With the United Kingdom ("UK") due to leave the European Union ("EU") on 31 October 2019, draft statutory instruments are beginning to emerge which provide a more concrete insight into the intellectual property landscape post-Brexit.

This note provides an update on our previous article 'Brexit and…copyright' following the publication of The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019 (the "Exit Regulations") which sets out the amendments to existing copyright and database legislation which will govern how copyright and databases will be protected following Brexit.

Copyright law

In the UK, the main legislation governing the law of copyright is the Copyright, Designs and Patents Act 1988 ("CDPA"), which is supported by a range of secondary legislation. Copyright is usually the intellectual property ("IP") right that is most suited to protect developing technologies, as it provides the basis of protection for software, as the software code may be protected as a literary work.

Unlike many other IP rights, copyright is (to a large extent) founded on international treaties e.g. the Berne Copyright Convention and is thus not a direct product of EU law. For this reason, unlike with some other IP rights, copyright is not specifically addressed in the draft Withdrawal Agreement.

In our last briefing note, we anticipated that the effect on copyright on the UK's withdrawal from the EU is likely to be much less complicated than other unitary EU rights – such as registered EU trade marks and Community designs. As the harmonisation of copyright is largely a product of non EU legislation, it is likely that UK and EU copyright law will, at least initially, largely remain harmonised. However, in due course, the UK may wish, especially within the digital services sector, to reconsider the various amendments it has made previously to the CDPA and other national laws, in order to align with EU law.

The Exit Regulations and the European Union (Withdrawal) Act 2018

The function of the Exit Regulations is to address the potential situation where the UK's copyright regime is more favourable to EU nationals than to UK nationals.

The Exit Regulations and the European Union (Withdrawal) Act 2018 will:

  • remove the orphan works copyright exception for UK cultural institutions across the EEA. However, cultural institutions may be able to rely on the Orphan Works Licensing Scheme in the UK
  • mean satellite broadcasters based in the UK may need to perform copyright clearance checks in each of the EU Member States in which the content is broadcast. The UK will continue to apply, subject to a few exceptions, the country-of-origin principle for content first broadcast in a different territory.
  • no longer provide for the temporary cross-border portability of online content services in the UK across the EU – for example when consumers from one EU Member State are on holiday in another EU Member State
  • remove EU nationals as automatically qualifying for copyright protection. However, protection will extend to nationals of existing EU Member States, by virtue of the Member States being signatories to the Berne convention.

The UK has attempted to enable the continuance of cross-border mechanisms, where appropriate. An example of this is the ratification of the Marrakesh Treaty which relates to the cross-border exchange of accessible format copies of certain works and other subject matter for the benefit of persons who are blind or visually impaired. As the UK has ratified this treaty its provisions will be preserved, meaning that the cross-border exchange may continue.

The Directive on Copyright in the Digital Single Market (No. 2019/790) has been agreed and was published on 17 May 2019 and it must therefore be given effect in EU Member States by 7 June 2021. As the UK is set to leave the EU on 31 October 2019, it remains to be seen how many of the Directive's provisions, if any, will be adopted by the UK. That decision will be influenced by the terms, if any, the UK adopts upon its withdrawal from the EU and the impact that compliance with the Directive might have on the UK's dealings with other countries, most notably the USA, with whom the UK might wish, post Brexit, to strike trade deals. In this regard, it should be noted that the FANG (Facebook, Amazon, Netflix and Google) internet giants are collectively opposed to many of the provisions and objectives of the Directive.

Impact

Overall, our last briefing note seems largely correct in the predictions it made as it appears that UK and EU law will, to a large extent, remain harmonised. Businesses should continue to stay alert to further developments and changes which the UK may choose to make post Brexit to the UK's copyright regime.