European Union commission notice highlights impact of Brexit in the field of copyright

The European Union (EU) commission has recently issued a notice detailing that when the United Kingdom (UK) withdraws from the EU, subject to any transitional arrangement, the EU rules in the field of copyright will no longer apply in the United Kingdom as from 30 March 2019  (‘the withdrawal date’).

The UK and the EU are contracting parties to many of the main international copyright treaties such as the World Intellectual Property Organisation (WIPO) copyright treaty (WCT), the WIPO Performances and Phonograms Treaty (WPPT) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

From 30 March 2019, the above international agreements will govern the protection and enforcement of copyright and related rights between the UK and EU. The EU commission notes that the above multilateral international agreements do not provide the same type or level of protection in relation to certain rights as those that currently exist under EU law. In particular, EU law provides a number of cross border measures for the benefit of rights holders and users within the internal market. The commission highlights a number of specific consequences in the field of copyright and related rights, as discussed below:

UK broadcasters must now secure clearance of rights in all member states

Previous EU directives on the coordination of certain rules and rights related to copyright, applicable to satellite broadcasting and cable retransmission, provided that the act of communication to the public by satellite occurs solely in the member state where the broadcast signals are introduced. This advantageously, localises the copyright relevant acts for the purpose of licensing. As such, broadcasters only have to clear rights in the member state where the signal is introduced.

From the withdrawal date, UK broadcasters will be bound not only by UK copyright law, but also by the copyright laws of every member state in which their signal is received. Similarly, broadcasters in the EU must secure clearance if they wish to broadcast to the United Kingdom. This will inevitably make the clearance of such rights more time-consuming and costly than it is now.

Orphan works

Under the current Orphan Works Directive (2012/28/EU), certain institutions in the EU benefit from a system of mutual recognition of orphan works. These are copyright protected works for which one or more of the rights holders is either unknown or cannot be found. These generally include books, newspapers and articles. The current system allows orphan works to be digitised and made available in all member states once it is recognised as an orphan work in a first member state.

As of the withdrawal date, this mechanism of mutual recognition will no longer apply between the UK and the EU. Consequently, orphan works which have been recognised in the UK by the withdrawal date will no longer be recognised in the EU and vice versa. Importantly, use of orphan works from the UK allowed under the current directive, notably in relation to making them available online, will no longer be allowable for cultural institutions in the EU and vice versa.

Access to published works for persons who are blind, visually impaired or otherwise print-disabled

EU Directive 2017/1564 introduces a mandatory exception for certain permitted uses of works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print disabled. The framework of this directive aims to improve the availability of books, journals, newspapers, magazines and sheet music in formats accessible to those who are visually impaired. As of the withdrawal date, blind, visually impaired or otherwise print-disabled persons in the UK will no longer be able to obtain accessible format copies from authorised entities in the EU and vice versa.

Online content portability

EU Regulation 2017/1128 establishes that the provision of an online content service, as well as access and use of that service to a subscriber, who is temporarily present in a member state, shall be deemed to occur solely in the subscriber’s member state of residence. This ensures that subscribers to portable content services which are lawfully provided in their member state of residence can access and use those services when temporarily present in another member state.

As of the withdrawal date, persons in the UK will no longer benefit from their digital content subscriptions when travelling to the EU. UK providers of online content services will need to comply with the rules of the relevant EU member state or states and clear all relevant rights where they wish to offer services to subscribers.

Sui generis database right

Article 7 of Directive 96/9/EC on the legal protection of databases grants protection, under certain conditions, to the makers of databases in the EU member states (’sui generis database right) from the copying and dissemination of information in computer databases. Under Article 11 of directive 96/9/EC the beneficiaries of protection under the sui generis right is restricted to database makers that are nationals of an EU member state, have their habitual residence in the territory of the EU or are companies formed in accordance with the law of an EU member state and have their registered office, central administration or principal place of business within the EU.

As of the withdrawal date, UK nationals (unless they have their habitual residence in the EU) and companies will no longer be entitled to maintain or obtain sui generis database rights in respect of databases in the EU and vice versa.

Additional comments

This notice from the EU Commission importantly outlines several areas of concern, in the event that some form of agreement is not reached between the EU and the UK in relation to copyright before the withdrawal date. The Government’s White Paper on the Repeal Bill published in March 2017 states that the Bill would preserve the laws that have already implemented in the UK to conform to obligations arising from EU directives. However, as outlined above, there would appear to be gaps between the existing EU copyright laws and the International laws that will take effect in the UK as from 30 March 2019 As a result, the impact on businesses, specifically those which engage in cross-border and multi-territorial licensing activities may be significant. Current proposals seem to advocate a transitional period from 29 March 2019 to 31 December 2020. This will hopefully, provide much needed time to negotiate a more harmonised approach to copyright in the UK and EU.

If you are a business which operates in the UK and EU, which relies on a number of the above listed copyright arrangements, you should carefully consider the issues detailed above. Hopefully, increased clarity will emerge closer to the withdrawal date. Alternatively, the UK government has indicated that the UK and EU negotiating teams aim to finalise the withdrawal agreement by October 2018. This may clarify the situation and confirm whether any transitional arrangements will be implemented.  

If you have any questions, please contact one of our attorneys.


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