As part of the UK Government’s preparations for a possible “hard Brexit”, it has published a set of guidance notes on how intellectual property rights would be affected if the UK leaves the EU in March 2019 with no deal. This is part of a series of technical notices being issued by the UK Government to assist businesses in their preparations, although it is widely anticipated that an agreement between the UK and EU will still be possible.
With regard to copyright, the government explains that, as a result of the UK’s membership of the main international treaties on copyright (which will not be affected by Brexit), the scope of protection will remain largely unchanged. Further, the EU Regulations and Directives on copyright and related rights will be ‘ported’ into UK law under the EU Withdrawal Act 2018. It explains, therefore, that the immediate issue will primarily be one of reciprocity of those EU Regulations and Directives.
It identifies, among others, the following issues:
Sui generis database rights
Currently, businesses in European Economic Area (EEA) member states (such as the UK) are eligible for database rights in each member state (broadly, these rights do not arise in relation to databases created by non-EEA businesses). On the UK’s departure from the EEA, database rights will continue to exist in the UK (and presumably continue to be created). The UK government notes, however, that (as the UK will cease to be a member of the EEA) the EEA member states will be under no obligation to recognise existing or grant new database rights to UK businesses in those member states. UK owners of database rights may, therefore, find that in the EEA their existing rights are unenforceable and that no future rights will be created. In these circumstances, the UK government recommends reviewing existing licensing arrangements and, where possible, imposing licensing terms which mitigate this potential loss of rights.
Portability of online content service
At present, UK consumers can access their online content services (for example, Netflix) when they temporarily travel to another EU member state. This right will cease to apply from 29 March 2019 and UK consumers may see restrictions to their online content services when they travel.
Country-of-origin principle for copyright clearance in satellite broadcasting
Currently, if a satellite broadcaster clears the copyright requirements in its ‘home’ member state it can broadcast into any other EEA member state. This will cease to apply and UK-based satellite broadcasters that currently rely on the country-of-origin copyright clearance rule when broadcasting into the EEA may need to clear copyright in each member state to which they broadcast. Wider issues regarding broadcasting and video on demand are addressed in the UK government’s specific guidance on this issue.
At present, cultural heritage institutions established in a member state of the EEA are entitled to digitise orphan works in their collection and make them available online across the EEA without the permission of the right holder. The government explains that UK-based cultural heritage institutions that continue to do this may be infringing copyright.
Therefore, except for those in specialised industries (such as broadcasting) or with specific copyright portfolios (such as those with database rights), businesses are unlikely to be significantly affected, at least immediately, by a ‘no deal’ Brexit.