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The UK Government’s Guidance on Effects of a “No Deal” Brexit on Copyright

On 24 September 2018 the UK Government published a series of Technical Notices addressing various scenarios in which the UK leaves the European Union without an agreement, the so-called “no deal” or “hard” Brexit scenario. The Technical Notice dealing with copyright is here.

The government has re-emphasised its commitment to seeking a positive deal with the EU ahead of the potential Brexit date of 29 March 2019, but has outlined contingency plans in the event that no deal is reached.

Copyright

The UK is party to the main international treaties on copyright and related rights. Under the rules of these treaties, countries provide copyright protection for works originating in or made by nationals of other countries. These rules underpin the copyright legislation and do not depend on the UK’s membership of the EU. The UK’s continued membership of the main international treaties on copyright will ensure that the scope of protection for copyright works in the UK and for UK works abroad will remain largely unchanged.

Cross-border Copyright Mechanisms

There are a number of EU cross-border copyright mechanisms (set out below) which currently extend only to member states of the EU or EEA but which will be preserved in UK law under the EU Withdrawal Act 2018, meaning that EU-based entities will benefit from the operation of these laws in the UK. On exit, however, the UK will be treated by the EU and EEA as a third country and the reciprocal element of these mechanisms will cease to apply to the UK.

The cross-border copyright mechanisms are:

  • Sui generis database rights (Database Directive 96/9)
  • Portability of online content (Portability Regulation 2017/1128)
  • Country-of-origin principle for copyright clearance in satellite broadcasting (Satellite and Cable Directive 93/83)
  • Orphan works (works without documented owners) copyright exception (Orphan Works Directive 2012/28)
  • Collective management of copyright (Collective Rights Management Directive 2014/26)
  • Cross-border transfer of accessible format copies of copyright works (for the benefit of persons who are blind, visually impaired or otherwise print-disabled) (Marrakesh Directive 2017/1564 and Regulation 2017/1563).

Businesses and stakeholders may wish to seek legal advice on how these changes could affect their business model or intellectual property rights. The Guidance gives some examples.

Please contact your usual J A Kemp adviser if you have any general queries or would like to assess specific implications for your business.

25 September 2018

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