Employment Rights Bill

Earl of Clancarty Excerpts

Committee stage
Tuesday 29th April 2025 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My Lords, in moving Amendment 16 in my name, I offer my apologies for not being able to be present at Second Reading, although I followed the debate that your Lordships had then, as I have today’s debate, particularly the earlier group on zero-hours contracts.

I also offer my thanks to the Society of London Theatre and UK Theatre, which represent some 500 of the UK’s leading theatre producers, venue owners, managers and performing arts centres, and with which I had the honour of working closely when I was Arts Minister, for raising the issue that underlies my amendment and for discussing it with me in some detail. I stress that those organisations welcome many of the measures in this Bill and share the Government’s ambition to eliminate exploitative practices, but they have flagged their concerns with the provisions relating to zero-hours contracts, which are integral to operations in theatre and other live performing arts, and which presently operate in a way that delivers fairness, flexibility and inclusion for the sector and the brilliant, creative people who sustain it.

I am sure, by the end of proceedings on the Bill, that the Minister will have tired of special pleading on behalf of every sector of the economy, but theatres operate under a unique set of pressures, including the stark new pressures that I saw them confront during my time in government—from the bleak months of Covid-19 to the rising costs of energy and materials following the inflationary effects of that pandemic and of the illegal invasion of Ukraine.

The effects of that turbulence—rising costs and falling real-terms income—mean that theatres must work harder than ever before to balance the necessity of making a profit with long-term investment and their sincere commitment to delivering social good. The arts hold a mirror up to our society and help us to understand the human condition—a value that cannot simply be measured in ticket sales and bottom lines, important though those are.

In particular, as major employers of a casual workforce, theatres have to manage highly irregular and unpredictable staffing needs while supporting and valuing their workers, without whom theatre simply could not happen. As one of the organisations which sprang up during the pandemic put it in its very well-chosen name, freelancers make theatre work.

The proposals in the Bill as currently drafted, regarding the right to guaranteed hours for casual workers, risk upsetting the delicate equilibrium by which the theatre sector operates, balancing commercial viability with social value, long-term investment with short-term realities, and the demands of an irregular calendar with a commitment to fairness for its workforce. Although I am glad to see that the Government have amended the Bill in the ways we have just debated in the previous group and will debate when we look at further government amendments which follow—particularly, in this instance, to allow collective agreements to override the new statutory right—the mechanism set out in new Section 27BW does not fully solve the problem and is unlikely in practice to provide the safeguards that this cherished sector needs.

Theatre’s operating model is inherently shaped by irregular programming, seasonal variation and periods of closure. Those aspects are baked into the way that theatre works and are part of what makes it so dynamic and diverse. Notwithstanding the well-known mantra that the show must go on, theatres do not operate continuously. Even long-running productions experience periods of closure, known as dark weeks, when no performances can be staged and no box office income is generated. The opening of a major new production might require up to 12 weeks to load in sets and equipment and to undergo technical rehearsals. These help productions to dazzle us with ever-more ambitious technical wizardry, and are rightly the stuff of separate award categories for lighting, sound, set design and more.

Short, planned closures, typically for at least a fortnight each year, are needed to carry out essential inspections and to ensure that buildings remain safe and compliant for those who enjoy visiting them. That is particularly important in heritage venues, which receive heavy footfall but only modest and irregular investment. I pay tribute to the work of the Theatres Trust and others who champion the value and plight of historic theatres, concert halls and other cultural buildings across the country, and acknowledge the pressing capital needs of our cultural estate, particularly at a time when many of the boilers, roofs and windows that were funded by the first wave of National Lottery funding some quarter of a century ago are all reaching or long passing the natural time for an upgrade.

Sometimes, of course, these periods of closure are needed without much warning at all, as I saw during my time as Minister, when I had occasion to learn, along with most of the rest of the country, what reinforced autoclaved aerated concrete was. The noble Baroness, Lady Thornton, from the Benches opposite, and I were both at a very enjoyable performance of “The Witches” at the National Theatre, which had to be halted midway because of a breakdown of the Olivier’s revolving stage. I am very pleased that the last Conservative Budget helped the theatre to fix that before its 60th birthday year was over.

The sad fact is that performances can be cancelled at short notice for a variety of reasons, most of which are beyond the control of the theatre operator and staff. I have mentioned two egregious examples already—the pandemic and the need for health and safety in the face of things such as RAAC—but many other external challenges beset theatres from time to time: severe weather causing leaks or other damage which requires repairs, external events such as power cuts, or industrial grievances from other sectors having a knock-on effect. I am sure it is not betraying any state secrets to say that one of the few COBRA meetings I was called to attend as Arts Minister was to discuss the effects of the train strikes on our theatres and other parts of our night-time economy, which lost audiences and vital income as a result.

Of course, there are those unforeseen incidents which come like the theatrical deus ex machina. Last year, for example, a touring production of “Chitty Chitty Bang Bang” was brought to a halt when the eponymous vehicle, “our fine four-fendered friend”, was damaged during the get-out at one of its venues. The repairs to the vehicle took several weeks, leading to the cancellation of all performances during that period. That meant that other venues which had booked the production received no income and were unable to programme another show at such short notice.

During times such as these, there is, quite simply and unavoidably, no front-of-house work available. Guaranteeing hours during periods like that, as the Bill requires, would mean paying staff when no work exists, placing enormous pressure on theatres’ and other arts venues’ already very tight operating budgets. That is the reason for my Amendment 16.

The proposed right to guaranteed hours assumes that organisations operate with consistent demand and regular staffing patterns. That is not the case in theatres or, as we heard in previous debates, in many other businesses and organisations. Theatres’ scheduling requirements and therefore their staffing needs shift weekly—sometimes daily. Guaranteeing fixed hours based on short-term patterns of work, as the Bill proposes, would introduce a level of rigidity that threatens their entire staffing model.

The aim of my Amendment 16 is to urge the Government to acknowledge the unique dynamics of theatre and of the arts sector more broadly, and to adopt a more realistic framework, which will be beneficial to many sectors beyond theatre and the performing arts. UK Theatre has suggested the concept of “available hours”, which I have reflected in my Amendment 16, referring to the actual hours that an employer can collectively offer workers in a given period. This approach would allow for the equitable allocation of work while remaining responsive to the volatile nature of theatre operations.

