IP Provisions of the UK's Free Trade Agreement with India

Science City, Kolkata

Author: Biswarup Ganguly Licence CC BY-SA 3.0  Source Wikimedia Commons

 

Jane Lambert

By a press release dated 6 May 2025, the Department for Business and Trade announced that the United Kingdom had concluded a trade deal with India.  According to Dominic Webb's UK India Free Trade Agreement, a research briefing for the House of Commons Library dated 9 May 2025, no details are available, but the deal seems to consist of a free trade agreement and a double contributions convention.  The research paper refers to UK and India clinch trade deal after three years of talks in Politico, which states that negotiations for a bilateral investment treaty are continuing.

The Free Trade Agreement

The Department for Business and Trade published a chapter summary on the issues that had been agreed in its policy paper, UK-India trade deal: conclusion summary, on 15 April 2025.  Work is continuing on the legal text and the resolution of a few remaining issues. Once the text has been finalized, it will be checked by both sides' lawyers.  Domestic approval will then be sought in each country.  Once that has been obtained, the agreement can be signed, after which it will enter into force.

The agreement will cover anti-corruption, the temporary movement of natural persons, competition and consumer protection, customs and trade facilitation, trade and development cooperation, digital trade, the environment, financial services, goods market access, good regulatory practice, government procurement, innovation, intellectual property, labour, professional business services, rules of origin, remedies, sanitary and phytosanitary, small and medium enterprises, state owned enterprises, subsidies, technical barriers to trade, telecommunications, trade and gender equality and trade in services.  

Intellectual Property

According to para 4.15 of the policy paper, the IP chapter will support the British and Indian economies "through effective and balanced protection of IP rights.  It will cover copyright and related rights, designs, trade marks, geographical indications, patents, and trade secrets, as well as the enforcement of IP rights, and ongoing cooperation in relation to IP matters.  The chapter will secure improvements to patent procedures in India to reduce the administrative burden, speed up processes, and lock in commitments that provide for transparency and legal certainty in the patent system.  India will commit to engaging on aspects of copyright and related rights, including public performances, artists' resale rights and the copyright terms of protection.  UK food and other suppliers will be able to seek protection for all geographical indications and not just wines and spirits in India. Nothing in the outline agreement will commit the UK to domestic legislative change, undermine the UK’s IP system or its international positions on IP.  There is likely to be a degree of overlap between IP and some of the other agreed issues, such as competition and consumer protection, digital trade, financial services, innovation, small and medium enterprises, technical barriers to trade and telecommunications. 

Existing IP Protection in India

According to the WIPO, India ranked 39 among the 133 countries in the global innovation index in 2024.  The main IP statutes appear to be The Copyright Act, 1957, The Designs Act, 2000, The Geographical Indications of Goods (Registration and Protection) Act, 1999, The Patents Act, 1970, The Protection of Plant Varieties and Farmers' Rights Act, 2001, The Semiconductor Integrated Circuits Layout-Design Act, 2000 and The Trade Marks Act, 1999,  India is party to the main intellectual property treaties including Paris, Berne and Rome Conventions, the Patent Cooperation Treaty and the Madrid Protocol (see WIPO-Administered Treaties, Contracting Parties/Signatories India).

Comment

This is the UK's 4th new trade agreement since it left the European Union and potentially the most important.   I shall return to the topic as more information becomes available.  Anyone wishing to discuss this topic may call me on +44 (0)20 7404 5252 during normal UK business hours or send me a message through my contact form at any time.

REUL Bill First Update

Intellectual Property Office

Crown Copyrights  Open Government Licence

 

Jane Lambert

In Retained EU Law (Revocation and Reform) Bill (26 Oct 2022), I mentioned the introduction and second reading of that bill.  In that article, I wrote that the purpose of the bill s to enable the government to remove the special features of retained European Union law ("REUL") from the English and Welsh, Scottish and Northern Irish legal systems by the end of 2023.  I added that the bill if passed was likely to affect intellectual property law in the United Kingdom because much of that law implements EU legislation and case law.  For that reason, I offered to follow the progress of the bill and its application to intellectual property law.

According to the UK Parliament's website, the bill has completed the report stage and is now at the report stage.  A copy of the bill as amended in committee can be found here.   Anyone interested in what was said in Parliament about the bill can consult Hansard here.

On 29 Nov 2022, the Intellectual Property Office published updated guidance on the bill.   It consists of a list of retained EU law, as defined in s. 6 (7) of the European Union (Withdrawal) Act 2018.  Such law relates to intellectual property within the policy remit of the IPO and does not address issues that lie outside such as plant varieties or rights arising at common law.  The list covers copyrights, designs, patents, trade marks and enforcement.  Readers will see that it is quite long enough.

