Lawyers react to second round of Brexit ‘no deal’ guidance
The UK government released another series of papers providing guidance on a “no deal” Brexit yesterday. WIPR spoke to IP lawyers to find out more.
The publications, which were released by the UK government yesterday, cover the impact of a no-deal Brexit on a range of topics including: broadcasting and video on demand; handling civil legal cases that involve EU countries; data protection; what telecoms businesses should do if there is a no-deal scenario; and trading under the mutual recognition principle.
Last month, WIPR spoke to lawyers about the first batch of papers, in which the UK said it would unilaterally adopt EU/European Economic Area principles of exhaustion of rights as a short-term measure in a no deal scenario.
Potential headaches
Currently, under the audiovisual media services directive (AVMSD), “audiovisual media service providers” are only subject to the jurisdiction of one EU country. This means that providers are only subject to one set of rules and regulation from their ‘country of origin’. In the UK, a broadcasting licence issued by Ofcom (the UK's regulatory and competition authority for broadcasting) is valid across the whole of the EU.
However, if the UK and EU fail to reach a deal, the UK will be classified as a “third country” and the directive will no longer apply to UK services that are broadcast into the EU.
Nick White, partner at Charles Russell Speechlys, told WIPR that if this happens, it could create a hindrance for UK-based broadcasters.
“If there is no deal, most UK broadcasters that are currently also broadcasting into the EU will need a licence from another EU country, most likely from Luxembourg or France which control most of the EU27 satellite capacity,” he explained.
White added that these countries will have specific licensing requirements that will differ from the UK’s requirements.
“While this is not really ‘new news’ for broadcasters, it’s certainly a significant headache,” he concluded.
Helen Scott-Lawler, partner at Burges Salmon, explained to WIPR that although the new papers do not directly address what will happen to registered IP rights in a no-deal scenario, many of the papers are still relevant for IP owners.
Scott-Lawler cited the paper which addresses issues arising from civil cases that involve the UK and the EU. The paper clarifies that the UK will re-join the Hague Convention if there is a no-deal Brexit, although the UK may not benefit from some EU rules.
For example, the UK would not benefit from the regulation which provides rules to decide where a case should be heard when it raises cross-border issues between the UK and other EU countries.
“This is going to be very relevant for IP owners who have proceedings with EU elements, and they will want to look closely at the possible impact as part of their scenario planning for Brexit,” she said.
With just over six months to go until the UK leaves the EU, IP owners will be looking for guidance as part of their planning for Brexit, which will include a no-deal scenario, added Scott-Lawler.
While these new papers provide guidance in the event of a no-deal, many questions remain unanswered.
Robert Watson, partner and European patent attorney at Mewburn Ellis, added that although the Draft Withdrawal Agreement between the UK and EU is mostly agreed, there is still a lot of uncertainty for IP rights owners.
He commented that the agreement needs to be completely finalised before it can take effect—with a key element being the proposed transition period which would provide continuity of EU-based rights until the end of 2020.
“In the event of a no-deal, March 23, 2019 will be the date on which EU IP rights cease to cover the UK, and the creation of ‘daughter’ rights in the UK would need to happen,” he said.
Watson concluded: “We expect to see the publication of a paper confirming this understanding in due course, including some detail on how to reapply for pending applications for EU rights."
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