It would also reflect the desires of the staff who value the flexibility that theatre work currently affords them. Many of those who work front of house do so to support other careers or responsibilities; as noble Lords noted in our debates in relation to other sectors, people have many family or caring burdens. But theatres particularly attract front-of-house staff who want a flexible job, perhaps because they are creative freelancers balancing work with auditions, because they are students are still learning their trade, or because they are retirees and theatre lovers seeking fulfilling part-time work or seeking sociable evening, but not night-time, working hours—rather unlike your Lordships’ House.

The theatre sector’s sincere understanding of its workforce is rooted in over a century of constructive and collaborative industrial relations with the trade unions in the sector, whose names are almost as well-known as those of some of their famous members: Equity, BECTU, the Musicians’ Union and the Writers’ Guild of Great Britain. Their symbiotic relationships have produced agreements which are highly tailored to this unique sector. These strong union relationships and robust collective agreements already guarantee protections such as minimum calls, notice periods and compensation for cancelled shifts.

The recent amendments to the Bill include a provision under new Section 27BW which allows certain rights, such as the proposed right to guaranteed hours, to be excluded through a relevant collective agreement. But such an agreement must explicitly exclude the statutory right and include clear replacement provisions. Retaining this flexibility would now depend on being able to negotiate its exclusion.

Without that flexibility, the Bill before us risks creating structural unfairness, entrenching advantage for a small number of workers at the expense of wider opportunity, undermining long-standing and vitally cherished industrial relations, and damaging the ability of theatres to take creative risks, maintain their heritage buildings and serve the community. What is intended as a protection could in practice become a barrier to access and inclusion. I am sure that is not what the Government want to see, so I hope the Minister will agree to look at this carefully and to discuss it with me, with UK Theatre, the Society of London Theatre and many others from the world of the arts to make sure that the Bill delivers for those cherished sectors. I beg to move.

[The Earl of Clancarty (CB)]

My Lords, this amendment points up the need for a nuanced approach tailored to industry requirements. This is the first particular instance we have in the Bill of its potential effect on the creative industries, which will crop up again—I assure the Minister—as the Bill progresses. I congratulate the noble Lord, Lord Parkinson of Whitley Bay, on introducing this amendment. I hope the Minister will look carefully at the SOLT/UK Theatre briefing, which is highly informative and measured and demonstrates well the wide degree of flexibility required for the employment of, for instance, front-of-house staff in theatres.

We often take front-of-house staff in theatres and cinema workers for granted, but they are the backbone of these organisations. They could not run without them. In my experience, they are unfailingly polite and helpful and often highly knowledgeable. A fair number, as the noble Lord, Lord Parkinson, said, have jobs in other areas of the creative industries, which highlights the complexities of working relationships in this sector.

The briefing from SOLT/UK Theatre is, of course, the view from the employers, and the solution has to have the support of all stakeholders, including the workers themselves. According to The Stage,

“actor Nicola Hurst, who is also a duty manager … at Southwark Playhouse, said … she had turned down permanent contracts multiple times … as they could never offer her the flexibility she needed to pursue her creative work”.

She speaks for many in this sector when she says:

“I have colleagues and friends working at all levels in the theatre industry, from fringe to the West End, and for all of them, zero-hours contracts are essential to support themselves between creative jobs, and often, to bolster fees from a tragically underfunded sector”.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

My Lords, I thank the noble Lord, Lord Parkinson, for tabling Amendment 16, which would require the Secretary of State to have regard to sector-specific work patterns when making regulations relating to the right to guaranteed hours. I am grateful to all noble Lords for their contributions and for highlighting the sometimes unique employment practices that occur in the creative sector and, in particular, the theatre sector.

In response to the noble Lord, Lord Hunt, I would say that we have engaged extensively with the Society of London Theatre and are happy to carry on doing so. We appreciate that some sectors—including the theatre sector, which is highlighted in the noble Lord’s amendment—do have fluctuating demand across the year.

This is a sector that I know all noble Lords recognise we need to support, for all the reasons that the noble Lord, Lord Parkinson, said, particularly for social value reasons. We therefore want to take note and make it right for the sector.

I reassure the Committee that flexibility is already built into the Bill to address issues of seasonal demand. There are several ways under the Bill that an employer could approach that issue while upholding the new rights to guaranteed hours depending on the circumstances, particularly by using limited-term contracts where that is reasonable. Those who are offered guaranteed hours will be able to turn those down and remain on their current contract or arrangement if they wish. Furthermore, through the Bill we have also allowed for employees and unions to collectively agree to opt out of the zero-hours contract measures. Unions can make these deals based on their knowledge of the industry and with a holistic view on what is best for their workers.

We will ensure that the needs of different sectors are considered when we come to design the regulations. We will continue to work in partnership with employers across the different sectors, their representatives, the recruitment sector and the trade unions to develop those detailed regulations, and we will provide clear guidance for both employers and workers in advance of implementing these measures.

The amendment from the noble Lord, Lord Parkinson, had a new concept of available hours for sectors with varying seasonal demand. We would push back on that issue. It could risk creating a two-tier guaranteed-hours framework for workers in sectors with more or less seasonal fluctuation. We believe that the reference period provided for in the Bill will ensure that qualifying workers are offered guaranteed hours that reflect the hours that they have previously worked.

I hope that, in that short contribution, I have been able to persuade the noble Lord that we are aware of the issues and are on the case. We feel that there is considerable flexibility in the Bill as it stands. We are happy to have further discussions. As we have heard from noble Lords, there are a range of issues and a range of options here, so there is not just one way of solving this problem. We are happy to get round the table and talk some more. We feel that, as the Bill is currently designed, it answers the concerns that are being raised with us, but we are happy to talk further. I therefore hope that, on that basis, the noble Lord will be prepared to withdraw his amendment.

[The Earl of Clancarty (CB)]

The Minister talked about the reference period. SOLT would like to see a longer reference period because a year is much more of a real time length than 12 weeks. Is that something that the Government would consider at all?

[Baroness Jones of Whitchurch (Lab)]

We have previously had a debate on the nature of reference periods, and that is something that we are going to consult further upon. If we are going to have a discussion, let us have a discussion on that as well, and I will see if I can reassure noble Lords on that matter.

Employment Rights Bill

Earl of Clancarty Excerpts

2nd reading
Thursday 27th March 2025 Lords Chamber

[The Earl of Clancarty (CB)]

My Lords, I congratulate all four maiden speakers. Like my noble friends Lord Freyberg and Lord Colville, I will concentrate my remarks on workers who are largely not covered by this Bill but are a significant part of the workforce: the freelancers, including the self-employed. I will make particular reference to the arts and creative industries, and I thank DACS, BECTU and Equity for their briefings. I also declare an interest as a self-employed artist.

