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Scrutiny of international agreements: UK-Japan Comprehensive Economic Partnership Agreement Contents

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Chapter 5: Intellectual property (CEPA Chapter 14)

Protection for creative industries

61.The Government’s objectives said that the creative industries in the UK “could benefit and be supported by copyright provisions that link to an effective and balanced global system” via CEPA.79 After reaching agreement in principle, DIT stated in its press release that the UK had gained “new protections for UK creative industries”, helping to protect “brands and innovations” by “go[ing] beyond the EU on provisions that tackle online infringement of IP rights, such as film and music piracy”.80

62.CEPA has a new article on criminal remedies for certain intellectual property (IP) rights infringement (Article 14.58), which stipulates that the parties will apply criminal procedures and penalties, “at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale”, and apply criminal penalties “to wilful importation or exportation of counterfeit trademark goods or pirated copyright goods on a commercial scale”.81 The Producers Alliance for Cinema and Television (PACT) welcomed this addition.82

63.CEPA also contains a new article on enforcement in the digital environment and public awareness (Article 14.59), which, according to the Government, “sets out a requirement for Parties to ensure that existing enforcement procedures can allow action against online IP infringement”, that is to say that they allow “effective action” to be taken. The Government indicates that the new article is also focused on awareness raising and voluntary initiatives.83 This seems to suggest that the UK would be reliant upon existing enforcement procedures in Japan to take any action against IP infringement and does not commit Japan to any specific changes to those procedures. Some witnesses have expressed disappointment that CEPA did not include injunctive relief measures (to enable web blocking of sites with illegal content) along the lines contained in the Digital Economy Act 2017.84 Nevertheless, we welcome the inclusion of this new language on enforcement in the digital environment.

64.Two particular areas where witnesses had hoped that CEPA would go beyond JEEPA were artists’ resale rights for visual artists85 and public performance rights for musicians.86 CEPA adds to Article 14.12 of JEEPA the commitment to continue a discussion on measures to ensure adequate remuneration for performers and producers of phonograms,87 but the Parliamentary Report notes that, while there might be “economic benefits from fair remuneration” for artists, “this is likely to be minimal and depends on the outcome of discussions”.88

65.CEPA does not have a chapter or section dedicated to audio-visual (AV) services, and the only provisions specifically on AV relate to open dialogue and cooperation.89 Witnesses have expressed conflicting views regarding the inclusion of the AV sector in trade deals. PACT has argued for the exclusion of the AV sector here and in the subsidies chapter (CEPA Chapter 12), to avoid setting a precedent for any future UK-US trade agreement.90 On the other hand, the Alliance for Intellectual Property and the Motion Picture Association argued for the inclusion of the AV sector, highlighting significant growth opportunities for UK exports.91

66.We welcome CEPA’s additional language, compared with the EU-Japan deal, on ensuring adequate rights protections and, including additional provision on enforcing criminal remedies for certain intellectual property rights infringement and on enforcement in the digital environment. We note, though, that many of the additions focus on future discussions and awareness raising about existing enforcement procedures in both countries, rather than securing new, concrete protections.

Geographical Indications

67.During negotiations, the NFU had recommended the expansion of GIs,92 noting that “market opportunities in Japan in the future” would “probably be for that higher-value produce where markets will not be huge but could be valuable in themselves”, and that “protected names in agriculture” were particularly relevant to those markets.93

68.DIT’s press release stated that the “measures in [CEPA] include: … new protection for more iconic UK goods”, with the number of geographical indications (GIs) “increasing … from just seven under the terms of [JEEPA] to potentially over 70” under CEPA, which “would lead to improved recognition of key UK brands in the Japanese market”.94 However, as that “potentially” hints, this is an area where the UK’s gains are not yet concrete; there is no guarantee that any new protections will, in fact, be granted. The Government indicates that “it is anticipated that a significant number of additional UK GIs will have the opportunity to be protected in Japan in the future” but does not state whether there is a deadline for Japan to accept these new GIs.95 Nor does it refer to the steps required for the GIs to be approved through the Japanese domestic process.96

69.Subsequently, the Government has published an ‘explainer’ regarding the GIs process, which provides a little more information, including that the UK Government will make applications on producers’ behalf, and that it intends to provide Japan with a list of the further GIs sought in January. That ‘explainer’ also includes an acknowledgment that this process has been agreed because there was insufficient time during the CEPA negotiations to complete discussions on all the GIs the UK was seeking.97

70.DIT has also stated on Twitter that, “notwithstanding exceptional circumstances”, such as “a Japanese producer of Cornish clotted cream opposing that GI”, the Japanese approval process “should only take about 5 months”,98 and Mr Zebedee reinforced this message that five months would be “a conservative estimate”.99 Lord Grimstone also emphasised that the process would be smoother, as no political negotiations were needed, thanks to CEPA, and the process was only “administrative”.100 We note, however, that it is not only Japanese producers of rival products who might object, as the CPTPP member countries can raise objections to proposed UK GIs, adding another layer to the process.101

71.It is welcome that CEPA maintains the Geographical Indications (GIs) under the EU-Japan deal, and that the UK has taken steps to make it easier to obtain further GIs in the future. But given the uncertainty regarding whether UK producers will gain the additional sixty or so GIs that the Government has advertised, it is not yet possible to state that the UK has won new protection for more UK goods. This is another area in which the Government’s promotion of CEPA has oversold the actual provisions of the deal. The Government should swiftly provide clarity for stakeholders by setting out in detail the process and timeframe for obtaining approval of new GIs from Japan.

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