On 31 December 2020, the Brexit transition period comes to an end, and significant changes to the law in the UK will take effect.
For copyright and neighbouring areas of the law, there are some important soundbites for businesses to be aware of – some of which you may already have heard about, while others may be news outside the UK (even for experienced copyright lawyers):
- Copyright and related rights are governed in the UK by national legislation, which has been framed so as to give effect to the terms of international treaties, for example the Berne Convention of 1886. Aspects of copyright have been harmonised by EU directives, such as copyright protection for databases, computer programs, photographs and sound recordings. These effect, for example, the tests for subsistence. Such harmonisation has, in theory, been implemented in our national law and will continue to be applied by our national Court. However, from 1 January 2021, our national interpretation of harmonised aspects of copyright can begin to drift from findings of the CJEU.
- For traditional forms of copyright protection, such as for literary, dramatic, musical and artistic works, sound recordings, films, broadcasts and typographical arrangements of published editions, Brexit has no practical impact for the existing regime.
- Disputes as to copyright in the UK are, and will remain, matters for the courts of the UK, and there will be no change to the availability of remedies protecting copyright. In particular:
- Injunctive relief to restrain infringement in the UK will continue to be available upon consideration of the same legal principles. This includes the award of blocking orders, which have been granted by the courts in the UK to address copyright (and trademark) infringement in many different technological contexts.
- As a signatory to the Hague Convention on Choice of Court Agreements, the UK courts will continue to recognise and give effect to exclusive jurisdiction clauses, including those conferring jurisdiction on the courts in the UK in respect of licences of copyright beyond the UK.
- Unless agreement is reached to replace (in respect of the UK) the "Brussels" and "Lugano" regimes on jurisdiction and enforcement of judgments in the EU and the EEA, in the UK the common law will govern such issues. The common law already governs such issues as between the courts in the UK and the courts in the US and Canada. The transition presents some opportunities for well-informed potential litigants.
- However on 31 December 2020 the UK will cease to participate in a number of cross-border mechanisms established by EU legislation, in particular the EU-wide copyright clearance regime for satellite and cable broadcasts. More information on the regimes affected is provided in our article What does Brexit Mean for Intellectual Property?
Our article What does Brexit Mean for Intellectual Property? also provides in depth commentary on what Brexit means for intellectual property more generally. Although necessarily a substantive piece of analysis, the drop-down format enables you to dip into the areas of most interest to you (for example, exhaustion, patents, trademarks, designs, trade secrets, customs arrangements and IP litigation). We also explain the wider legal position, within which intellectual property sits.