I shall continue to monitor the progress of the bill and report any other useful materials on the topic that come to my attention.  In the meantime, anyone who is interested in the topic may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

IPO's Guidance on Australia

Australian Swagman

Unknown author - NSW GovtPrinter,
Public Domain,

Jane Lambert

On 28 June 2022, the UK Intellectual Property Office published a new intellectual property guide to Australia.  This one-page guide contains information on the following topics:

• Trade marks
• Patents
• Designs
• Copyright
• Enforcement, and
• Sources of further information.

The guide does not mention the phasing out of utility models known as "innovation patents" which once attracted considerable interest from inventors and their advisors in the UK.  Nor does it mention plant breeders' rights which are important to a major food and wine producing nation.  

The reason for the publication is that Her Majesty's Government has recently negotiated a free trade agreement with the government of Australia.  There are already strong ties between the two countries. The IPO's press release states that there are a million UK citizens in Australia and that the UK's trade with that country was just under £10 billion in 2021.  When the free trade agreement comes into force, the IPO expects more opportunities for British companies in digital and services as well as luxury and other high-value goods.

I outlined the free trade agreement in The Free Trade Agreement with Australia on 20 Dec 2021.  I discussed the IP provisions of the agreement in Intellectual Property Articles of the Australia-UK Free Trade Agreement: General Provisions on 3 Jan 2022.   Readers will find links to all the resources that I have collected on Australia on my "Australia" page.

Anyone wishing to discuss this article or any of the topics mentioned in it may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Extension of NZ Copyright Term

 

Jane Lambert

New Zealand is a country of just over 5.1 million people on the other side of the world.  It was, however,  the third-largest music streaming market for UK artists in 2020 according to the Department for International Trade (see DIT News Story UK music execs hail benefits of UK-New Zealand trade deal  16 April 2022). It adds: "the enhanced protections secured in this forward-looking trade agreement will strengthen this creative cultural relationship." 

The enhanced protection to which the news story refers is art 17.48 (1) of the UK-New Zealand Free Trade Agreement which provides:

"Each Party shall provide that the rights of an author of a work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after the author’s death."

As s.12 of the Copyright, Designs and Patents Act 1988 already complies with art 2 of Berne, art 17.48 (1) of the FTA requires the amendment of s.22 of the New Zealand Copyright Act 1994 to extend the duration of copyright protection in New Zealand for another 20 years.

The DIT considers this extension of sufficient importance to place it on the front page of its website.  It quotes Geoff Taylor, Chief Executive BPI, BRIT Awards and Mercury Prize as follows:

"We are grateful to the Government for their dedication to promoting our world-leading IP standards and hope that this will continue to be a priority in further negotiations taking place around the world.”  

The news story is not just about the extension of the duration of copyright in New Zealand.  It also features a business that makes guitars. 

Readers who want to know more about the IP provisions of the free trade agreement may refer to my article The New Zealand Free Trade Agreement: IP Provisions of 24 Oct 2021 in which I discussed the IP provisions of what was then the proposed agreement.  In the agreed treaty the IP provisions are to be found in section 17.  I have indexed my articles on New Zealand here.

 Anyone requiring further information about copyright protection outside the UK should call me on +44 (0)20 7404 5252 during UK office hours or send me a message through my contact form.

The Free Trade Agreement with Australia

Discovery House, Head Office of IP Australia

Author Bidgee Licence CC BY-SA 3.0 Source Wikimedia Commons

 

Jane Lambert

On 16 Dec 2021, the Secretary of State for International Trade signed the Australia-UK Free Trade Agreement (see the Department for International Trade's press release of 16 Dec 2021). The Agreement had been agreed in principle by the Prime Ministers of the two countries as I noted in The Proposed Australia-UK Free Trade Agreement on 17 June 2021. The full text of the Agreement can be found on the Australian Department of Foreign Affairs and Trade website.

The Agreement consists of a Preamble, 32 chapters of substantive provisions some of which have their own annexes, four annexes and several side letters. The chapters cover:

• Chapter 1 Initial Provisions and General Definitions, 
• Chapter 2 Trade in Goods,
• Chapter 3 Trade Remedies 
• Chapter 4 Rules of Origin and Origin Procedures
• Chapter 5 Customs Procedures and Trade Facilitation,
• Chapter 6 Sanitary and Phytosanitary Measures
• Chapter 7 Technical Barriers to Trade,
• Chapter 8 Cross Border Trade in Services,
• Chapter 9 Financial Services,
• Chapter 10 Professional Services and the Recognition of Professional Qualifications,
• Chapter 11 Temporary Entry for Business Persons,
• Chapter 12 Telecommunications,
• Chapter 13 Investment,
• Chapter 14 Digital Trade,
• Chapter 15 Intellectual Property
• Chapter 16 Government Procurement,
• Chapter 17 Competition Policy and Consumer Protection,
• Chapter 18 State-Owned Enterprises and Designated Monopolies,
• Chapter 19 Small and Medium-Sized Enterprises,
• Chapter 20 Innovation,
• Chapter 21 Labour,
• Chapter 22 Environment,
• Chapter 23 Development,
• Chapter 24 Trade and Gender Equality,
• Chapter 25 Animal Welfare and Antimicrobial Resistance,
• Chapter 26 Good Regulatory Practice,
• Chapter 27 Cooperation,
• Chapter 28 Transparency and Anti-Corruption,
• Chapter 29 Administrative and Institutional Provisions,
• Chapter 30 Dispute Settlement,
• Chapter 31 General Provisions and Exceptions,
• Chapter 32 Final Provisions.

