Copyright law expert, Florian Koempel, looks at the impact of Brexit on UK copyright and other relevant European developments for the AOI (in a private capacity).
Withdrawal from the European Union and copyright
Yet another news item on the withdrawal from the European Union! Whilst there is limited political and public interest in Germany or France after the initial shock of the Referendum, the UK continues emotionally discussing what Brexit means other than “Brexit”. Here I will be looking at the impact on UK copyright. Ultimately this all depends on what UK Government agrees for the time after the withdrawal date, 29th March 2019. As regards the national copyright framework, it is basically up to the UK how to proceed.
In general, the withdrawal from the European Union will only lead to limited changes to the UK copyright framework. The United Kingdom is itself (sometimes in dual membership with the European Union) bound by international copyright agreements providing minimum standards of protection for creators. In particular the Berne Convention 1886, the Agreement on Trade-Related aspects of Intellectual Property Rights 1994 (TRIPS), the WIPO Copyright Treaty 1996 and most recently the WIPO Visually Impaired Persons Treaty 2013 providing an exception for visually impaired people.
The European Union copyright framework provides further protection for creators’ works to on top of the international minimum standards, e.g. a term of protection of 70 years after the death of the author compared to the 50 years provided in international agreements. Furthermore, the express basis of European Union copyright law is a high level of protection for creators. Politically, it is not expected that the UK government will change UK copyright law which has been introduced by the European Union copyright framework (mainly Directives which EU member countries have to action) in the short to medium term. Given the economic strength of the creative sector (as exporter) it is in the interest of the UK government to retain strong protection of copyright in the UK. According to data from the Department for Digital, Culture, Media and Sport (DCMS), creative industries as a whole export around £36bn a year in goods and services.
So, whilst UK copyright itself will remain basically unchanged, changes are required in as far as specific European rules are based on principles of mutual recognition and reciprocity between European Union member states.
For instance the UK Government needs to address the question of ‘exhaustion’ of copyright. Under the current European Union regime the rights of the rightholder in the physical copy of a work (e.g. a book or game) are limited once put on the market with the consent of the rightholder. The rights holder, amongst others, cannot prevent the resale of the copy of the work; their rights in the work are expired (I.e. “exhausted”). At the moment the rights are exhausted throughout the European Union once the physical copy is put on the market in the European Union. After the withdrawal from the European Union the UK Government has to choose between ‘national’ exhaustion i.e. the rights are only exhausted in the UK once put on the market in the UK (which was the position in the UK before the joint the European Union) or ‘international’ exhaustion, i.e. the rights are exhausted internationally once put on the market in the UK (this is the situation in the United States and Australia for instance). Potentially, works sold internationally could then be reimported and undermine the domestic market.
Image by Beth Walrond
Other issues which need to be addressed include orphan works, i.e. works where the right holder cannot be identified or located after diligent search; under European Union law once it has been established in one member state that the work in question is an orphan work, this is recognised throughout all European Union member states. Mutual recognition and reciprocity between EU member states are important issues in other creative sectors such as the music industry, e.g. when a licence to use music for a satellite broadcast in one European Union country is valid throughout the European Union; or in the broadcasting sector when it suffices that the broadcaster complies with the regulatory regime in one member state to be able to transmit its programme throughout the European Union. Subject to any arrangement in a future trade deal with the European Union these aspects might lead to changes to the UK copyright framework.
The British Copyright Council provided a detailed analysis in 2017 accessible via britishcopyright.org.
Going forward the main interest of the creative sector relates to how the UK government intends to support the creative industry in free-trade negotiations with the European Union and other countries to avoid tariff or nontariff barriers to trade.
The British Copyright Council has submitted a detailed paper to the relevant UK departments outlining the concerns of the creative sector.
European Union – Copyright in the Digital Single Market
At the same time as UK politicians and newspaper owners focus on the withdrawal of the United Kingdom from the European Union, the European Union is discussing various legislative initiatives on copyright for the European Union. For instance the European Union has adopted a Regulation on Portability enabling European Union citizens to access their subscription services, such as Netflix and Spotify, if they are temporarily outside the country in which they have these subscriptions (in force since 1st April 2018). Equally, the European Union provides a joined up approach for visually impaired persons based on a harmonised exception to copyright and a system enabling the cross-border exchange of accessible format copies of works such as books throughout the European Union (coming into force in October 2018). It remains to be seen how the United Kingdom and the rest of the European Union will approach these initiatives after the withdrawal from the European Union.
The main piece of European Union copyright changes is the draft Directive on Copyright in the Digital Single Market which contains 3 mandatory copyright exceptions for works (on text and data mining, educational institutions, and cultural heritage organisations) and a system intended to increase the responsibility of Internet Service Providers like Google and others for the content they carry on their platforms.
For individual authors (and performers) the Directive provides Articles on transparency and contract adjustment (in case the original contractually agreed remuneration for the author and performer is disproportionately low); this is in Articles 14 to 16 of the Directive.
The draft Directive is currently being discussed by the relevant European Union institutions, i.e. the European Parliament and the European Council. Whilst the time is limited, given that there will be a new European Commission and European Parliament in 2019, I predict that the Directive will be adopted into EU law by end of 2018 (including the UK). It remains to be seen whether the UK will then implement the EU Directive into UK law within 24 months after coming into force in the EU; this depends on the future arrangement with the EU or the general political will.