As Britain staggers to the finish line of the Brexit process—a line that is still moving as this is written—many, many uncertainties remain. As but one thorny example, how can the now-invisible border between the Republic of Ireland and Northern Ireland continue in its present form after Brexit if Britain is no longer in the EU? This is a demand that Ireland is insisting on as part of the Brexit negotiations. Northern Ireland could be given a “special status” within Britain but then that would mean creating a barrier between the north of Ireland and the rest of the United Kingdom, an outcome that is anathema to the dozen Ulster Unionist Members of Parliament who are propping up Prime Minister Theresa May’s government.
A possible solution is the one floated in the recently released White Paper, a convoluted process that would involve applying EU tariffs on goods at the UK border, while opting out of other EU commitments, such as the free movement of people. This is Theresa May’s latest gambit, (which it appears is not acceptable to the EU) but it has led to Cabinet resignations and opposition from both hard-line Brexit advocates and anti-Brexit proponents as well. She is between a rock and a hard place. Resolving this conundrum is like trying to have your cake while simultaneously wolfing it down; the two elements are almost irreconcilable. Happily, copyright and intellectual property generally is not so difficult, and the White Paper does not appear have much impact (especially regarding trademarks and copyright)–but that doesn’t mean that there aren’t going to be any issues or any pain.
As I wrote last year in a blog posting on this topic, “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.” The devil is always in the detail and although major disruptions are not expected, it is clear that things will not be the same after the Brexit date, March 30, 2019.
In late March (roughly a year before D-Day—D for Departure), the EU issued documents clarifying which elements of EU copyright law will no longer apply to Britain after Brexit, even though it is Britain’s intent to adopt into British law most elements of EU copyright law. However, by not being part of the EU, Britain will have voluntarily walled itself off from certain elements of EU law that currently benefit British residents and copyright holders. The March EU document outlined the areas of EU copyright law (Directives) that will no longer apply to the UK after Brexit. These include (with thanks to IPKat for the summary);
- UK-based broadcasters will no longer benefit from the country of origin principle as enshrined in the SatCab (Satellite Cable) Directive;
- EU collective management organisations (CMOs) will no longer be subject to the obligation to represent UK-based CMOs for multiterritorial licensing in accordance with the CRM (Collective Rights Management) Directive;
- With regard to orphan works, the mechanism of mutual recognition of the ‘orphan work’ status provided for by the Orphan Works Directive will no longer apply between the UK and the EU;
- UK-based blind/visually impaired/print-disabled person will no longer be able to obtain accessible format copies from authorised entities in the EU under the framework provided for by the recent Directive 2017/1564;
- UK residents will no longer enjoy from the Online Content Portability Regulation [which entered into force on March 31, 2018] to ‘port’ their digital content subscriptions when travelling to the EU;
- UK nationals (unless they have their habitual residence in the EU) and companies/firms formed in accordance with UK law will no longer be entitled to maintain or obtain a sui generis database right in respect of databases in the EU.
So what does all of this really mean and what impact will it have on British consumers and rights-holders? First, it is important to remember that even though these EU Directives will no longer apply to UK residents, the protections provided by international treaties such as the WIPO Treaties, to which the UK is an acceding state, will continue to be in force. However, there are several aspects of British withdrawal that will be inconvenient, at the very least. Let’s have a more detailed look.
With respect to the Satellite and Cable Directive, there will be a big impact on broadcasters who uplink their signal from the UK for broadcast to other EU states. They will no longer be able to simply clear the rights in Britain and have these rights apply in all EU states. Now, they will have to clear the rights in each EU state to which they are broadcasting. (The same situation works in reverse). What practical impact will this have? It is hard to say but when a signal uplinked in Britain was valid from a licensing perspective for all EU countries, there was an incentive for international broadcasters (US companies for example) to establish their European headquarters in London. There was all the familiarity of law and language plus the benefit that a UK-origin signal could be broadcast throughout the EU with no legal impediment. Now all that will change. It may now be more practical for a foreign broadcaster in Europe to locate its headquarters in an EU country. Dublin has stuck up its hand as an English-language alternative, but business may dictate Germany, France or Belgium as the most logical sites.
The impact on collective rights management is self-explanatory. Once Brexit occurs, EU collective rights management organizations will no longer be required to represent collective management organizations based in the UK for multi-territory licensing for the online rights in musical works. I assume that there is nothing to stop British and EU collective management organizations from agreeing to cooperate, but there will no longer be an obligation to do so.
With regard to orphan works, under the EU Directive certain cultural institutions are allowed to digitise and make available online any orphan work that has been so recognized in any EU member state. Once Britain leaves the EU, works recognized as orphan works in the UK, but not in other EU member states, will no longer be eligible to be made available online by cultural institutions in the EU, and vice versa.
