Copyright After a No-Deal Brexit

In June 2016, just a week after the original Brexit vote, I wrote about what Brexit means for copyright in the country.

However, at that time, there was a great deal of uncertainty about exactly how Brexit would unfold and what legislation might be passed before it came to fruition.

Since then, the UK and EU have more than two years trying to determine their future relationship and copyright has been just one small part of that relationship.

Unfortunately, with the deadline for withdrawal approaching, it’s safe to say that Brexit has not gone entirely as planned. Teresa May, the UK’s Prime Minister, suffered a historic defeat as her negotiated deal with the EU was voted down 432 to 202 in the House of Commons.

This has left the UK without a negotiated deal with the EU and little time to craft another. With every day that passes, it becomes increasingly likely that the UK will either be forced to cancel Brexit or risk crashing out on March 29th without a deal.

Though there’s a great deal of disagreement into just how bad a no-deal Brexit would be, most agree that it would be better to have a deal on March 29th than not. However, with the no-deal Brexit looking more and more likely, it’s worth taking a moment to understand how this might impact creators and rightsholders both in the UK and EU.

The answer, as with most things related to a no-deal Brexit, is uncertain. However, there are some things that we can predict and they are things both rightsholders and users alike should be aware of and preparing for.

First, The Good News

In September 2018, the UK Department for Business, Energy & Industrial Strategy released a document highlighting the likely changes rightsholders would see after a no-deal Brexit.

It noted, as I did in 2016, that the UK and EU would both be bound by treaties that it signed prior to the UK joining the EU. With copyright, that includes most of the major framekwork treaties including the Berne Convention, which lays out many of the minimums for copyright internationally.

What this means is that there won’t be any broad holes in the UK copyright regime after a no-deal Brexit and that the term and scope of copyright will, for the most part, remain unchanged.

Even the parts of the EU law that are relevant will likely not change quickly or immediately. Under the EU Withdrawal Act of 2018, EU directives and regulations on copyright will be codified into UK law upon exit.

However, since the UK will no longer be bound by EU case law or rulings from the Court of Justice of the European Union, the UK could reinterpret those laws. Likewise, since the laws are now local laws to the UK, the UK government can change them.

Still, such changes would not come for some time and would not be an issue for March 29, 2019.

In short, while there may be areas where chaos is a real possibility following a no-deal Brexit, copyright isn’t one of them. Though there may be major changes for UK copyright in store, those are down the road, not an immediate challenge.

Now, The Bad News

None of this is to say that there will be no changes to copyright in the UK.

The reason for this is that, in the event of a no-deal Brexit, the UK will go from being a member of the EU to a legal stranger overnight. Elements of the EU copyright that apply to cross-border harmonizations will likely not, at least not initially.

Likewise, treaties that the UK joined through the EU will need to be re-ratified as the UK. This most prominently includes the Marrakesh Treaty, which creates copyright exemptions to enable access to copyright-protected works by those who are visually impaired or otherwise have limited usability with print media.

To that end, the UK government document pointed to six areas where there may be real implications for a no-deal Brexit. They are:

1. Database Rights: Nations in the European Economic Area (EEA) will have no obligation to extend database rights to UK rightsholders.
2. Content Portability: UK citizens may no longer be able to view their licensed content when they travel to the EU. For example, their Netflix may not work when they travel to EU nations.
3. Satellite Broadcasters: Satellite broadcasters may have to clear copyright in member states they want to broadcast in as they can no longer use the country-of-origin principle.
4. Orphan Works: Organizations that rely on the EU’s orphan works exemption may have to remove content from their online libraries or restrict access so that EU visitors can’t view them.
5. Collective Management Organizations: UK collective management organizations will not be able to compel EEA collective management organizations to strike multi-national deals for licensing musical works.
6. Accessible Works: Until the UK ratifies the Marrakesh Treaty, organizations and people will not be able to transfer accessible content between the EU and the UK.

None of these issues, by themselves, are truly that major or likely to cause significant upheaval on March 29. While there are challenges, they’re all things that rightsholders can prepare for in advance and the UK government, in the document, provides guidance for those who may be impacted.

Given the myriad of issues that a no-deal Brexit could cause, copyright is clearly not a priority issue. While there will have to be adjustments and changes, there are simply more pressing matters.

Bottom Line

No matter how you feel about Brexit and the possibility of a no-deal Brexit, there are clearly issues much more pressing than copyright.

Simply put, the major harmonizations predate the EU and key elements of the EU digital single market does not look like it will come into effect before Brexit. As such, the EU’s impact on UK copyright law is fairly limited and most of those impacts are mitigated by the EU Withdrawal Act of 2018.

That’s not to say that there won’t be issues and challenges, but, considering the other issues that the parties involved face, it’s not a priority problem right now.

While there are plenty of ways a no-deal Brexit has the potential to cause chaos, copyright likely isn’t one of them.