There are 4.39 million self-employed workers in this country, representing just under 14% of the workforce. There was a dip during Covid, when many freelancers fell through the gaps of government support, but the reality is that this is a long-term expanding workforce for whom the Government need to ensure employment rights.

Freelancers underpin the creative industries, our second most important sector economically and one the Government have pledged to support—80% of musicians are freelancers, for example. They have an especial importance, in that what affects freelancers will affect the sector as a whole because the creative industries are an ecosystem. Consequently, freelancers have a significance within the workforce that far exceeds their numbers. Therefore, a truly modern Employment Rights Bill would have properly included the rights of freelancers and the self-employed, for many of whom that status fits the nature of their work.

I acknowledge the argument about the complexities of freelance work and tax issues, including concerns about IR35. However, there is also a concern about the comprehensiveness of rights and the “single worker status”. How will that status accommodate freelancer workers with that mix of self-employed, PAYE employees and limb (b) workers?

I nevertheless welcome this necessary Bill for employees. Most European countries have banned zero-hours contracts, and we certainly need measures in place that will help employees without restricting their opportunities to work, which is a key consideration. Guaranteed hours will benefit many in the creative industries. However, there are various groups in the creative industries—including employees on short-term contracts and casually contracted workers such as cinema workers, front-of-house and other workers in theatres—who may be pushed against their will into self-employment without the same employment rights they currently have, at least. Will the Government monitor this potential effect? How will rights be properly enforced from within the new body?

BECTU points out that, on parental rights, sick pay, pensions, equalities and other areas covered in this Bill, the rights of self-employed workers “lag far behind” those of employees. Will the Government introduce these rights for self-employed workers? What will be the timescale for doing so? Equally, what are the Government’s plans for their manifesto commitments on blacklisting protections, health and safety protection and the right to a written contract for the self-employed?

Much of the creative industries supports the appointment of a freelance commissioner. It is also a recommendation of the Culture, Media and Sport Committee. Such a commissioner ought, of course, to be responsible not just for the creative industries but the whole landscape of freelance work. That should also extend beyond the particular concerns of employment rights to include the equally urgent concerns around pay and opportunities. As many organisations have pointed out, there is very little data on the freelance workforce, the collection of which should be a major aspect of this remit. In the same way that DBT and DWP have an involvement in this Bill, DCMS should certainly have an input into the role of a freelance commissioner, if one is appointed—after all, it has a working party on this issue, as the Minister knows—and any future legislation on the self-employed, as indeed should the creative industries themselves.

Copyright and Artificial Intelligence

Earl of Clancarty Excerpts

Thursday 27th February 2025 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

The noble Lord is right that this is a complicated copyright area and there are some legal cases in the offing. It is a complicated area that needs a holistic approach. Our view is that addressing the issue in isolation will not provide sufficient legal clarity or resolve the issue in a way that I think that most noble Lords would expect. The consultation will help guide us on this issue and I urge noble Lords to await its outcome, which I hope will provide some solutions.

[The Earl of Clancarty (CB)]

My Lords, despite what the Minister says, there is a basic concern about the framing of this issue by the Government, their perceived need for a balance between the tech companies and the creative industries, and the logic of that in terms of the need for someone to give something up. Should any side have to give up something that is already theirs, morally and in law: namely, work made by artists, who therefore hold the copyright? This is not about balance; it is about rights.

[Baroness Jones of Whitchurch (Lab)]

The noble Earl is right, and we are trying to find a way to ensure that those rights are upheld. However, all these sectors need to grow in our economy. As I was just explaining, the creative sector uses AI, so it is not as simple “us and them” situation. AI is increasingly being used by all sectors across our economy. We need to find a way through this that rewards creators in the way that the noble Earl has outlined, which I think we all understand.

Copyright and Performances (Application to Other Countries) (Amendment) (No. 2) Order 2024

Earl of Clancarty Excerpts

Wednesday 12th February 2025 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I will start by saying that I am delighted that the Minister is treating this as one of her first engagements back in the House; how flattering to have her here at this time of day for a regret Motion. I also want to put on record my thanks to the Minister, Feryal Clark, who has taken the trouble to engage. Time will tell whether that engagement bears fruit, as we will see.

We on these Benches agree with Equity—the actors’ union—and the Musicians’ Union that this statutory instrument should be withdrawn due to several significant concerns regarding its fairness, its consultation process and its potential impact on performers, particularly those from the United States. The key arguments against the statutory instrument revolve around the implementation of option 0A, which maintains the status quo for producers of sound recordings while extending public performance rights to foreign performers only if their producer is a UK national or based in a country that is a signatory to the Rome convention, thereby excluding performers from countries that are not signatories, such as the United States. This option was not explicitly consulted on, and it creates an inequitable system of remuneration for performers.

The consultation presented four options, numbered 0 to 3, but option 0A emerged after the consultation. The Government have acknowledged that option 0A is a new option. However, the Government’s claim that they carefully considered all views is wrong, as a key policy option was developed and implemented without input from key stakeholders. Impacted organisations were not given an opportunity to formally submit their views on option 0A. As such, this lack of consultation raises concerns about the transparency and fairness of the decision-making process, and in fact undermines it.

As I have mentioned, option 0A creates a system where some foreign performers receive public performance rights based on national treatment, while others, specifically US performers, are denied those rights, based on the principle of material reciprocity. This means that US performers will not receive equitable remuneration for their work in the UK, even though their recordings are being used. US producers will continue to enjoy protection and equitable remuneration in the UK, while US performers on the same recordings are denied these rights. This disparity is difficult to justify and is clearly discriminatory.

It will also extend public performance rights to some additional foreign performers who will qualify through their producer, regardless of whether their nation offers material reciprocity to UK performers. The situation is further complicated by the fact that performers from countries such as Australia and New Zealand, which also do not offer material reciprocity to UK performers, will still receive public performance rights in the UK. This inconsistency makes the policy arbitrary and unjust. The Government’s approach effectively singles out US performers for less favourable treatment.

The Government further justifies their position by arguing that expanding performers’ rights would negatively impact the UK music sector. The Government’s decision to not expand performers’ eligibility is partly based on the argument that UK affiliates of overseas record labels retain a significant proportion of the revenues attributable to foreign rights holders. Specifically, the British Phonographic Industry, BPI, claimed that UK labels retain 30% of the revenues collected in the UK on behalf of foreign affiliates, and that any reduction in revenues for US record labels would mean less money for the UK music sector.

