Brexit & Copyright

Copyright and related rights, such as performers’ rights, distribution rights and moral rights, pervade many if not all forms of human creative endeavour.  Copyright subsists in literary, artistic, dramatic and musical works.  Computer programs count as literary works for this purpose.  Copyrights can also protect databases, sound recordings, films and broadcasts.

Brexit will undoubtedly have an impact on all intellectual property rights in the United Kingdom.  How large an impact will be influenced by the extent to which the substantive governing law derives from EU law, from other sources, or is a home-grown creation. 

Copyright law in the UK derives from international conventions, such as the Berne Convention and the TRIPS Agreement, and is also heavily influenced by a number of EU directives, such as the Information Society Directive, Software Directive and Database Directive.

UK governments have given effect to these international conventions and EU directives by enacting and amending UK national copyright law, in particular, the Copyright, Designs and Patents Act 1984.  As a UK national statute, this Act will continue in force after Brexit.  There will therefore be no immediate change to substantive copyright law. 

Indeed, the aim of the UK’s draft EU Withdrawal Bill is to transpose into UK law all EU regulations and directives as they stand on the day before Brexit.  Those directives that affect copyright and related rights will therefore continue to be part of UK law.

What will change after Brexit is that, first, subsequent developments in EU law regarding copyright will not (at least not as things currently stand) have any direct effect in the UK and, second, decisions of the Court of Justice of the EU regarding the interpretation of EU law – such as the meaning of the various directives that concern copyright – will not be binding upon the UK courts, though they may continue to be of persuasive authority.  Third, the UK may develop copyright law unilaterally.  These will all have the effect that, over time, UK and EU copyright law may start to diverge. 

However, it is unlikely that there will be any dramatic changes in the short to medium term.  Indeed, if the UK and EU complete a free trade agreement in due course, it may also be that as part of that agreement they agree to have largely harmonised copyright protection, in which case future divergence in copyright law are likely to be limited. The UK will also continue to be bound by the international copyright conventions, which will also tend to limit the extent of any developments in the law in this field.

One issue that will affect the distribution of copyright works is the law relating to parallel importation and the exhaustion of intellectual property rights.  Currently rights are said to be exhausted once they have been placed on the market in the European Economic Area (which includes the EU) with the proprietor’s consent. 

If the UK leaves the EEA, as appears to be the likely outcome of Brexit, the UK will have to determine its own policy on the exhaustion of rights and this will in turn affect the legality of importing into the UK goods that have already been marketed in the (rest of the) EU.  The UK government has not so far indicated what its policy will be.
If you have any questions regarding the impact of Brexit on your intellectual property rights, please contact your usual Marks & Clerk advisor or, alternatively, you can direct your question to the chair of our Brexit committee, Graham Burnett-Hall.

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