The result of the BREXIT Referendum has opened an era of uncertainty in UK and in Europe. In general, the creative economy, which works on the basis of multi-territorial licensing should not be affected at great length. However, the copyright framework may be revisited with the consequence that instead of getting closer, the systems will diverge.
In the best case scenario where Britain would join the European Economic Area – the Norwegian model – the UK would be bound by substantive provisions mirroring the Treaty of the functioning of the European Union as well as secondary EU legislation in the area of intellectual property rights. This means in practice that the law in the area of intellectual property rights will be identical to the law in European Union, to the extent the law is harmonised through EU legislation or case law from the ECJ.
We gathered some opinions below.
In a nutshell: great uncertainty depending on agreements reached, possible strengthening of European civil law within the EU v. common law, loss of influence of UK on EU policies
- The BAPLA newsletter states: “In the case of EU rules which are applied through national law, as for example in the case of copyright-related directives, the UK Government will have to decide whether to leave them in place or redraft them. Withdrawal doesn’t mean an obligation to remove elements of adopted EU law nor that enforcement of EU rules integrated into UK law is not upheld by the UK. However, the non-application of EU law will require substantial re-legislation by the UK if decided upon.“
- Charles Swan, IP lawyer in London, long time speaker at CEPIC conferences: “The simple answer is we don’t know what impact Brexit will have on UK IP and we won’t know for some time. A lot depends on what deal the UK ultimately ends up having with the EU … In one scenario the UK could end up retaining EU IP legislation but without having the power to make references to the European Court of Justice. Whether it would help rightholders for the UK to develop along entirely separate lines from the EU I wouldn’t like to guess.”
- Law firm Bird & Bird: “Separation presents the opportunity for the UK’s laws to diverge from those of Europe, which separation may be embraced in some areas. However, in IP, this is unlikely to happen to any significant extent given the interconnection of trade and the universal recognition that harmonisation is beneficial. Going forwards, the UK is no longer going to be able to assert the same influence on EU policy, which may undermine the position of UK-based IP and IT companies both within Europe and on the world stage (especially vis-à-vis the USA as the UK may be seen as second class without a voice in Europe) and make it a little more difficult to compete.” Read full implications here
- This very interresting Copyright blog looks into how ” ….Brexit could be seen not only as a tragedy for Europe, but also as an opportunity for deeper integration in European Copyright law. Indeed, not having to take into account UK copyright rules and principles could theoretically facilitate the process of unification of EU copyright law.”
