Brexit and Copyright: What Happens Next?

When British Prime Minister Theresa May introduced her new government’s proposed legislative agenda in Westminster on June 21, (through what is known as the “Queen’s Speech) after her disastrous gamble of calling a general election in which she failed to win a majority, one of the key items announced was her intention to introduce what has colloquially been called the “Great Repeal Bill”, legally the “European Union (Withdrawal) Bill”. Given the timetable for Britain’s exit from the EU (by March, 2019), Ms. May has until then to pass legislation to ensure that British law applies to all legislation currently mandated to the EU. That Bill has now been given second reading in Parliament and was not without controversy given the wide powers it will give the government to modify many adopted EU laws through regulation rather than through legislation. While the stated intent is for the Bill to simply enable a technical conversion of laws in order to prevent a legal hiatus, (allowing for any substantive amendments to follow once final authority is returned to Britain), the devil is always in the detail and there is huge potential for material impact on the laws that govern the lives of UK citizens.

It all started with another disastrous political gamble, former PM David Cameron’s insistence on holding a referendum on whether the UK should stay in the European Union, where it has been a member since 1973, or leave, the so-called “Brexit” option. The result, as we all know, was a narrow victory for the Brexit forces. For those of us on the North American side of the Atlantic, there was widespread puzzlement as to why Britons had voted 52% to leave. Had the British people gone “barmy”, to use that lovely British phrase. Although most of Scotland and Northern Ireland voted to stay, as did large parts of southern England, large swathes of the industrial parts of England voted to leave. In the eyes of this commentator, emotions trumped reason. (pun intended).

Brexit will have an impact on many aspects of life in the UK, although the exact terms of the rupture are still being worked out. It has the potential to affect everything from fishing regulations to immigration and customs to judicial procedures and yes, to copyright.

While the impact of Brexit will be far greater on other areas of intellectual property such as patents and trademarks, there is potential impact on copyright as well. The official entity that regulates copyright in Britain, the UK Intellectual Property Office, has this to say on the subject;

“While the UK remains in the EU, our copyright laws will continue to comply with the EU copyright directives, and we will continue to participate in EU negotiations. The continued effect of EU Directives and Regulations following our exit from the EU will depend on the terms of our future relationship.

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 other words, there is not yet much detail as to what will happen after Brexit.

The British Copyright Council (BCC) is more forthcoming. The BCC’s Working Group on Copyright and Technology has focussed on the following questions and has published a research paper on the topic;

• How will our copyright laws be affected?

• How will new trade agreements put in place by the UK affect our copyright laws, whether in the medium or longer term?

• How do we ensure that the levels of sophisticated application for copyright rules within the EU are protected and allowed to develop after BREXIT?

• Will there be pressure for unintended extension of copyright exception and limitation provisions “to the maximum” permitted under the TRIPS Agreement or International Treaties linked to it?

The paper points out that converting EU law to British law through the Great Repeal Bill is not the real issue. The real question is what will or may come after authority to legislate on copyright law is transferred back to the British Parliament, although international treaties ratified by the UK will have a restraining effect. The authors of the paper surmise that British legislators are unlikely to take advantage of their new powers to introduce new copyright exceptions or a US-style fair use regime but recognize that after its exit from the EU, Britain will have to negotiate trade agreements to replace its former EU member status. This includes an agreement with the EU but also potentially with other trading partners such as the US, Canada etc. Particularly with the US, copyright issues could be a subject of negotiation.

One area of copyright that will be affected is the realm of digital licensing, where the EU has been pushing for removal of national licensing barriers as part of its Digital Single Market strategy. As I wrote back in June of last year, before the Brexit referendum, “bigger is not necessarily better”. In particular film and television content producers have expressed concern that full portability of content, as desired by the Commission, would undermine the principle of territorial licensing that has become an integral part of content production.

While Britain will likely not have to deal with many aspects of the Digital Single Market since the Copyright Directive is unlikely to come into force prior to British withdrawal, the Portability Regulations will come into effect in March of 2018, a year before Brexit’s deadline. These regulations apply to all paid online content services and will allow consumers who paid for online content services in their home country to access them when visiting another country within the EU, without roaming fees. British content providers servicing UK clients will have to comply at least until Brexit takes effect. Portability in itself will not undermine territorial licensing, but whether this regulation will be rescinded by British legislation post-Brexit remains to be seen

The length of copyright term protection is another area of possible contention. In common with other EU members, the UK has a 70 year pma term, 20 years longer than the minimum required by the Berne Convention. The UK could revert to the Berne 50 year minimum although it is hard to see what the advantage would be, other than to use as “negotiating coinage” with the US if the UK ever began bilateral trade negotiations with that country.  The US has long insisted on a longer term as part of the intellectual property provisions in trade agreements that it has negotiated, for example the US-Australia FTA or the Trans-Pacific Partnership or TPP (from which the US has now withdrawn).

