so many of us believe is totally and absolutely unclear —making changes that are not necessary for the sake of accession to CPTPP, which are worth considering for the future for some other reason, perhaps, but should be done totally separately from the deliberations we are having now. We should have had a clear impact assessment of these measures and justification for their introduction provided long before this stage of deliberations on the Bill. I hope the Minister will conclude by saying how this House will have an opportunity to have a further discussion on these issues when more information is made available as a result of the consultation.