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.

Plant Breeders' Right after Brexit

A Saline Resistant Wheat Variety

Author US Department of Agriculture
Licence Copyright waived by US government
Source Wikipedia "Plant Breeding"

Jane Lambert

A plant breeders' right is the exclusive right to prevent reproduction, marketing, selling and certain other acts in relation to new plant varieties.  Plant breeders can acquire those rights for the UK alone by registering  the plant variety with the Plant Variety Rights Office in Cambridge. Alternatively, they can obtain such protection in all 28 EU member states including the UK by registering it with the Community Plant Variety Office ("CPVO") in Angers.

The legislation that established the CPVO and provides for plant breeders' rights throughout the EU is Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights ("the Plant Variety Rights Regulation").  That regulation will cease to apply to the UK once it leaves the EU by reason of art 50 (3) of the Treaty of European Union.  If HM government concludes a withdrawal agreement substantially on the terms of the draft that has circulated since the end of February the regulation will continue to apply to the UK until 31 Dec 2020.   If this country leaves without such an agreement the regulation will cease to apply after 29 March 2019.

On 12 Oct 2018 the Department for Agriculture, Food and Rural Affairs published a guidance note entitled Plant variety rights and marketing of seed and propagating material if there’s no Brexit deal in case the UK leaves the EU without a withdrawal agreement.  According to the note, existing Community plant variety rights belonging to British rights holders will continue to be recognized and enforced in the remaining EU member states. They will also be recognized and protected in the UK presumably because the regulation will be incorporated into our national law by s.3 of the European Union (Withdrawal) Act 2018.

The guidance states that where an application has been made to the CPVO but not granted before the UK leaves the EU, the applicant must make a fresh application to the Plant Variety Rights Office. However, the applicant will keep the same priority date and rely on the same test for distinctiveness, uniformity and stability.

The CPVO issued a Notice to Stakeholders regarding the withdrawal of the UK and EU rules in the field of Plant Variety Rights on 30 Jan 2018.

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

Commission Position Paper on Intellectual Property Rights including Geographical Indications

Jane Lambert

Even before the EU referendum, IP lawyers in the United Kingdom wrote articles and gave talks on what would happen to intellectual property rights if we voted to leave the EU. I penned my first thoughts in Were we to go - what would Brexit mean for IP? 26 Feb 2016 NIPC Law and returned to the subject immediately after the referendum in What Sort of IP Framework do we need after Brexit and what are we likely to get? 3 July 2016. I have written a lot of other articles on the subject since then many in the context of the unitary patent and the Unified Patent Court,  as have a lot of other people. However, until today we did not know much about the thinking of the Commission and the remaining 27 member states.

Now we have a position paper dated 6 Sept 2017 from the European Commission, Task Force for the Preparation and Conduct of the Negotiations with the United Kingdom under Article 50 TEU which has been transmitted to the remaining member states on Intellectual property rights (including geographical indications) for discussion today. It is not a particularly weighty document either in the word count or in its ideas. Above all, it does not address the issue upon which businesses upon both sides of the English channel (and indeed the rest of the world) want an answer namely, can a way be found to keep the United Kingdom in the Unified Patent Court and unitary patent system if we leave the European Union?

The document, which is 5 pages long including the cover page, begins with the following statement:

"The withdrawal of the United Kingdom from the European Union will create uncertainty for UK and EU27 stakeholders alike in relation to the scope of protection in the United Kingdom of certain intellectual property rights; to the treatment of applications for certain rights and to the exhaustion of rights conferred by intellectual property rights. This uncertainty will significantly affect the conditions under which goods that are placed on the market in the Union before the withdrawal date could continue to circulate between the EU27 and the UK."

Well, they can say that again.  I don't think even the most extreme Eurosceptic would disagree with that.

They suggest that any withdrawal agreement that we make with the remaining member states should ensure that:

"(a) the protection enjoyed in the United Kingdom on the basis of Union law by both UK and EU 27 holders of intellectual property rights having unitary character within the Union before the withdrawal date is not undermined by the withdrawal of the United Kingdom from the European Union;
(b) procedure-related rights (e.g. right of priority) in relation to an application for an intellectual property right having unitary character within the Union still pending on the withdrawal date are not lost when applying for an equivalent intellectual property right in the United Kingdom;
(c) applications for supplementary protection certificates or for the extension of their duration in the United Kingdom on-going before the withdrawal date are completed in accordance with the conditions set out in Union law;
(d) databases protected in the EU27 and the UK before the withdrawal date continue to enjoy protection after that date and
(e) exhaustion before the withdrawal date within the Union of the rights conferred by intellectual property rights is not affected by the withdrawal of the United Kingdom from the European Union."

