IP News: Adam Williams (IPO) has spoken about challenges for IP rights post-Brexit, EUIPO Quantification of IPR infringement

Scottish Independence

As I am sure you are aware, this week Nicola Sturgeon announced that she will be seeking permission to hold an independence referendum in 2018 or 2019.  She has claimed that Scotland does not feel like an equal partner in the Brexit negotiations, and suggested that the Prime Minister has held back on sharing vital information about intentions of Single Market membership ahead of her Lancaster House speech.  Sturgeon said that although Scotland voted to remain part of the UK in 2014 55% to 45%, the issue of losing possible membership of the EU was not brought into the equation.  She reminded those watching her speech that the SNP has always been firm in its wish to remain in the EU.  Sturgeon is confident that given the (second) chance, Scotland would vote to leave the UK.  As a reminder, 62% of those in Scotland voted to remain part of the EU, with a turnout of 67.2%.  March 2017 opinion poll has indicated that 37% would vote for independence, 48% would vote to remain in the UK.  The Prime Minister also used her Spring Conference speech today to repeat her commitment to the Union.

EU (Notification of Withdrawal) Bill – Parliamentary Ping-Pong

On Monday, the EU (Notification of Withdrawal) Bill went through both the House of Commons and House of Lords with the Amendments (guaranteeing the rights of EU Nationals and giving Parliament a meaningful vote at the end of negotiations) removed.  The Bill passed through the House of Commons.

In the House of Commons, 335 disagreed with the Amendment to guarantee the rights of EU Nationals Vs 287.  331 disagreed with the Amendment to give Parliament a meaningful vote Vs 286.

In the House of Lords, 274 disagreed with the Amendment to guarantee the rights of EU Nationals Vs 135.  274 disagreed with the Amendment to give Parliament a meaningful vote Vs 118.

Exiting the European Union Select Committee

John Whittingdale has this week quizzed the Secretary of State for Exiting the European Union and Secretary of State for Culture, Media and Sport on territorial licensing with both David Davis and Karen  Bradley, and the exchanges are below:

Select Committee on exiting the European Union (15 March 2017)

Mr Whittingdale:

Secretary of State, we are eagerly awaiting the Great Repeal Bill, which we understand you will be introducing to Parliament reasonably soon, with the expectation that it will pass on to the statute book by the end of this session.  As you are aware, while you are conducting your negotiations, the Brussels sausage machine is continuing to churn out evermore regulations.  Can you say first of all what the status is of regulations that are issued post the passage of the Great Repeal Bill?

Mr Davis:

The purpose of the Repeal Bill is to ensure that, on the day of departure, our corpus of law is identical to the acquis communautaire, to that point.  The point of break is not after the Bill is passed; the point of break is the point of Brexit.  Up until that point—everything passed—we will continue to be a full member of the European Union, we will obey their laws, we will pay our bills and all the rest of it.

Mr Whittingdale:

Does the Repeal Bill mean that future regulations issued by the European Union, while we are still members, become part of British law, even though they have been issued subsequent to the Bill?

Mr Davis:

Yes.

Mr Whittingdale:

As you are aware, there are a number of issues being debated in Brussels at the moment that are of huge importance to the creative industries.  The first I just want to mention is the digital single market.  There are aspects of that that would be very harmful to the creative industries and to the Premier League, particularly around the issue of maintaining territorial licensing and geo‑blocking.  The British Government position previously was to defend those interests and to resist attempts to remove territorial licensing.  However, it has been suggested that, because UKRep is having to devote their attention to the forthcoming negotiations, they are backtracking on or downplaying other issues.  They do not wish to expend political capital by being difficult about those aspects, when they are about to go into the negotiation.  Is there any justice to that concern, and can you give a reassurance that UKRep will remain as robust in defending British interests in ongoing discussions as it has been to date, or indeed rather more so?

Mr Davis:

The short answers are no and yes.  I do not recognise this idea that somehow we are reducing the emphasis on ongoing business.  We take two clear stances on everything we do with the European Union: one, what is in our national interest; and two, what is in the European Union’s interest.  Those two things are rarely in conflict and I do not think they are here.  As you know, we are against unnecessary restrictions in all trade areas and we will be continuing down that route.  I have not talked to the DCMS Secretary on that issue in the last two or three weeks, but my understanding and my expectation are that we will be continuing our normal stance on this.  Olly, do you want to pick that up?

Olly Robbins:

If I may just briefly, Mr Whittingdale, on your general point, the emphasis on ongoing business if anything is increasing.  As Ministers have said, we are very conscious that this is the market with which we will be dealing closely for years to come.  This is an opportunity to continue to push it in the direction of openness and free trade, and so that is what we are trying to do.  UKRep operates under Ministers’ authority; it does not have a different policy position on any of these issues.  The same collective process for agreeing our stance in committees and working groups up to the Council, with which you will be very familiar, still operates.

