On Thursday night, James Duddridge (Con, former PUS at the FCO, former Lord Commissioner at HMT, and former Opposition Whip) tabled a Motion of No Confidence in Bercow as Speaker.  Duddridge said Mr Bercow had “overstepped the mark” although he does not expect his motion to be debated, and colleague Alec Shelbrooke has also said that “John Bercow has politicised the office of Speaker and his position is untenable”.  However, Bercow does have a lot of support on the Tory backbenchers – particularly among pro-Brexit MPs – and was seen to have allowed MPs to challenge the Government more effectively.

Due to the European Union (Notification of Withdrawal) Bill and Corbyn’s Three Line Whip for his party to vote with the Government, we have seen numerous resignations on the front bench (again).  New names (all elected in 2015) announced last night being shuffled in to fill vacancies are: Rebecca Long-Bailey (Shadow SoS for Business), Sue Hayman (Shadow SoS for Environment), Christina Rees (Shadow SoS for Wales) and Peter Dowd (Shadow Chief Secretary to the Treasury).  It’s worth noting that Hayman and Rees both backed Owen Smith’s leadership challenge against Corbyn last year… It’s also worth noting that since September 2015, Corbyn has had four Shadow Cabinet reshuffles, 32 resignations (4 of whom returned to top positions), and four of those who quit did so to vote against the Brexit Bill.

Ahead of plans for Apple to build their new headquarters in London, Tim Cook met the Prime Minister in Downing Street this week and said that the UK would be “just fine” outside of the European Union.  However, the US Chamber of Commerce has stressed that many US firms remain concerns about what the transition rules will look like and whether there will be new regulatory challenges when we leave the EU.

Parliament is now in Recess and returns on Monday 20^th February providing MPs from the Conservative benches to breathe a sigh of relief overcoming the Commons hurdle of the Brexit Bill, Labour to get their ducks in a row with new Opposition Spokespeople, and SNP to practice their singing a little more, and for Salmond to calm down a little after his shouting match with Deputy Speaker, Lindsay Hoyle.

Digital Economy Bill Committee Stage

This week, the Digital Economy Bill completed Committee Stage through the House of Lords.  As it currently stands, Part 4 of the Bill (Intellectual Property) remains the same as to when it went to the Lords from the Commons.  The full amended Bill after Lords Committee Stage can be read here.

On Monday, Baroness Janke spoke of Amendments 75 and 76, and just as a recap:

75: After Clause 29, insert the following new Clause—

“Review of sale on the internet of counterfeit electrical appliances

(1) Within six months of the coming into force of this Act, the Secretary of State must commission a review of the sale on the internet of counterfeit electrical appliances. (2) The review must consider whether operators of trading websites that allow individual sellers to use those websites to sell electrical items should be required to report to the police and trading standards authorities any instances of the selling of counterfeit electrical appliances which are arranged through their website.(3) The Secretary of State must publish the report of the review, and lay a copy of the report before each House of Parliament.”

Baroness Janke explained that the counterfeit goods industry us worth around £1.3 billion per year, with 64% of these sold on the internet.  People believe that they are buying reputable brands, and assume that the goods are genuine.  However, Baroness Janke pointed out that many of these goods are dangerous, and also that the practice of selling these goods undermines genuine brands and causes difficulties within the industry.  She summarised as: “These amendments seek to give some responsibility to online retailers to report to trading standards and the police goods that they know to be counterfeit. The second amendment requires the Government to provide a review and report on the extent of this practice as well as its impact on the economy. I beg to move.”

Lord Tope spoke in support of the Amendments and said “Counterfeiting clearly is a problem, and I do not minimise it, but a counterfeit handbag is unlikely to kill you; counterfeit electrical goods most certainly can, and do, kill people.”.  He also said that following a search on eBay, that it is setting up an authentication scheme so that genuine producers can have their goods authenticated by experts as being not counterfeit.

Responding, Baroness Buscombe explained that this is a situation the Government takes very seriously, and that the IPO is committed to tackling counterfeiting of all kinds.  She also referenced the important work undertaken through Operation Jasper, the reports written by the IPO surrounding counterfeit electrical goods and also ongoing work by the IPO to work with trade associations to be alerted to counterfeit goods that raise safety concerns.