Little evidence for this claim has been made and the Musicians’ Union disputes it, arguing that this paints an “exaggerated, bleak picture”, that the UK and US operations remain financially separate in practice, and that it cannot find any workings in the BPI’s redacted submission to the consultation. This suggests that the Government’s financial justification is based on flawed information, not solid evidence. Smaller independent record companies have, by contrast, expressed that the current situation is unfair and supported option 1, which would expand performers’ eligibility for remuneration.

The Government also claim that denying US performers public performance rights is intended to encourage the US to adopt material reciprocity. However, the revised economic impact assessment acknowledges that this is unlikely to influence US policy. In the view of Equity, a more effective strategy would be to offer US performers rights for a limited term, such as 10 years, and then use that as leverage to negotiate material reciprocity with the US Government. This approach would provide US performers with fair compensation while creating an incentive for the US to reciprocate. The current strategy effectively withholds remuneration from performers as a negotiating tactic, while a more effective strategy will still guarantee that performers get paid for their work.

The Government’s policy is intended to ensure that UK law meets its international obligations under the Rome convention and the WIPO Performances and Phonograms Treaty. However, the implementation of option 0A undermines the spirit of these treaties by creating a system of unequal treatment for performers based on their nationality. Equity believes that all foreign performers in countries that qualify for public protection rights should benefit from the same level of protection. It considers the current approach to be unethical, and we agree. As a matter of principle, performers should be remunerated for their work. This option leaves some performers benefiting from national treatment, ignoring lack of material reciprocity, while US performers are denied remuneration on the basis of material reciprocity.

The Government have stated that the current statutory instrument corresponds closely to option 0, which was the status quo option. However, the Intellectual Property Office itself stated in its revised impact assessment that

“Parliament has passed the CPTPP Act. The CPTPP Act contains measures that will, when it comes into force (expected in December 2024), expand eligibility for performers’ rights generally, in a way that approximates the effects of Option 1. Doing nothing therefore now means allowing the law to change in a way similar to that set out in Option 1, rather than maintaining the effect of existing law”.

Therefore, the Government’s claim that they are maintaining the status quo is actually incorrect, because the status quo is already changing due to the CPTPP Act, which has now come into effect. The Government are claiming to maintain the status quo, but that status quo is already changing due to that legislation.

Equity, SAG-AFTRA, the Musicians’ Union and PPL have all raised concerns regarding the Government’s proposed course of action. This statutory instrument should be withdrawn due to a flawed consultation, the unfair treatment of US performers, the disputed financial claims, its ineffective approach to achieving material reciprocity, the ethical concerns and the contradictions with existing legislation. The Government should reconsider their approach, consult on both option 0A and option 1 and implement a system that provides equitable remuneration for all performers. I beg to move.

[The Earl of Clancarty (CB)]

My Lords, I support the noble Lord, Lord Clement-Jones, on this regret Motion. I will be brief, not least because the noble Lord has covered the ground so well. I too thank the Minister, Feryal Clark at DSIT, for our meeting with her on Monday on this issue. I also thank Equity for its briefing on this and for alerting us to this concern. I very much welcome the Minister back to her place.

Ultimately, this is about fairness and consistency—or, perhaps more to the point, unfairness and inconsistency —and about mutual benefits, which this Government should strive toward in every area of our dealings with others, not least in the case of the arts and creative industries. I have become a great believer in the word “mutual”. I prefer it now over “reciprocal”, which the public grasp less, I think—they find it too abstract. But we all understand, or have a better chance of understanding, what “mutual benefits” means. For example—forgive me if I digress slightly—a new poll finds that over 80% of the public are in favour of mutual free movement in Europe, because that becomes something that is immediately understandable, while of course some of us have been banging the drum for reciprocity for years and not getting very far. The language we use to describe these things is hugely important.

Data (Use and Access) Bill [HL]

Earl of Clancarty Excerpts

Committee stage
Wednesday 18th December 2024 Grand Committee

[Lord Freyberg (CB)]

My Lords, I support Amendments 204, 205 and 206, to which I have attached my name. In doing so, I declare my interest as someone with a long-standing background in the visual arts and as an artist member of the Design and Artists Copyright Society.

These amendments, tabled and superbly moved by my noble friend and supported by the noble Lords, Lord Stevenson and Lord Clement-Jones, seek to address a deep crisis in the creative sector whereby millions upon millions of creative works have been used to train general-purpose or generative AI models without permission or pay. While access to data is a fundamental aspect of this Bill, which in many cases has positive and legitimate aims, the unauthorised scraping of copyright-protected artworks, news stories, books and so forth for the use of generative AI models has significant downstream impacts. It affects the creative sectors’ ability to grow economically, to maximise their valuable assets and to retain the authenticity that the public rely on.

AI companies have used artists’ works in the training, development and deployment of AI systems without consent, despite this being a requirement under UK copyright law. As has been said, the narrow exception to copyright for text and data mining for specific research purposes does not extend to AI models, which have indiscriminately scraped creative content such as images without permission, simply to build commercial products that allow users to generate their own versions of a Picasso or a David Hockney work.

This amendment would clarify the steps that operators of web crawlers and general-purpose AI models must take to comply with UK copyright law. It represents a significant step forward in resolving the legal challenges brought by rights holders against AI companies over their training practices. Despite high-profile cases arising in the USA and the UK over unauthorised uses of content by AI companies, the reality is that individual artists simply cannot access judicial redress, given the prohibitive cost of litigation.

DACS, which represents artists’ copyright, surveyed its members and found that they were not technophobic or against AI in principle but that their concerns lay with the legality and ethics of current AI operators. In fact, 84% of respondents would sign up for a licensing mechanism to be paid when their work is used by an AI with their consent. This amendment would clarify that remuneration is owed for AI companies’ use of artists’ works across the entire development life cycle, including during the pre-training and fine-tuning stages.

Licensing would additionally create the legal certainty needed for AI companies to develop their products in the UK, as the unlawful use of works creates a litigation risk which deters investment, especially from SMEs that cannot afford litigation. DACS has also been informed by its members that commissioning clients have requested artists not to use AI products in order to avoid liability issues around its input and output, demonstrating a lack of trust or uncertainty about using AI.

