The UK government has recently published guidance, alongside accompanying draft legislation, on the proposed changes to copyright law in the event of a 'no deal Brexit'. The guidance follows the earlier 'no deal notice' published in September. The changes affect nine areas of copyright law, which are summarised below. A key point to note, of course, is that UK and EU copyright works will continue to be protected in the EU and UK respectively because of international treaties on copyright, such as the Berne Convention, which remain unaffected by Brexit. Further, most existing EU IP laws will be preserved in the UK on exit through the EU Withdrawal Act.
However, this latest guidance deals with a number of significant copyright cross-border mechanisms. Where these depend upon reciprocity with the EU, the government states that it will not continue to extend the relevant rules to the EU on a unilateral basis after exit if it would adversely affect those in the UK.
Portability of online content
One example of an EU IP law that will not be retained in the UK post-Brexit is the Portability Regulation (2017/1128). This Regulation allows consumers, when they travel within the EU, to access their online content services as if they were at home. This will not be retained as part of EU law under the EU Withdrawal Act and will be repealed. As a result, EU visitors to the UK and UK visitors to the EU may see restrictions to the content ordinarily available to them at home.
Database rights, which provide protection for databases in a number of industries that make significant investment in producing, collecting or using data, are an EU creation. They are a valuable right for those businesses that invest heavily in databases and they will no doubt prefer there to be continued reciprocal protection between the UK and EU. However, if the UK leaves without a deal, UK residents and businesses will no longer be able to receive or hold so-called sui generis database rights in the EEA. The UK legislation meanwhile will be amended so that only UK residents and businesses are eligible for new database rights post exit, but existing database rights as at the date of exit will not be affected.
Copyright clearance in satellite broadcasting
The EU Satellite and Cable Directive (93/83/EEC) provides that satellite broadcasters only have to obtain permission from the copyright holder in the EEA Member State in which the broadcast originates, in order to broadcast the content freely in other Member States (the "country of origin" principle). If the UK leaves without a deal, the "country of origin" principle will not apply to broadcasts originating from the UK and so UK broadcasters may need to get clearance from the copyright holder for broadcasts on a per country basis, depending on the law in individual Member States. We discussed this recently in our bulletin on the revised Audio-Visual Media Services Directive. The UK will continue to apply the "country of origin" principle for broadcasts transmitted into the UK from any other country, which will maintain the effect of the existing regime in relation to the EU.
Other copyright issues and related rights
The government's guidance also deals with:
- Obligations on UK collective management organisations (CMOs) to represent rights holders of any EEA Member State for multi-territorial licensing purposes.
- The EU orphan works exception, which will no longer apply for UK cultural heritage institutions - although they may be able to rely on the UK's own orphan works licensing scheme.
- Artist's Resale Right - nationals of all countries that recognise the resale rights of UK nationals will continue to receive resale rights in the UK under the Berne Convention.
- Marrakesh Treaty - the EU laws implementing the Marrakesh Treaty (which is intended to improve the access of visually impaired people to copyright works) will be retained. The UK will need to ratify the Marrakesh Treaty in its own right, which it will do after Brexit.
- Retransmission by cable and exercise of rights through a CMO - these rules will be retained, but revised to reflect the UK's position outside of the EU. Where works are broadcast from the UK and retransmitted via cable in the EEA, copyright holders may be able to, or may need to, negotiate licences with the cable operators directly rather than through a CMO.
Future areas to keep an eye on
After Brexit, the UK will treat EEA works the same as non-EEA works to determine the duration of the copyright protection, whereby copyright lasts for the lesser of the duration offered in the UK and the country of origin of the work. As the UK currently has harmonised durations with the EU, this will not have an immediate effect.
The guidance is silent on what is likely to happen in relation to the controversial proposed Copyright Directive (and related proposals) under the Digital Single Market project. The Directive is currently making its way through the EU legislative process, with a final vote in the European Parliament due in January 2019 (the version comprising the amendments adopted by the European Parliament in September 2018 is here). Once passed, Member States will have two years to implement the new provisions. This timing, and whether an implementation period is agreed as part of the wider Brexit negotiations, will be crucial in relation to the UK's relationship with these proposals.