Brexit – UK Copyright Law
Thanks to a bevy of EU directives and regulations, today the Member States enjoy a certain level of copyright law harmonization. But copyright is mainly governed by national copyright laws, and the United Kingdom is not an exception. Since national copyright laws implement international treaties, most UK copyright works will remain protected in the EU after Brexit, and most EU copyrighted works will remain protected in the UK, even once the transition period ends (i.e. after 31 December 2020).
Brexit will involve immediate negotiations over certain copyrighted works since new regulations are to be expected in the sectors of cable re-transmissions, portability of online content, orphan works, and accessible format copies for the visually impaired as well as to collective rights management.
Copyright law aims to protect the expression of ideas and to motivate authors to create original works. It is the independent act of creation that matters in copyright, and the copyright protects the created content for the duration of the author's life plus 70 years, beginning from the end of the calendar year of the author's death. But the law does not grant a monopoly right over the work – it only protects others from copying the work. What classifies as "work" under copyright are original literary, dramatic, musical or artistic works which must be recorded (in tangible form), sound recordings, films or broadcasts and the typographical arrangements of published editions. In the context of copyright protection, "originality" means that the work has originated from the author's intellectual creation and has not been copied from another work in any way. However, a copyrighted work does not require innovation or novelty to be considered as original. Moreover, copyright does not provide protection for merely the idea – it must be recorded in a tangible form. There is also no requirement for registration or other administrative act to obtain copyright, the protection arises automatically upon creation of the work.
Copyright protection is based on the national rights of each country; however, a significant amount of UK law is based on EU copyright regulations, which are in turn derived from international treaties. Because the UK as well as countries of the European Economic Area (EEA) (which includes the entire EU) are signatories to international treaties, Brexit will have little impact on copyright law. In other words, most UK-copyrighted works will remain protected in the EU, and most such works will remain protected in the UK even after the end of the transition period. Modifications will be made inter alia to cable re-transmissions, portability of online content, orphan works, accessible format copies for the visually impaired and to collective rights management.
The Intellectual Property (Copyright and Related Rights) Regulations 2018 remove references to the EEA and EU from UK copyright law whilst maintaining the operational status quo where possible. The change removes preferential treatment of works originating in the EEA in terms of duration of copyright, since copyright duration of works from outside the EEA lasts for either the duration set by UK law or the country of origin, whichever is less. Since copyright duration is the same in the UK as across the EEA, for the time being, this change will have no material effect on copyright duration.
Artist's Resale Right
Droit de suite (artist's resale right) will also remain unaffected after the transition period. This gives artists the right to receive royalties when their works are resold by an art professional. However, UK nationals will benefit from the resale right under the Berne Convention rather than under the Artists Resale Rights Regulations 2006, which will be modified to replace references to the EU and continue providing the right on a reciprocal basis.
Portability of Online Content
The EU Portability Regulation requires online service providers to provide – and allows the consumers to access – the same content as in their home country when they are temporarily in one of the EEA countries. However, the UK will repeal the regulation, which means that online content providers will no longer be obliged to provide the same content ordinarily available to the consumers in their home state when they visit an EEA country. They can opt to do so, but they will need to obtain permissions from the owners of the content that they wish to provide.
Cable Transmissions of Works
Currently, the copyright holder of a work that is broadcast between EEA member states and re-transmitted via cable to another state can only exercise its right through a collective management organization. However, after the end of the transition period, this will no longer be automatically possible with broadcasts originating in the UK and subsequently transmitted into the EEA. Copyright holders of works broadcast in the UK and transmitted by cable to the EEA will need to negotiate licences directly with the cable operators. Cable transmissions of broadcasts originating in the EEA will continue to operate under the current rules.
(This article is not intended to provide legal or other advice.)