Notice to Stakeholders on Brexit….copyright implications

The EU Commission has recently published a notice concerning the consequences of BREXIT in respect of copyright law.  The Notice can be found here:

In summary, in the absence of any transitional arrangements, existing EU copyright law will no longer apply in the UK as of the withdrawal date (30 March 2019).

Should this come to pass, EU-UK copyright relationships would be governed by the international treaties to which they are both parties.  These include the World Intellectual Property Organization (WIPO) copyright Treaty (WCT), the WIPO Performances and Phonograms Treaty (WPPT) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Particular consequences would be as follows:

  • Directive 93/83/EEC provides that the act of communication to the public by satellite occurs solely in the Member State where the broadcast signals are introduced, thus localising the copyright-relevant acts for licensing purposes. In practice, this means that in order to broadcast a work, broadcasters only have to clear rights in the Member State where the broadcast signal is introduced.  This provision will no longer be applicable, and UK broadcasters will have to clear rights in all Member States where the signal reaches. Similarly, broadcasters in the EU will have to secure clearance of copyright in order to broadcast to the United Kingdom.
  • Directive 2014/26/EU obliges collective management organisations to represent other collective management organisations (CMOs) for multi-territorial licensing in certain cases. Collective management organisations are organisations traditionally set up by authors, performers, and other kinds of right-holders, to collectively manage their rights.  From the withdrawal date, EU CMOs will not be obliged to represent CMOs based in the UK and vice versa.
  • Mutual recognition of orphan works as set out in Directive 2012/28/EU will no longer apply between the UK and the EU. Currently, certain cultural institutions in the EU such as public libraries, educational establishments, museums, heritage institutions and public service broadcasters can digitise and make a work available online in all Member States once it is recognised as an orphan work in one Member State.   Orphan works are works like books, newspaper and magazine articles and films that are still protected by copyright but whose authors or other right-holders are not known or cannot be located or contacted to obtain copyright permission. In the absence of transitional or new provisions, works recognised as orphan works in the UK will no longer be recognised by the EU, and vice versa. Orphan works represent a substantial part of the collections of Europe’s cultural institutions (e.g. the British Library estimates that 40 per cent of its copyrighted collections – 150 million works in total – are orphan works).
  • The right to obtain accessible format copies from authorised entities in the EU as provided by Directive (EU) 2017/1564 will no longer apply. This provision currently provides for exceptions to copyright infringement where the act relates to the making and dissemination of copies in accessible formats, such as for the benefit of persons who are blind or visually impaired. It also allows for the cross-border exchange of these copies.
  • EU Regulation 2017/1128, which entered into force in March 2018, establishes that the provision of an online content service to a subscriber temporarily present in the Member State, shall be deemed to occur in the subscribers Member State of Residence, thereby allowing them to benefit from their digital content subscriptions when travelling in the EU. This will no longer be applicable to UK subscribers, and providers in the UK will need to clear rights for the relevant Member States.
  • As of the withdrawal date, Directive 96/9/EC will no longer apply meaning that UK nationals based in the UK will no longer be entitled to maintain or obtain a sui generis database right in respect of databases in the EU (and vice versa).

While these implications may not come to pass – our view is that it is likely that some or all of these issues will be ironed out before Brexit occurs – it makes sense to consider whether you are currently benefitting from any of these existing provisions.  If you need advice as to how these changes may affect you should they occur, please contact us for a more detailed discussion.