Copyright and a crash out Brexit
UK Government Publishes Update
06 November 2018
On 31 October the UK government published additional guidance explaining in greater detail the changes that the government will make to UK copyright in the event of a no-deal Brexit. These changes are all in specific areas identified as relying on reciprocity with other EU/EEA member states. This guidance supplements various technical notes published on 24 September and is summarised below.
Portability of online content
The UK government intend to repeal the Portability Regulation from the body of retained EU law, meaning that portability of online content services between the UK and EU will cease. Online content service providers in the UK will no longer be able to offer cross-border portability for customers temporarily travelling to or from the UK. UK customers may see restrictions to the content available to them when travelling in the EU.
Sui generis database rights
Sui generis database rights give the owners of databases rights ability to restrict how users extract data from their databases. On a crash out Brexit, UK database makers risk losing database rights elsewhere in the EEA. UK legislation will be amended so that, looking forward, only UK citizens, residents and businesses will be eligible for database rights in the UK. Existing rights will be preserved.
Copyright clearance in satellite broadcasting
The current 'country of origin' principle allows satellite broadcasters to transmit work from one EEA member state to another by getting consent only from the copyright holder for the state in which the broadcast originates. In a no-deal Brexit, UK broadcasters may need permission from the right holder for every country in which the broadcast is received. The UK will continue to apply the country of origin principle for satellite broadcasts of copyright works transmitted into the UK.
Collective rights management
In the event of a no-deal Brexit, UK right holders and UK Collective Management Organisations (CMOs) will still be able to request representation by EEA CMOs, however these CMOs will no longer be required to represent them or their catalogues. Existing obligations on UK CMOs will remain in force. In particular, UK CMOs that offer multi-territorial licensing will be required to represent on request the catalogue of other UK and EEA CMOs for multi-territorial licensing purposes.
Mutual recognition of orphan works
At present, cultural heritage institutions (CHIs) in the EEA are entitled to digitise orphan works and make them available online across EEA member states without infringing copyright. On a no-deal Brexit this exception will no longer extend to CHIs in the UK, who will need to remove works that they have placed online to avoid infringing relevant copyright. CHIs wishing to maintain online collections with the UK may be able to do so via the UK's domestic orphan work licensing scheme. The requirement to consult the EUIPO orphan works database as part of diligent search will be removed.
The Marrakesh Treaty is an international treaty that allows the making, distribution and transfer of accessible format copies of copyright works between Treaty countries. The Regulation that implements this Treaty will remain in force in the UK. However, as the UK is a party to the Treaty through the EU, the UK will seek to ratify the Treaty in its own right after exit. Until this has taken place, other countries including EU member states may choose to prevent provision or receipt of accessible format copies of copyright works from or to the UK.
Artists' resale rights
Mandatory protection for nationals of all EEA member states will be removed. Resale rights will be conducted on continued reciprocity.
The requirement that copyright holders can only exercise their rights through a CMO will be amended to reflect the UK's position outside of the EU. Copyright holders whose works are broadcast from the UK may be able to, or need to, negotiate directly with cable operators.
Copyright duration / qualification
UK legislation will be amended to remove preferential treatment for EEA works as compared to works from other countries. The same will apply for qualification for protection.
In both cases, this should have no practical effect in the near future given existing rules / treaty adherence.
For more information, the full publication can be found at: https://www.gov.uk/government/publications/changes-to-copyright-law-in-the-event-of-no-deal/changes-to-copyright-law-in-the-event-of-no-deal
This article was co-written by Nicole Kidney, Trainee Solicitor