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EU exit UK IP draft regulations

A substantial part of the law on copyright in the UK is derived from EU law. There are 11 EU Directives all of which have been implemented by the UK. The purpose of the Directives is to harmonise the copyright frameworks in Member States, by reducing national discrepancies and maintaining a level of protection which encourages creativity and enables consumers from across the EU to access services.

In doing this, the Directives create a number of ‘cross-border’ mechanisms and arrangements which have reciprocal effect within the EU. This includes mechanisms and arrangements such that any EU national can receive copyright protection for their works (e.g. databases, broadcasts, computer programmes etc.), in any EU Member State; and a country-of-origin copyright clearance rule for satellite broadcasting (satellite broadcasters need only seek permission to use the copyright in the Member State where the satellite uplink station is situated, rather than in all the states in which the signal is received).

Additionally, there are two EU Regulations of relevance to copyright law in the UK, a Regulation allowing consumers to access their online content services while temporarily present in another Member State, and a Regulation facilitating the cross-border exchange of accessible format (e.g. Braille) copies of works under certain conditions.

Given that EU legislation is in place to harmonise copyright provisions across the EU, when the UK leaves the EU, it leads to the emergence of inappropriate references and the breakdown of several cross-border mechanisms and arrangements which will cease to operate correctly.  The proposed instrument (explanatory memo) ensures that inappropriate references are amended (e.g. by substituting references to “another EEA state” with “an EEA state”). The instrument additionally ensures that cross-border mechanisms and arrangements which breakdown are resolved on a rational basis (e.g. so that the UK does not give unreciprocated effect to certain mechanisms).

Section 170 of the CDPA includes a reference to “Directive 2006/116/EC”, which stems from the Enterprise and Regulatory Reform Act 2013, and ensures compliance with the Term Directive. When the UK leaves the EU, there will be no obligation to comply with the terms of the Term Directive. While the Government has no plans to depart from it, there is no good reason to directly refer to third country law in statute and limit the UK unnecessarily. Consequently, the amendments to Section 170 remove reference to the Term Directive.

Schedule ZA1 of the CDPA stems from the implementation of the Orphan Works Directive, and was inserted by the Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014. It provides for a copyright exception for cultural heritage institutions to digitise and make available to the public, across the EU, orphan works (copyright works where the right holder is unknown or cannot be found). The exception works by recognising the orphan status of works across the EU, as long as a diligent search has been completed and the details entered onto a database held by the EU Intellectual Property Office (EUIPO).

When the UK leaves the EU, this mutual recognition will fall away and the EU will not recognise the orphan status of works that UK libraries, museums, and other cultural heritage institutions place online, and the UK will not have access to the database held by the EUIPO. Consequently, the European orphan works exception will come to an end on exit. UK cultural heritage institutions will no longer be able to make available online across the EU orphan works, under an exception to copyright.

However, cultural heritage institutions in the UK will still be able to make use of the UK’s existing domestic Orphan Works Licensing Scheme under the provisions of Section 116A, to digitise, and make orphan works available on their websites in the UK. Sections 44B and 76A will be omitted in line with Schedule ZA1. Amendments will also be made to the Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 to remove reference to the EU database.

Schedule 2 of the CDPA stems in part from the implementation of the Marrakesh Treaty Directive. Paragraph 3B of the Schedule concerns an exception which allows an ‘authorised body’ to make, communicate, make available, distribute or lend accessible format copies of certain types of copyright works, for the benefit of both disabled people “in the United Kingdom or another member State of the European Union” without infringing copyright. To take account of the United Kingdom no longer being a member of the European Union, this exception will be amended so that the exception only applies to accessible copies made for the benefit of disabled persons in the United Kingdom.

The Collective Management of Copyright (EU Directive) Regulations 2016 implement the Collective Rights Management (CRM) Directive. In line with the CRM Directive, the regulations institute the ability for Collective Rights Management Organisations (CMOs) to offer multi-territorial licences in respect of musical works, and stipulate the various governance, technical, and other requirements CMOs must fulfil in offering such licences.

UK CMOs that offer multi-territorial licensing of online rights in musical works will continue to be required to represent on request the catalogue of other CMOs (UK or EEA) for multi-territorial licensing purposes, provided one of those territories is the UK. Inappropriate references to Member States and the Treaty on the Functioning of the European Union are being removed. Consequential amendments will also be made to remove the reference to the Directive in Regulation 51(2).

The Portability Regulation, and Portability of Online Content Services Regulations 2018 enables the temporary portability of online content services across the EU (e.g. allowing consumers to access their online content services on holiday). The Regulation contains a legal fiction which assumes that the rights and permissions of the home territory move with the consumer on a temporary basis, and additional copyright licences are not required. The Portability Regulation, and the 2018 Regulations which relate to enforcement of that Regulation, came into effect in the UK on 1 April 2018.

When the UK leaves the EU, it will not be possible for UK online content services to allow UK subscribers to access their services free of charge when temporarily present in EU Member States in accordance with the terms of the Regulation. It would not be appropriate to enable EU online content services to allow EU subscribers to access their services free of charge when temporarily present in the UK, when this freedom is not reciprocated. Consequently, this Instrument revokes both the Portability Regulation (it will not be preserved), and the 2018 Regulations.

EU Regulation 2017/1563 on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled (Marrakesh Treaty) relates to the EU’s membership of the Marrakesh Treaty, which enables certain individuals and organisations in member countries to make copies of literary works in accessible formats (such as Braille, audio, large print) for use by blind, visually impaired and print disabled people, and to exchange such copies between member countries (all of which are parties to the Marrakesh Treaty).

A related Directive intended to align EU Member States’ laws with the requirements of the Treaty was implemented by the Government by amendment of Sections 31A-31F and Schedule 2, 3A-3E CDPA, on 11 October 2018. The Regulation supplements the Directive by providing arrangements for cross-border exchange of accessible format copies between the EU and “third countries” (which describes countries that are not in the EU but are also parties to the Marrakesh Treaty).

Following the UK’s exit from the EU, the Regulation will be preserved, but minor changes will be made to remove any internal EU cross border arrangements and references to the EU. This is because the UK, post exit day, will not be part of the internal market so the provisions are redundant. EU Member States will then be “third countries” to the UK, and cross-border exchange of copies between the UK and EU Member States will be able to continue under the normal arrangements provided by the Marrakesh Treaty, once the UK has ratified the Treaty.