Guest post by William Wortley*
With one year to go until the United Kingdom exits the European Union, the Commission has released a “notice to stakeholders” highlighting that, in the absence of transitional measures, the EU’s copyright acquis will not apply to the UK post-Brexit. While copyright law has not been fully harmonised across the EU, cliff-edge issues such as those contained in the notice have major potential ramifications for both the EU and the UK.
The notice acknowledges that, as signatories to the main international copyright treaties, namely TRIPS and the WIPO Copyright treaties, the UK and EU’s relationship in this field will be governed by these treaties post-Brexit, including the application of the principles of national treatment and most-favoured nation status.
It then goes on to outline areas of law in which the EU has gone further, enhancing the rights of Member States, which will no longer apply after 29 March 2019. Those areas are:
- Broadcasting: Directive 93/83/EEC will no longer apply, meaning that the “country of origin” may no longer be relied on for cross-border satellite broadcasting.
- Collective Rights Management: Collective management organisations will no longer be required to represent one another for multi-territorial licensing, as mandated by Article 30 of Directive 2014/26/EU.
- Orphan Works: Mutual recognition of orphan works, provided for under Directive 2012/28/EU, will no longer apply. A result of this, the use of these works, most notably in digitisation, will no longer be permitted.
- Access to published works for people who are blind, visually impaired or otherwise print-disabled: The exchange of accessible format copies for those persons identified above, or authorised persons acting on behalf of those persons, will no longer be permitted after Brexit. Although the Marrakesh Treaty contains provisions creating such mandatory exceptions, the United Kingdom is not actually a party to the treaty.
- Online Content Portability: The recently enacted Regulation (EU) 2017/1128 enables consumers temporarily present in another Member State to access their domestic streamed content. After Brexit, such access will no longer be possible unless agreement can be reached.
- Sui Generis Database Right: After the withdrawal date, the sui generis database right provided will no longer be available for those United Kingdom nationals who have invested in the creation of a database in the EU, or vice versa.
The recent agreement on a transition period up to 31 December 2020 mean that the cliff edge is not looming as large as it otherwise would be. However, the notice to stakeholders highlights the fact that copyright law appears to be receiving a troubling lack of attention from negotiators.
Of the cliff-edge issues referred to in the notice, only the sui generis database right is explicitly referred to in the text of draft withdrawal agreement that was published on 19 March 2018, Article 54 outlining that database right granted before the end of the transition period will continue to be protected in the UK. This does at least provide for the maintenance of the right, although does not appear to deal with how such rights may be acquired in the future.
As highlighted in the recently-published Alliance for Intellectual Property paper “IP and Brexit: outstanding ‘cliff-edge’ risks”, content portability and broadcasting are in particular need of attention. Theresa May has referenced the “country of origin” principle for broadcasters in her Mansion House speech. However, the lack of inclusion as part of the draft transition agreement does not bode well for organisations seeking to provide cross-border broadcast services. Unless agreement can be reached to maintain the country of origin principle, UK companies with operating cross-border in the EU may need to establish a new EU base to continue benefitting from protection under the directive.
The content portability regulation has proved a huge success with consumers in the UK. The issue has generated a relatively large amount of media attention in the last week. The preservation of the legal fiction that allows travelling users to be treated as if they are in their home country would be beneficial to all parties, and it remains to be seen if portability will form part of the eventual trade deal. However, as with broadcasting, the legal uncertainty is troubling for businesses seeking to provide cross-border services.
The UK government recently underlined the value of the creative industries to the UK economy, totalling around £92bn. It is these industries that will be most affected by failure to address the issues outlined in the notice, and therefore its publication is a timely reminder of the sometimes-overlooked significance of EU copyright law and industry.
*William Wortley is an IP professional based in Munich and London. He holds an LL.M. in Intellectual Property and Competition Law from the Munich Intellectual Property Law Center. William.firstname.lastname@example.org