The Trade and Cooperation Agreement

ISM Campaigns and Research Assistant Beni Evans explains the worrying implications of the recent Brexit deal for touring musicians, outlines the new rules and summarises current initiatives aiming to improve the situation

Above: Beni Evans

Read our next feature on how Brexit can affect a musicians’ contract On 24 December 2020 the government published the Trade and Cooperation Agreement (TCA) outlining the future trading relationship between the UK and European Union (EU). With just five days to scrutinise and ratify the deal, it was rushed through UK Parliament and into law in time for the end of the Brexit transition period on 31 December. While the announcement of a deal was welcome, it has now become clear that frictionless work travel for musicians had been overlooked despite assurances from the Government.

The EU offers UK musicians a wealth of opportunity. Not only is it a crucial gateway to the international arena, but it offers rich cross-cultural collaboration with European artists. Therefore, the ability to tour easily is essential for both UK and EU musicians alike. But the immigration rules for each EU member state now apply, in a complex patchwork of application processes and entry requirements. Rightly however, this has not gone unnoticed. Pressure has been building from across the arts sector to find a solution to the web of bureaucracy which now stands. The UK’s creative industries rely enormously on a robust relationship with the European Union, and while the Trade and Cooperation Agreement threatens the foundation of this relationship, we must quickly find solutions to protect it. The new rules

Currently, all UK nationals holding a valid passport can travel for up to 90 days in a 180-day period in the Schengen area under the existing visa-waiver regime. However, this does not cover those entering for paid work, such as gigging musicians. Each member state can now choose to treat UK citizens as ‘visa nationals’ when entering that country for paid work, which could require both a visa and a work permit.

Work permits, a mechanism through which each individual member state can grant different permissions for undertaking paid work in their countries, are a complex hurdle that UK musicians will now have to overcome. Although not all countries require work permits, navigating the patchwork of rules for multi-country tours has become much harder. With applications taking up to three months to be processed, touring at short notice in some countries is now virtually impossible.

Furthermore, new customs’ rules mean that musical instruments are likely to need expensive carnets for transportation into Europe. This represents a worrying additional cost to already-tight touring budgets. The cost of a carnet starts at approximately £400, with an issuing fee of £360 and a security deposit, calculated based on the value of the goods being transported (between 30% and 40%). These additional costs bring into question the viability of touring in the EU, particularly for new and emerging artists, whose financial backing may not be robust enough to cover this extra cost. Other rule changes will make life more difficult for touring ensembles such as bands or symphony orchestras that require large vehicles due to the amount of equipment they bring with them. Under the new system, reduced cabotages for hauliers over 3.5 tonnes operating in the EU from the UK will now be permitted a maximum of three internal movements.

This will prove extremely difficult for tour operators hoping to facilitate tours organised from the UK in the EU.

Finding a solution

The music sector desperately needs the Government to deliver on its commitment to frictionless work travel. The Culture Secretary recently said that the ‘door is still open’ for establishing new touring rules with the EU and the ISM has been speaking to politicians and civil servants about the best way to achieve that. It is clear that there is a will to reach an agreement that would benefit all sides and we remain hopeful that progress can be made.

The ISM has tirelessly continued to lobby Government to deliver on its commitment to frictionless work travel, calling for proactive engagement with the EU to find a solution to protect our industry. A possible way forward for the government is to explore new bilateral agreements with the EU and EU Member States to exempt touring performers, creative teams and crews from visa and work permit requirements. Meanwhile, the sector needs clear and comprehensive guidance from the government to ensure that musicians can navigate the current circumstances.

Stages across Europe remain dormant as COVID-19 continues to halt national and international performance. This has masked the challenges that will become apparent as musicians begin performing again. Ultimately, the government must urgently secure international performance and uphold Britain’s global reputation for cultural innovation. Visit the Brexit advice hub at ism.org/ advice-centre/brexit

ISM early career membership – just £50

We understand that the early stages of musicians’ careers can be tough financially. That’s why, if you have fewer than 10 years’ professional experience, you can join the ISM for just £50 a year (less than £1 a week). If you know someone starting out their music career who would benefit from the expert advice, representation and support of the ISM, why not recommend us to them? You could even save up to £20 on your own membership fee. Find out more at ism.org/recommend

Victoria Barrett of VLT LEGAL looks at the implications of the Brexit trade deal on musicians’ contracts.

