COPYRIGHT IS AMONG THE AREAS OF INTELLECTUAL PROPERTY LAW SUBJECT TO HARMONIZATION ACROSS THE EUROPEAN UNION. IMPORTANT DIRECTIVES HAVE BEEN ISSUED IN RELATION TO SEVERAL ASPECTS OF COPYRIGHT PROTECTION, ESPECIALLY WITH A VIEW TO ADAPTING THEM TO NEW TECHNOLOGIES. ALTHOUGH THE REPERCUSSIONS OF BREXIT ENVISAGED IN THIS FIELD APPEAR LESS IMMEDIATE THAN IN OTHERS, HOWEVER THERE ARE SOME UNCERTAINTIES THAT MAY FRUSTRATE THE EXPECTATIONS OF HARMONIZATION FOR THE FUTURE.
Copyright is born upon the creation of a work, without any legal formality being necessary, and for copyright no regulation provides a unitary pan-European right. Therefore, in contrast to what may happen with EU trademarks and Community designs, no need would arise for technical and legal adjustments (especially of revalidation) in order to ensure the extension of previously exclusive rights to the post-Brexit United Kingdom.
In addition, there are further reasons why, arguably, no immediate change is expected.
On the one hand, in the field of copyright, European harmonization – although considerable – so far has been less extensive than for other IP rights and copyright remains directly regulated by each national jurisdiction, both at substantial and at enforcement level.
On the other hand, with reference to the aspects harmonized, where directives have been transposed into UK law, it is probable that the corresponding national laws will be neither repealed nor amended after Brexit. In particular, the main UK statute on copyright, the 1988 Copyright, Designs and Patents Act, as well as the 1997 Copyright and Rights in Databases Regulations, specifically concerning databases, may well remain aligned with EU law.
In this regard, the Chartered Institute of Patent Attorneys (CIPA), the professional and examining body for patent attorneys in the United Kingdom, in a paper dealing with the impact of Brexit on the various IP rights, updated last December, wrote: “Copyright is in general not subject to EU harmonization and no changes to copyright law are expected as an immediate consequence of exit from the EU.”.
Another reason why the situation may not change in the near future is that many principles relating to copyright are enshrined in international treaties, to which the United Kingdom is party. These agreements lie beyond the EU legal system and therefore Brexit should not have repercussions on their enforcement.
Last August the British Intellectual Property Office (IPO) issued a statement in which, with reference to copyright, it is set forth that: “The UK is a member of a number of international treaties and agreements. This means that UK copyright works (such as music, films, books and photographs) are protected around the world. This will continue to be the case following our exit from the EU”.
In particular, the CIPA specified that the United Kingdom will continue to protect copyrights, including the existing ones, in accordance with the Berne Convention (the Berne Convention for the Protection of Literary and Artistic Works, signed in 1886 and subsequently reviewed).
FACTORS OF UNCERTAINTY
Notwithstanding the above, the rules on copyright within the framework of the European legal system, are subject to a continuous process of modernization. As to the proposals currently on the table, the IPO has declared that the United Kingdom, as long as it remains in the EU, will not stop taking part in the relevant negotiations; yet, it is still uncertain whether or not – once the final regulatory acts are issued, in hypothesis after Brexit – Great Britain will decide to bring its national legislation in line with them.
Let’s turn to the EU Digital Single Market strategy, which was adopted in 2015 and has recently taken significant steps forward. In particular, last September the Commission presented a proposal for a directive on copyright in the Digital Single Market, and a proposal for a regulation laying down rules on the exercise of copyright and related rights applicable to certain online transmissions. The political goal is to make it easier for consumers and businesses to access online products and services, improving conditions enabling digital networks and services to grow and thrive, as well as boosting the growth of the European digital economy. Given the importance of these objectives, it is plausible that, in order not to be left out of the Digital Single Market, the United Kingdom will decide to incorporate the new rules in its own national laws, maybe gradually.
A further concern, also pointed out by CIPA, derives from the fact that both the commercial exploitation and the licensing of works covered by copyright across the European Union fall within the scope of EU competition law. In this perspective, inasmuch as in the future the United Kingdom will no longer be subject to EU competition law, Brexit could have implications that should not be underestimated.
In a different respect, the opportunity has also been highlighted that, in the post-Brexit United Kingdom, national legislation will have to be systematically checked with a fine toothcomb in order to avoid problems caused by references to EU law which would no longer be binding. More precisely, where in hypothesis, as a subjective qualification necessary to enjoy copyright at the national level, the establishment or domicile in a Member State of the Union (including Great Britain) is required, if the text were not properly amended, inadvertently just the subjects established or domiciled in the United Kingdom may be excluded from the ownership of the right!
Thus, although no disruptive changes are expected in the short term, after Brexit the British legislator will no longer have to implement future EU directives on copyright, and the UK Courts will not have to comply with the decisions of the European Court of Justice on the matter.
Consequently, it cannot be excluded that, in the medium or long term, there will be increased divergence between the British system of protection and the continental one, adding to their origin from non-aligned legal traditions: on the one hand, the common law system, more focused on economic rights linked to the underlying investments made in relation to the protected work; on the other hand, the civil law system, which emphasizes moral rights and authorship, to afford better protection to the author’s creative personality.
In this regard, the IPO has declared: “While the UK remains in the EU, our copyright laws will continue to comply with the EU copyright directives”, but added: “The continued effect of EU Directives and Regulations following our exit from the EU will depend on the terms of our future relationship”.
The increase in legal uncertainty, due to the risk of an ever-broadening gap between jurisdictions, cannot but harm the interests of copyright holders and market players, who, on the contrary, tend to appreciate harmonization as a factor reducing time and cost within the European creative industry.