What impact will Brexit have on intellectual property rights – Copyright?

In the fourth part of our Brexit series, we look at how copyright law will be impacted post-Brexit.

Recently we released an update on the potential impact of Brexit on trade marks and exhaustion of intellectual property rights and this week we move on to consider how Brexit might impact on copyright law.

The practical implications of Brexit on copyright have been considered by both the UK Intellectual Property Office (UK IPO) in their publication “IP and BREXIT: the facts” and the Department for Business, Energy and Industrial Strategy in their publication “Copyright if there’s no Brexit deal”.  In light of this, we explore the possible consequences of the UK’s departure from the EU.

Directives and regulations on copyright

Copyright law in the UK derives from international conventions, directly applicable EU regulations and EU directives which are given effect to in the UK by UK legislation.

As far as copyright law deriving from international conventions is concerned, as the UK will remain a member of the international copyright treaties copyright works in the UK and UK works abroad will change little.

The rules contained within EU directives and regulations will continue to apply in the UK, by virtue of the powers contained within the EU Withdrawal Act 2018.  Therefore, the protection granted by these instruments will continue.  However, subsequent changes to EU copyright law will not automatically apply in the UK, unless such changes are also enacted at UK level.

The most significant impact will be on cross-border copyright mechanisms and this is the focus of this e-update.  Since these only benefit EU and EEA member states, the UK will no longer be able to take advantage of these mechanisms post-Brexit.  This is because the UK will be deemed a third country for copyright purposes.

Sui Generis Database rights

The database directive currently allows nationals, residents and businesses of EEA member states to qualify for database rights.  However, in the event of a no-deal Brexit, EEA states will no longer be under an obligation to offer these rights to UK nationals, residents and businesses.   Further, those in the UK who own a database may no longer be able to enforce this right in the EEA once the UK leaves the EU.

If your business owns a database, it would be advisable for you to consider another means of protecting your database such as a restrictive licensing agreement.

Portability of online content service

The Online Portability Regulation permits those who temporarily travel to an EU Member State, which is not their home state, to access their online content services.  Think Netflix.

However, this Regulation will not apply post-Brexit meaning that those who offer online content services will not be under an obligation to, nor will it be possible for them to, offer UK consumers temporary access to cross-border online content under the Online Portability Regulation.

Therefore, UK individuals who visit EU member states may find that the online content services which they are able to access are restricted.

Many observers are critical of the fact that the UK government has not made an attempt to find a solution to this and has not indicated that it intends to seek a more satisfactory outcome.  We await further detail on this in the coming months.

Country of origin principle for copyright clearance in satellite broadcasting

Under the current law, satellite broadcasters are entitled to broadcast works protected by copyright into any EEA member state, as long as the copyright requirements of the territory where the content was originally broadcast are satisfied.  However, Brexit will mean that UK broadcasters will no longer be able to rely upon the country of origin principle and will need to satisfy copyright requirements of every EU Member State to which they wish to broadcast.  Broadcasters need to be aware of this post-Brexit.

Further, Brexit will also affect broadcasters in the EU who wish to broadcast in the UK.  It will be more administratively burdensome, as they will need to clear copyright from each relevant rights holder if they wish to proceed.

Orphan works copyright exception

There is currently a copyright exception pertaining to orphan works which is available to cultural heritage institutions in the EEA.  This allows such institutions to digitise orphan works and offer access to them throughout the EEA without the right holder’s consent.

However, cultural heritage institutions will not be able to rely on this exception post-Brexit and those who continue to digitise works in the UK and make them available throughout the EEA without permission of the right holder may be committing copyright infringement.

Therefore, if your organisation uses this exception, you should consider whether any works need to be removed from your website or whether you need to restrict access to certain works in certain territories.

Collective management of copyright

Presently EEA collective management bodies that offer multi-territorial licensing of online rights of musical works must, if asked to do so, represent catalogues of EEA collective management bodies that do not offer such licences.  Following a no deal Brexit, UK collective management bodies will not be able to compel EEA collective management bodies to provide such multi-territorial licensing.

Accordingly, UK bodies that currently rely on this right may wish to consider new contractual arrangements with EEA collective management bodies to continue current arrangements.

Cross border transfer of accessible format copies of copyright works

The Marrakesh Treaty has been implemented into EU law and permits the transfer of accessible format copies of certain copyright works for the benefit of persons who are blind, visually impaired or otherwise print disabled between EU Member States and to other countries who have signed up to the Treaty.

The UK has indicated that it intends to sign the Marrakesh Treaty post-Brexit.  However, this will not happen until after 29 March 2019.  This leaves a period of uncertainty between the date of Brexit and the date of ratification when it will not be possible for businesses to rely on the EU implementing legislation to transfer accessible format copies.

Therefore, if your organisation carries out this activity, you will need to ascertain whether you are required to obtain consent from rights owners or whether you need to stop transferring certain copies of copyright works until the UK signs up to the Marrakesh Treaty.

Conclusion

If your organisation relies upon cross-border copyright mechanisms, the UK’s departure from the EU is likely to have a significant impact upon your ability to rely upon these mechanisms going forward.

It would be advisable to start considering what changes your organisation will need to make as soon as possible, in order to ensure minimal disruption in the lead up to and after Brexit.

This article was co-written by Charlotte Fleming.

Technology, Media & Telecoms

With very few areas not impacted by technology, media and telecoms, we remain focused on ensuring we stay ahead of the curve in advising clients of the ever-increasing body of law, regulation and policy affecting the sector.

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