Friday, 19 October 2018

Copyright and Related Rights after Bexit







































Jane Lambert

Copyright is the exclusive right to copy, publish, perform, rent or lend, make available to the public, communicate to the public or make an adaptation of an original artistic, dramatic, literary or musical work, broadcast, film or sound recording or typographical arrangement of a published work.   Unlike patents, trade marks and registered designs they come into being automatically.   They do not need to be registered with the Intellectual Property Office or other agency.

Related Rights
Related rights are rights that are similar to copyright in that they also protect creative output.  In the UK they include
  • rights in performances such as the right of an actor, dancer, musician, singer or other performer to object to the broadcasting, filming or taping of his or her live performance' 
  • unregistered design right which is the exclusive right to make articles to  an original design; and
  • database right which is the right to prevent extraction and unauthorized re-utilization of the contents of  a database.
Those rights also come into being automatically and do not have to be registered.

Effects of Brexit
Brexit will be less disruptive of copyright and related rights than of trade marks, registered designs, plant varieties or even patents.  The main change will be the loss of rights under the following legislation:
If the UK concludes a withdrawal agreement in accordance with the draft that was first published at the end of February 2018, those rights will continue until at least the 31 Dec 2020.  If the UK leaves without a withdrawal agreement, the rights will be lost on 29 March 2019.

Database Rights
The Database Directive creates a new intellectual property right known as "database right".  Art 11 (1) of the directive provides that database rights shall apply only to databases whose makers or rights holders are nationals of a member state or who have their habitual residence in the territory of the EU.  If and when the UK leaves the EU, British makers and rights holders will cease to be nationals or habitual residents of an EU member state.

The Database Directive is implemented in the UK by The Copyright and Rights in Databases Regulations 1997.   There is no reason why those regulations should not remain in force though the qualification requirements in reg 18 would have to be amended if new British databases are to be protected.  However, databases made or owned by British nationals or residents are unlikely to be protected anywhere in the EU.

In its guidance Copyright if there's no Brexit deal , the Department for Business, Energy and Industrial Strategy suggests that "UK owners may want to consider relying on other forms of protection (e.g. restrictive licensing agreements or copyright where applicable) for their databases." The problem with that suggestion is that copyright is not the same as database right. Copyright subsists in the selection or arrangement of the contents of a database in so far as they constitute the author's own intellectual creation.  Database right, on the other hand, is the right to prevent unauthorized extraction and re-utilization of the contents of that database.  As for restrictive licensing, there must be something to license.  If database right no longer subsists in a British owned database it is less than obvious how a restrictive licence could work.  A better solution might be to incorporate a subsidiary company in one of the remaining EU member states and to assign the copyright and database rights in the database to the subsidiary.

Portability of Online Content   
Since 1 April 2018 it has been possible for subscribers to online content such as film, music or sport in one EU member state to continue to receive that content in the rest of the EU.   Art 3 (1) of Regulation 2017/1128 makes clear that that service is available only to citizens of EU member states.  After the UK leaves the EU, service providers must cease to provide access to online content to British subscribers when they visit the EU.   There is nothing to prevent content providers that establish themselves in another member state from continuing to provide their services to citizens of other member.

Satellite Broadcasting
Directive 93/83/EEC enables satellite broadcasters in one member state to transmit to the rest of the EU material that has been cleared in the member state of origin.   When the UK ceases to be a member of the EU, British broadcasters will lose the benefit of that Directive.   Anything that they transmit from the UK to another EU country will have to be cleared for reception in that country.  If a broadcaster wants to broadcast the programme to more than one member state, he or she must clear the programme in each and every country.

Orphan Works  
Orphan works are works in which copyright subsists but the owner of such copyright is unknown. Art 6 (1) of Directive 2012/28 provides an exception to copyright law that enables libraries, art galleries, museums and other institutions in the EU to make digital copies of such works available online.  That exception could no doubt continue for the UK but British institutions will lose that exemption in the remaining member states. They will risk infringement claims by the owners of copyrights in orphan works if they continue to provide such material to the rest of the EU.

Collective Rights Management
Directive 2014/26 enables a collecting society or other collective rights management organization in one member state to grant online music licences for the rest of the EU.  After the UK leaves the EU British collective management organizations will cease to be able to mandate collective management organizations in the EU to grant multi-territorial licences of online rights in music.  

