The UK left the European Union on 31 December 2020 and on 1 January 2021 a new intellectual property law regime took effect. The below guide highlights the key changes you should expect and what steps you might need to consider taking to ensure that your company’s rights are protected.
The below guide highlights the key changes you should expect and what steps you might need to consider taking to ensure that your company’s rights are protected.
Copyright
Copyright law is generally harmonised on an international scale and the UK is party to a number of international treaties that govern the protection of copyright works. For that reason, the position as to protection of copyright works after the end of the withdrawal transition period will be largely unchanged.
Most works that are protected by copyright in the UK will still be protected in the EU and the UK, regardless of whether they were created before or after the withdrawal transition period. For the same reason, EU copyright works will still be protected in the UK.
The criteria that determines whether a work qualifies for copyright protection will remain the same, as will the rules that govern the duration of the right. Further, several amendments made to UK law will mean that certain provisions will not change, such as artist’s resale rights (i.e. entitlement to royalty payments) and the calculation of royalty payments.
Several reciprocal cross-border arrangements will, however, be amended or brought to an end, subject to any alternative agreement that may be reached in the meantime.
Cross-border portability of online content services
At the moment, UK consumers have the right to access their online content services, such as Netflix and Amazon Prime, in other EEA Member States as if they were at home in the UK. The reverse is also true for EEA consumers when they visit the UK.
This right will be revoked on 1 January 2021, meaning that consumers may experience restrictions to the content they can normally access in their home state when travelling between the UK and other EEA Member States. However, while this right will be revoked, service providers may still offer cross-border portability to their customers on a voluntary basis, subject to the permission of content owners.
Orphan Works and Cultural Heritage Institutions
Orphan works are copyright works where the owner/author is unknown, or cannot be found, and is therefore unable to enforce their rights in the work. Even though the author of the work may be unidentified, the work is still protected by copyright and therefore cannot be freely used by a third party without permission.
Under EU law, cultural heritage institutions (eg. libraries, archives and museums) based in the EEA have the benefit of the “orphan works exception”, which permit them to digitise orphan works and make them accessible in EEA Member States without infringing copyright.
After the end of the withdrawal transition period, the orphan works exception will no longer apply to UK-based cultural heritage institutions and they should therefore take active steps to remove any orphan works currently placed online under the exception, or seek to secure alternative licensing provisions.
Copyright Clearance in Satellite Broadcasting
Currently, when a satellite broadcaster transmits a copyright work from one EEA Member State to another, it only needs to get the copyright holder’s permission for the state in which the broadcast originates. This is called the “country-of-origin” principle.
This principle may no longer apply to UK satellite broadcasters, who may require additional rights holder permissions to cover the EEA states to which they broadcast. Whether additional permissions are required will depend on the domestic legislation of the EEA member state in question and whether they apply the country-of-origin principle to non-EEA broadcasts. UK satellite broadcasters should therefore check their existing licensing permissions.
Collective rights management:
Collective management organisations (CMOs) license rights on behalf of copyright owners. Under EU law, they are obliged to represent right holders from any EEA member state when requested to do so, unless there are objectively justified reasons not to.
This will change after the end of the transition period, when EEA CMOs will be free to refuse UK rights holders’ requests for representation.
Cable retransmissions of works
UK copyright holders whose work is broadcast from the UK and then retransmitted by cable in an EEA member state can currently only exercise their rights through a CMO. However, this rule may no longer apply after 1 January 2021. Copyright holders that fall into this category may need to negotiate licence agreements directly, and could be subject to statutory licensing terms imposed by EEA states.
Database rights
Database rights granted under EU law mean that databases produced in the UK are protected in the EEA against unauthorised copying or extraction of data. From 1 January 2021, UK citizens, residents, and businesses will no longer enjoy these rights. Database owners should therefore check whether they can protect databases in the EEA by relying on licensing agreements or copyright instead.
Note that the withdrawal agreement ensures database rights (covering the UK and/or EEA) in existence before the end of the transition period will remain in place for the remainder of their duration.
For more information on the topic, please contact Hannah Fawcett.