Chapter 15 consists of 96 articles on intellectual property starting with "Definitions" in art 15.1 and finishing with "Environmental Considerations in Destruction and Disposal of Infringing Goods" in art 15.96.  The Chapter is divided into the following sections:

• A.  General Provisions: includes definitions, objectives, principles, understandings in respect of the objectives etc.;
• B. Cooperation: committee on IP rights, patent cooperation and work-sharing etc.;
• C. Trade Marks and domain names;
• D: Geographical indications;
• E: Patents and data;
• F: Undisclosed data;
• G: Registered industrial designs;
• H: Copyright and related rights;
• I:  Trade secrets; and
• J:  Enforcement.

I shall consider the various provisions of Chapter 15 and how they might affect IP practice in the UK in due course.

Anyone wishing to discuss this article may call me on 020 7404 5252 during office hours or send me a message through my contact form at other times.

The New Zealand Free Trade Agreement: IP Provisions

Image Credit NASA/JPL-Caltech Public Domain Wikimedia Commons

 

Jane Lambert

According to the Department for International Trade, the Prime Ministers of New Zealand and the United Kingdom agreed in principle the terms of a  free trade agreement on 20 Oct 2021 (see UK agrees historic trade deal with New Zealand  DfIT press release 20 Oct 2021).  Copies of those terms have been posted to the British and New Zealand government websites).

Overview

The agreement in principle contains a short instruction and the following 32 sections:

1. National treatment and market access for goods
2. Rules of origin
3. Customs procedures and trade facilitation
4. Sanitary and phytosanitary measures (SPS)
5. Animal welfare
6. Technical barriers to trade (TBT)
7. Trade remedies
8. Cross-border trade in services
9. Domestic regulation
10. Financial services
11. Telecommunications
12. Temporary entry of business persons
13. Investment
14. Digital trade
15. Government procurement
16. Intellectual property
17. Competition
18. Consumer protection
19. State-owned enterprises and designated monopolies (SOEs)
20. Good regulatory practice (GRP) and regulatory cooperation
21. Labour
22. Environment
23. Small and medium-sized enterprises (SMEs)
24. Trade and gender equality
25. Indigenous trade
26. Trade and development
27. Anti-corruption
28. Transparency
29. Initial provisions and general definitions, final provisions
30. General exceptions and general provisions
31. Dispute settlement
32. Additional outcomes.

The introduction makes clear that the agreement in principle does not create any legally binding obligations.  Work on a legal text which will be binding if it is accepted by the two governments is said to be substantially completed.  In accordance with the Change of Focus announced on 23 Sept 2021, this article will focus on the intellectual property provisions of the agreement in principle.

Intellectual Property

Section 16 of the agreement in principle promises provisions on copyright and related rights, design protection, trade marks, geographical indications (GIs), trade secrets, enforcement, patents and test data but nothing that will affect the price of medicines for New Zealand or the National Health Service. 

Copyright  

In respect of copyright, the New Zealand government has agreed to extend the term of copyright for authors of literary, dramatic, musical, or artistic works by 20 years within 15 years of entry into force of the agreement.  At present, s.22 (1) of the New Zealand Copyright Act 1994 provides a term of the life of the author plus 50 years.  The term of copyright for computer-generated works and works of unknown authors will be increased from 50 years to 70.  There are likely to be similar extensions to copyright in sound recordings and films under s.23 (1) and communication works under s.24 (1).

The British and New Zealand governments have agreed to adopt (in the case of New Zealand) or maintain (in the case of the UK) artists' resale rights schemes on a reciprocal basis. For those who are not familiar with artists' resale rights or droit de suite, I covered the introduction of the British scheme in Copyright: Resale Right Directive to be implemented in New Year on 17 Dec 2005 NIPC Law, Copyright: Resale Rights Directive Implementation on 21 Dec 2021 NIPC Law and Copyright: Happy New Year for Artists on 1 Jan 2006 in NIPC Law.  Further information on the right can be found in this guidance from the Intellectual Property Office. New Zealand will introduce a resale rights scheme within 2 years of the entry into force of the agreement.  