Marrakesh Treaty
The Marrakesh Treaty requires contracting parties to create exceptions to their copyright laws to enable copies of copyright works to be made for blind or visually impaired persons.  Her Majesty's Government intends to accede to that treaty but has not yet done so.   At present, publishers of works for blind and visually impaired persons can rely on Regulation 2017/1563 as it allows the cross-border transfer of accessible format copies of copyright works between EU member states and with other countries that have ratified the treaty. If the UK leaves the EU before this country accedes to that treaty there will be a hiatus during which time it will not be possible to import accessible materials from, or export such materials to, the UK without the licence of the copyright owner.

Further Information
The Department for Business's guidance urges those who are likely to be affected by the above changes to seek professional advice.  Anyone wishing to discuss this article or copyright and related rights generally should call me on +44 (0)20 7404 5252 during normal office hours or send me a message through my contact form.

Monday, 15 October 2018

EU Trade Marks and Community Designs after Brexit

Jane Lambert











At present it is possible to register a trade mark with the European Union Intellectual Property Office ("EUIPO") for the whole European Union including the United Kingdom as an EU trade mark ("EUTM"). Similarly, it is possible to register a design with the EUIPO for the whole EU including the UK as a registered Community design ("RCD").  Designs that are capable of being registered as RCDs are protected automatically from copying for 3 years from being made available to the public as unregistered Community designs ("UCD"). All those rights were created by regulations made under EU treaties that cease to apply to the UK when it leaves the EU.

If HM government concludes a withdrawal agreement with the EU before 29 March 2019, those regulations will continue to apply to the UK until 31 Dec 2020 when it is hoped that a new relationship with the EU will be in place.  If the UK leaves on 29 March 2019 without a withdrawal agreement, the provisions contained in the regulations will be preserved in the UK by s.3 of the European Union (Withdrawal) Act 2018.  The regulations will, of course, continue to apply in the states that remain in the EU.

It appears from the guidance Trade marks and designs if there’s no Brexit deal that legislation will be introduced to enable applicants for an EUTM or RCD at the time of Brexit to apply to the UK Intellectual Property Office ("the IPO" for simillar trade mark or registered design protection.  They must make their application within 9 months of Brexit.  They will be able to retain the date of the EU application for priority purposesI.   Owners of EUTMs and RCDs will be able to convert their registrations into British trade marks or registered designs "with minimal administrative burden."  The guidance states that the "UK is also working, including with the World Intellectual Property Organisation, to provide continued protection in the UK from March 2019 for trade marks and registered designs filed through the Madrid and Hague Systems, and designating the EU as the area where they apply."

The implications for EUTM and RCD owners will be as follows:
  • "existing registered EU trade marks or registered Community designs held will continue to be valid in the remaining EU member states
  • protection of existing registered EU trade marks or registered Community designs in the UK will be through a new, equivalent UK right which will be granted with minimal administrative burden
  • right holders will be notified that a new UK right has been granted. Any business, organisation or individual that may not want to receive a new comparable UK registered trade mark or design will be able to opt out
  • provision will be made regarding the status of legal disputes involving EU trade marks or registered Community designs which are ongoing before the UK courts and more information will be provided on this before the point at which the UK exits the EU
  • applicants with a pending application for an EU trade mark or a registered Community design at the point of exit will be able to refile, within nine months from the date of exit, under the same terms for a UK equivalent right, retaining the EU application date for priority purposes
  • applicants with pending applications for an EU trade mark or a registered Community design will not be notified and after exit will need to consider whether they refile with the Intellectual Property Office to obtain protection in the UK
  • new applications will be eligible to be filed in the UK for UK trade marks and registered designs as they are now, and at the cost specified in the UK fee structure
  • UK applicants, like EU and third country applicants, will continue to be able to apply for protection in the EU through an EU trade mark or registered Community design as they do currently,"
Finally, the guidance announces that a new intellectual property right, to be known as a "supplementary unregistered design right" with the characteristics of an UCD, will be established.  The guidance notes:
  • "existing unregistered Community designs will continue to be valid in the remaining EU member states
  • protection of existing unregistered Community designs in the UK will be provided for with no action required by the right holder
  • provision will be made regarding the status of legal disputes involving unregistered Community designs which are ongoing before UK courts."

Anyone wishing to discuss this article or Brexit generally should call me on +44 (0)20 7404 5252 during the usual office hours or send me a message through my contact page.

Tuesday, 9 October 2018

Brexit Briefing September 2018

Treading Water
Author Lance corpora; Erin McKnight
Licence Copyright waived by US government
Source Wikipedia
















Jane Lambert

The theme of this month's Brexit Briefing is treading water.  There have been a lot of events like the Salzburg summit and Mrs May's reaction to it, the Labour and Tory Party conferences and the publication of Guidance on how to prepare for Brexit if there's no deal.  The government has not fallen. The white paper on the future relationship with the EU has not been abandoned.  There is growing popular support for a second referendum in all the political parties despite resistance from the Prime Minister and very lukewarm support from the Leader of the Opposition.

