Wednesday, 30 December 2020

The IP Provisions of the EU-UK Trade and Cooperation Agreement

Author Furdur Source Wikipedia

"The draft trade and cooperation agreement is 1,246 pages long and consists of the body and a very large number of annexes. The body is just under 400 pages long and is divided into 7 Parts subdivided into Titles and in some cases further divided into chapters. The remaining pages are the annexes."

I added that the most important part of the draft agreement appeared to be Part Two which governs trade in goods and services. Title V of that Part covers intellectual property. 

In contrast to Title IV of Part Three of the Withdrawal Agreement (Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community) which provides for the continued protection under national law of intellectual assets that are currently protected by EU law, Title V of Part Two of the EU-UK Trade and Cooperation Agreement will not require immediate changes to national law.  "Intellectual property" is not even mentioned in the European Union (Future Relationship) Bill which was published late last night and which will ratify the EU-UK Trade and Cooperation Agreement.

The quite extensive changes to UK intellectual property legislation which will come into force at 23:00 on 31 Dec 2020 were agreed in the Withdrawal Agreement,  Indeed, some of these changes would have come into effect even if the UK had withdrawn from the European Union without a withdrawal agreement.  I have mentioned those changes in previous articles in this publication and in NIPC Law and I shall no doubt do so again,   In the meantime, the best summary of those changes is Intellectual Property after 1 Jan 2021 which is published on the British Intellectual Property Office website.  That article was last updated on 17 Dec 2020.

Title V of Part Two of the EU-UKTrade and Cooperation Agreement consists of 57 articles between page 125 and page 147 of the draft agreement.  The articles in that title are helpfully identified by the initials "IP".They cover the following topics:

  • Chapter 1 (arts IP1 to IP6) general provisions
  • Chapter 2  (arts IP7 to IP37) standards concerning intellectual property rights
    • Section 1 (arts IP7 to IP17) copyright and related rights
    • Section 2 (arts IP18 to IP26) trade marks
    • Section 3 (arts IP27 to IP31) designs
    • Section 4 (arts IP32 to IP33) patents
    • Section 5 (arts IP34 to IP IP36) undisclosed information
    • Section 6 (art IP37) plant varieties
  • Chapter 3 (arts IP38 to IP54) enforcement of intellectual property rights
    • Section 1 (arts IP38 to IP39) general obligations
    • Section 2 (arts IP40 to IP51) civil and administrative enforcement
    • Section 3 (art IP52) civil judicial procedures and remedies of trade secrets
    • Section 4 (arts IP53 and IP54) border enforcement
  • Chapter 4 (arts IP55 to IP57) other provisions.
The objectives of the title which are set out in art IP1 are as follows:
"(a) facilitate the production, provision and commercialisation of innovative and creative products and services between the Parties by reducing distortions and impediments to such trade, thereby contributing to a more sustainable and inclusive economy; and 
(b) ensure an adequate and effective level of protection and enforcement of intellectual property rights."
Art IP2 (1) provides that the title "shall complement and further specify the rights and obligations of each Party under the TRIPS Agreement and other international treaties in the field of intellectual property to which they are parties." 

In general, the title is structured very similarly to TRIPS which is of course annexe to the Agreement Establishing the World Trade Organization to which the UK, the EU and all its member states are party.  That includes the key provisions of the Enforcement and Trade Secrets Directives.  It should be remembered that s.3 (1) of the European Union (Withdrawal) Act 2018 incorporates direct EU legislation into national law.

Anyone wishing to discuss this article or Title V of Part Two of the EU-UK Trade and Cooperation Agreement may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.  In the meantime, I wish all my readers a happy and prosperous New Year.

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