IP Cases & Articles

No Deal Brexit Government advice: copyright

The impact of a No Deal Brexit on copyright – UK Government advice released on 24 September 2018.

As part of the UK Government’s preparations for a possible “hard Brexit”, it has published a set of guidance notes on how intellectual property rights would be affected if the UK leaves the EU in March 2019 with no deal. This is part of a series of technical notices being issued by the UK Government to assist businesses in their preparations, although it is widely anticipated that an agreement between the UK and EU will still be possible.

Updated 08 November 2018

First published on 25 September 2018, this article has been updated and republished 08 November 2018 following further advice from the UK Government issued 26 October 2018.

UK Government advice 26 October 2018

With regard to copyright, the government explains that, as a result of the UK’s membership of the main international treaties on copyright (which will not be affected by Brexit), the scope of protection will remain largely unchanged. Further, the EU Regulations and Directives on copyright and related rights will be ‘ported’ into UK law under the EU Withdrawal Act 2018. It explains, therefore, that the immediate issue will primarily be one of reciprocity of those EU Regulations and Directives.

It identifies, among others, the following issues:

Sui generis database rights

Currently, businesses in European Economic Area (EEA) member states (such as the UK) are eligible for database rights in each member state (broadly, these rights do not arise in relation to databases created by non-EEA businesses).

On the UK’s departure from the EEA, database rights currently in existence will continue to exist in the UK but only UK citizens, residents and businesses will be eligible for new database rights. Similarly EEA member states will be under no obligation to recognise existing or grant new database rights to UK businesses in those member states. In light of this the UK government recommends reviewing existing licensing arrangements and, where possible, imposing licensing terms which mitigate this potential loss of rights.

Portability of online content service

At present, UK consumers can access their online content services (for example, Netflix) when they temporarily travel to another EU member state. The same is true for EU customers temporarily visiting the UK. Int he event of a no deal Brexit, portability of online content services between the UK and EU will cease when the UK leaves the EU. Consequently UK customers visiting the EU and EU customers visiting the UK may see restrictions to the content ordinarily available to them when in their home state.

Country-of-origin principle for copyright clearance in satellite broadcasting

Currently, if a satellite broadcaster clears the copyright requirements in its ‘home’ member state it can broadcast into any other EEA member state. This will cease to apply to broadcasts from the UK and 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 to which they broadcast. The UK will continue to apply the country-of-origin principle to broadcasts from any country. Wider issues regarding broadcasting and video on demand are addressed in the UK government’s specific guidance on this issue.

Orphan works

At present, cultural heritage institutions established in a member state of the EEA are entitled to digitise orphan works in their collection and make them available online across the EEA without the permission of the right holder. The government explains that UK-based cultural heritage institutions that continue to do this may be infringing copyright.

Therefore, except for those in specialised industries (such as broadcasting) or with specific copyright portfolios (such as those with database rights), businesses are unlikely to be significantly affected, at least immediately, by a ‘no deal’ Brexit.

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