With the Trade Bill currently passing through Parliament, the All-Party Parliamentary Group for Intellectual Property held an online meeting to aid the ongoing Parliamentary debates and discuss the importance of IP Chapters in Future Free Trade Agreements.
During the session, the Group took evidence from IP and trade experts from across the copyright, design and trademark sectors who outlined some of the key IP issues affecting the UK’s trade negotiations with major trading partners. These issues included Designs, Safe Harbour and Online Enforcement, Exhaustion, Artist Resale Right, Rights of Representation, and Public Performance Rights.
Guest Speakers
Designs
Dids Macdonald OBE, CEO, Anti Copying in Design
Safe Harbour and Online Enforcement
Stan McCoy, President and Managing Director, Motion Picture Association EMEA
Exhaustion
John Noble, Director, British Brands Group
Artist Resale Right
Gemma Scotcher, Director of Communications, Design and Artist Copyright Society
Rights of Representation
Keven Bader, Chief Executive, CITMA
Public Performance Rights
Sophie Jones, Director of Public Affairs, British Phonographic Industry
Designs
The Group heard that currently UK designers benefit from European Community design, which protects unregistered design rights, and most UK designers. It was noted that, although the European Community design protection is retained in the current UK text, there is still a concern that British designers risk losing EU 27 protection for unregistered design rights should negotiations fail or alter.
It was highlighted that a key challenge lies in the protection and scope of design rights being implemented on an unlevel playing field across the world.
It was suggested that moving forward, the most important thing is to ensure that the IPO and the Department for International Trade maintain and enforce the current level of protection, and ensure that such protections are available to the majority of UK designers.
Safe Harbour and Online Enforcement
The Group heard that the US Free Trade Agreement model is in need of modernisation. It was highlighted that the US Digital Millennium Copyright Act (DMCA) notice and take-down regime in particular has become increasingly out of date. It was suggested that the way forward could be to have UK and US negotiators work together to simplify the DMCA notice and take-down provisions, and embrace a shared US and UK system. This could include provisions on secondary liability with internet intermediaries in connection to online copyright infringement. It was also recommended that UK negotiators should be encouraged to review the agreement to ensure that it is consistent with current UK law.
It was highlighted that the US and UK trade agreement could be the first agreement in the world to enshrine key shared principles of secondary liability. Notably accessory liability for IP infringement and authorisation liability for copyright infringement. These principles already exist in US and UK law however it was suggested that putting them into an international agreement and confirming that they are applicable to online infringement would set a leadership example for the rest of the world.
A key element of the discussion noted that the UK Government should oppose any obligations under an FTA with the US that would provide broad liability shields for online intermediaries, similar to what exists in Section 230 of the US Communications Decency Act. The Group heard that these provisions create an environment of impunity that perpetuate online harms and are currently part of the US FTA template, as seen in Article 19.17 of the US, Mexico, Canada Agreement (USMCA).
It was also stated that such provisions would make it more difficult for the UK Government to implement Online Harm legislation.
Exhaustion
The value of trademarks to brands was highlighted to the Group, and how the exhaustion regime affects consumers and the way in which they interact with, trust and understand branded products. The Group heard how it affects the environment for innovation, the strength of competition, the effectiveness of product regulation, the strength of competition and export performance.
The Group heard that the WTO is clear that FTAs don’t need to specify the exhaustion regime. The key ask was to ensure that exhaustion continues to be a sovereign issue for the UK and is not prescribed in any FTAs and that if the Government were to make any changes, it should avoid an international regime and any change should only be made following extensive consultation.
Artist Resale Right
The Group heard that the Artist Resale Right (ARR) is a royalty which allows artists to make money when their work is resold on the secondary market for over €1000 (£860). Although the ARR is included in the New Political Declaration (para 43) between the EU and the UK, there are concerns that it was not referenced in the UK’s draft CFTA text.
It was noted that the art market is worth £10bn a year to the UK economy and the ARR is a key revenue stream. To ensure the UK’s art market continues to thrive it was recommended that the ARR should be maintained and the Government should press for it to be included in all trade agreements.
Rights of Representation
The Group learnt that there are major concerns with regards to rights of representation within the EU. At the end of transition period, UK professionals, such as Chartered Trademark Attorneys, will no longer be able to maintain their rights of representation and continue to act before the EU Intellectual Property Office. They will no longer meet the three steps that are required to practice, of which include being qualified in an EU member state, having a place of business in an EU member state, and being a national of an EU member state.
It was also confirmed by the Government’s Ministry of Justice officials that rights of representation will not be part of the future trade negotiations.
It was noted that at the end of the transition period the UK will create over two million comparable rights, as they are copying the EU trademark and designs register. Although this is thought of as commendable as it ensures certainty for business and continued protection of rights in the UK, it was highlighted that 1.5million of those rights will have an EEA address for service which will result in a seismic shift in the make-up of the UK registers. It was emphasised that those EEA professionals will not necessarily understand the UK practice and procedures, which could potentially put the UK system at risk.
The Group heard that there is a lack of reciprocity within the Withdrawal Agreement provisions. Article 55 ensures for 3 years that after the end of the transition period that EEA practitioners can continue with the address of service for those comparable rights, whereas the corresponding Article 97 for UK professionals does not mention any time period and is open to interpretation. Therefore, there are concerns that there will be a very unlevel playing field unless the Government takes urgent action. It was suggested they can do so by amending their current address for service rules.
Public Performance Rights
The Group heard that at present across Europe musicians and artists are afforded public performance rights, however this is not recognised in the US. The discussion revealed that there are concerns that the matter of national treatment is something the US may raise in the context of an FTA position. It was suggested that if that were to be the case, the UK should seek reciprocity so there isn’t an asymmetrical benefit afforded to US artists that does not flow back in revenues into UK music.
Following the session, the APPG has made a number of recommendations to the UK Government to not only ensure that the UK’s creators and innovators can continue to rely on the UK’s IP framework, but that key improvements are also made through future trade negotiations:
About the All-Party Parliamentary Group for Intellectual Property
The UK’s creative economy contributes more than £111bn to the UK economy, and involves a range of different industries including music, film, software, manufacturing, and publishing. What links these various industries is reliance on a strong and effective intellectual property (IP) regime.
The Group was launched in 2003 to create a resource for parliamentarians of both Houses interested in learning more about IP, its role in stimulating creativity and economic growth, how new services are developing to serve consumer needs, and the harm that can be caused when IP is not properly respected and protected.
Further information about the Group and its work can be found at: allpartyipgroup.org.uk
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