Amendment 75 was subsequently withdrawn

Amendment 76 was not moved

Lord Foster also moved Amendment 77:

77: After Clause 29, insert the following new Clause—

“Copyright and the role of active hosts

(1)    The Electronic Commerce (EC Directive) Regulations 2002 are amended as follows.(2) At the end of Regulation 19 insert—“(2) Where an information society service is storing and providing access to the public copyright protected works, and is playing an active role, including the promotion and optimising the presentation of those works, sub-paragraph (1) shall not apply.(3) The service provider of an active host under sub-paragraph (2) is required to secure licensing agreements with rightsholders.””

Lord Foster stated “Amendment 77 probes the Government’s intentions with regard to the recent proposals for an EU directive on copyright in the digital single market. The amendment would clarify that the hosting defence contained within paragraph 19 of the Electronic Commerce (EC Directive) Regulations 2002 does not apply to digital services that play an active role in the provision of online content, specifically those user upload services that optimise the presentation and promotion of copyright-protected works. The amendment would require those services to secure licensing agreements with rights holders.”  He also used it as an opportunity to explain that Youtube has only increased payments to music rights holders by 11% in 2015, despite consumption of the service growing by 132%, and went on to speak in more detail about the Value Gap.

Lord Foster also spoke in support of Amendment 79 on Search

Lord Stevenson spoke of the voluntary Code of Conduct on Search, and was hopeful by the decision to have it signed off this week.

Responding, Baroness Buscombe confirmed that the Government believes that copyright infringement is a serious issue; offline or online (hence the harmonisation of penalties). She also acknowledged the issue of the Value Gap and that online intermediaries need to do more to share revenues fairly.  Baroness Buscombe said that the Government needs to wait until we exit the EU to have a debate on the e-commerce directive within the DSM and consider whether it is fit for purpose.  She also stated:

“The Government are clear that we must maintain our rights and obligations as members of the EU until we leave. That means that we carry on making arguments within the EU concerning our preferences for EU law. Once we leave the EU, we may choose to reconsider a range of issues, including the limited liability regime, but for now, government policy remains unchanged. The European Commission has recently published a series of copyright proposals in that area, and we are in the process of carefully considering those proposals. While we remain a member of the EU, we will continue to engage with policy development in this space, alongside considering the development of our own copyright framework.”.

Baroness Buscombe also confirmed that the Code will come into effect by 1^st June 2017.

Amendment 77 was subsequently withdrawn

Lord Clement-Jones moved Amendment 78:

78: After Clause 29, insert the following new Clause—

“Transparency and fairness obligations

(1)    Authors, artists and performers (“creators”) shall receive on a regular basis timely, adequate and sufficient information on the exploitation of their works and performances from those to whom they have licensed or transferred their rights as well as subsequent transferees or licensees, and the information shall include information on modes of exploitation, revenues generated and remuneration due. ​(2) The obligation in subsection (1) may be met by complying with a code of practice collectively bargained between relevant representative organisations of creators and the representative organisations of those who exploit their works, taking into account the characteristics of each sector for the exploitation of works.(3) Any such code of practice is to provide that each creator is to be entitled to a statement of income generated under such licence or transfer arrangements at regular intervals during each annual accounting period, and provide an explanation as to how the creator’s remuneration has been calculated referencing any contract terms relevant to the calculation.(4) In the event of failure of a transferee or licensee mentioned in subsection (1) to comply with a code of practice, or in the absence of such a code of practice, the creator shall be entitled to apply to the Intellectual Property Enterprise Court for a detailed account of revenues due to the creator generated from the modes of exploitation referred to in subsection (1), and in the event of failure, the Court may award damages in the amount of any shortfall in the total amount due to him.”

Lord Clement Jones explained that “the amendment would work in a similar fashion to the proposals in the draft directive [copyright directive], ensure that creators can audit the royalties they receive from streaming and other services, and assess the relative merits of different services and business partners.”

The Earl of Clancarty also spoke in support of Lord Clement-Jones’ amendment, and stated that the amendment will have many benefits in helping artists “to survive and thrive”

Responding, Baroness Buscombe acknowledged that creators should be fairly remunerated, and brought attention to the creative content tax reliefs, and further financial assistance for skills and talent.  However, she said that the Government is engaged in discussions to address this issue; the European Commission has made proposals in this area as part of its current draft directive on copyright, and the UK will actively engage in these debates while we remain a member of the European Union.  She also made reference to industry-led initiatives such as the Publisher’s Association’s Code of Practice on Author Contracts.

Amendment 78 was subsequently withdrawn

Amendment 79 “Code of practice on search engines and copyright infringement” was not moved

The Digital Economy Bill will return to the House of Lords for Report Stage on 22^nd February.

