05 Nov 2018

Following publication of the 'agreed' text of the draft Withdrawal Agreement (the "Draft Text") between the United Kingdom ("UK") and the remainder of the European Union (the "EU") on 19 March 2018, our intellectual property ("IP") team has produced a suite of briefings on key aspects of the likely implications of Brexit for IP rights and systems across the EU, to inform our clients what changes they will need to consider making to their existing IP strategies and protocols to continue dealing in post-Brexit UK and Europe. The topic of this note is how Brexit will impact copyright.

This note has also been updated following publication by the UK Government on 24 September 2018 of its guidance to businesses, organisations and individuals on the protection of copyright in the event of a ‘No Deal’ Brexit' ("No Deal Guidance"). 

Copyright and the Draft Text

Unlike the US and certain other countries, across the EU (including the UK) copyright, as opposed to design right, is not a registrable right. However, this does not mean that its importance and value should be underestimated. Copyright is the IP right that is often most suited to protect developing technologies, as it is the basis of protection for software (as original code is a literary work protected by copyright) and the software's underlying data in databases.

The effect on copyright on the UK's withdrawal from the EU is likely to be much less complicated than other unitary EU rights such as EU trade marks and Community registered designs. Whilst there are various EU copyright regulations and directives that harmonise the regime across the EU, many of the obligations contained therein reflect obligations of various other international treaties such as the Berne Convention and TRIPS  Agreement. The UK, as signatory to these treaties in its own right, would have to comply with such obligations regardless of its EU membership. Accordingly, it is likely that UK and EU law will, to a large extent, remain harmonised. It is perhaps for this reason that copyright is not expressly dealt with in the Draft Text.

It is expected that the copyright regime will largely continue in the same way across the EU and the UK as it does on the day before Brexit, particularly if the UK joins the European Economic Area ("EEA"), as it will be bound by future EU copyright legislation. However, as the UK will not be bound by CJEU decisions post Brexit, it seems inevitable that there will be some divergence on how the laws are interpreted by the UK courts and the EU courts.

Post Brexit, the UK will have the ability to amend existing legislation introduced solely to comply with EU law and/or that otherwise will no longer make sense. The UK's Prime Minister has confirmed that the UK will be leaving the "Digital Single Market" which is designed to break down digital barriers across the EU. The Digital Single Market includes various EU regulations and directives on copyright. 

Existing EU law and copyright 

The European Union Withdrawal Act 2018 (the "Withdrawal Act") will convert all EU law, in force in the UK at the date of withdrawal, into UK law which means that EU regulations and directives in force at the time of the UK's withdrawal will continue to have effect in the UK, unless amended or repealed. Therefore, subject to provisions to the contrary in the finalised agreement, existing EU regulations and directives affecting copyright law in the UK will continue to have effect post Brexit. 

Adopting and incorporating EU law into UK law is intended to facilitate a smooth transition and reduce the number of amendments and laws that would otherwise be required to "fill the gaps" in UK law. However, the Withdrawal Act can only place obligations on the UK to continue to recognise and apply EU law in the UK but, unless otherwise agreed, the EU will not continue to recognise rights of UK nationals, creating a 'reciprocity gap' – for example, under the Satellite Broadcasting Directive :

Currently, a broadcaster, in the majority of circumstances, need only obtain clearance in the Member State which is the 'place of uplink' and it will be deemed cleared for all of the EU Member States. However, following Brexit, if the UK is the 'place of uplink' it will need clearance in the other EU Member States. However, if an EU Member State is the 'place of uplink' it may still be deemed cleared for the UK.

Potential changes to UK copyright law – post Brexit

In the UK, the law of copyright is set out in the Copyright, Designs and Patents Act 1988 ("CDPA") and some other pieces of secondary legislation. Over the years, to keep aligned to changes in EU law, the CDPA has seen numerous amendments which the UK, following Brexit, may want to revisit. In particular, provisions which:

  • reduced the term of protection for artistic copyright which has been industrially manufactured to 25 years
  • provided an exception to copyright infringement for personal copies for private use. 

were repealed due to incompatibility with EU law. The possibility of such revisions would be dependent on the final terms of the Withdrawal Agreement and whether the UK becomes a member of the EEA and/or the terms of any other trade deal.

Practical tip: As there are unlikely to be any immediate changes to the law of copyright in the UK, businesses should stay alert to the possible changes that the UK may make following Brexit.

How did we arrive at Brexit?

A truly unprecedented process began on 29 March 2017, when the United Kingdom invoked Article 50 of the Treaty for the Functioning of the European Union ("TFEU"), in response to the referendum held in June 2016. 

Never before had a Member State left the European Union. 

Since it joined in January 1973, the UK has operated under the fundamental principle that European laws are supreme and have precedence over, if not direct effect on, national law. Brexit therefore presents, both for the UK and the EU, an enormous legislative challenge in that it is estimated that the accumulated body of European law and rules comprises over 12,000 regulations on top of other forms of legislation.

In few areas will Brexit be more disruptive than for IP rights. There has been considerable harmonisation of IP rights and remedies across the 28 Member States. Moreover, European wide trade mark and design registrations have been created, the first truly multinational unitary property rights. 

Brexit will change all of this. 

At the time of publication, many questions remain about the possible impact of Brexit whether in the sphere of IP or otherwise. Certainly, before the publication of the 'agreed' text of the Draft Text on 19 March 2018, it had not been realistic to provide much by way of constructive advice and detailed guidance. 

Following its release, the IP team of Womble Bond Dickinson analysed the published Draft Text in order to produce this suite of briefing notes on key aspects of the likely implications of Brexit for IP rights and systems across the European Union, to inform our clients on what they will need to consider changing in their existing IP strategies and protocols to continue dealing in post-Brexit UK and Europe. 

It should be noted the Draft Text confirms the intention of the signatories that, although the UK will leave the EU on 29 March 2019, there will be an extensive transition period lasting until 31 December 2020.