18th March 2020
Copyright and Brexit
The UK has formally left the EU and there is now a transition period until the end of 2020 while the UK and EU negotiate additional arrangements.
Any new rules will take effect on 1 January 2021.
Keep calm and carry on...
Broadly speaking, copyright laws and protection both inside and outside the EU will continue as they do now.
Copyright is a right provided under individual national laws in accordance with the international treaties that a country has signed. The main treaties (Berne Convention and TRIPS) are worldwide treaties, not limited to any specific trading blocks or political region. All EU countries and the UK are signatories to the Berne Convention and TRIPS; so UK and EU legislation will largely continue to have the same net result as it does now.
UK copyright works will still be protected in the EU and EU copyright works will continue to be protected in the UK.
All the key aspects, eligibility, duration of cover, artist/author's rights, etc. remain the same.
Our service is unaltered by Brexit.
We have provided our services to registrants both inside and outside the EU for many years and will continue to provide those same services at the end of the transition period.
What could change?
As a previous member of the EU, the UK has implemented a number of EU directives that build upon the international treaties to provide greater harmonisation within the EU/EEA. Because of this, UK law references the EU, EEA (European Economic Area), and refers to EU member states. A number of these directives are reciprocal cross-border arrangements that only apply within the EU and EEA and need to be amended or repealed at the end of the transition period.
At the end of the transition period, there will therefore be a number of changes, although for most people these will be fairly minor.
Orphaned works exception
Orphaned works are copyright works where the right holder is unknown or cannot be found to obtain permission. Under the DIRECTIVE 2012/28/EU on certain permitted uses on orphaned works, libraries, archives, museums and similar public institutions can make orphan works available online across EU member states without the permission of the right holder by applying to the European Union Intellectual Property Office. This will be repealed from UK law when the transition period ends.
This means that UK institutions could face claims of copyright infringement for orphaned works they made available online under the EU scheme.
It is unclear what the potential scope and risk of this could be, as it would presumably mean that a hitherto untraceable copyright owner had appeared in order to make the claim, and the institution had already acted in good faith (they must have carried out efforts to trace the owner already under the EU scheme). This would seem to indicate that the risk of occurrence would be low, and the penalty not overly punitive if the institution acted quickly to remove the infringing copies, though it would be unwise to try to guess how a court of the future would rule in such cases.
The UK does have its own UK orphaned works licensing scheme that UK organisations can use instead.
Portability of online content services
The EU Regulation on cross-border portability of online content services in the internal market states that consumers across the EEA should be able access online content services (e.g on demand services such as Netflix) as they would at home when they travel within the EU.
This will cease to apply to UK at the end of the transition period and consumers may therefore see restrictions on the content available to them when visiting other countries.
EU satellite decoders
At the end of the transition period, it will be illegal to use a EU satellite decoder to access a UK pay-to-view (or similar chargeable service) broadcast if the intent of the use is to avoid the fees for those services (other uses are permitted). This brings the rules in line with those for satellite decoders intended for non-EU audiences.
Copyright clearance in satellite broadcasting
Within the EU, when a satellite broadcaster transmits from one EEA state to another, they are only required to get the copyright holder’s permission for the state in which the broadcast originates. This 'country or origin' principle avoids the need for satellite broadcasters to secure individual licences for every EEA state in which their broadcasts are received.
Depending on the terms of departure, UK broadcasters might need to get additional permissions for any EEA states to which they broadcast that do not apply the 'country of origin' principle to non-EEA broadcasts.
The UK does operates on a 'country of origin' principle that will continue to apply to broadcasts from any country; except for satellite broadcasts originating from a country that provides lower levels of copyright protection.
When a work is broadcast between EEA states and retransmitted by cable, the copyright holder will exercise their rights through a collective management organisation.
After the transition period, copyright holders whose works are broadcast from the UK and then retransmitted via cable in the EEA may need to negotiate licences with the cable operator, or, may have licensing terms imposed on the retransmission in EEA states.
UK legislation will continue to apply existing rules, so cable retransmissions of broadcasts originating in an EEA member state will be unaffected.
Collective management licensing of musical works
For online licensing of musical rights, collective management organisations (CMOs) in the EEA are subject to the Collective Management Directive. This includes an obligation to represent on request right holders from any EEA member state.
It therefore follows that, at the end of the transition period, EEA CMOs may be free to refuse requests from UK rights owners or UK CMOs, (subject to the law in individual member state).
UK rights owners and UK CMOs using the services of EEA CMOs should therefore check the situation and if necessary make alternative arrangements.
Existing obligations on UK CMOs will continue after the end of the transition period and UK CMOs that offer multi-territorial licensing will continue to be required to represent on request catalogues of other CMOs (UK or EEA).
UK citizens, residents and organisations will no longer be eligible to database rights within the EEA for databases created after the end of the transition period. UK legislation will be amended so that only UK citizens, residents, and organisations are eligible for new database rights in the UK after the end of the transition period.
Database rights that existed before the end of the transition period will continue to exist for the rest of their duration as this is guaranteed under the terms of the Withdrawal Agreement.
(database here refers to the data itself, rather than a software system that read/writes the data.)
Article 13 Copyright Directive
The controversial Copyright Directive will not be adopted by the UK, although alternative UK legislation is being considered for the future.
See https://www.bbc.co.uk/news/technology-51240785 for more details.