Copyright if there’s no Brexit deal

October 4, 2018

The Government has produced a technical notice on “Copyright if there’s no Brexit deal” setting out what this will mean for “cross-border copyright”.  The notice is one of a series issued by the Government explaining what businesses should do to prepare for what it insists is the “unlikely” event that the UK leaves the EU in March 2019 without a deal.

The notice explains 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.  Under the rules of these treaties, countries provide copyright protection for works originating in or made by nationals of other countries.  These rules underpin the copyright legislation in all Member States of the EU and do not depend on the UK’s membership of the EU.  However, since there are a number of EU cross-border copyright mechanisms which extend only to member states of the EU or EEA, a no deal Brexit will mean that the UK will be treated by the EU and EEA as a third country, and the reciprocal element of these mechanisms will cease to apply to the UK.  The EU Directives and Regulations on copyright and related rights will nevertheless be preserved in UK law as retained EU law under the powers in the EU Withdrawal Act 2018.  The Government says it will make adjustments under the powers of the Act to ensure the retained law can operate effectively.

If there is “no deal”

In relation to the EU cross-border mechanisms, the Government’s guidance considers the implications of a “no deal” scenario and the actions businesses may wish to take.

Database rights

Under the Database Directive (96/9/EC) nationals, residents, and businesses of EEA member states are eligible for database rights in all EEA member states. These rights are unique to the EEA and do not arise in relation to databases created or owned by non-EEA citizens, residents, or businesses.  In a no deal scenario there will be no obligation for EEA states to provide database rights to UK database owners who may therefore find that their database rights are unenforceable in the EEA.  The Government suggests that 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 service

The Portability Regulation (2017/1128/EU) allows consumers to access their online content services when they are temporarily in an EU member state other than their home state.  On a no deal Brexit the Regulation will cease to apply to UK nationals when they travel to the EU.  This means online content service providers will not be required or able to offer cross-border access to UK consumers under the EU Regulation.  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

Under the Satellite and Cable Directive (93/83/EEC) a satellite broadcaster can broadcast a work protected by copyright into any EEA member state after having cleared the copyright requirements for the member state in which the broadcast originates.  If there is no deal, 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.  Broadcasters should also consider whether they need to seek additional copyright permissions.

Orphan works copyright exception

The Orphan Works Directive (2012/28/EU) currently allows cultural heritage institutions established in the EEA to digitise orphan works in their collection and make them available online across the EEA without the permission of the right holder.  UK-based cultural heritage institutions that make works available online in the EEA under the exception may be infringing copyright if we leave without a deal.  They might therefore need to remove works from their websites or limit access to content on a geographical location basis in the EEA.

Collective management of copyright

The Collective Rights Management Directive (2014/26/EU) requires EEA Collective Management Organisations (CMOs) that offer multi-territorial licensing of online rights of musical works to represent on request the catalogues of EEA CMOs that do not offer such licences.  On a no deal Brexit, UK CMOs will not be able to mandate EEA CMOs to provide multi-territorial licensing of the online rights in their musical works.  UK CMOs may therefore want to consider seeking to continue existing arrangements with EEA CMOs via new contractual arrangements.

Cross-border transfer of accessible format copies of copyright works

The Marrakesh Directive (2017/1564/EU) and Regulation (2017/1563/EU) implement the Marrakesh VIP Treaty (previously the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled) in EU law and allow the cross-border transfer of accessible format copies of copyright works between EU member states and with other countries that have ratified the Treaty.  The UK intends to ratify the Marrakesh Treaty after Brexit but ratification will not have taken place before 29 March 2019.  Between a no deal Brexit and the point of ratification, businesses, organisations or individuals transferring accessible format copies between the EU and UK will not be able to rely on the EU Regulation.  They should therefore consider whether they need to seek the permission of the relevant right holders or cease the cross-border transfer of accessible copies.

Comment

The focus of the Government’s guidance is on the possibility that, on Brexit, current EU cross-border copyright mechanisms will no longer apply to the UK.  The Government’s position, as expressed in the IPO’s guidance on IP and Brexit, updated on 25 September, is otherwise that thanks to the UK’s membership of a number of international treaties and agreements protecting copyright (such as the WIPO treaties, the Rome Convention, the Berne Convention and TRIPs), the majority of UK copyright works are and will continue to be protected around the world including in the EU.  It is also not necessarily the case that a hard Brexit will mean a lack of co-operation between the UK and the EU in relation to IP rights.  There nevertheless remains considerable uncertainty in the short term and while there is the a possibility that talks will be continued and the two-year transition period extended, organisations should be giving serious thought to how to deal with the regulatory uncertainties that currently face UK media companies and rights holders with EU interests.

For further information, please contact Euan Lawson, Managing Partner, Simkins LLP.