It is clear from the government's guidance notes that exiting the EU on 29 March 2019 would come at a cost for most businesses.   I have reviewed just two of those notes on patents (see Patents if there is no deal 3 Oct 2018) and geographical indications (see Geographical Indications after Brexit 6 Oct 2018 NIPC Branding).  It would also be bad for at least some of our neighbours as Dáithí O’Ceallaigh, a former Irish ambassador to London, explained in his lecture at Cardiff University on 28 Feb 2018 (see Brexit from an Irish perspective - Dáithí O’Ceallaigh  YouTube 28 Feb 2018).   Yet that is what will happen unless agreement is reached on every issue in negotiation including the thorny issue of the Irish border.

Yet how to avoid checks and inspections between one country that is within the single market and another that is not is a conundrum to which there seems to be no obvious solution.   If, for example, free movement of labour is permitted by Ireland but not by the UK, what is there to stop a migrant from another part of the EU from flying to Dublin and then taking a train to Belfast or indeed a ferry to Fishquard.

The possibility of a further referendum with "remain" being an option is unlikely but slightly less unlikely than it was a month ago.   It could result from a stalemate in Parliament between those favouring a clean break Brexit now and those desiring as little disruption of trade and investment with the remaining member states as possible.

As the outcome could be a sharp sudden break  on 29 March, an implementation period between 29 March and 31 Dec 2020 or maybe even no Brexit at all, treading water seems a sensible option for most businesses, certainly over the next few months.

Anyone wishing to discuss this briefing or the consequences of Brexit generally should call me on 020 7404 5252 or send me a message through my contact form.

Post Script
The Rt Hon Dominic Raab MP has delivered this statement to the House of Commons on the withdrawal agreement negotiations and HM government's preparations for quitting the EU without such an agreement.

Wednesday, 3 October 2018

Patents if there’s no Brexit Deal
















Jane Lambert

Since the 23 Aug 2018 the Department for Exiting the European Union has been publishing guidance on how to prepare for Brexit if there is no withdrawal agreement (see Jane Lambert And if there is no deal ......... 24 Aug 2018).  These are indexed in How to prepare if the UK leaves the EU with no deal which was published on 24 Sept 2018.  Several of those guidance notes concern intellectual property including Patents if  there's no Brexit deal subtitled How the UK patent system would be affected if the UK leaves the EU in March 2019 with no deal published on 24 Sept 2018.

Like all the other guidance notes, this one opens with the statement:
"A scenario in which the UK leaves the EU without agreement (a ‘no deal’ scenario) remains unlikely given the mutual interests of the UK and the EU in securing a negotiated outcome."
It continues that negotiations are going well but the government has to be ready for all eventualities. It has published this and other other technical notes "to allow businesses and citizens to understand what they would need to do in a ‘no deal’ scenario, so they can make informed plans and preparations."

The note explains how our withdrawal from the EU without a deal would affect:
In respect of each of those topics the note sets out the position before and after 29 March 2019.

With regard to patents and SPCs, the guidance notes that few areas of patent law derive from EU legislation. Pharmaceutical and agrochemical products are important exceptions in that SPCs provide an additional period of protection for those inventions after their patents run out. There are also special provisions for biotechnological inventions, compulsory licences for patented medicines and limitations to the scope of a patent monopoly to permit trials and tests and other activities.  The note states that s.2 of the European Union (Withdrawal) Act 2018 will preserve the relevant EU legislation and s.3 will incorporate it into our law.

The note is much less certain and hence less helpful when it comes to the UPC. It begins with the extraordinary statement 
"The Unified Patent Court will hear cases relating to European patents and the new unitary patent – both administered by the non-EU European Patent Office"
in the "Before 29 March 2019" section. That is simply not happening and is unlikely to happen in the next few months.  The note then contradicts itself in the last two sentences of that section:
"The Unified Patent Court (UPC) is not yet in force, with the start date being dependent on ratification of the Unified Patent Court Agreement by Germany. It is unclear whether the Unified Patent Court and unitary patent will start before 29 March 2019."
It describes the UPC as "an international patent court established through an international agreement (the Unified Patent Court Agreement) between 25 EU countries" without mentioning that art 84 (1) states that this agreement is open to membership only to EU member states or that the legislation that provides for the unitary patent is an EU regulation.