This amendment would additionally settle ongoing arguments around whether compliance with UK copyright law is required where AI training takes place in other jurisdictions. By affirming its applicability where AI products are marketed in the UK, the amendment would ensure that both UK-based artists and AI companies are not put at a competitive disadvantage due to international firms’ ability to conduct training in a different jurisdiction.

One of the barriers to licensing copyright is the lack of transparency over what works have been scraped by AI companies. The third amendment in this suite of proposals, Amendment 206, seeks to address this. It would require operators of web crawlers and general-purpose AI models to be transparent about the copyright works they have scraped.

Currently, artists and creators face significant challenges in protecting their intellectual property rights in the age of AI. While tools such as Spawning AI’s “Have I Been Trained?” attempt to help creators identify whether their work has been used in AI training datasets, these initiatives provide only surface-level information. Creators may learn that their work was included in training data, but they remain in the dark about crucial details—specifically, how their work was used and which companies used it. This deeper level of transparency is essential for artists to enforce their IP rights effectively. Unfortunately, the current documentation provided by AI companies, such as data cards and model cards, falls short of delivering this necessary transparency, leaving creators without the practical means to protect their work.

Amendment 206 addresses the well-known black box issue that currently plagues the AI market, by requiring the disclosure of information about the URLs accessed by internet scrapers, information that can be used to identify individual works, the timeframe of data collection and the type of data collected, among other things. The US Midjourney litigation is a prime example of why this is necessary for UK copyright enforcement. It was initiated only after a leak revealed the names of more than 16,000 non-consenting artists whose works were allegedly used to train the tool.

Creators, including artists, should not find themselves in a position where they must rely on leaks to defend their intellectual property rights. By requiring AI companies to regularly update their own records, detailing what works were used in the training process and providing this to rights holders on request, this amendment could also create a vital cultural shift towards accountability. This would represent an important step away from the “Move fast and break things” culture pervasive amongst the Silicon Valley-based AI companies at the forefront of AI development, and a step towards preserving the gold-standard British IP framework.

Lastly, I address Amendment 205, which requires operators of internet crawlers and general-purpose AI models to be transparent about the identity and purpose of their crawlers, and not penalise copyright holders who choose to deny scraping for AI by down ranking their content in, or removing their content from, a search engine. Operators of internet crawlers that scrape artistic works and other copyright-protected content can obscure their identity, making it difficult and time-consuming for individual artists and the entities that represent their copyright interests to identify these uses and seek redress for illegal scraping.

Inclusion in search-engine results is crucial for visual artists, who rely on the visibility these provide for their work to build their reputation and client base and generate sales. At present, web operators that choose to deny scraping by internet crawlers risk the downrating or even removal of their content from search engines, as the most commonly used tools cannot distinguish between do-not-train protocols added to a site. This amendment will ensure that artists who choose to deny scraping for AI training are not disadvantaged by current technical restrictions and lose out on the exposure generated by search engines.

Finally, I will say a few words about the Government’s consultation launched yesterday, because it exposes a deeply troubling approach to creators’ IP rights, as has already been said so eloquently by the noble Baroness. For months, we have been urged to trust the Government to find the right balance between creators’ rights and AI innovation, yet their concept of balance has now been revealed for what it truly is: an incredibly unfair trade-off that gives away the rights of hundreds of thousands of creators to AI firms in exchange for vague promises of transparency.

Their proposal is built on a fundamentally flawed premise—promoted by tech lobbyists—that there is a lack of clarity in existing copyright law. This is completely untrue: the use of copyrighted content by AI companies without a licence is theft on a mass scale, as has already been said, and there is no objective case for the new text and data-mining exception. What we find in this consultation is a cynical rebranding of the opt-out mechanism as a rights reservation system. While they are positioning this as beneficial for rights holders through potential licensing revenues, the reality is that this is not achievable, yet the Government intend to leave it to Ministers alone to determine what constitutes

“effective, accessible, and widely adopted”

protection measures.

This is deeply concerning, given that no truly feasible rights reservation system for AI has been implemented anywhere in the world. Rights holders have been unequivocal: opt-out mechanisms—whatever the name they are given—are fundamentally unworkable in practice. In today’s digital world, where content can be instantly shared by anyone, creators are left powerless to protect their work. This hits visual artists particularly hard, as they must make their work visible to earn a living.

The evidence from Europe serves as a stark warning: opt-out provisions have failed to protect creators’ rights, forcing the EU to introduce additional transparency requirements in the recent AI Act. Putting it bluntly, simply legalising unauthorised use of creative works cannot be the answer to mass-scale copyright infringement. This is precisely why our proposed measures are crucial: they will maintain the existing copyright framework whereby AI companies must seek licences, while providing meaningful transparency that enables copyright holders to track the use of their work and seek proper redress, rather than blindly repeating proven failures.

[The Earl of Clancarty (CB)]

My Lords, I speak in support of my noble friend Lady Kidron’s amendments. I declare an interest as a visual artist, and of course visual creators, as my noble friend Lord Freyberg has very well described, are as much affected by this as musicians, journalists and novelists. I am particularly grateful to the Design and Artists Copyright Society and the Authors’ Licensing and Collecting Society for their briefings.

A particular sentence in the excellent briefing for this debate by the News Media Association, referred to by my noble friend Lady Kidron, caught my eye:

“There is no ‘balance’ to be struck between creators’ copyrights and GAI innovation: IP rights are central to GAI innovation”.


This is a crucial point. One might say that data does not grow on a magic data tree. All data originates from somewhere, and that will include data produced creatively. One might also say that such authorship should be seen to precede any interests in use and access. It certainly should not be something tagged on to the end, as an afterthought. I appreciate that the Government will be looking at these things separately, but concerns of copyright should really be part of any Bill where data access is being legislated for. As an example, we are going to be discussing the smart fund a bit later in an amendment proposed by the noble Lord, Lord Bassam, but I can attest to how tricky it was getting that amendment into a Bill that should inherently be accommodating these interests.

National Minimum Wage Legislation

Earl of Clancarty Excerpts

Thursday 21st March 2024 Lords Chamber

[Lord Offord of Garvel (Con)]

As we have said before, our labour market in the UK is one of the most sophisticated and best-working in the world. Out of a population of 66 million people, 33 million are working, and only 5% of that workforce is on the minimum wage. In the meantime, 30% of the population do not pay any tax and the 1% highest earners pay 30% income tax. I think noble Lords would agree that our workforce is in good shape. Instead of criminalising employers, we need to spread the education required to make sure that everyone has higher wages.

