No deal Brexit and Copyright – Part 1: Broadcasting and online content services

Hogan Lovells

On 26 October 2018, the UK government published a draft version of a statutory instrument (Copyright SI) and explanatory note together with guidance issued by the UK Intellectual Property Office (IPO) which explain the changes which will be made to UK copyright law in the event of a ‘no deal’ Brexit. The purpose of the Copyright SI is to correct any deficiencies in the UK Copyright, Designs and Patents Act 1988 (CDPA) arising as a result of Brexit and to manage the impact of a ‘no deal’ Brexit on any cross-border copyright mechanisms (such as the ‘country of origin’ principle for clearing copyright works in satellite broadcasts). The government’s approach is to preserve the status quo where possible and give continued effect to cross-border mechanisms (even where there is no guarantee of reciprocity from the EU). Unless the UK and the EU reach a deal on these issues (these issues not being covered by the draft Withdrawal Agreement published on 14 November) the Copyright SI will come into force on exit day.

Unilateral application of the “country of origin” principle for satellite broadcasting

The Satellite and Cable Directive (“SatCab Directive”) introduced the “country of origin” principle to satellite broadcasts transmitted within the EEA. This means satellite broadcasters only have to clear rights in the Member State where the signal is introduced into an uninterrupted chain of communication (including the chain leading to the satellite and down to earth). The UK currently applies the “country of origin” principle to all broadcasts originating outside the UK, whether from the EEA or otherwise, subject to an exception set out in Section 6A of the CDPA. Under Section 6A CDPA, rights must be cleared in the UK if the broadcast originated in a non-EEA country which has lower protection for copyright works and the broadcast has been commissioned or uplinked in the EEA. The rationale for this is that it prevents EEA-based broadcasters from circumventing the level of copyright protection in the EEA by commissioning a broadcast from a country with weaker copyright protection.

The effect of the government’s proposed amendments to the CDPA is that the UK will continue to apply the country of origin principle – on a unilateral basis – to broadcasts from any country outside the UK. (There is an exception for broadcasts originating from countries outside the UK which have a lower protection for copyright and which have been commissioned or uplinked in the UK). This will provide continuity for EEA broadcasters transmitting into the UK. However, unless the EU agrees otherwise, post-Brexit, there will no longer be any reciprocity in relation to broadcasts from the UK into EEA Member States and it will be up to Member States to decide whether to treat those broadcasts as infringing or not.

Unilateral application of the Cable Retransmission Right

Under the SatCab Directive, Member States must ensure that the right of underlying copyright holders in a satellite broadcast to grant or refuse permission to a cable operator to retransmit the broadcast within the EEA, may only be exercised through a collecting society (the cable retransmission right). The rationale for the right is to simplify the clearance process for cable operators, who would otherwise have to negotiate multiple licences with rights-holders.

The effect of the government’s proposed amendment is that the UK will maintain the rule that where a broadcast from an EEA state is retransmitted by cable in the UK, any underlying rights-holders must exercise their right to grant or refuse permission via collecting society. Unless the EU agrees otherwise, any retransmission of a UK originating broadcast in an EEA Member State will be subject to the rules of each EEA Member State on retransmissions from third countries. Individual licences may need to be negotiated between rights-holders and cable operators.

Portability of online content services

The EU Portability Regulation enables the portability of online content services across the EU, allowing EU consumers to access their online content services while temporarily in another EU Member State). The Copyright SI revokes both the Portability Regulation and the Portability of Online Content Services Regulations 2018, which implemented the EU Portability Regulation into UK law. The legal mechanism for the ‘revocation’ of the Regulation is not to preserve it as retained EU law, post-Brexit. The effect of these revocations is that neither UK nor EU nationals will be able to “port” their online content services across the EU/UK border, unless each such service makes all the necessary right clearance arrangements in the UK (in the case of EU- based services) and across the EU (in the case of UK-based services).

Watch this space for Part 2 of this series

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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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