Mr Davis:

A generic point, Mr Whittingdale, is that the digital area is one that is probably getting a disproportionate amount of interest from us.  Of course it matters to the industries you are talking about, but getting all these standards right matters right across the board.  Digital has more overspill effect in everything else than any other aspect of policy.

Mr Whittingdale:

I am glad that you recognise its importance, but can I ask that you will talk to perhaps the Premier League and the film industry, both of which depend on the maintenance of territorial licensing, which some in Europe are seeking to remove as part of the digital single market negotiation?

Mr Davis:

I have not yet spoken to the Premier League, but I have talked to the digital industry more than once.  Indeed, I think I said that, when Sadiq Khan came to see me last week, he brought with him John Sorrell, who you may recognise.

Mr Whittingdale:

Can I move on to another ongoing area of discussion affecting the creative industries, which is the audiovisual media services directive?  You have already recognised that, for the creative industries, the paramount concern is the maintenance of the country‑of‑origin principle.  We had Ivan Rogers sitting in that chair, who said that common sense would tell you that, the day after Brexit, there is no reason why our regulatory regime should be any less compliant than the day before Brexit.  Therefore, if one were being sensible, you would just accept that, but that is not how Europe works.  The key issue for Europe is that, once we are no longer subject to European law, the country‑of‑origin principle could no longer apply.  Do you agree with that assessment?  What optimism do you have that we can maintain the country‑of‑origin principle?

Mr Davis:

We have explicit work going on, on exactly that issue.  I have not seen it for some weeks but, if you like, I will write to the Committee on it in detail.  It is a clear area.  Ongoing equivalence regimes and equivalence mechanisms are going to be of incredible importance, particularly in service industry areas, whether it is film, video, any of the creative arts or indeed banking, for that matter, so this is why we are paying big attention to it.  If I may, I will write to you in detail on it.

Mr Whittingdale:

One last one of equal importance to those industries, which the Chairman raised at the beginning, is the data adequacy requirement.  We had it put to us by the tech sector that the maintenance of the ability to transfer data across borders within Europe is utterly essential, in something that is going to be of increasing importance to this country.  However, they also put it to us that it was not only essential for UK‑based countries to be able to transfer data to other European countries freely; it was equally important for a very large number of European countries that they could transfer data to this country, particularly since some of their servers and other support are based here.  To what extent can you mobilise other European businesses, for which the maintenance of this kind of freedom to transfer data and other goods more widely, to advantage of that and get them to argue our case in the forthcoming negotiations?

Mr Davis:

You are quite right that there are some pretty powerful players.  Microsoft has a three‑server arrangement mirrored here, Dublin and Amsterdam, from memory.  Google has similar issues.  Yes, we will be marshalling those people.  It is even wider than you describe.  When the Chairman raised it, I considered whether I should go into detail or not, but I will now.  There was a challenge by an Austrian man called Schrems against the Americans on safe harbour status.  Of course, at the moment we are outside, but it is conceivable we could be involved in such a challenge.  One of the strategies I am arguing inside Government is that we make ourselves extra‑robust in that respect.  That has security implications, commercial implications for other industries because data is so important there and of course enormously important implications for the digital industry and the tech industry itself.  Yes, we will be engaging in that.  As I said earlier, this is going to be not just the whole of the Government but a whole‑of‑the‑country and a whole‑of‑society operation, once we get under way.

Mr Whittingdale:

On that point, you mentioned the importance to big international companies like Microsoft and Google, but what they have put to us is that almost every business, in every sector, now makes use of their technology.  Therefore, they will be directly damaged as well.  You can mobilise virtually the entire of European industry.

Mr Davis:

The disruptive effects of this not being done properly are damaging across the board.  You are quite right.

DCMS Questions (16 March 2017):

Mr John Whittingdale (Maldon) (Con):

I welcome my right hon. Friend’s recognition of the importance to the creative industries of their ability to license on an exclusively territorial basis. Will she ensure that that message gets across to the UK permanent representation in Brussels so that it argues that case as strongly as possible while we remain in the EU?

Karen Bradley:

I can say categorically yes. My right hon. Friend’s point is one reason why people were concerned about our membership of the EU and one of the things that led to the vote on 23 June last year.

Dates for your diary:

• 20^th March – Digital Economy Bill Report Stage HoL
• 21^st March – IP (Unjustified Threats) Bill Report Stage HoC
• 21^st March – IP (Unjustified Threats) Bill Third Reading HoC
• 29^th March – Digital Economy Bill Third Reading HoL
• 31^st March – Government’s self-imposed deadline to trigger Article 50
• 7^th April – Illicit IPTV streaming devices call for views deadline
• 17^th April – Industrial Strategy Consultation deadline

The above does not represent policy but is a weekly report of parliamentary activity prepared by the Alliance on IP matters and other broad areas of interest to the creative industries which the Alliance has shared with its members.