BACKGROUND

This week, the UK Government released multiple technical notes detailing the intellectual property implications of a no-deal Brexit for exhaustion of rights, patents, trademarks and designs, and copyright. A few months ago, the idea of a no-deal Brexit was only entertained as a highly unlikely, ‘worst-case scenario’. This series of notes provides an update on the government’s plan in light of a hard Brexit.

COPYRIGHT

The content of the copyright note will be déjà vu for those who read the EU Commission’s “Notice to Stakeholders: Withdrawal of the United Kingdom and EU rules in the field of Copyright.”  It explains the consequences of a hard Brexit on certain EU instruments:

1. Sui generis database rights. There will be no obligation for EEA states to provide database rights to UK nationals, and the owners of UK database rights may find that their rights are unenforceable in the EEA.
2. Portability of online content. The Portability Regulation will cease to apply to UK nationals when they travel to the EU. Meaning UK consumers may see restrictions to their online content services when they temporarily visit the EU.
3. Copyright clearance in satellite broadcasting. UK based broadcasters that currently rely on the country-of-origin copyright clearance rule may need to obtain copyright clearance for each member state into which they broadcast.
4. Orphan works copyright exception. UK-based Cultural Heritage Institutions that make works available online in the EEA under the exception may be infringing copyright.
5. Collective Management of Copyright. UK collective management organisations will not be able to mandate EEA Collective Management Organisations to provide multi-territorial licensing of the online rights in their musical works.
6. The Marrakesh Treaty. The UK intends to ratify the Marrakesh Treaty following Brexit, but ratification will not have taken place before 29 March 2019. Therefore, between exit and ratification, businesses, organisations or individuals transferring accessible format copies between the EU and the UK may not be able to rely on EU Regulation.