At the end of March 2018, the EU Commission issued a report on the impact of Brexit on UK copyright. It pointed out that once Brexit occurs on March 30 2019, all EU "primary and secondary law will cease to apply in the United Kingdom" including that on copyright.
While most of the UK's copyright legislation is derived from EU directives, this scenario likely won't change the law dramatically. According to Graham Burnett-Hall, partner at Marks & Clerk, the Commission's report is perhaps alarmist because it only accounts for a no-deal Brexit scenario, and it assumes that the UK will make a deliberate effort to repeal or not continue EU-derived copyright law.
"Although the legislation derives from EU directives, it is still primarily UK legislation, which will stay in force after Brexit and the transitional period," he says. "To say the UK will go over the cliff on Brexit in terms of copyright is legalistic. Yes, strictly speaking EU law will cease to apply post-Brexit, but that doesn't mean the law will dramatically change."
But that doesn't mean there won't be any copyright repercussions after Brexit. The report points out that though the UK is signed up to the main international copyright treaties, such as the WCT, WPPT and TRIPS, these don't provide the same level of cross-border protection.
"Cross-border issues have been flagged up because they require a degree of reciprocity between member states," Alastair Shaw, counsel at Hogan Lovells in London, tells Managing IP. "When the UK is no longer a member state, however, that reciprocity enshrined into EU law, usually through regulation, will fall away."
What will it affect?
One of the main cross-border copyright rules Brexit may affect is online content portability. The Online Portability Regulation, which came into force on April 1 2018, enables consumers to access subscription content, such as Netflix, throughout the EU. But the EU's report says UK citizens will no longer benefit from this after Brexit.
"Rights holders broadly weren't particularly keen on portability when it was proposed because, the argument went, it would drive a wedge through national licensing and thus prevent filmmakers from raising funds for films that were of interest to particular regions," Shaw at Hogan Lovells tells Managing IP.
"But, as I'm sure right holders would agree, portability is good for consumers and there will be pressure in the negotiations not to have those rights yanked away from UK tourists in the EU or vice versa."
Sally Shorthose, partner at Bird & Bird, agrees with Shaw, and adds: "Portability creates a level playing field. You know what you own, what your rights are and that you have the same rights in one jurisdiction as another. It makes things more streamlined and takes the snags out or commerce - which appeals to businesses for obvious reasons."
Another issue that Brexit will affect is the country of origin principle. UK broadcasters currently only have to clear rights in the member state where a signal is introduced. After March 30 2019, they will supposedly need to clear rights in all member states the signal reaches.
Shorthose says that should that be the case, the loss of that benefit could severely disadvantage UK media businesses.
But, of course, whether these rights are lost or not will depend on what comes out of the negotiations. "It seems likely that the UK will negotiate to keep the rights because broadcast and film is very important to the UK and to consumers and businesses," says Shaw.
Shorthose adds: "My fear is we are running out of time. The Northern Irish issue has taken a big backwards step and it seems increasingly likely that there won't be any agreement around things like portability.
A more optimistic person, however, might argue that this will all be sorted in the last month. Broadcasting and portability are areas where there are benefits both for the UK and EU to come to an understanding."
Brexit might also affect the UK's adoption of the new EU copyright directive being discussed by the EU Parliament. According to the parliament's website: "the objective of the directive on copyright in the digital single market is to adapt EU copyright rules in a context where digital technologies are rapidly changing the way works and other protected subject matter are created, produced, distributed and exploited."
According to Eleonora Rosati, associate professor of IP law at the University of Southampton, the new rules will likely be adopted in late 2018 and member states given an additional two years to implement the changes. It's uncertain, given that it will have left the EU during the implementation phase though possibly in a Brexit transitional period, whether it will be incorporated into UK law.
The future of copyright
Another uncertainty around copyright after Brexit is whether UK legislation will diverge from that of the EU. This will, again, depend on negotiations. If the UK stays in the single market, for instance, it would likely continue to take on EU developments in copyright legislation.
"Of course if the UK is not bound by EU legislation in the future and is outside the EEC there would be greater room for divergence between the EU and UK copyright system," Rosati at Southampton University tells Managing IP.
Burnett-Hall at Marks & Clerk agrees, and adds: "We recently saw the repeal of the part of our Copyright, Designs and Patents Act that shortened the copyright term once the copyright had been industrially exploited. That provision didn't comply with EU law, but the UK could potentially reverse this after Brexit if it wished."
He adds that it will also be interesting to see how the two system diverge in terms of technology use and how they will respond to the evolution of new systems.
"If we are looking outside to the rest of the world and less to the EU when it comes to copyright, we might find that we want to differentiate ourselves," says Shorthose at Bird & Bird. "For example, the definition of fair use has been reduced over time and maybe we will be able to expand it."
