The European Commission has today issued a notice to stakeholders outlining the ways in which the UK’s withdrawal from the EU will impact upon UK copyright. The notice confirms that, subject to any transitional arrangement to be agreed between the parties to the Brexit negotiations, as of the withdrawal date, the EU rules in the field of copyright will no longer apply to the UK.
International treaties to govern copyright relationship between UK and EU
This means that, from 30 March 2019, EU copyright directives and regulations will cease to have effect in the UK, and instead a range of international treaties to which both the UK and the EU are already parties (including the World Intellectual Property Organisation (WIPO) Copyright Treaty and the Agreement on Trade-Related Aspects of Intellectual Property Rights (or TRIPS)) will govern the protection and enforcement of copyright and related rights between the UK and the EU.
Practical consequences of change in legal framework
The nature and scope of protection granted by the international treaties to certain rights does not mirror that contained in EU law; and EU law allows certain cross-border measures that benefit copyright and related rights holders and users within the internal market that are not reflected in the treaties. This means that Brexit will have a number of consequences for UK copyright and related rights, which the Commission considers in brief in its notice.
Broadcasters no longer benefit from country-of-origin principle
The country-of-origin principle enshrined in the Satellite and Cable Directive (93/83/EEC), which governs the application of copyright and related rights to satellite and cable retransmission in the EU, provides that broadcasters are only bound by the laws of the Member State in which they communicate their service, and not by the laws of the Member States in which their signal is received. This means that satellite broadcasts only require copyright consents in their country of origin.
The UK will no longer benefit from the country-of-origin principle post-Brexit, which means that any UK broadcaster providing cross-border broadcasting services to EU customers will be bound not only by UK copyright law, but also by the copyright laws of every Member State in which their signal is received.
Similarly, EU broadcasters providing services to customers in the UK will have to secure clearance from all relevant rights holders before broadcasting in the UK, making the clearance process more cumbersome and time-consuming to navigate than is currently the case.
Cross-border portability of online content
Regulation ((EU) 2017/1128), which takes effect this Sunday, 1 April 2018, introduces a common approach in the EU to the cross-border portability of online content services, by ensuring that subscribers to portable online content services which are lawfully provided in their Member State of residence can access and use those services when temporarily present in another Member State.
Post-Brexit, UK residents travelling to the EU will no longer benefit from this Regulation, which means that they will not be able to benefit from their digital content subscriptions when travelling in Europe.
It also means that UK providers of online content services will have to comply with the laws applicable in all Member States where they want to offer services to their subscribers, and clear all relevant rights for those Member States.
Cultural institutions cannot rely upon mutual recognition of orphan works
The mechanism of mutual recognition set out in the Orphan Works Directive (2012/28/EU) allows certain cultural institutions within the EU to digitise and make available online, across all Member States, copyright works that have been recognised by one Member State as constituting orphan works (so works for which one or more of the rights holders is either unknown or cannot be found).
This mechanism will no longer apply between the UK and the EU, which means that cultural institutions using, and making available online, orphan works on reliance of this principle will no longer be permitted to do so. Orphan works recognised in the UK by Brexit date will no longer be recognised in the EU, and vice versa.
No sui generis database right for UK nationals
UK incorporated companies, and UK nationals that do not have their habitual place of residence within the EU, will no longer enjoy the protection of the sui generis database right granted to EU makers of databases pursuant to the Database Directive (96/9/EC ).
Collective management organisations no longer obliged to represent UK counterparts
EU collective management organisations (otherwise known as collecting societies) will no longer be under the obligation set out in Article 30 of the Collective Rights Management Directive (2014/26/EU) to represent UK collective management organisations in relation to the multi-territorial licensing of online rights in musical works; and vice versa.
Accessible format copies for blind, visually impaired or print-disabled persons
Persons who are blind, visually impaired or otherwise print-disabled will no longer be able to rely upon the framework provided by Directive ((EU) 2017/1564) to obtain accessible format copies of copyright works from authorised entities in the EU. Authorised entitles in the EU will also be unable to obtain such copies from their counterparts in the UK.
The international treaty which this Directive sought to implement, the Marrakesh Treaty, forms part of the body of copyright treaties administered by the WIPO, but is not one to which the UK is currently a party.
Practical Law resources
For an extensive range of Practical Law resources on the legal implications of Brexit, see our Brexit landing page, and for IP-specific Brexit materials (including practice notes, recent hot topic articles and current legal updates) see Brexit materials: Intellectual property and life sciences.
For more information on the specific areas of copyright law mentioned in this post, visit Practical Law IP&IT.
