Intellectual Property and Brexit: Part 2 – Copyright

Intellectual Property and Brexit

Intellectual Property and Brexit: “I’ll take: ‘Things that are difficult enough to explain on their own’, for 500!”

Another day, another round of headlines about Brexit’s looming impact on the UK. Whilst much remains uncertain… a few things about intellectual property and Brexit are becoming clearer. Last time we talked about how Brexit will affect trade marks. This time it’s copyright’s turn – so without further ado…

Intellectual Property and Brexit: Copyright

Of all the fundamental Intellectual Property rights; UK copyright is currently the least harmonized with the EU. In fact, key differences exist in black letter law between UK and the union.

This includes the fundamental standards required for copyright to subsist. Here, what can be classified as an “intellectual creation”, or “original”; greatly differ. There are also big differences in how infringement is assessed; as well as moral rights. In fact, much of this also even differs between different states within the EU.

As a result – it seems unlikely that Brexit will cause much disruption to UK law. At least to the untrained eye…

Yet, taking this position is slightly naive; as major changes may still occur. The size of these changes depends on the kind of trade relationship that the UK and the EU end up with… This may take 5 different principle forms:

A. Full EU membership.
The UK becomes a full member of the EU, perhaps even adopting the Euro. (Very unlikely on account of the referendum result, but we’ll see how negotiations go!)

B. The Norwegian Model.
The UK remains as part of the European Economic Area, despite leaving the union.

C. The Swiss Model.
The UK remains part of the European Free Trade Association, despite leaving the union.

D. The Canadian Model.
A bilateral agreement is made between the EU and the UK to ensure favorable trade.

E. WTO Rules.
The default option if not trade agreement is made. The UK trades with the EU under World Trade Organization tariffs.

The higher up on this list the UK is – the more the UK is beholden to EU legislation in regards to copyright. Equally, the further “down” the list the agreement is – the more autonomy the UK will have from EU plans for copyright.

The EU has stated its wish to harmonize copyright into a single union-wide law. This is noted as politically ambitious, and viewed as a long-term goal.

In contrast, the UK have passed many laws which seek to amend (but have been hampered by) EU directives.

But what does it all mean?

So it would seem, the UK and the EU’s copyright laws are on a path of divergence. Both in the likelihood of a divorce; as well as long term motives and goals.

Despite this, the story likely has somewhat of a happier ending. The UK’s prospective divergence away from the EU may create more issues than benefits for the UK. Especially as much of the UK economy is driven by exporting its creative industry.

Simply put, it would be inadvisable for the UK to completely isolate itself from the EU in this regard. Instead it’s far more likely that the UK (and EU) will take a more constructive approach.

The UK will likely position itself to remain favourable with its trading partners. This likely means a much more hawkish approach; where laws are linked (albeit not in name!)

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