To read the full guidance and find out what you can do to prepare for or to prevent some of the additional costs that you could incur, or to read our recommendations on dealing with a cancelled or breached contract or potential cross-border dispute, visit ism.org/advice/brexit-and-contracts-2 ISM members who need specific advice and further assistance on any of these matters should contact the ISM legal team.

Above: Victoria Barrett, VLT LEGAL

See our feature on page 16 for more information about our Members’ Day, which also looks at working internationally post-Brexit The Trade and Cooperation Agreement (TCA), the trade deal concluded between the UK and the European Union (EU) in December 2020, appears unlikely to cause any major changes to the way in which contracts and commercial arrangements function between the UK and EU; particularly because the Withdrawal Agreement transposed into UK law all EU law already in force in the UK. However, the impact on contracts could come from the wider practical implications of the government’s failure to secure for the creative industries any meaningful provisions covering movement of UK goods and services to and within the EU. Musicians should pay careful attention to their contracts, particularly at the stage of negotiation.

What should musicians look out for in their contracts?

The music contracts that are most likely to be affected will be those involving gigs or touring within the EU, and those involving distribution of digital or physical content to EU member states. Below, we list a few things to pay attention to when reading and negotiating your contract. Costs: there are likely to be extra costs or reductions in income for performing and touring musicians at an EU-wide level or at individual member state level, due to items such as carnets, visas, CITES certificates, taxes and social security payments. If you derive income from physical record sales in the EU, these too could be affected by additional costs, which are likely to reduce the royalties and profit share due to you. VAT payments on UK goods and services are no longer protected by EU-wide double-taxation arrangements, meaning that providers of both digital and physical content to the EU must now register for VAT in each EU member state where sales are made. Cancellations and breach of contract: the past year has shown that force majeure clauses do not generally cover the fall-out from either COVID-19 or Brexit. Territory: if you have an existing contract, which grants rights throughout the EU or European Economic Area (EEA), this would have automatically included the UK up to the end of 2020, but no longer does. References to laws and regulations: remember that references to certain EU directives and regulations should now be given their new name under UK law. An example relevant to music contracts will be the GDPR (General Data Protection Regulation), which should now be referred to as the UK GDPR. E-signatures: these will continue to be valid for contracts signed by both UK and EU contracting parties, provided they use a secure e-signature service which is registered in both the UK and the EU. Data protection: there is currently a grace period in place of up to six months from 1 January 2021, during which personal data can continue to be transferred freely between the EU or EEA and the UK. There is a possibility that free transfer will not be extended beyond this period. If you organise gigs and tours between the UK and the EU, your ability to transfer musician information such as name, address, health issues, passport and visa information could be affected. Cross-border disputes: cross-border dispute resolution is generally covered by international treaties, which will remain unchanged by Brexit. However, there are some issues around UK-EU jurisdiction that are still not settled; problems could arise for instance in the context of a tour of several EU countries where exclusive jurisdiction for the entire contract has been agreed in only one EU member state. Collecting Societies: in recent years, EU law has given UK rightsholders the right to be represented in the EU by any EU collecting society. This has mainly been exercised on your behalf by your UK collecting society, which will have entered reciprocal collection arrangements. As a result of Brexit, that representation is no longer an automatic right. While this is unlikely to affect existing arrangements, it may impact future musicians’ contracts if those arrangements are terminated.

The ISM recently partnered with touring experts Viva La Visa to offer a new visa and work permit advice service to ISM members who work overseas. You can access half an hour of free advice, helping you to navigate the required work permits and visas in the country or countries you are visiting on your next work trip. Find out more at ism.org/visa-service