After 29 March 2019 the note suggests two different scenarios for the UPC:
  • The UPC Agreement will not come into force because the UK will leave the EU before Germany ratifies the agreement; or
  • The agreement does come into force in which case "there will be actions that UK and EU businesses, organisations and individuals may need to consider." These will include exploring whether it will be possible for the UK to remain within the UPC and unitary patent systems in a ‘no deal’ scenario". 
The note gives the following advice to businesses and other stakeholders if the agreement comes into force before the 29 March 2019 but the UK has to withdraw:
  • "UK, EU and third country businesses will still be able to use the Unified Patent Court and unitary patent to protect their inventions within the EU
  • any existing unitary patents (UPs) will give rise to patent protection within the UK with no action required by the right holder. The UP system will only come into force when the Unified Patent Court is operational. UPs will not be available to businesses until this point
  • provision will be made regarding the status of any pending cases before the Unified Patent Court at exit
  • UK, EU and third country businesses seeking protection in the UK for their inventions will need to use national patents (including patents available from the non-EU European Patent Office) and the UK court system."
The last section on correspondence addresses and confidentiality for UK patents is really concerned with addresses for service, representation in the European Patent Office and Intellectual Property Office and legal professional privilege.  As the EPO unlike the EU Intellectual Property Office, is not an EU institution, there is unlikely to be any change in the existing in the arrangements that relate to patents.  The position with regard to Community designs and EU trade marks will be different.

About the best advice in the guidance note is that "businesses may wish to seek legal advice on how these arrangements could affect their business model or intellectual property rights."  Advice which is repeated below:
"You should consider whether you need separate professional advice before making specific preparations."
That is a service that I am well placed to provide and very willing to give.

Anyone wishing to discuss this article or Brexit generally should call me on  +44 (0)20 7404 5252 during normal office hours or send me a message through my contact form

Thursday, 6 September 2018

Brexit Briefing - August 2018

Rt Hon Dominic Raab MP
Author Chris McAndrew
Licence  Creative Commons Attribution Share Alike 2.0 unported
Source Parliament



























Jane Lambert

Unless the British government withdraws its notice of intention to leave the European Union or the 27 remaining member states of the EU unanimously extend the notice period under art 50 (3) of the Treaty of European Union, the UK will leave the EU on 29 March 2019.  There are two possible scenarios as to what will happen after that.  If both sides sign a withdrawal agreement as contemplated by art 50 (2) arrangements between the UK and the remaining member states will continue more or less as they are now until 31 Dec 2020.  That would give negotiators a breathing space to negotiate an agreement for a future partnership with the EU that will come into effect on 1 Jan 2021.  If a withdrawal agreement is not signed by 29 March 2019 then the legal framework that has governed the UK's relations with its 27 closest neighbours, trading partners and allies will cease to exist with all sorts of unknown consequences.

A draft of the withdrawal agreement was published in February and 80% of it has been agreed according to Michel Barnier  in his op-ed An ambitious partnership with the UK after Brexit 2 Aug 2018 and the Rt Hon Dominic Raab MP, the new Brexit secretary, in his statement to the House of Commons on 4 Sept 2018.   However, as in all commercial negotiations, nothing is agreed until everything is agreed and the sticking point up to now has been how to ensure that there are no customs formalities at the border between Northern Ireland and the Irish Republic after the UK leaves the single market and customs union.  Two possible solutions have been offered so far neither of which is likely to be agreed.  The Commission has proposed a backstop arrangement by which Northern Ireland remains in the customs union and customs and immigration checks take place at British and Irish sea and airports.  The British government has suggested free movement for goods with a common rule book in its white paper on The Future Relationship between the United Kingdom and the European Union.

In his Commons statement Mr Raab described the Commission's proposals as "unacceptable, because they would create a customs border down the Irish Sea."  The white paper proposals have already prompted the resignation of two cabinet ministers and have been described by a former minister as less popular than the poll tax.  They are unlikely to survive a vote in the Commons let alone scrutiny by the Commission's art 50 task force.   Mr Raab told the Commons that "we are determined to reach a solution that protects the Belfast Agreement and avoids a hard border on the island of Ireland" but gave no details as to what that solution could be.

Interestingly, there now seems to be another snag which concerns geographical indications, a form of intellectual property.   In a statement following his meeting with Mr Raab on 31 Aug 2018, Monsieur Barnier said:
"On geographical indications - 3000 geographical indications in the 28 countries of the Union - I expressed again my worry. 
The EU's position is clear: Brexit should not lead to a loss of existing intellectual property rights.

