UK copyright in a no-deal Brexit scenario: what will happen?

A few months ago, this blog reported that the EU Commission had issued a Notice to stakeholders on the impact that a no-deal Brexit would have on UK copyright. 

At that time, UK's withdrawal from the EU without any agreement in place must have seen impossible: if one looks at the comments to the relevant post, a reader who called themselves a 'Broptimist' stated that the EU Commission's document did relate "to a worst-case scenario, and one that is highly unlikely to come to pass".

As things stand now, however, the level of likelihood of such a scenario has increased ... Today UK Government has issued a number of technical notices relating to:

• Exhaustion of intellectual property rights if there’s no Brexit deal
• Patents if there’s no Brexit deal
• Trade marks and designs if there’s no Brexit deal
• Copyright if there’s no Brexit deal

The IPKat will analyze these documents and revert, but this evening my attention could not but go to the copyright notice. Unsurprisingly, if one looks at it, the content is not substantially different from what the Commission had stated ...

What we knew already

The Notice begins by stating that the UK and the other EU Member States are party to the main copyright instruments, including the Berne Convention. This means that the principle of 'national treatment' and the other (de minimis) obligations contained therein will continue to apply even after the UK's exit from the EU. So, works originating in one of the Berne Union countries will be given the same protection in each of the other countries as the latter grants to the works of its own nationals.

Also:

• Until Brexit day nothing changes as regards the value and supremacy of EU law over UK law. This means that EU regulations, including the recent Portability and Marrakesh Regulations, will continue to have direct effect at least until then.
• UK legislative provisions adopted to implement EU copyright directives into UK law will continue - by default - to apply as they are domestic law. This likely means that the EU directives from which they derive will continue to matter to the UK, and so will the interpretation of provisions in relevant directives as provided by the Court of Justice of the European Union (CJEU) [if you are interested in this, I discuss it more at length here].

However, section 6 of the European Union (Withdrawal) Act 2018 states that, following the departure of the UK from the EU, a court or tribunal in that country would not be bound by any principles laid down, or any decisions made, on or after exit day by the CJEU, and would not be able to refer any matter to the CJEU on or after exit day. As regards CJEU decisions issued after exit day, a court or tribunal would need not to have regard to anything done on or after exit day by the CJEU, another EU entity or the EU, but "may do so if it considers it appropriate to do so".

Britons travelling abroad might lose the (human)
right not to miss a single episode of Love Island ...

In addition, any question concerning the validity, meaning or effect of any retained EU law (this would also apply to copyright provisions adopted in light of EU obligations) would need to be decided, so far as that law is unmodified on or after exit day and so far as they are relevant to it in accordance with any retained case law and any retained general principles of EU law, and having regard (among other things) to the limits, immediately before exit day, of EU competences. 

The UK Supreme Court would not be bound by any retained CJEU case law, nor would the High Court of Justiciary in certain scenarios or when no court or tribunal would be bound by any retained domestic case law that it would not have otherwise been bound by. In any case, in deciding whether to depart from any retained CJEU case law, the Supreme Court or the High Court of Justiciary would need to apply the same test as it would apply in deciding whether to depart from its own case law.

EU cross-border mechanisms

This said, the most evident effects of a no-deal Brexit would be on EU regulations (that would cease applying directly; but see also below) and the cross-border mechanisms envisaged by EU law and applicable to EU/EEA countries. This is because, by leaving the EU and the EEA, the UK would become akin to a third country.

This said, section 7 of the Withdrawal Act clarifies that EU law that has the status of 'direct principal EU legislation' by default would be considered retained EU law. As explained by the UK Government Notice, this means that "Directives and Regulations on copyright and related rights will be preserved in UK law as retained EU law under the powers in the EU Withdrawal Act 2018. The government will make adjustments under the powers of the Act to ensure the retained law can operate effectively."

... making some deeply unhappy

However, things would change substantially in respect of EU cross-border mechanisms envisaged in EU instruments. That would be so in respect of:

• Sui generis database rights. There will be no obligation for EEA states to provide database rights to UK nationals, residents, and businesses. UK owners of UK database rights may find that their rights are unenforceable in the EEA.
• Portability of online content service. The Portability Regulation will cease to apply to UK nationals when they travel to the EU. This means online content service providers will not be required or able to offer cross-border access to UK consumers under the EU Regulation. UK consumers may see restrictions to their online content services when they temporarily visit the EU.
• Country-of-origin principle for copyright clearance in satellite broadcasting. UK-based satellite broadcasters that currently rely on the country-of-origin copyright clearance rule when broadcasting into the EEA may need to clear copyright in each member state to which they broadcast.
• Orphan works copyright exception. UK-based Cultural Heritage Institutions that make works available online in the EEA under the exception may be infringing copyright.
• Collective management of copyright. UK Collective Management Organisations will not be able to mandate EEA Collective Management Organisations to provide multi-territorial licensing of the online rights in their musical works.
• Cross-border transfer of accessible format copies of copyright works. The UK intends to ratify the Marrakesh Treaty after exit but ratification will not have taken place before 29 March 2019. Between exit and the point of ratification, businesses, organisations or individuals transferring accessible format copies between the EU and UK may not be able to rely on the EU Regulation.

Watch this space for further analysis of the IP implications of a no-deal Brexit.