[The Earl of Clancarty (CB)]

My Lords, some of the examples that have been given are technically people who are self-employed. Does the Minister not believe that the whole area of self-employment needs to be looked at very carefully in this respect?

Brexit: Benefits to Economy and Society

Earl of Clancarty Excerpts

Wednesday 6th March 2024 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, we will hear from the Cross Benches, then the Labour Benches.

[The Earl of Clancarty (CB)]

My Lords, there are certainly no Brexit benefits at all for the arts and creative industries. Is the Minister aware that for the musicians touring, despite the good news about tax relief that we have heard today, there remain problems with visas, cabotage, carnets and much else, which need to be sorted? Until they are, our music industry will be struggling.

[Lord Offord of Garvel (Con)]

I thank the noble Earl. We heard in the Budget today the Chancellor identify the creative industries as one of the five key new industries coming through which will power our economy forward. We have in the UK probably the best tax regime for the creative industries. On individual country-by-country touring issues, we are resolving them one by one, to the benefit of our young artists.

Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL]

Earl of Clancarty Excerpts

Tuesday 23rd January 2024 Lords Chamber

[Lord Johnson of Lainston (Con)]

I spent a long time working on that joke—it did not work the first time, but I thought I would try it at this final point.

This Chamber has seen productive debate, including following the Bill’s Second Reading, which was opened with profound style by the then new Foreign Secretary, my noble friend Lord Cameron of Chipping Norton.

I turn first to the Opposition spokespeople, the noble Lords, Lord McNicol of West Kilbride and Lord Purvis of Tweed. The scrutiny that they have undertaken has been thoughtful and thorough, and they have my sincere thanks for this.

I am indebted once again to my noble friend Lord Lansley and his ability to purposely probe legislation, this time in relation to geographical indications and government procurement. I also extend my gratitude to all members of the International Agreements Committee, led by the noble and learned Lord, Lord Goldsmith, for their continued engagement, particularly the noble Baroness, Lady Hayter, and the noble Lord, Lord Kerr.

It would also be right for me to express thanks to the noble Lords, Lord Alton of Liverpool and Lord Leong, who I hope are reassured by the robustness of our democratic processes around our treaty obligations and my undertakings to ensure that all future countries who wish to join the CPTPP, once we are a full member, will receive full and proper scrutiny.

I am also grateful to the noble Lord, Lord Foster of Bath, for his extraordinary knowledge of intellectual property law and his comments around artists’ rights. I look forward to seeing the findings of the consultation when it reports over the coming months. I also make a commitment to continue to work with all CPTPP countries to further the principle of artists’ resale rights, as recently discussed with the noble Earl, Lord Clancarty.

I thank my noble friend Lord Goldsmith of Richmond for his helpful input around the risks to the environment and continue to reassure noble Lords that we remain fully committed in this area when negotiating free trade deals. There is no derogation of our standards with our joining CPTPP. In fact, this forum allows us to drive change and further align our partner countries with our environmental values and ambitions.

Other important areas discussed during the Bill’s passage include food standards, the UK’s financial sector and parts of the Bill’s application in Northern Ireland. These issues were raised frequently and emphatically by my noble friends Lady McIntosh, Lord Holmes and Lady Lawlor, and the noble Baroness, Lady Willis. I pay tribute to each of them for this and the engagement that they afforded me.

Finally, it would be remiss of me not to thank my Secretary of State, Kemi Badenoch, for her skills in bringing this process to a conclusion. She led a first-class team who delivered a truly wonderful gift to this nation.

Behind the scenes, the extraordinary Bill team also put in an unbelievable amount of effort. All Peers in this House who have engaged in this or, indeed, any legislative process will be aware of the extraordinary effort by our officials to ensure sensible dialogue and great outcomes. My thanks go to James Copeland, Alistair Ford, Jack Collins and Jack Masterman, as well as Hope Hadfield, Neelam Mandair and Bayse Genc from the CPTPP team. I also thank my private secretary, Lisa Banks, and other officials who make up my private office, so ably led by Anthony Donaldson.

Finally, I thank the parliamentary staff, including the doorkeepers and the clerks, for their professionalism and continued support to your Lordships’ House.

British businesses and consumers alike are set to benefit significantly from our acceding to this trade group. It builds on the free trade agreements that entered into force between the UK and Australia and New Zealand in May last year, which I had the honour of taking through Parliament. It will result in new market access for our world-leading goods and services. We are removing tariffs, which will help our farmers, service providers and businesses export across the world to new, fast-growing economies and populations hungry for our produce. As Lord Haldane so wisely said, tariffs are not the answer; the only way to remain ahead of our rivals is to continue to be ahead of them in the quality of what we make. No tariff can keep out that quality which is the key to quantity.

The CPTPP is a gateway to greater growth and economic prosperity for all parts of the UK. I repeat the wonderful quotation from William H Seward:

“the Pacific Ocean, its shores, its islands, and the vast regions beyond, will become the chief theatre of events in the World’s great Hereafter”.

As the Bill travels to the other place and develops, it is important that we continue to work with the devolved nations to ensure that we have their appropriate co-operation and collaboration. With that, I thank all noble Lords in this House.

[The Earl of Clancarty (CB)]

My Lords, briefly, I thank the Minister for his active engagement on the artist’s resale right; I am encouraged by the direction of travel. In particular, I thank him for yesterday’s meeting on ARR, which he efficiently managed to schedule for before today’s Third Reading. I thank Reema Selhi of DACS, Oliver Evans of the Maureen Paley gallery, and my noble friend Lord Freyberg, who is in his place, for their valuable contributions to this discussion, particularly on how the international element can be better understood. I am grateful to the Minister for listening and for his active involvement in this area. Following ratification in July, I look forward to seeing how membership will help further these aims, in relation to both the countries concerned and other agreements.

[Baroness Hoey (Non-Afl)]

My Lords, this is a very important Bill and I have supported it strongly. But before we finally complete Third Reading, I point out again to this House, as I did in Committee, that two clauses do not apply to part of the United Kingdom: Northern Ireland. We have been left under the European Union rules and will not be able to take advantage of these provisions.

Some new terminology was brought in, but although the provisions covered Northern Ireland, they would not apply to Northern Ireland. In terms of equal citizenship —because of what we did in leaving the European Union while leaving Northern Ireland out of that—Northern Ireland has once again been left out. That is a very sad reflection of the Conservative Government’s aim and promise that they believed in a United Kingdom and in the union.

Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL]

Earl of Clancarty Excerpts

Report stage
Tuesday 16th January 2024 Lords Chamber

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.

[The Earl of Clancarty (CB)]

My Lords, I rise briefly in support of Amendments 7 and 8 from the noble Lord, Lord Foster. I will say only one thing on the concerns about performance rights, because the noble Lord, Lord Foster, summarised the problem very comprehensively. Before I do, I wish to thank the Minister for his extremely prompt reply by letter to our concerns on the artist’s resale right in relation to the CPTPP that we discussed in Committee and for agreeing so quickly to set up a meeting on this, which I believe will take place on Monday. I look forward very much to that.

The single thing I will say about performance rights in relation to this Bill is to iterate a concern that Music Week, in response to the IPO consultation, raised yesterday. It highlights the importance and principle of reciprocity that the noble Lord, Lord Foster, mentioned. My understanding is that, until now, performance rights have been based on the principle of equitable remuneration, but this Bill potentially puts that in danger. There is a fundamental question—as the noble Lord, Lord Foster, said—to be asked about why the music and broadcasting industries are being put through the wringer on this when they are broadly happy with the status quo. If—and it is an “if”, because there are a number of options—the Government go down a particular route whereby, because of a reduction in the money going to US labels, US music is effectively free to play in the UK but UK music, particularly new UK music, is not, the concern is that, to quote Music Week,

“domestic acts might be squeezed out by UK broadcasters looking to save money”.

I hope the Minister will agree that that kind of asymmetric, or inequitable, scenario is one that needs to be avoided—although I am sure that that point and more will be made by interested parties in response to the consultation, which I hope that the Government will look at very closely.

[Lord Leong (Lab)]

My Lords, I am speaking to Amendments 7 and 8, and I thank all noble Lords for their contributions.

Intellectual property, particularly copyright, plays a pivotal role in the global trade in creative content, with the UK music industry serving as a prime example of its significance. It is imperative to acknowledge the substantial impact of copyright on fostering innovation and ensuring the efficient operation of markets. Additionally, it is crucial to recognise existing obligations under international copyright treaties and ensure their full and correct implementation by the signatories of the CPTPP. While the fundamental rights encompassing reproduction, broadcasting, communication to the public and distribution are addressed within CPTPP, it is disheartening to note that member states retain the option to opt out of certain obligations. Furthermore, the non-recognition of copyright protection for the utilisation of recorded music in broadcasting and public performance remains a regrettable challenge. To comply with obligations in the CPTPP, as mentioned earlier by the noble Lord, Lord Foster, changes need to be made to UK legislation with regard to rights in performance. We share some of the concerns in the noble Lord’s contribution earlier, and we would welcome an impact assessment to help us understand some of these non-compliance cases.

Will the Minister respond to the following questions, as mentioned earlier by the noble Lord, Lord Foster? Why is the extension of rights in sound recordings and performance to foreign nationals not covered under this consultation? At the same time, can the Minister share with the House when the results of this consultation will be published? Will there be a statement on collective management organisations, given their importance for the income of composers, performers and rights holders? Can the Minister also confirm that UK musicians are able to tour throughout CPTPP member states without any barriers and checks?

Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL]

Earl of Clancarty Excerpts

Committee stage
Thursday 14th December 2023 Grand Committee

Moved by

[The Earl of Clancarty]

12: After Clause 5, insert the following new Clause—
“Artist’s resale rightWithin 12 months of the passing of this Act, the Secretary of State must lay before Parliament an impact assessment of the possible benefits of seeking to extend the Intellectual Property Chapter of the CPTPP to include provisions on the artist’s resale right.”

[The Earl of Clancarty (CB)]

My Lords, this group of amendments concerns the arts and creative industries; although, in the case of intellectual property, not exclusively so. It therefore picks up directly from where the first day in Committee ended a week ago. I did not participate in that debate but recognise the faces of some who did around this table. It is noticeable that those in the House most closely associated with the arts—I emphasise the word “most”—do not tend to talk about copyright or intellectual property issues because it is such a technical area. I pay tribute to those—including present colleagues, the noble Lords, Lord Clement-Jones and Lord Stevenson of Balmacara, and one or two others—who, over a long time, have been keeping a watching brief on this important area. I also pay tribute to outside organisations such as the Alliance for Intellectual Property, whose briefing I am grateful for, and its member organisations.

Artists are acutely aware that a bad or compromised deal for the creative industries will directly affect the rights and livelihoods of UK artists not just in their work abroad but at home too—as was very much borne out in a debate on intellectual property in Grand Committee on 20 November in relation to new regulations. This is a corrective, in a sense, to the view of some of the public, who believe that these kinds of agreements are about conquering new markets and nothing else.

In this group I support Amendment 24, on the Intellectual Property Chapter, in the name of the noble Lord, Lord McNicol, and Amendment 28, on performance rights, in the name of the noble Lord, Lord Foster of Bath. Outside this group, I also mention Amendment 30, in the name of the noble Lord, Lord Purvis of Tweed, because there needs to be a debate on the effect of the CPTPP after the passing of the Act which also includes its implications for the creative industries. However, the concern about the extension of performers’ rights beyond this agreement needs to be sorted urgently.

My own Amendment 12 relates to the artist’s resale right, which is one important aspect of the wider landscape of concerns about rights for creators, in particular, the reciprocal rights—or potential lack of such rights—that this treaty has thrown up. Reciprocity is a key concept in much of this debate. I am grateful to the noble Lord, Lord Foster, and my noble friend Lord Freyberg for their support. Unfortunately, owing to illness my noble friend cannot be here today, but he has kindly passed on to me some notes for the speech he would have made.

The artist’s resale right is a vital element of our visual arts culture and is hugely important to our artists. It is a fundamental IP right that provides a royalty to artists on the secondary sale of their work. It has been introduced in some form in more than 90 countries worldwide, Mexico being the latest, in 2023. The noble Lord, Lord Clement-Jones, expressed it very well in Grand Committee on 20 November, when he said that he felt confident that these rights

“are now bolted fully into our intellectual and moral property rights”.—[Official Report, 20/11/23; col. GC 52.]