We must protect the entire stock of geographical indications.

This protection is an international obligation, and seeing as it is one of the separation subjects, it must be clarified in the Withdrawal Agreement. We will come back to this subject, whose solution must be in the Withdrawal Agreement."
It is not clear why this is a problem as the UK is bound to protect geographical indications by section 3 of the TRIPs agreement and has always done so through the registration of collective and certification marks and the law of passing off.

Although Mr Raab stressed that he expected to reach a deal with the EU, that it remained the most likely outcome and the government's top and indeed its overriding priority, HMG had a duty as a responsible government to prepare for any eventuality.  Accordingly it has started to publish guidance to businesses and individuals on how to prepare for withdrawal without an agreement which I discussed in And if there is no deal ................. on 24 Aug 2018.

Concern over the consequences of leaving without a withdrawal agreement appears to have begun a shift in attitude over Brexit.  A number of opinion polls were published apparently showing growing disenchantment with Brexit and support for a second referendum (see Benjamin Kentish
2.6 million Leave voters have abandoned support for Brexit since referendum, major new study finds 4 Sept Independent and Patrick Grafton-Green Brexit news latest: Brits would vote 59-41 to remain in EU if second referendum was held, new poll shows 5 Sept 2016 Evening Standard).  A number of politicians in the Labour and Conservative parties as well as the Liberal Democrats have called for a peoples' vote or second referendum on the terms of the UK's withdrawal from the EU and they have been joined by a growing number of business and trade union leaders. The prime minister has rejected those calls and they have not been endorsed by the leader of the opposition but these are uncertain times in which anything is possible.

Anyone withing to discuss this article or Brexit in general should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page.

Friday, 24 August 2018

And if there is no deal ..................

Author Furfur
Licence Creative Commons Attribution Share Alike 4.0 International

























Jane Lambert

Art 50 (3) of the Treaty of European Union requires the treaties upon which the European Union is founded and their legal superstructure to cease to apply to the UK from the date of the withdrawal agreement that the remaining member states are required by art 50 (2) to negotiate with the UK or the 29 March 2019, whichever occurs first.  A draft of such a withdrawal agreement was published at the end of February and about 80% of its text is said to have been agreed but there are a number of differences to resolve not the least of which is the border between Northern Ireland and the Irish Republic.  If those differences cannot be resolved before 29 March 2019 many of the laws under which the UK has done business with its 27 neighbours will disappear.

It goes without saying that that will have substantial economic and social consequences for businesses and individuals in both the UK and the remaining member states.  It also goes without saying that it is the responsibility of government to help British citizens and businesses prepare for those eventualities.  The government has now accepted that responsibility in a speech by the Rt Hon Dominic Raab MP, Secretary for State on Exiting the European Union on no deal planning and the publication of the first batch of guidance documents on how to prepare for Brexit if the event of no deal on 23 Aug 2018,

Those guidance documents cover the following topics:
One of the most interesting and in some ways alarming of those documents is the Guidance Banking, insurance and other financial services if there’s no Brexit deal 23 Aug 2018.  That document considers the consequences of the loss of passporting rights and acknowledges that at least some British institutions are setting up subsidiaries in the EU to continue their business after Brexit.

Anyone wishing to discuss this article or Brexit in general should call me during office hours in +44 (0)20 7404 5252 during normal office hours or send me a message through my contact form.

Monday, 6 August 2018

Brexit Briefing - July 2018

Plage de la Coutarde
Author Baptiste Rossi
Copyright waived by the author 
Source Wikipedia






















Jane Lambert

A lot happened in July. First, the resignations of the Rt Hon David Davis MP, the Rt Hon Boris Johnson MP and a number of other ministers. Secondly, the publication of white papers on The Future Relationship between the United Kingdom and the European Union and Legislating for the Withdrawal Agreement between the United Kingdom and the European Union.   Thirdly, the Prime Minister and her ministers have visited the capitals of other EU member states to canvass support for the future relationship white paper's proposals. Finally, active preparations have begun here and in the rest of the EU for the UK's withdrawal from the EU without a withdrawal agreement.

The procedure by which a member state withdraws from the European Union is set out in art 50 (2) of the Treaty of European Union:
"A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament."
The procedure was initiated by  a letter from the Prime Minister to the President of the Council dated  29 March 2017 giving notice of the UK's intention to withdraw from the EU. The Council provided the guidelines on 29 April 2017 supplemented by others on 15 Dec 2017 and 23 March 2018.  Negotiations on the terms of a withdrawal agreement began after the British general election a draft of which was published in February.  About 80% of the text is now agreed but there are a number of sticking points one of which is the border between Northern Ireland and the Irish Republic.

