5 April 2018Copyright

Brexit: important changes if EU copyright law lapses in UK

The UK is at risk of falling out of the EU’s copyright framework, with such a change likely to affect many areas, practitioners have told WIPR.

Last week, March 28, the European Commission announced that, in the absence of a transitional agreement stating otherwise, EU copyright rules will no longer apply in the UK after Brexit.

Although the UK is a contracting party to many copyright agreements, such as the World Intellectual Property Organization’s Copyright Treaty, EU rules provide for certain cross-border measures which have no counterpart in international conventions.

Joseph Fesenmair, IP partner in Bird & Bird’s Munich office, explained that the notice means “as of the day when Brexit comes into force, EU rules in the field of copyright will no longer apply in the UK”. As such there will be “important changes”, particularly for certain industries.

Mario Cistaro, associate in Freshfields’ Rome office, noted that EU legislation in the field of copyright “reflects the need of reducing the clash between national territoriality of copyright and the European dimension of the market”.

Accordingly the Commission’s copyright notice summarised the main rights and benefits in relation to copyright works that the UK will lose once EU legislation no longer applies, Cistaro added.

For example, broadcasters of digital content and stakeholders in licence agreements will be especially affected by Brexit, Fesenmair explained. He said that, post-Brexit, broadcasters may not rely on referring to the UK as the country of origin.

This means the relevant licence agreements will have to be obtained and cleared in order to ensure that those broadcasting from the UK, or from European member states into the UK, do not infringe copyright from the day that Brexit comes into force, according to Fesenmair.

Fesenmair said collective rights management for online rights in music works will also be more complicated, as content owners will need to consider multi-territorial licensing.

Cistaro explained that, in practice, this means that “EU collective management organisations will not be subject to the obligation to represent collective management organisations based in the UK for multi-territorial licensing”.

In addition, after Brexit, those living in the UK will not be able to use their content subscriptions (such as for Netflix) in the EU, Cistaro said. Similarly, UK-based content services will need to obtain the relevant rights in any member state where it offers subscription services.

The week before the copyright announcement, the European Commission and UK government released a draft agreement on the UK’s withdrawal from the union, which confirmed that owners of EU trademarks (EUTMs) and registered Community designs (RCDs) will have their rights protected in the UK post-Brexit.

According to Fesenmair the two notices make the IP implications of Brexit “increasingly clear” although he said that neither should be understood as the final outcome.

Fesenmair explained that the different conclusions indicated in the two notices stem from the different rights they refer to.

Unlike for EUTMs and RCDs, “there is no single Community copyright”. Instead, there are “only specific provisions that apply to copyright that pre-existed and will remain with copyright owners after Brexit”, he said.

Cistaro added that the differences between EU and UK copyright protection will only be “strengthened” after Brexit.

“Copyright will be subject to a very different treatment than other intellectual property subject matters, such as trademarks,” he concluded.

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More on this story

28 March 2018   The EU Commission has announced that, in the absence of a transitional agreement stating otherwise, EU copyright rules will no longer apply in the UK after Brexit.
7 June 2021   New EU copyright rules will start to apply from today, June 7, as member states are now legally obliged to transpose the rules into national law.