UK government guidance on Copyright if there is a “no-deal” Brexit

United Kingdom

On 24 September 2018, the UK Government published long-awaited guidance on how certain aspects of copyright protection will be treated in the event that no Brexit deal has been agreed prior to the UK’s exit from the EU on 29 March 2019. This guidance is part of the “series of technical notices setting out information to allow businesses and citizens to understand what they would need to do in a ‘no deal’ scenario”. It is important to be aware that the published note is for guidance, only. It is not statutory legislation, which will follow.

International Treaties and EU Law:

The UK is a party to several international treaties on copyright and related rights (such as the Berne Convention), which provide protection to works created by foreign nationals. These rules are not dependent on the UK’s membership of the EU.

Many aspects of the protection of copyright and related rights are otherwise governed by EU law. Under the EU Withdrawal Act 2018, the EU Directives and Regulations will be transcribed into UK law, so that they will continue to apply in this jurisdiction after the UK’s exit from the EU.

Changes to Copyright and Related Rights after Brexit:

On the other hand, a number of EU cross-border mechanisms providing reciprocal protection between member states will no longer apply to the UK after March 2019 in the event of a no-deal Brexit:

  • Sui Generis Database Rights: there will be no obligation for EEA states to provide database rights to UK nationals, and UK database rights may no longer be enforceable in the EEA;
  • Portability of Online Content Service: UK nationals may no longer be able to access online content services from their country of origin when travelling within the EU, as UK content service providers will no longer be required to offer them cross-border access;
  • Country-of-origin principle for copyright clearance in satellite broadcasting: an EU Directive currently allows satellite broadcasters to broadcast a work protected by copyright into any EEA member state after having cleared the copyright requirements for the member state in which the broadcast originates. After the exit date, UK broadcasters may have to clear copyright in each member state in which they broadcast;
  • Orphan Works Copyright Exception: UK-based Cultural Heritage Institutions may no longer be able to digitise orphan works in their collection and make them available online across the EEA without the permission of the right holder as they were previously allowed to under EU law;
  • Collective Management of Copyright: UK Collective Management Organisations will no longer be entitled to have their musical works represented by EEA Collective Management Organisations which offer multi-territorial licensing, and so they will have to seek new contractual arrangements;
  • Cross-border transfer of accessible format copies of copyright works: an EU Regulation implemented the Marrakesh Treaty, which allows the cross-border transfer of accessible format copies of copyright works between countries that have ratified the Treaty. Until the UK ratifies the Treaty separately, it will not be possible to rely on the EU Regulation to transfer accessible format copies between the EU and the UK.