The withdrawal agreement has to take account of the future relationship between the UK and EU.  The Chequers statement which I reviewed in The Chequers Statement Explained 8 July 2018 was an attempt to get agreement within the government on what that relationship should be.   It did not survive the weekend as David Davis resigned on Sunday night and was followed by several other ministers including Johnson. The white paper on the future relationship was attacked by Brexiteers and remainers in the UK and given a lukewarm reception in Brussels.  I discussed it in The White Paper on the Future Relationship between the UK and the EU on 21 July 2018.  The EU's negotiator, Michel Barnier, set out his vision for the future relationship between the EU and UK in his op-ed  An ambitious partnership with the UK after Brexit on 2 Aug 2018.

If a withdrawal agreement is concluded it will have to be incorporated into English and Welsh, Scots and Northern Irish law by statute. The government's proposals for legislation are set out in the white paper on Legislating for the Withdrawal Agreement between the United Kingdom and the European Union which I discussed in Today's White Paper on the Withdrawal Agreement - What's happened to Ireland? on 24 July 2018.

In Brexit - Why do I follow the Art 50 (2) Negotiations when I am an IP Lawyer? 26 July 2018 NIPC Law I explained why the art 50 (2) negotiations are important and the likely outcomes if they are successful and also if they are not.   I also described the negotiations as "finely balanced".  There is an evens chance of their going either way.

Anyone wishing to discuss this article or Brexit generally should call me on +44 (0)20 7404 5252 or send me a message through my contact form.

Tuesday, 24 July 2018

Today's White Paper on the Withdrawal Agreement - What's happened to Ireland?

Satellite Image of Ireland
Author NASA
Licence Copyright waived by the owner


























Jane Lambert

Today our government published yet another white paper on Brexit.  This one is entitled Legislating for the Withdrawal Agreement between the United Kingdom and the European Union Cm 9674 and it proposes legislation for the implementation of the withdrawal agreement contemplated by art 50 (2) of the Treaty of European Union,

A draft of that agreement was published at the end of February and about 80% of it has been agreed according to Monsieur Barnier  (see Press statement by Michel Barnier following the July 2018 General Affairs Council (Article 50) 20 July 2018). But there remains one stumbling block and that is how to avoid the need for border posts with customs officers and immigration inspectors along the border between the Irish Republic and Northern Ireland when the UK leaves the Customs Union and Single Market that allows freedom of movement between member states.  One obvious solution would be for Northern Ireland to remain in the Customs Union and Single Market so that the border between the EU and UK is the Irish Sea but that would be anathema to Ulster Unionists as well as many in the Conservative Party and perhaps other British politicians.

It is no doubt for that reason that the 44 page white paper is almost silent on Ireland.   I counted only 13 references to the island in the text, mainly in the Introduction.  There is a lot more detail on Citizen's Rights (Chapter 2 - paragraph 16 to 51), the Implementation Period (Chapter 3 - paragraph 52 to 104), The financial settlement (Chapter 4 - paragraph 105 to 136) and Procedures for approval and implementation of the Withdrawal Agreement and framework for our future relationship (Chapter 5 - paragraph 137 - 157).  A lot of Mrs May's problems would disappear if more of her backbenchers and local Conservative Association members bothered to read those last 20 paragraphs.

In that it shows how far the negotiations have progressed on everything except Ireland and it betokens an intention to seeing the job through I am mildly comforted by  this document. Should anyone wish to discuss it or Brexit in general, call me on 020 7404 5252 or send me a message through my contact form. 

Saturday, 21 July 2018

The White Paper on the Future Relationship between the UK and the EU














Jane Lambert

Art 50 (2) of the Treaty of European Union requires the European Union to "negotiate and conclude an agreement with [a departing] State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union." The white paper on The Future Relationship between the United Kingdom and the European Union Cm 6593 is intended to satisfy the need for a framework for the future relationship with the EU to be taken into account.  Its defects and deficiencies are obvious but they probably do not matter because nobody expects its proposals to be accepted lock, stock and barrel by the remaining member states of the EU.  The purpose of the white paper is short term.  It is simply to address the requirements of art 50 (2).

According to Michel Barnier, some 80% of the provisions of the withdrawal agreement required by art 50 (2) have already been agreed (see Press statement by Michel Barnier following the July 2018 General Affairs Council (Article 50)  20 July 2018).  The draft agreement provides for an implementation period between 30 March 2019 and 31 Dec 2020 during which time EU law will continue to apply to the UK even though it will cease to be a member state.  At the end of that period it is hoped that a new agreement will be in place to govern relations between the UK and the 27 remaining states.

