In April we commented (click here for previous article) that the new EU Directive on Copyright in the Digital Single Market had been adopted by the Council of the EU. Since then, the Directive has come into force (7 June 2019) meaning that Member States need to transpose it into their own laws by June 2021, and the prospect of a no-deal Brexit is, at the time of writing, perhaps more likely than it was, given the European parliamentary elections result, the resignation of Theresa May and the identity of her likely successor.
What would a no-deal Brexit mean for press publishers established in the UK hoping to benefit from Article 15 (previously Article 11) of the Directive?
By way of a reminder Article 15, in theory, provides enhanced commercial opportunities for press publishers. It grants them (excluding scientific and academic journals) a two-year term of protection against online sharing of their publications by internet companies (including the likes of Google), although hyperlinking or sharing “very short extracts” is allowed. For anything more, internet companies will need authorisation from the press publisher which could be in the form of a licence agreement in return for remuneration.
Article 15 specifically provides that Member States must provide press publishers established in a Member State with such rights. So, even if the UK decides to implement a form of the Directive (which seems likely given the UK Government’s support for the Directive to date), if there is a no-deal Brexit there may be no such Article 15 protection for UK press publishers from internet companies communicating parts of their work to the EU online public. The internet companies will, at least until an agreement or a treaty to the contrary is agreed, be entitled to continue to exploit UK press publishers’ works online in the EU in the same way that they do now, ie often using more than a “very short extract” but (arguably) not so much that a press publisher’s rights are infringed. If the UK leaves the EU with a deal it could be a different story, we will be watching for developments with interest.
If you require further information about anything covered in this briefing note, please contact Natalie Rimmer, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, June 2019