October 1, 2018

On 24 September 2018, the Government published a series of Technical Notices covering various aspects of intellectual property, including copyright.

The UK and other EU Member states are all party to the main international treaties on copyright and related rights. The rules underpin copyright legislation across the world including the EU, and do not depend on the UK’s membership of the EU.

On the point of exit from the EU, the Government says that the UK’s continued membership of the main international treaties on copyright will ensure that the scope of protection for copyright works in the UK and for UK works abroad will remain “largely” unchanged.

However, in relation to the body of EU law covering copyright and related rights, which goes beyond the provisions of the international treaties and includes several cross-border copyright mechanisms unique to the EU, the UK will be treated by the EU and EEA as a third country and the reciprocal element of the mechanisms will cease to apply to the UK.

The Government says that these EU Directives and Regulations will be preserved in UK law as retained EU law under the powers in the EU Withdrawal Act 2018, and that it will make adjustments under the powers of the Act to “ensure the retained law can operate effectively”. As a third country, however, if there is a no deal, the UK will face the following issues:

• sui generis database rights under the Database Directive (Directive 96/9/EC): there will be no obligation for EEA states to provide database rights to UK nationals, residents, and businesses. UK owners of UK database rights may find that their rights are unenforceable in the EEA;
• portability of online content services under the Portability Regulation (2017/1128/EU): the Portability Regulation will cease to apply to UK nationals when they travel to the EU. This means that online content service providers will not be required or able to offer cross-border access to UK consumers under the Regulation;
• the country-of-origin principle for copyright clearance in satellite broadcasting under the Satellite and Cable Directive (93/83/EEC): 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 into which they broadcast;
• the orphan works (works without documented owners) copyright exception under the Orphan Works Directive (2012/28/EU): UK-based cultural heritage Institutions that make works available online in the EEA under the exception may be infringing copyright;
• the collective management of copyright under the Collective Rights Management Directive (2014/26/EU): UK Collective Management Organisations (CMOs) will not be able to mandate EEA CMOs to provide multi-territorial licensing of online rights in their musical works if they require that service; and
• the cross-border transfer of accessible format copies of copyright works under the Marrakesh Directive (2017/1564/EU) and associated Regulation (2017/1563/EU): the EU is due to ratify the Marrakesh Treaty shortly, and the UK’s Copyright and Related Rights (Marrakesh Treaty etc) (Amendment) Regulations 2018, which implement the Marrakesh Directive, are due to come into force on 11 October 2018. The EU’s associated Regulation, which governs the status of cross-border exchanges of accessible copies of works between EU Member States and countries outside the EU that are signatories to the Marrakesh Treaty, will apply (with direct effect) in the UK from 12 October 2018. However, although the UK intends to ratify the Marrakesh Treaty after exit, ratification will not have taken place before 29 March 2019. Therefore, between the point of exit in March 2019, and the point of ratification, businesses, organisations or individuals transferring accessible format copies between the EU and UK may not be able to rely on the EU Regulation.

As for solutions to these issues, the Government is advising that businesses and other interested parties seek legal advice on how these arrangements could affect their business model or IP rights, for example:

• sui generis database rights: UK owners may want to consider relying on other forms of protection (e.g. restrictive licensing agreements or copyright where applicable) for their databases;
• portability of online content services: UK consumers may see restrictions to their online content services when they temporarily visit the EU;
• country-of-origin principle for copyright clearance in satellite broadcasting: broadcasters should consider whether they need to seek additional copyright permissions in each Member State;
• orphan works copyright exception: institutions that currently use the exception should consider whether they need to remove works from their websites or limit access to content on a geographical location basis in the EEA;
• collective management of copyright: UK CMOs that currently rely on this right may want to consider seeking to continue existing arrangements with EEA CMOs via new contractual arrangements; and
• cross-border transfer of accessible format copies of copyright works: businesses, organisations or individuals transferring accessible format copies between the EU and the UK should consider whether they need to seek the permission of the relevant right holders or cease the cross-border transfer of accessible copies.

In order to prepare the UK’s statute book for its exit from the EU the UK Government will also be passing technical changes by way of statutory legislation in Parliament over the coming months, using powers under the EU Withdrawal Act 2018. The Government says that it will be publishing detailed guidance alongside any legislative changes and will “work closely with business representatives, trade associations and stakeholders on the implications”. To read the Technical Notice in full, click here.