The future of UK copyright post-Brexit: what do IP and media lawyers need to know?

The future of UK copyright post-Brexit

Copyright has been far from centre stage in Brexit negotiations, but a recent notice from the EU Commission identifies a number of areas which will be directly affected. What issues are covered in the Commission’s notice, and how should IP and media lawyers (and the UK government) respond?

What’s new?

In March 2018, the European Commission released a notice to stakeholders over EU rules in the field of copyright following the UK’s exit from the EU. The notice specifies that the UK are partners in the main international copyright treaties and will meet the obligations of these agreements.

Why has there been so little coverage of copyright so far in the Brexit negotiations?

Copyright, while heavily harmonised across the EU, remains a national right, largely built on global frameworks so that, compared to many other aspects of Brexit, the implications for copyright are largely confined to those, relatively limited, instances where EU law goes beyond the international norms. In other ways, UK copyright law will remain unchanged, and even where the EU does go beyond international norms, in most instances copyright law in the UK is unlikely to change. For example, under EU law, the copyright term for literary, artistic, dramatic and music works is 70 years post the author’s death. That period will remain in UK law, post-Brexit.

What are the key points highlighted in the Commission’s notice?

The notice highlights six key areas that will be affected by Brexit, which include:

• satellite broadcasts and country of origin
• collective rights management
• orphan works
• access for visually and otherwise print-impaired people
• portability
• database rights

Of these, the database right issues and portability issues are likely to be of greatest practical impact. Of course, there are also new pieces of copyright legislation being considered at EU level, but these are not mentioned in the notice.

What will be the impact of the specified consequences on UK copyright of the first four issues mentioned?

For broadcasters, there are two separate “country of origin” rules derived from the EU. One covers regulatory oversight (under the Audiovisual Media Services Directive) meaning that a broadcaster licensed in one country benefits from freedom of reception and retransmission throughout the EU without any need for individual licences. The second, which is the copyright issue addressed by the Commission notice, means that today, under the EU Satellite and Cable Copyright Directive (Directive 93/83/EC), a direct-to-home satellite broadcast originating in the UK is treated as a communication to the public only in the UK, not needing a copyright licence in any “receiving” territory. Post-Brexit, this broadcast will need to be cleared in each EU country in which it is received, at least where that country treats the mere receipt of a satellite signal as a communication to the public. The Commission notice implies that this will always be the case, but that is not something which is a matter of harmonised EU law. In practice, most rights are cleared for all relevant copyright laws, so this is only likely to change how music rights are cleared from collective management organisations (CMOs) and even in that instance, we may find that the CMOs work together to minimise impact. In any event, broadcasters will be more impacted by the regulatory change which is likely to result in them losing the first ‘country of origin’ benefit – i.e. in respect of regulatory licensing.

The orphan works changes are quite technical but may make it harder for cultural institutions to exploit old archive content across the EU. The changes on collective management are similarly technical and unlikely to have much practical impact.

As for the visually-impaired, UK copyright law has always been progressive in providing exceptions for the disabled and this seems unlikely to change. The point made by the Commission (that the UK is not a signatory to the Marrakesh Treaty) is somewhat petty—the UK is not permitted under EU rules to become a signatory in its own right while still a Member State, but no doubt, the UK authorities will take steps to sign up promptly they have the competence to do so.

All the issues described in fact apply reciprocally—so that broadcasters, cultural institutions and visually-impaired support organisations from the EU-27 face exactly the same challenges in terms of the UK.

Specifically, what will be the impact with respect to online portability?

Under new rules which have just come into force on 1 April 2018, providers of paid-for audio-visual content services are required to enable consumers to access their services while temporarily in other Member States. In practice, this means that UK subscribers can access services such as Sky Go and the BT Sport App, as well as Amazon and Netflix, while abroad for holidays, business, study or otherwise and subscribers in other EU territories can similarly bring their access to the UK. This has been introduced by a Regulation with direct force across the EU, which will cease to apply as at Brexit, or after the transition period, if any. Although the UK government and consumers would like it to continue, that seems unlikely as the legal framework which would be required is almost impossible to put together outside the context of the single market—consumers are deemed to be in their own country and all forms of local law are disapplied, from consumer law to censorship and regulation to copyright law. This is something the UK IPO recognises in their response to the recent consultation on implementation of the Regulation in the UK.

What will be the impact on holders of the sui generis database right?

For businesses, this will be the biggest challenge. The Database Directive gives the sui generis right only to databases "whose makers or rightholders are nationals of a Member State or who have their habitual residence in the territory of the Community” with a similar test for companies requiring them to be based in the EU on an ongoing basis. Therefore, as is emphasised in the Commission’s notice, a database created by a post-Brexit UK national or company will not benefit from protection in the EU27, unless that national or company is resident in the EU. Similarly, while the UK has yet to decide what rights (if any) it will grant to databases created post-Brexit by EU nationals and companies, the UK would be expected to grant no greater protection to EU nationals than its own nationals receive in the EU. The Commission’s Notice indicates that, only in respect of databases existing at the moment of Brexit, they do intend to seek mutual recognition so that continuity of protection will continue. This is consistent with the Commission’s earlier position set out in their September 2017 Position Paper on IP rights (https://ec.europa.eu/commission/sites/beta-political/files/position-paper-intellectual-property-rights_en.pdf The EU Council of Ministers could introduce mutual recognition with the UK post-Brexit, covering “new” databases, but as yet there is no indication that this will be pursued (there is no mutual recognition with any other non-EU country). While case law has somewhat devalued the database right, the loss of protection will be keenly felt in many sectors.

What can IP/media lawyers do to prepare for the withdrawal in the light of the consequences specified?

Broadcast lawyers, already considering the regulatory challenges thrown up by Brexit, must also take account of where they will be required to clear, in particular, music rights. They can either leave their playout in the UK and manage the consequences or consider moving it to somewhere which still benefits from country of origin. Those creating new databases, where the creation will happen (or the investment be made) post-Brexit, should think carefully about where they wish to do so, bearing in mind that they are likely to be able to obtain protection either in the UK or in the EU, but probably not both.

What does the UK government need to do next, in response to the notice?

The UK IPO is already fully across these issues. No doubt behind the scenes they are already preparing for signing and ratifying the Marrakesh Treaty, as well examining options for a post-Brexit database right. Will they continue with one similar to today or will we see a return to more ‘sweat of the brow’ protection as existed in the UK prior to introduction of the EU database right?

The other area they are doubtless considering is the extent to which they should adopt any aspect of the new pending EU copyright legislation (none of which is likely to come into force prior to March 2019, but which might potentially take effect prior to the end of a transition period, should there be one). In particular, there will doubtless be much lobbying about the new obligations on UGC platforms, with rights owners looking for the UK to show leadership in imposing greater responsibility on platform owners.

This article was first published by LexisNexis on the Lexis PSL Service and is reproduced with their kind permission.