With regard to the rights conferred by copyright law, the BCC paper points out that the EU Directives underpinning many of the rights are themselves incorporated into international treaties such as the Berne Convention and WIPO Internet Treaties that the UK signed either jointly with EU or in its own right. As for expanding the list of copyright exceptions, or replacing the existing fair dealing exceptions with a wider and looser “fair use” regime, Professor Hargreaves examined the issue in 2011 and rejected fair use on a number of grounds (including the uncertainty and high cost of litigation that such a change would bring), but he also gave as an important reason his conclusion that existing EU law would make it very difficult to make such a change. That protective barrier will now be removed. In fact, in a research paper published by the University of Cambridge’s Faculty of Law that examined the impact of Brexit on a range of IP topics, the authors (Sir Richard Arnold, Prof. Lionel Bently and others) noted that the UK will, “be liberated from the exhaustive list of exceptions set out in the acquis (the EU’s legal framework)) and thus be able to adopt a fair use exception modelled on the US copyright act.”

The authors concede that this or other major revisions to copyright are unlikely to happen in the short term owing to other Brexit priorities but conclude that;

“If the UK starts to unravel the copyright EU acquis, it would in any case be well-advised to totally revamp its copyright act which has become over the years over-long and overcomplicated—and not only because of the implementation of EU directives. If the UK wishes to “take back control” of its copyright law, then it is manifest that a thorough review and overhaul of the 1988 Act will be required. Thus Brexit is liable to make the need for a new Act more pressing not less.”

 With regard to the possible introduction of fair use, the BCC study concluded that it is “unlikely” that British lawmakers will return to this issue, but perhaps the lesson of Australia is instructive, where a tooth-and-nail struggle has been going on to try to overturn the existing fair dealing regime and replace it with US-style fair use. This debate has pitted most of the copyright community against technological giants like Google, recently joined under the Electronic Frontiers Australia (EFA) banner by Wikipedia. The Australian Government has now responded to recommendations from the Productivity Commission, its “independent research and advisory body” that had advocated a range of radical measures that would have undercut the foundation of copyright protection in Australia, (among them introduction of fair-use), by announcing that it will study the fair use issue further. Who is to say that Google and its allies will not use Brexit to re-launch their campaign in the UK?

(For the record, lest I be accused of being against user exceptions to copyright, such as those allowed by fair use in the US, let me say that the fair use regime works reasonably well in the US– although in my view it leads to excessive litigation. However to introduce this doctrine, which has more than a century of legal precedent in the US context, into other jurisdictions where more clearly defined fair dealing regimes exist and have worked well, would be to open a Pandora’s box of litigation and uncertainty. The global expansion of fair use is being driven by interests whose ultimate goal is to undermine and weaken copyright protection, not “balance” it).

Another leading British copyright and brand protection group, the Alliance for Intellectual Property, has called on the UK Government to ensure that strong IP protection remains in place when Britain leaves the EU, and has welcomed the decision to transpose existing EU legislation that protects IP rights into British domestic law, thus providing greater certainty to both rights holders and consumers. The Alliance points out that Britain’s creative industries support almost 2 million jobs and are worth 84 billion GBP to the UK economy.

These industries depend on talent–global talent—and an important factor will be the outcome of negotiations with the EU with regard to migration of workers. A main plank of Brexit campaigners was to claim back Britain’s borders and reinstate barriers to the free movement of workers from other EU states, who were accused of stealing jobs from British workers. For industries that depend on recruitment of talent globally, any moves that will make it more difficult to bring in specialized workers from outside the UK will have a negative impact, and the copyright industries are no exception.

Reflecting the ambivalent position of many Britons toward Brexit, however, the Alliance statement on Brexit tries to find the silver lining and make the best of what is going to happen next.

“The Alliance for Intellectual Property and the industries that it represents are looking forward to the numerous trade relations that the Government is seeking to make following our exit from the EU. The Government must ensure that IP is placed at the centre of all trade negotiations and agreements and there are encouraging signs that it intends to feature IP rights prominently. However, we will continue to emphasise the need for vigilance in the possible erosion of IP rights, and for the UK to be a world leader in the promotion and protection of IP.

The Alliance for Intellectual Property is keen to stress that there are many opportunities that come with exiting the European Union, and we hope to continue working with Government Departments and policymakers to ensure that intellectual property is prominent in future trading relationships – both in the EU and rest of the world.”

That doesn’t sound like a ringing endorsement of the Brexit process but rather a recognition that change is coming and that British copyright industries need to be alert to maintain the protections that have become enshrined during the UK’s almost half century experiment with being part of the EU. This will include any new trading arrangements forged between Britain and the EU, and between a post-Brexit Britain and any other trading partners.

If all this sounds rather uncertain, it is, because so many details are lacking. Many sectoral interests will seek to promote their agendas during Britain’s extrication from the EU—not the least of which will be copyright skeptics and outright anti-copyright EFF types, all seeking to turn the particular political circumstance of Brexit to their advantage. It behooves the creative industries to stay alert. It is encouraging to see that they are “on the case”. Now we need to see the details. Stay tuned.

© Hugh Stephens, 2017. All Rights Reserved.