Rights in Performances

The New Zealand government will extend the duration of rights in relation to performances mentioned in s.193 of the New Zealand Copyright Act 1994 from 50 years from the end of the calendar year in which a performance takes place to 70 years within 15 years of the coming into force of the agreement.

Both governments have agreed to adopt or maintain a public performance right for performers to cover communication to the public of phonograms,

Registered Designs

The free trade agreement will require the New Zealand government to make all reasonable efforts to join the Hague Agreement on Industrial Designs. This agreement facilitates the registration of industrial designs in much the same way as the Patent Cooperation Treaty facilitates applications for patents and the Madrid Protocol facilitates the registration of trade marks.  The United Kingdom has been a member since 13 June 2018.

GI

The governments have agreed to review the free trade agreement to ensure that the geographical indications of British agricultural produce and foodstuffs are adequately protected in New Zealand and those of New Zealand agricultural produce and foodstuffs in the UK in the following circumstances.  The first of those is if New Zealand introduces a bespoke scheme for agricultural products or foodstuffs, or substantively amends its domestic registration system.  At present, New Zealand wines and spirits may be registered under the Geographical Indications (Wine and Spirits) Registration Act 2006. The other circumstance is if no changes are made to New Zealand's GI laws within 2 years of the entry into force of the free trade agreement.

Traditional Knowledge

The two governments will work together on the WIPO Intergovernmental Committee on traditional knowledge.  The free trade agreement will contain provisions on genetic resources, traditional knowledge and traditional cultural expression,  For example, the agreement will provide for consideration of traditional knowledge associated with genetic resources in patent examinations.   This will take account of the contribution of the Maori community to New Zealand (see Maori IP on the IP Office of New Zealand's website).

Other Provisions

There are references to wine labelling, medicines and medical devices that may require amendment of existing British and New Zealand IP laws in the technical barriers to trade section.   Similarly in the sections on telecommunications, digital trade, competition and SME.   I will explore those issues more fully when a draft text of the agreement is published.   One possible lacuna in the treaty will be the exclusion of a procedure for resolving disputes between investors and host governments.

Further Information

Anyone wishing to discuss this article may call me on +44 (0)20 7404n 5252 during UK office hours or send me a message at any time through my contact form.

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.

Brexit Briefing October 2018

Original uploader Jonto
Licence: Creative Commons Attribution-Share Alike 3.0 unported
Source Wikipedia 

Jane Lambert

The consequences for the United Kingdon of leaving the EU without a withdrawal agreement on 29 March 2019  anticipated by Her Majesty's government are set out in a series of guidance notes linked to How to prepare if the UK leaves the EU with no deal.  The first batch was published on 23 Aug 2018 and discussed in my article And if there is no deal .................. 24 Aug 2018. In many areas such as, for example, civil litigation which I covered in Trans-Border Litigation after Brexit there will be additional uncertainty, inconvenience and expense and even the possibility of injustice.

Ministers and negotiators on both sides have said that 95% of a draft withdrawal agreement has been agreed but the question of how to retain an open border between the Republic of Ireland and Northern Ireland remains unresolved.  The problem can best be understood in the Infographic on the EU's 'backstop' proposal which was published on 11 June 2018.  An open border is possible because of

• Common tariffs and rules of origin apply to non-EU goods 
• Common VAT and excise area 
• Common product safety and quality standards (e.g. food, chemicals and consumer goods), and a 
• Single epidemiological unit with common rules for animal health and welfare.

After the UK leaves the EU there will be divergence in all those areas necessitating checks and inspections of goods travelling across the border, These need not necessarily take place at the border crossing but they have to take place somewhere.  

The Commission's proposal is for Northern Ireland to remain aligned with the Irish Republic and for checks to take place at the British and Irish ports,  That is rejected by the British government and some Northern Irish politicians as tantamount to annexation of the province.  The counterproposal is a common rulebook for the EU and the whole of the UK.  The counterproposal is opposed by many in the UK and has been rejected in terms by the EU. There has not really been much movement on those issues since July and neither side seems to show any sign of blinking.

Over the last few weeks I have been writing about the consequences of Brexit on any basis for:

• patents
• geographical indications
• data protection
• EU trade marks and Community designs
• copyrights and related rights
• plant varieties, and
• civil litigation.

The government also updated its advice on IP in IP and Brexit; The Facts on 26 Oct 2018.

The measure of legal protection for brands, designs, technology and creativity is a factor to be taken into account by manufacturers and distributors when making investment and location decisions.  A picture is now beginning to emerge as to what that protection will be.  Most would regard a regime consisting entirely of national IP rights as inferior to the current mix of national and EU rights but some may regard it as enough.  Every business must make its own assessment.

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

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:

• 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.

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.