Brexit & EIP
Significant aspects of copyright law have been harmonised across the EU through national implementation of ten EU Directives.
Directive on the harmonisation of certain aspects of copyright and related rights in the information society ("InfoSoc Directive").
Directive on rental right and lending right and on certain rights related to copyright in the field of intellectual property ("Rental and Lending Directive").
Directive on the resale right for the benefit of the author of an original work of art ("Resale Right Directive").
Directive on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission ("Satellite and Cable Directive").
Directive on the legal protection of computer programs (“Software Directive”).
Directive on the enforcement of intellectual property right (“IPRED”).
Directive on the legal protection of databases (“Database Directive”).
Directive on the term of protection of copyright and certain related rights amending the previous 2006 Directive (“Term Directive”).
Directive on certain permitted uses of orphan works (“Orphan Works Directive”).
Directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (“CRM Directive”).
As well as seeking to harmonise copyright protection across the EU, the legislation listed above has given rise to ‘new’ rights over and above traditional copyright protection (for example the introduction of the suis generis database right via the implementation of the Database Directive).
While there is no necessity for a post-Brexit government to review and revisit UK legislation implementing EU Directives, this appears a likely scenario. Following such a review, there is no guarantee that parliament would maintain the precise position provided for under the pre-Brexit regime. This includes maintaining new “EU” rights such as database protection. Furthermore, the application of a law is not simply the words of a statute. These words are brought to life by the court applying them. UK law reflecting EU Directives is currently interpreted by UK courts in line with (a) the purpose of the underlying EU legislation, including taking account of the travaux préparatoires; and (b) case law of the CJEU. It is unlikely that a post-Brexit UK government would want to continue to require that UK law be interpreted in line with EU jurisprudence. More+
In addition, a particular focus of the European Commission has been in reforming copyright law to make it fit for purpose in the modern age, in particular to better enable e-commerce across the EU. This is an ongoing objective. The nature of the proposed reforms are controversial (seeking to breakdown the traditional territory by territory licensing approach currently associated with copyright). Outside of the EU, UK businesses trading with the EU will still be affected by developments in EU copyright legislation, but they will have no obvious voice to help shape it to their benefit.