Following on from our recent blog here on the European Commission's revised draft withdrawal agreement which covered the protection and enforcement of trade marks, designs and database rights (19 March 2018), the European Commission issued a notice to stakeholders, about 10 days later on 28 March (conveniently just before everybody went off on their Easter holidays!) setting out the impact of Brexit in the field of copyright (which also touched on database rights again).
The notice confirms that subject to any transitional arrangements contained in a withdrawal agreement, as of the withdrawal date (30 March 2019 00.00h), EU rules will no longer apply to the UK. This notice should be read with the caveat that a further deal may (and should) still be struck in this area to assuage some of the complexities highlighted below.
The notice addresses the following points:
The main international (multilateral) copyright treaties will govern the EU-UK copyright relationship
As EU copyright directives and regulations will no longer be applicable after 30 March 2019, the international framework will govern the protection and enforcement of copyright between the UK and the EU. 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 Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the WIPO Performances and Phonograms Treaty (WPPT).
However, these international treaties do not provide for the same level of protection in relation to various rights and related exceptions and limitations. The EU body of law also lays down various special rules, cross-border measures and management of rights for rightsholders or users in the EU, which have no counterpart in the international treaties. This means there will be the following consequences in the copyright arena:
Broadcasters – country of origin principle
The Satellite and Cable Directive (93/83/EEC) aims to make things simpler for service providers wishing to develop cross-border business in the context of satellite broadcasting and cable retransmission. The directive establishes what is known as the 'country of origin principle' which allows broadcasting organisations to broadcast throughout the EU but requiring only one licence from the country of origin of the satellite broadcast and not from all the countries where their signal is received.
As of the withdrawal date, however, in the absence of any other agreement, the UK will no longer be able to benefit from this principle which means that any UK broadcaster will not only be subject to the relevant UK copyright law, but also the copyright law in all those other EU countries where their signal is being received. Likewise, EU broadcasters providing cross-border services to UK customers will have to secure clearance of the rights of all relevant rightsholders in the UK. This will undoubtedly make clearance of such rights much more time-consuming and costly than it is now.
Collective Rights Management (online rights in musical works)
Article 30 of the Collective Rights Management Directive (2014/26/EU) will no longer apply as of the withdrawal date which means that a collective management organisation will no longer be obliged to represent a collective management organisation based in the UK for multi-territorial licensing for the online rights of musical works and vice versa.
Currently, under the Orphan Works Directive (2012/28/EU), certain EU institutions benefit from the mutual recognition of orphan works (books, newspapers and articles for which no copyright holder can be located). This means that there are common rules on the digitisation and online display of orphan works across all member states, so once a work is officially recognised as an orphan work (if a compulsory search has not been able to locate or identify the copyright holder), then that work can be made available online across the EU.
As of the withdrawal date, however, this mutual recognition mechanism will no longer apply between the UK and the EU and so orphan works recognised in the UK will no longer be recognised in the EU and vice versa. Therefore cultural institutions in the EU using orphan works from the UK and making them available online will no longer be able to do so and vice versa.
Access to published works for the blind, visually impaired or otherwise print-disabled persons
Directive (EU) 2017/1564 lays down a framework to improve the availability of books, including e-books, journals, newspapers, magazines and sheet music (online or offline) in formats which are accessible to the blind, visually impaired or otherwise print-disabled persons. Such accessible formats include braille, large print, adapted e-books and audio books. However, post-Brexit, blind, visually impaired or otherwise print-disabled persons in the UK will no longer be able to rely on the Directive to obtain accessible format copies from authorised entities in the EU and vice versa.
Also of relevance is Regulation (EU) 2017/1563 which governs the cross-border exchange of accessible format copies of certain copyright-protected works between the EU and 'third countries' (i.e. a country that is not a member of the EU) that have ratified the Marrakesh Treaty. The UK, however, is not currently a party to the Marrakesh Treaty so cannot rely on this either.
Online content portability
Regulation ((EU) 2017/1128) (which came into effect recently on 1 April 2018) introduced a common approach in the EU to cross border portability of online content services, by ensuring 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. For example, if someone has paid to access a Danish Scandi drama in Denmark, they will also be able to watch it in Belgium.
As of the withdrawal date, however, people in the UK will no longer be able to benefit from their digital content subscriptions when travelling to other EU countries. It will also mean that any UK providers of digital content will need to comply with the laws of the relevant member state where it wishes to offer services to its subscribers and clear all relevant rights for those member states.
Sui generis database right
UK nationals who do not have their habitual residence in the EU and companies/firms incorporated in the UK will no longer enjoy protection for their database rights in respect of databases in the EU. Likewise, nationals of EU member states and companies/firms incorporated in the EU will no longer enjoy protection for their databases in the UK.
This must also be read in conjunction with the provision (agreed in principle) in the European Commission's revised draft withdrawal agreement which states that where a database right has arisen before the end of the transition period, the UK will continue to benefit from a right with the 'same level of protection' as the EU database right after the transition period (Article 54).
Whilst this document highlights some areas of concern that stakeholders need be aware of in terms of copyright, it is a brief document and does not indicate how they can, or will be addressed. It simply indicates what will happen if some kind of agreement is not reached. It seems that the impact of Brexit on copyright is not getting the same level of attention as some of the other IP rights which could be incredibly detrimental to the creative industries. On a general level, the Government's White Paper on the Repeal Bill published at the end of March 2017 stated that the Repeal Bill would preserve the laws that have already been made in the UK to implement EU obligations from EU Directives. Even with that mechanism, however, there will still be gaps in copyright law and where the international copyright treaties cannot bridge those gaps, the impact on businesses, particularly those engaging in cross-border and multi-territorial licensing activities, will be huge. We have to hope that behind the scenes, steps are being taken to rectify these gaps.
The UK Government has indicated that the UK and EU negotiating teams aim to finalise the entire withdrawal agreement by October 2018 which will confirm any transitional arrangements. If the current proposals for a transitional period from 29 March 2019 to 31 December 2020 are set in stone, this should, at least, buy the relevant law makers and any interested parties lobbying extra time to consider and negotiate a more harmonised approach for copyright in the UK and EU.
We will be sure to update you when we have any further information or clarification.