European Union (Notification of Withdrawal) Bill

This week, we saw the EU (Notification of Withdrawal) Bill complete its passage through the House of Commons.  On Tuesday evening, the Government won by 33 votes to avoid an Amendment for the final Brexit deal to be put before Parliament for a vote.   The final vote on Wednesday evening was to give the Government the authority to trigger Article 50, and was approved by 494 votes to 122 in the Commons.

The Bill has now moved swiftly to the Lords with its First Reading having taken place on Wednesday, and the first debate is scheduled to take place on Monday 20^th February.  Over 140 members of the Lords are hoping to take part in the Debate, and you can read a list of some of the names here.

Seeing the process of the Bill through Parliament has highlighted numerous rifts within the Labour Party, and has seen various resignations of front-benchers who were unhappy with Corbyn applying a Three Line Whip for his MPs to support the Government’s Bill.  Even Diane Abbott voted for triggering Article 50 in the end!  Those who quit the Labour frontbench are: Clive Lewis, Jo Stevens, Dawn Butler, Tulip Siddiq and Rachael Maskell, but 14 rebels remain on the frontbench for now…

Culture, Media and Sport Questions

This week, Secretary of State Karen Bradley answered questions on the impact of the creative industries as we move to exit the European Union.  She gave her assurances that the Department has been working closely with the creative industries to ensure that they will continue to succeed in a post-Brexit world and also reminded the House that the Prime Minister wants an early settlement on the matter of EU nationals in the UK (in reference to those working in our creative industries) and UK nationals living in Europe.

Section 73 Copyright Designs and Patents Act 1988: Technical Consultation

The Government has published a response to the technical consultation on transitional arrangements following the repeal of Section 73 of the Copyright, Designs and Patents Act 1988.  The IPO concluded that:

• “rights holders, broadcasters, and cable providers do not agree as to the potential value (if any) of underlying rights following the repeal of Section 73. This suggests that discussions between these parties will need to take place
• Section 73 can be repealed without a transition period
• no compulsory structure for licensing needs to be introduced

The technical consultation also considered the repeal of Schedule 2 (19) (Performers’ Rights). The majority of respondents who provided a view on this part of the consultation could see no issues with removing it from the CDPA. Therefore, it will be repealed alongside Section 73.”

Backbench Business Committee: Importance of Intellectual Property to the British Economy

Nigel Adams appeared before the Backbench Business Committee this week regarding the application to have a debate on the Importance of Intellectual Property to the British Economy.  Due to the vast number of applications for debates on the Chamber floor, the Committee was unable to offer the House of Commons Chamber at this time, but we do have a slot in Westminster Hall on 28^th February between 9:30 and 11:00.  However, the Chairman of the Committee, Bob Blackman, explained that if the Government fails to answer in the ‘right’ way, Nigel can re-approach the Committee for Chamber time to get the Government to answer correctly.  Either way, we’re looking at a Commons Chamber debate in the future or the Minister getting quickly up to speed on IP issues (and hopefully form a Government position on DSM).

EU Digital Single Market: Portability

This week, the European Parliament, Council and Commission reached an agreement on portability, and the wording of the new regulation is expected in March or April, with the rules then being applicable in all EU member states by the beginning of 2018.  As you know, the objective of portability of online content services is to ensure that Europeans who buy or subscribe to online content services providing access to films, sports broadcasts, music, e-books and games at home are able to access them when they travel in other EU countries.

Ansip has said the measure would bring “concrete benefits” to Europeans and was “a new important step in breaking down barriers in the Digital Single Market”. He added,

“Agreements are now needed on our other proposals to modernise EU copyright rules and ensure a wider access to creative content across borders. I count on the European Parliament and Member States to make it happen”.

Dates for your diary:

20^th February 2017 – European Union (Notification of Withdrawal) Bill 2^nd Reading HoL

21^st February 2017 – APPG Enforcement Inquiry

21^st February 2017 – European Union (Notification of Withdrawal) Bill 2^nd Reading HoL

22^nd February 2017 – Digital Economy Bill Report Stage HoL

27^th February 2017 – European Union (Notification of Withdrawal) Bill Committee Stage HoL

28^th February 2017 – ‘Importance of Intellectual Property to the British Economy’ Westminster Hall debate

1^st March 2017 – European Union (Notification of Withdrawal) Bill Committee Stage HoL

7^th March 2017 – European Union (Notification of Withdrawal) Bill Report Stage and Third Reading HoL

The Report Stage of Intellectual Property (Unjustified Threats) Bill is yet to be set