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:
- The Database Directive (Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases);
- The Portability Regulation (Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability of online content services in the internal market);
- The Satellite and Cable Directive (Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable re-transmission);
- The Orphan Works Directive (Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works);
- The Collective Rights Management Directive (Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market);
- The Marrakesh Directive (Directive (EU) 2017/1564 of the European Parliament and of the Council of 13 September 2017 on certain permitted uses 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 amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society); and
- Regulation (EU) 2017/1563 of the European Parliament and of the Council of 13 September 2017 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.
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 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.
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.
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