Commission’s notice on Brexit and copyright: Is it as bad as it sounds?

by Hogan Lovells
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On 28 March 2018 the Commission published a Notice to Stakeholders on the Withdrawal of the UK and EU rules in the field of Copyright. The Notice reminds stakeholders that, unless the UK comes to an agreement with the EU, there will be legal repercussions to Brexit.

The Commission Notice says that all EU “primary and secondary law will cease to apply to the United Kingdom from 30 March 2019”. It goes on to point out that, although the UK is a party to many of the main international copyright treaties, including the WCT, WPPT and TRIPS, these treaties do not provide the same level of protection as EU copyright laws nor do they provide any particular cross-border measures for the benefit of rights-holders or users within the EU internal market.

Whilst it is true that the international copyright treaties do not provide the same protection for copyright works, in all areas, as EU law, it is misleading to say that all EU primary and secondary law will cease to apply on the withdrawal date. In fact the UK’s copyright laws will not change on the day of withdrawal. UK copyright has been subject to a number of EU directives aimed at harmonising national copyright regimes across the EU. These directives have been implemented in the UK Copyright, Designs and Patents Act 1988 and other secondary legislation and will form part of the body of law which the UK has decided to retain on Brexit, pursuant to the government’s proposed European Union (Withdrawal) Bill (expected to be enacted around June of 2018).

This means existing protection for UK copyright works (at least at EU prescribed levels, or in some cases higher) will remain. However, since the UK will no longer be part of the European Union, the Commission’s Notice is correct to point out that (unless the EU and the UK come to an agreement) the UK will lose the benefit of any cross-border measures or rules which have been constructed for the benefit of copyright holders and users within the internal market. For example, regimes which simplify rights clearance within the EU or allow mutual use of protected works, such as the ‘orphan works’ regime. In our view, the two main areas of concern are loss of the broadcasting ‘country of origin principle’ and loss of the benefit of the newly introduced rules on portability of online content services.

Broadcasting

Currently, broadcasters benefit from the ‘country of origin’ principle when providing services which reach into other Member States meaning they only have to clear rights in the Member State where the signal is introduced. The Notice points out that, from the date of withdrawal, UK broadcasters will need to clear rights in all Member States where the signal reaches. Similarly, EU broadcasters will have to clear rights separately for broadcast into the UK. The UK government recognises that this is a subject that will need to be negotiated with the EU. UK Prime Minister, Theresa May, said in her speech on the future relationship with the EU, delivered on 2 March, that:

“we recognise that we cannot have exactly the same arrangements with the EU [on broadcasting] as we do now…so we should explore creative options with an open mind, including mutual recognition which would allow for transfrontier broadcasting…”

Online Content Portability

The Online Portability Regulation (EU) 2017/1128 came into force on 1 April 2018 (see our blog on the Regulation here), and introduces obligations on online content service providers to allow for subscribed content services to “travel” with the subscriber throughout the EU. The Notice says that UK subscribers will no longer benefit from the rules, post-Brexit, and if UK service providers continue to allow subscribers to have access to a service whilst travelling they will need to clear the rights for those countries. The Notice is correct to point out that service providers will lose the benefit of being part of this new cross-border regime post-Brexit however the Copyright director of the UK-IPO has in the past indicated that the Government does not want to have to yank back the portability rights of UK residents travelling in Europe post-Brexit. At present, this is the official line from the UK Government (from its 15 March response to the UK consultation on implementing the Portability Regulation):

“The [UK] Government acknowledges the concerns raised by respondents about how portability will function once the UK leaves the EU. We agree that the continued provision of portable content services by UK-based providers will rely on reciprocal arrangements with the EU. The Government welcomes continued engagement with affected stakeholders and will ensure that UK legislation is amended as appropriate to reflect the UK’s future relationship with the EU.”

Conclusion

Many more UK channels than EU channels will be affected by the loss of the ‘country of origin’ principle however both the UK and the EU would benefit from agreeing a set of rules that would allow for EU and UK broadcasters and providers of online content services to continue to provide their services into and out of the UK in the same way post-Brexit, particularly given the interest and popularity of UK channels and online content in Europe. We would therefore expect the UK and the EU to agree a reciprocal arrangement which allows broadcasters and service providers to continue to operate in the same (or similar way) to the way they do under the current rules. The same will also hold true for any rights clearance arrangements for broadcasters implemented under a Regulation currently working its way through the EU institutions, but which is very likely to come into force before Brexit date.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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