Will I be able to enforce my European intellectual property rights in the UK?

Will I be able to enforce my European intellectual property rights in the UK?

The uncertainty for business owners regarding the law applicable to them continues to exist despite the UK-EU Withdrawal Agreement coming into effect from 31 January 2020. Currently EU law is still applicable in the UK and will be until the end of the Transition Period. The Transition Period is set to come to an end on 31 December 2020 but it is possible that this date could be extended.

In this series of articles we will deal with the impact of Brexit on each form of Intellectual Property in turn. This article will consider the current and future law surrounding copyright in light of Brexit.

What is the impact of Brexit on copyright?

Copyright protection is gained automatically and is governed by the law in the location that the work was first published or by the law to which the author is a national. There is no need to register to gain protection. As such there is not going to be any immediate change and owners will continue to be able to take action against an infringing party to stop the misuse and claim damages.

The law on copyrighted material has been harmonised across the EU giving an owner protection until 70 years after the author’s death.

Going forward the UK will not have to continue to align with the EU. However, as the UK is a member of the Berne Convention for the Protection of Literary and Artistic Works, it is unlikely that the UK law on copyright will diverge substantially from European Union law in this area. The purpose of the Convention was to largely align the law on Copyright across all the jurisdictions who have signed it.

By virtue of the conventions on copyright, UK Copyrighted material will still be recognised in EU member states and EU Copyrighted material will still be recognised in the UK after the Transition Period ends. For the majority of owners of copyrighted works there will be no real noticeable change.

However, Brexit will have an impact on some very specific sectors. For example cultural institutions in relation to Orphan Works will have to take action. Orphan works are copyrighted works for which the right holder is not known or cannot be located and so it is impossible to seek permission to use the work from the right holder. The EU introduced a Directive to allow a narrow group of users the right to digitise and make orphan works available online. This was intended to benefit the public culturally by allowing libraries and museums to be able to publish the works which otherwise would not be possible.

After Brexit this exception will no longer apply to UK based institutions and so by the end of the Transition Period they will need to ensure that they have removed any orphan works online or they will need to have obtained a license from the UK’s orphan works licensing scheme.

There is also likely to be an impact for cable broadcasts. Currently the majority of royalties for the use of works are collected and distributed by a collecting society. Going forward individual licenses may have to be negotiated by UK owners directly with cable operators increasing the administration for owners of UK copyrighted works.

What is the future for UK copyright?

It is unclear whether or not the UK courts will continued to use case law from the European Court of Justice when deciding whether there has a been a breach of copyright. It is possible that the Courts may well diverge which could create a situation where the law remains largely harmonised but the interpretation and therefore effect of the law starts to differ. Only time will tell the true impact of this.

Furthermore, providing the Transition Period ends prior to 7 June 2021 the UK government has indicated that it will not implement the controversial Directive on Copyright in the Digital Single Market. The purpose of the Directive is to modernise copyright to better reflect the digital world including a better chance of authors being remunerated for their works being used online. However, there is concern about how this will actually be enforced and many organisations have expressed their opposition to this Directive. As such it may make the UK a more appealing market place for businesses that would be caught by this Directive.

In conclusion, while the fundamentals of copyright looks to remain the same after the Transition Period ends only time will tell whether enforcement and interpretation start to diverge.

If you need assistance on potential enforcement of your intellectual property please contact Jill Lipscombe on jill.lipscombe@herrington-carmichael.com or 01276 686222. Alternatively, if you would like your IP ownership to be reviewed please contact Alex Canham on alex.canham@herrington-carmichael.com or 0118 977 4045.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

Stephen Baker
Partner, Head of Dispute Resolution
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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