For blind or visually impaired persons, the EU Directive that allows persons acting on their behalf to obtain accessible format copies (under an exception to copyright protection) from authorized entities in any member state will no longer apply to Britain. The “Marrakesh Treaty” (to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print-Disabled) would normally apply in this instance, except that the UK is not currently a member of this treaty.
The new online portability regulations require online content service providers to allow residents of EU countries to have access to a subscription content service when they are travelling in the EU, on the same basis as if they were still in their home country. However, according to the EU’s March interpretive note, “as of the withdrawal date, persons residing the United Kingdom will no longer benefit from their digital content subscriptions when travelling to the EU; and a provider of online content services based in the United Kingdom will need to comply with the rules of the relevant EU State or States where it wishes to offer services to its subscribers—including the need to clear all relevant rights for that or those Member States.” In other words, all those Brits who head to Spain’s beaches will no longer be able to access their home subscriptions to Netflix or whatever else they like to watch, unless of course they workaround the geo-filters that British online content providers will have to put in place. If their content provider offers a locally licensed service, such as Netflix in Spain, there is likely to be little inconvenience although not every program available in the UK will necessarily be available in Spain, but if the content provider does not offer its programming in Spain or any other EU member state, then the viewer will be out of luck.
The final provision limits the right of British residents, once the UK has left the EU, to maintain their sui generis database rights in EU member states. This right is akin to a property right, comparable to but distinct from copyright, that recognizes the investment made in compiling a database, even when this does not involve the element of “creativity” that is reflected by copyright. Whether UK residents will retain their rights to databases created prior to Brexit is still under negotiation.
Some of these limitations may seem somewhat arcane. Others are more of a nuisance or an inconvenience, especially for consumers, although they will impose additional costs on UK-based businesses. In a worst-case scenario for Britain, they could eventually lead to some realignment of business operations.
Other aspects of EU copyright law are still evolving, such as proposals to update the Copyright Directive for the digital age. The proposed changes, which would have included a provision requiring internet intermediaries that feature user-generated content to screen uploads for infringing material, (Article 13) and a requirement that “information society service providers” (e.g. search engines, online marketplaces, blogs, video-sharing sites, etc.) provide publishers of press publications “fair and proportionate remuneration for the digital use of their press publications” (Article 11) were recently defeated in a vote in the European Parliament.
The campaign against Article 13 in particular had all the characteristics of a scare campaign mounted by “tech populists” claiming this measure would create “censorship machines” (with German MEP Julia Reda of the Pirate Party being a leading exponent of this misinformation). It turns out that most if not all of the astroturfing behind this manipulation of MEPs originated not far from (my) home, in Vancouver, BC, driven by the well-funded (see Platinum supporters) cyber-libertarian group, Open Media. David Lowery of The Trichordist has meticulously (with screen shots!) documented the modus operandi of this group and its commercial spinoff NewMode.net, a business that specializes in creating mass misinformation campaigns, for hire. In any event, the Article 13 issue is not over since the legislation will be sent back for redrafting and further consultation, with a view to another vote in September. Assuming that Brexit takes place next March, any changes are unlikely to take effect in Britain but if forms of Article 13 and 11 are passed and take effect in the EU, better protection for creators in Europe will accentuate the disadvantage for rights-holders in Britain, probably leading to a demand from British creators for equal protection in their own country.
Apart from the carve-outs for Britain from EU copyright provisions, there are other concerns as well.
At the London Book Fair in April British publishers released their “Publishing Blueprint”, expressing concern lest British trade negotiators give up some of the “gold standard” of British copyright protection in future trade negotiations. Support for exports and access to global talent, something that Brexit could make more difficult, were also emphasized. In May at the British Book Awards, Illustrator of the Year Axel Scheffler, who moved to Britain from Germany in 1982, told the audience that Brexit had cast a cloud of uncertainty over his future, and he wasn’t sure that he would be able to stay on in Britain after Brexit. Author of the Year Philip Pullman also used the occasion of his award to speak out against Brexit. Whether focussed specifically on the application of copyright, and its broader impact on the creative industries. Brexit is clearly not just a business issue but an emotional one as well.
According to some pundits, there is still doubt as to whether Britain will actually exit the EU, and anti-Brexit forces continue to fight a rear-guard action, hoping for a second referendum. Given the apparent determination of the current government to follow through on the original referendum results, however, a wise betting man would not give very good odds on a non-Brexit outcome. There will be pain, there will be inconvenience, and there will be dislocation. In the area of copyright, these impacts–while not negligible–are relatively minor compared to some of the adjustments that other sectors of the economy will have to face. That is the good news. The bad news is that the full impact will not really be known until after it happens. By then it will be too late to undo the damage.
© Hugh Stephens 2018. All Rights Reserved.