Writing the EU out of our Copyright Law: The Draft Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations

Jane Lambert

In Copyright and Related Rights after Brexit 19 Oct 2018, I discussed some of the changes to our copyright law and related rights as a result of our departure from the European Union. The Department for Business, Energy and Industrial Strategy has prepared in draft The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2018 to provide for some of those changes and the Intellectual Property Office an Explanatory Memorandum to the draft Regulations.

The draft Regulations are divided into five Parts:

• Part 1 (Reg 1) provides the name by which the Regulations may be cited and that they will come into effect on "exit day";
• Part 2 (Regs 2 - 25) makes changes to the Copyright Designs and Patents Act 1988 most of which consist of substituting "the United Kingdom" for references to EEA states;
• Part 3 amends subordinate legislation as follows: 
• Reg 26 makes amendments to The Duration of Copyright and Rights in Performances Regulations 1995;
• Reg 27 to The Copyright and Related Rights Regulations 1996;
• Reg 28 to The Copyright and Rights in Databases Regulations 1997;
• Reg 29 to The Artist’s Resale Right Regulations 2006;
• Reg 30 to the Copyright and Rights in Performances (Extended Collective Licensing) Regulations 2014;
• Reg 31 to the Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014;
• Reg 32 to The Collective Management of Copyright (EU Directive) Regulations 2016;
• Reg 33 to the Copyright and Performances (Application to Other Countries) Order 2016; and
• Reg 35 to the Copyright and Related Rights (Marrakesh Treaty etc.) (Amendment) Regulations 2018; while
• Reg 34 revokes. The Portability of Online Content Services Regulations 2018.
• Part 4  makes changes to EU regulations that are incorporated into the laws of England and Wales, Scotland and Northern Ireland by s.3 of the European Union (Withdrawal) Act 2018:
• Reg 36 amends Council Regulation (EU) 2017/1563 on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print disabled; and
• Reg 37 revokes Council Regulation (EU) 2017/1563 on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print disabled; and 
• Part 5 (Reg 38) provides that amendments made by the draft Regulations do not apply to any database in which a database right exists under the Copyright and Rights in Databases Regulations 1997 prior to exit day.

The power under which these draft Regulations would be made is s.8 of the European Union (Withdrawal) Act 2018.

The IPO has stated in paragraph 9 of its Explanatory Memorandum that it will incorporate them into its unofficial consolidation of Parts 1 and II of the Copyright, Designs and Patents Act 1988 as soon as possible after they come into effect.

Anybody wishing to discuss this article or the consequences of Brexit for intellectual property owners may call me on 020 7404 5252 during office hours or send me a message through my contact form.