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Farrer & Co | Copying in the event of a no-deal Brexit

As part of its series of technical notes regarding the implications of a “no-deal” Brexit on various aspects of the UK economy (see our note regarding trade marks and designs in a no-deal Brexit here), the UK Government has published a note on the implications for copyright if the UK leaves the EU without a deal in March 2019.

The UK is party to the main international treaties on copyright and related rights. These treaties give international protection for copyright works made in the UK, and such protection will not change following our departure from the EU.

However, EU law goes beyond the international treaties. In particular, EU law contains a number of cross-border copyright mechanisms that provide reciprocal benefits and protection between Member States. These include:

  • The sui generis database right: available to nationals, residents and businesses of EEA Member States; it can be a useful (and occasionally critical) supplement to copyright and contractual protection for databases.

  • The “country of origin” principle for copyright clearance: enabling the streamlining of clearance for satellite broadcasts across the EU.

  • The orphan works copyright exception: enabling cultural heritage institutions in the EEA to digitise and make available in the EEA orphan works in their collection without the rightholder’s permission, provided that certain conditions are satisfied (including conducting diligent search).

  • Portability of online content service: under the Portability Regulation, consumers can access their online content services when they are temporarily in another Member State.

Following Brexit, EU Directives and Regulations on copyright and related rights will be preserved in the UK under the EU Withdrawal Act 2018. However, the government’s note confirms that, without a deal, the UK will cease to benefit from the reciprocal element of EU cross-border mechanisms relating to copyright and related rights. This means that:

  • The sui generis database right: there will be no obligation for EEA states to provide this protection to UK nationals, residents and businesses. UK database publishers seem likely to lose this protection in the EU and may be left to rely on copyright or restrictive licensing arrangements to protect their databases. Given the size and significance of the UK data publishing industry, this could have significant consequences. 

  • Country of origin: UK-based satellite broadcasters may need to clear content in multiple territories, rather than rely on “country of origin” clearance. This would impose an additional administrative burden on broadcasters needing to clear content.

  • The orphan works exception: UK cultural heritage institutions that make orphan works available in the EEA without the rightholder's consent may be infringing copyright. Such institutions may need to consider whether they are prepared to take the risk of keeping such works on their websites, remove them, or seek additional copyright permissions. However, given the costs of diligent search under the current system UK institutions tend to adopt a risk-managed approach, which is likely to continue.

  • Portability of online content service: online content service providers will not be required or able to offer cross-border access to UK consumers under the EU Portability Regulation. This means that UK consumers may see restrictions on the content they can access in the EU.

The Government maintains that a no-deal Brexit is unlikely. However, even if a deal is reached, owners and users of copyright will want to monitor the situation closely. Either way, they may need to begin taking action now to mitigate the effects of the UK’s departure. As with all things Brexit, it seems that we may be some way off knowing exactly what the landscape will look like for copyright protection between the UK and EU after March 2019.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2018

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