The white paper is a political expedient contrived to calm the nerves of employers in the aerospace, automotive and other industries while satisfying the demands of those seeking an end to British contributions to the EU budget and the jurisdiction of the Court of Justice of the European Union, the restoration of control of immigration from the EU 27 at ports and airports and so on.  Monsieur Barnier recognized the white paper for what it was when he described it as "le fruit d'un débat très intense au Royaume-Uni qui était nécessaire" ("the fruit of a very intense debate in the UK which had been necessary") adding that everyone is well aware that that debate is not over yet.  Although the white paper is not all bad - I found its commitments on continued judicial cooperation on civil and commercial matters and its commitment to the Unified Patent Court and the unitary patent very much to my liking (see Jane Lambert Like the Curate's Egg - The White Paper on the Future Relationship between the UK and EU 18 July 2018 NIPC News) - it is unlikely to form the basis of a permanent relationship for all the reasons that Monsieur Barnier gave in yesterday's press statement.

However, that does not mean that it is without value.  As Monsieur Barnier also said:
"De notre point de vue, il y a plusieurs éléments qui ouvrent la voie à une discussion constructive pour la déclaration politique sur notre future relation, par exemple :
  • la proposition d'un accord de libre-échange, qui devrait constituer le cœur de notre future relation économique. On rejoint là une proposition clef des guidelines du Conseil européen : un ambitieux free trade agreement;
  • des engagements en matière de level playing field, notamment en ce qui concerne les aides d'Etat et les règles sur l'environnement et l'emploi;
  • et une large convergence de vues sur de possibles et nécessaires coopérations en matière de sécurité intérieure et extérieure.
Le Royaume-Uni apporte des garanties en matière de protection des droits fondamentaux et reconnaît la Cour de justice de l'UE comme seul arbitre du droit européen.
Cela facilitera les échanges de données entre le Royaume-Uni et nous, et cela ouvre donc la possibilité d'élargir notre offre en matière de coopération sur la sécurité interne en particulier."
A political declaration on the future relationship is how the Commission and remaining member states interpret the requirement in art 50 (2) to take account of the departing state's future relationship with the EU.

Getting a withdrawal agreement that will lead to a transitional period between 29 March 2019 and the 31 Dec 2020 in which the UK will be formally outside the EU but the EU treaties. legislation and case law of the Court of Justice will continue to apply is probably the best for which those who wish to see as little disruption as possible to the UK's relationship with the EU can realistically hope.  A second referendum on the withdrawal terms is attractive to some but it would require legislation and time to campaign and the 2 year notice period provided by art 50 (3) runs out in less than 9 months.

Even though 80% of the text of the withdrawal agreement is agreed, it is by no means certain that we will get it.  The question of what should be done about Ireland (and to a lesser extent Gibraltar) remains as intractable as ever.  There are many MPs in the Conservative Party and even one or two in Labour who would relish an abrupt end to the UK's relationship with the remaining EU member states regardless of any inconvenience, discomfort and hardship that it would cause in the short term in the hope that it would lead to a complete reordering not only of our trade and foreign relations but also of our economy and society. I doubt that many of my clients or readers would want that to happen but such an outcome is very much on the cards and they are advised strongly to prepare for it.

Anyone wishing to discuss this article or Brexit in general in relation to IP and their legal affairs generally should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Sunday, 8 July 2018

The Chequers Statement explained

Chequers Court
Author Stephen Simpson
Licence Copyright released by the author
Source Wikipedia




















Jane Lambert

The Statement from HM Government issued from Chequers on 6 July 2018 appears to be a direct response to the European Council's Conclusions of 29 June 2018.  In order to understand both documents it is necessary to have regard for the Joint statement from the negotiators of the European Union and the United Kingdom Government on progress of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union.

The Joint Statement refers to a draft treaty for the withdrawal of the UK from the European Union which was first published on 28 Feb 2018.  The draft treaty is intended to be an agreement "setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union" within the meaning of art 50 (2) of the Treaty of European Union. It provides a timetable and road map for the orderly withdrawal of the UK from the EU. The draft agreement provides for the UK to observe the obligations of membership until 31 Dec 2020 after which a new framework agreement is hoped to be in place.

Without a withdrawal agreement, art 50 (3) provides that the treaties and the entire superstructure of legislation that has governed the relationship between the UK and its neighbours and allies since 1973 will simply fall away on 29 March 2019.

