Trading under WTO rules
Audiovisual media services
191.Discovery Communications Europe Ltd wrote, bluntly, that “WTO/GATS terms are extremely unattractive”.265 Ms Enders explained that the EU’s schedule of GATS commitments on audiovisual (AV) and other cultural services were typically excluded, thanks to the cultural exception.266
192.For the same reason, Pact believed that EU Member States would “be able to impose discriminatory provisions on the UK, particularly with regards to the audio-visual sector”.267 Ms Enders said this situation would not be improved by the Trade in Services Agreement (TiSA), because the Commission had indicated that “the EU will continue to exclude AV and other cultural services in TiSA”.268
Transfrontier Television Convention
193.Witnesses said the Transfrontier Television Convention could be considered as an alternative for UK broadcasters and content producers after Brexit, if appropriate provisions were not included in FTA. This is a Council of Europe Convention, establishing rules for the free circulation of television programmes between signatory states. It follows a ‘country-of-origin’ system for television broadcasts, and works originating from signatories to the Convention are considered to fall within the definition of European works for the purposes of the AVMSD.269
194.COBA said that the Convention had “significant limitations”. The Convention excluded “a number of important EU markets” (including Denmark, Greece, Ireland, Luxembourg, the Netherlands and Sweden, which are not signatories). It also did “not apply to on-demand services at all”, which were “arguably the fastest growing part of the UK television industry”.270 Pact raised the issue of enforcement, noting that:
“[The Convention’s] implementation relies on the principles of mutual assistance and co-operation between the Parties. Any difficulties around the application of the Convention are discussed by a Standing Committee made up of parties to the Convention that seeks resolution of any difficulties. There is no recourse to, for example, any body such as the [CJEU]”. 271
Pact also observed that, in future, “any EU country might leave the Convention” and suggested that the Convention could become “side-lined” as “the industry evolves”.272 COBA concluded that “we do not consider it to be a viable alternative” to access to the Single Market.273
195.The Minister, Mr Hancock, noted that the Transfrontier Television Convention had been agreed in 1993, and that, “in this space, that is a long time ago.” However, he recognised that the Convention only covered “satellite technology”, omitting on-demand services.
Intellectual property
196.The WTO’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement aims to promote effective and adequate protection of intellectual property rights by setting standards for their protection, to be provided by each signatory in each of the main areas covered by the agreement (such as copyright, trademarks, geographical indicators and patents).274 In practice, the WTO TRIPS agreement does not ensure effective IP enforcement, and the Commission has previously stated that “the implementation of TRIPS requirements in national laws has proven to be insufficient to combat piracy and counterfeiting”. It has also argued that “the TRIPS Agreement itself has several shortcomings”.275 The Creative Industries Federation concluded that the protection afforded by the TRIPS agreement would be less than that provided currently by the EU.276
Conclusions
197.The UK is a global hub for creative services. The success of the UK’s creative services industry is bolstered by innovation in digital services and by a general business environment in which companies from different parts of the creative sector ‘cluster’ in the UK. Brexit presents different risks and opportunities to different types of creative services, and it is important that the Government agrees a comprehensive UK-EU FTA that sustains the UK’s global hub status.
198.Creative industries will need a comprehensive agreement on the protection of intellectual property rights. For example, in fashion, the continued protection of Unregistered Community Designs will be important to ensure that fashion designers are still protected when showing their designs for the first time in the UK. Without such protections, the viability of events like London Fashion Week could be called into question, posing a direct threat to jobs in the UK and, more broadly, to the standing of the UK’s fashion industry.
199.Without appropriate agreements to maintain access to the Single Market, we note that UK broadcasters would be unable to broadcast services to the EU. This would affect almost 60% of channels licensed by Ofcom.
200.The EU has excluded provisions on audiovisual media services from all FTAs, except the EU-South Korea FTA and the CARIFORUM-EU EPA. A UK-EU FTA would need to go even further than these agreements, in order to maintain the level of EU market access sought by UK broadcasters.
201.A scenario where the UK left the EU without an agreement would be damaging for the UK’s creative services. Audiovisual media services are excluded from the EU’s schedule of commitments at the WTO, and neither the Transfrontier Television Convention nor co-production treaties are viable alternatives for trade. Protections for intellectual property rights afforded by the WTO’s TRIPS agreement are considerably less than those currently enjoyed by UK businesses and citizens.