I think the EU negotiators will find themselves pressing on an open door for most if not all of that.

My heart leapt a little when I saw the paragraphs headed "Intellectual property rights having unitary character within the Union" and  "Applications for Intellectual property rights having unitary character within the Union" because the words "unitary patent" are a shorthand for the expression "European patent having unitary effect". It sank, however, when I read the text of those paragraphs because the Commission seeks only the transposition of rights granted under EU regulations into national law and that is going to happen automatically under the European Union (Withdrawal) Bill.

As the Intellectual Property Bar Associaton ("IPBA"), of which I am a member, said at paragraph 10 of Paper 16 of the Brexit Papers on Intellectual Property:

"Intellectual property services are currently a flourishing area in the UK and the UK has significant influence in this area. Rights are well protected but subject to sensible defences. The intellectual property bar is very active and the excellence of the courts is widely appreciated, making a significant positive contribution."

The IPBA suggested that the UK Government should do the following to ensure that that remains the case:

 Securing rights to provide professional services
1. Rights of representation/practice - The IPBA joins and endorses the recommendations and requests set out in the Bar Council Position on Access to the EU Legal Services Market Post-Brexit.

1.1.1 UK as forum of choice - HMG should explore ways to ensure that the UK retains its position as a forum of choice for intellectual property matters in Europe. This should include steps to ensure that the UK remains more efficient and quicker as a litigation forum than other EU countries and EU courts. It should also include attempts to ensure that the UK is able fully to participate in the UPC post-Brexit and that, if the UK is not able to do so, the UK is nonetheless well-placed to remain a first-choice forum for resolution of patent disputes in Europe.
1.1.2 Prioritisation - HMG should ensure that the area of specialist legal services, including rights of representation in intellectual property cases, is given no less priority than that given to any other area of services provision in Brexit negotiations in which rights of access to the EU may be important.
1.1.3 Avoidance of approaches to Brexit which would be most likely to damage this sector - The UK should avoid any general approach to Brexit which would make such arrangements harder to secure. 

2. Ensuring that post-Brexit there is equivalent protection for intellectual property in the UK as currently exists under harmonised EU law, that there is no gap in protection with regard to existing rights and that defences which currently exist to infringement of intellectual property rights continue to apply unless and until specifically altered.

2.1. Ensuring continuing influence on substantive and procedural EU law which may affect industry in the UK. 2.1.1. HMG should take steps to ensure that the UK perspective continues to be heard by EU legislative and judicial authorities, where decisions are made that may have an impact on UK law and practice.
2.1.2. This may involve ensuring that HMG makes timely responses to EU consultations on legislative change and that it intervenes (and ensures generous rights of intervention for others) in CJEU cases which may have a direct impact on UK undertakings and an indirect impact on UK law after Brexit."

The IPBA has said that we would be happy to assist HMG in formulating appropriate strategies to that end. The government would be wise to take up that offer. If there is one thing that barristers know a lot about, it is negotiation.

Should amplification or clarification of any part of this article be required, call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Post Script

The Chartered Institute of Patent Attorneys are much more kind to the Commission's position paper than I have been (see CIPA welcomes EC Position on IP Rights - Post Brexit 7 Sep 2017). The Institute's President, Tony Rollins, says:

“The paper only deals with EU unitary rights, that is, trade marks, registered and unregistered designs, plant variety rights and protected geographical indications, and does not deal with patents.
“This is because the European patent system is not a European Union institution and so will be entirely unaffected by Brexit. For UK-based patent attorneys carrying out European patent work it will continue to be business as usual."

I do wish I could agree with him but I can't.  Regulations 1257/2012 and 1260/2012 are EU instruments, art 84 (1) of the UPC Agreement makes clear that it is open to signature only for EU member states and art 20 spells out:

"The Court shall apply Union law in its entirety and shall respect its primacy."

If it were otherwise, the optional Litigation Protocol to the European Patent Convention would have been up and running by now.