In the 17 years of its existence in the UK, the artist’s resale right has provided artists and estates with £120 million—moneys paid out by the not-for-profit organisation the Design and Artists Copyright Society, whose briefing for this debate I am also very grateful for. Artists invest ARR royalties into their practice which, in turn, supports the arts ecosystem. It is therefore not just individual artists who benefit but the culture as a whole, particularly since estates will also use the moneys to archive and restore work. It is important to note that, contrary to erstwhile concerns, there is no evidence that ARR has negatively impacted the UK art market or diverted sales to non-ARR markets. The UK art market is currently ranked second in the world, and ARR royalties represent only 0.1% of the market’s value.

I gave a very full speech on the artist’s resale right in the debate on 20 November on the new regulations. I refer the Minister to that. I will not say much more on ARR specifically, particularly as the Government should not need to be persuaded of the value of this right. I was very happy, in the circumstances, to back the Government in that debate on introducing the regulation that turned EU law on ARR into UK law. Of course, we now have reciprocal agreements on this right with two CPTPP member states, Australia and New Zealand, through separate trade agreements. I understand too from the letter that the noble Viscount, Lord Camrose, sent to us after the aforementioned debate that the UK is in discussion with Japan on this—a country, I believe, which does not yet operate this right. Could the Minister expand on that? Indeed, DACS has said:

“ARR should be introduced into more countries so that national artists benefit from this right, and UK artists get their due royalties for international sales”.


My noble friend Lord Freyberg has pointed out to me, with figures he researched, the particular significance of the Asian art market. This in part relates to Amendment 24’s reference to future agreements. Japan is a CPTPP member, while China and South Korea are among formal and potential applicants. Together, their art markets were worth around £10.5 billion in 2022 and are likely to continue to grow. My main question to the Minister is: what is the Government’s overall strategy for reaching agreements on this, both through this treaty with other member states, and with those outside it? Has this been broached in relation to this treaty, or will there be negotiations on the treaty so that provision for this will find a place in the chapter on intellectual property? That would be a preferable solution but if that is unrealistic, I would like to hear that from the Minister. I look forward to his reply. I beg to move.

[Lord Foster of Bath (LD)]

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.

--- Later in debate ---

[Lord Johnson of Lainston (Con)]

I am grateful to the noble Lord for pointing out that I am already talking about the impact, while also saying that we should not have an impact statement after one year; however, I do not think that that is fair. We are trying to have a broad gauge—is this a significant, multi-million-pound issue that needs to be confronted with urgency, or a relatively manageable amount of capital change? The instance we are looking at is not significant in relation to the music industry overall—it was a few tens of millions. I do not have the figure in front of me, but the noble Lord will understand.

That is the reason why we are having a consultation. Our estimate implies that it would not result in significant distortions of the music market in this country. Remember, this is for broadcast media. It does not include streaming, which is how most people access their music at the moment. It will result in additional artists being included, but many artists already are.

We should be aware that we often talk in these debates about the issues facing us—it is always about us. I would like us to look at the opportunities our artists will now have in terms of being protected. British music is the greatest in the world, and among the most popular. The Beatles are at No. 1 again; that must mean something. All the great bands are reforming to take advantage of these new benefits of CPTPP and the enormous revenues they will be paid, so something must be working. We should not lose sight of that. I think that my noble friend Lord Cameron of Chipping Norton told me that Blur are getting back together again. He will know more about it than me.

This is a very important issue. We must not lose sight of the fact that on the whole, these measures tend to result in additional protections which did not exist for our artists in many of these countries. That is very important. We can get lost in the detail. I am not saying that the detail is not important, but we should keep things in perspective. I cannot answer the question from the noble Lord, Lord Foster, about when the consultation will be completed. It is unlikely that we will have the consultation back by Report, which is hoped to be the second or third week of January. I am aware of the time constraints and recognise noble Lords’ comments, but we will continue to work together to find a good solution. I am extremely comfortable having further conversations with the noble Lord and other interested Peers on how we can delve more deeply into this subject. I am very sensitive to the fact that we are trying to come to the right conclusion.

Turning to some of the other key points, the noble Earl, Lord Clancarty, made a very fair comment on artists’ resale rights. We have tried to propagate this position. It is a new concept globally and so far, 90 countries have taken up the opportunity to employ artists’ resale rights. Unfortunately, very few CPTPP countries deploy ARR in their legislation. The noble Lord was right to mention Mexico, and Peru is similarly beginning the process. However, it is at an early stage and has not functioned in a way that is advantageous to our artists, so while the systems have been set up, they have not started to yield the payments we were hoping for. Therefore, we are not in a position to introduce ARR into the CPTTP, because many of the countries simply do not have that legislation to hand. It would therefore not be appropriate for what is a collective multilateral treaty that we are joining.

The noble Lord rightly asks about our strategy. I am happy to come back to him on our plans for continuing engagement, but he should be reassured that we specifically negotiated this in the Australia and New Zealand free trade deals and that we are in negotiations with Japan to see how we can implement that.

The noble Lord, Lord McNicol, asked about Japan and geographical indications. I cannot make a significant comment in reply, other than to point to our commitment to continue negotiations on this. It was a very important part of the initial negotiations and the Secretary of State at the time was determined to ensure that these principles were magnified. I, my officials and the trade team will be happy to reassure the noble Lord, I hope, that we are moving forward.

I hope I have covered the questions raised. My noble friend Lord Trenchard kindly supported me with his point about impact assessments and timeliness, for which I am grateful. He also raised specific questions which I will answer in writing.

[The Earl of Clancarty (CB)]

My Lords, I thank the Minister for his reply on my amendment, which I found reasonably reassuring. As far as I can see, the Government are moving in the right direction on this. Time will tell by how much and with what enthusiasm they can persuade other countries to reach reciprocal agreement with us on this important right. I detected a suggestion for a possible meeting about this with interested parties; that would be really helpful.

On the other hand, I think many of us are much less convinced on the other concerns, particularly those about performance rights raised by the noble Lord, Lord Foster. He asked whether we could have the consultation before Report. It is really important that the consultation precedes any secondary legislation. The Minister has said that that legislation is technical, but the experts, including the Alliance for Intellectual Property and people in the music industry, say that we cannot be so sure what the effect will be of widening rights to foreign rights holders. We are asking the Government to tread carefully, and not recklessly in a way that will damage the UK’s creative industries. The principle of reciprocity is paramount, as the noble Lord, Lord Foster, pointed out. It should be a guiding light. Crucially, stakeholders need to see precisely what is intended to be in the secondary legislation before it is made. As we know, once secondary legislation comes before the House, it is too late to change anything. With that, I beg leave to withdraw my amendment.

Amendment 12 withdrawn.