23 March 2018

Brexit and UK copyright law: The Repercussions

On 28 March 2018, the European Commission published a document highlighting the effects of Brexit on UK copyright law.

The notice, which was addressed to the European Commission’s stakeholders, notes that preparing for the UK’s withdrawal from the EU “is not just a matter for EU and national authorities but also for private parties”, and seeks to remind persons concerned of the “legal repercussions” which need to be considered when the UK becomes a country outside of the EU.

In essence, the message of the notice is to highlight that once the UK leaves the EU, EU copyright law will cease to have effect in the UK:

subject to any transitional arrangement that may be contained in a possible withdrawal agreement, as of the withdrawal date, the EU rules in the field of copyright will no longer apply to the United Kingdom.”

The notice also highlights that once the UK leaves the EU, all EU directives and regulations concerning copyright will cease applying to the UK, and that any relationships between the UK (as a non-EU member) and the EU will be governed by the relevant international agreements to which both are parties, including the World Intellectual Property Organization (WIPO) Copyright Treaty and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Importantly, the European Commission warns that the international agreements which will govern the relationship between the UK and the EU following Brexit “do not provide for the same type or level of protection in relation to certain rights and where applicable exceptions or limitations to those rights as that set out today in the EU copyright acquis”, and that they also lack “particular cross-border measures for the benefit of rightholders and/or the management of rights”.

The notice highlights several specific consequences that Brexit will have in the field of copyright.

1. Broadcasters

UK-based broadcasters will cease to benefit from the country of origin principle set out in Directive 93/83/EEC concerning satellite broadcasting and cable retransmission.

2. Collective Rights Management (online rights in musical works)

EU collective management organisations (CMOs) will cease to be subject to the obligation to represent CMOs based in the UK for multi-territorial licensing under Directive 2014/26/EU concerning collective rights management.

3. Orphan Works

The mechanism of mutual recognition provided for by Directive 2012/28/EU will no longer apply between the UK and the EU, with the consequence that orphan works which have been recognised in the UK by the withdrawal date will no longer be recognised in the EU and vice versa.

4. Access to published works

UK-based blind, visually impaired or otherwise print-disabled persons will no longer be able to obtain accessible format copies from authorised entities in the EU under the framework provided for by Directive 2017/1564.

5. Online Content Portability

UK residents will no longer benefit from their digital content subscriptions when travelling to the EU; and a provider of online content services established in the UK will need to comply with the rules of the relevant EU Member State or States where it wishes to offer services to its subscribers.

6. Sui generis database rights

UK nationals (unless they have their habitual residence in the EU) and companies/firms formed in accordance with UK law will no longer be entitled to maintain or obtain a sui generis database right (a right existing to recognise investments made in compiling a database) in respect of databases in the EU.

Whilst it is clear from the notice that EU law concerning copyright will no longer apply to the UK following Brexit, the European Commission itself recognises the “considerable uncertainties” surrounding Brexit, in particular concerning the content of a possible withdrawal agreement.

Whether any provision will be made for UK copyright law in any transitional agreement remains to be seen in advance of the withdrawal date of 30 March 2019.

To discuss any of the above further, or to find out more, please contact Daniel Ramos via email: [email protected].