There are some who believe that such an outcome would be a good thing because it would enable:
  • British businesses and consumers immediately to buy goods from suppliers outside the EU more cheaply than they can now because the UK would no longer have to apply the common external tariff on such goods; and 
  • British diplomats to negotiate trade deals with countries outside the EU that would be more favourable to British business than the ones to which HM government is already a party.
That may or may not be the case but it is not a view shared by business leaders in the aerospace and automotive sectors that have warned that they will reconsider investing in the UK if the UK leaves the EU without, at the very least, a withdrawal agreement on the lines of the 28 Feb draft.

The problem for both the British government and the remaining EU member states is that any withdrawal agreement will have to be ratified by the British and European parliaments and there is not much time left for them to do it. That is why the Council expressed concern that no substantial progress had yet been achieved on agreeing a backstop solution for the border between the Irish Republic and the United Kingdom and called upon the UK to make its position clear on any framework agreement for future trade relations between the UK and EU.

Both the British government and the remaining EU member states are committed to an open border between the United Kingdom and the Republic of Ireland.  The EU Commission proposes a backstop agreement which would require Northern Ireland to remain in a customs union with the Irish Republic.  As that would be politically unacceptable to the UK, the Chequers statement makes two proposals. The first is that:-
"The UK and the EU would maintain a common rulebook for all goods including agri-food, with the UK making an upfront choice to commit by treaty to ongoing harmonisation with EU rules on goods, covering only those necessary to provide for frictionless trade at  the border."
Secondly:
"The UK and the EU would work together on the phased introduction of a new Facilitated Customs Arrangement that would remove the need for customs checks and controls between the UK and the EU as if a combined customs territory."
The government listed the benefits of the proposal one of which is that it should
"enable the Government’s commitments to Northern Ireland to be met through the future relationship, avoiding the need for a border between Northern Ireland and Ireland, or within the UK."
There is no guarantee that these proposals will be accepted but they are a start.  The alternatives to a withdrawal treaty are no agreement at all and the last paragraph of the statement makes arrangements for that eventuality, an agreed extension of the two year negotiating period in accordance with art 50 (3) or, if that is legally or politically possible, the revocation of the notice of intention to withdraw from the EU.

Anyone wishing to discuss this article or Brexit in general should call me on 020 7404 5252 during office hours or send me a message through my contact form.

Tuesday, 3 July 2018

Brexit Briefing - June 2018

Author Mikelo 
Licence Creative Commons Attribution Share Alike 2.0 Generic
Source: Wikimedia Commons

















Jane Lambert

Despite Lords' amendments and a threatened revolt by a number of Tory MPs, the European Union (Withdrawal) Bill received royal assent and is now law. I have removed my link to the bill and added one to the Act in the left hand column.

But from the government's point of view that was the only progress that it could celebrate.  Members of the Cabinet could not agree on mechanisms for avoiding a hard border with the Republic of Ireland. There were reports that the Rt Hon Michael Gove MP had torn up a report on a policy said to be favoured by the Prime Minister in a fit of pique (see  'Livid' Michael Gove rips up EU customs partnership report 30 June 2018 BBC website). Major employers like Airbus SE and BMW have been drawing up contingency plans for the UK's departure from the EU without a withdrawal agreement (see Hope for the best but prepare for the worst 22 June 2018).

A draft withdrawal agreement has been available since 28 Feb 2018 but many of its provisions are still to be agreed (see Brexit Briefing - February 2018 7 March 2018).  There has been progress as the European Council acknowledged in its Conclusions of 29 June 2018 but there is a great deal more still to do.    It expressed concern that no substantial progress had yet been achieved on agreeing a backstop solution for Ireland/Northern Ireland despite commitments undertaken by the UK in this respect in December 2017 and March 2018.  It also called for work to be accelerated with a view to preparing a political declaration on the framework for the future relationship. 

The lack of progress with such two issues is the reason for the nervousness of businesses like Airbus and BMW.  At the time that the draft was published there was every hope that the parties would reach an agreement before the 29 March 2019 that would allow integrated aerospace and automotive manufacturing across the Channel and North Sea to continue.  As every day passes such an outcome becomes less and less likely.  There is a growing chance that the UK will withdraw from the EU without any agreement at all.

Although most businesses seem to regard withdrawal without agreement as a bad thing some will find opportunity.   Regardless of whether such an outcome would be good or bad it has to be planned for and it is reassuring that many organizations are doing just that,

Anyone wishing to discuss this article or Brexit in general should call me on 020 7404 5252 or send send me a message through my contact form.

Copyright and Related Rights after Bexit

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