Following the referendum of 23 June 2016 on the membership of the United Kingdom (« UK ») to the European Union (« EU ») (referendum on Brexit), the UK notified its intention to withdraw from the EU to the European Council on 29 March 2017. This officially activated the application of Article 50 of the Treaty on EU (1). After several months of negotiations, on 25 November 2018, the UK and the EU have reached an agreement on the terms of the UK’s withdrawal from the EU and the framework of their future relationships (« the Withdrawal Agreement ») (2). The Withdrawal Agreement indicates in particular a transition period until 31 December 2020 which can be extended once, for one or two years (3).
More recently, on 22 and 23 January 2020, the British Parliament (finally) passed the legislation implementing the withdrawal deal which received Royal assent from Queen Elizabeth II. This means that the UK is leaving the EU in a few days on 31 January 2020, more than three-and-a-half years after the referendum on Brexit and after several rounds of negotiations. It is now up to the European Parliament to vote on the agreement between the UK and the EU on 29 January 2020 before it comes into effect.
Thus, in the end Brexit with a « deal » is almost certain, where a few months ago the « no deal » situation was still an option.
In case of a « deal »
The Withdrawal Agreement provides different provisions on the « Intellectual Property » but only regarding trade marks, designs, plant varieties, PDOs, PGIs or TSGs (4), databases (« sui generis »), supplementary protection certificates for plant protection products and for medicinal products and exhaustion of rights (5).
The British copyright law partly originates from the European legislation, in particular as a result of the transposition of directives (6). The British act European Union (Withdrawal) Act 2018 (7) provides that the European legislation that is directly applicable in the UK, such as European regulations, will continue to have effect in British law after Brexit (8). On the other hand, that same act provides that the principle of the primacy of EU law over national law will no longer apply after Brexit, unless it is relevant to the interpretation, disapplication or quashing of any legislative rule passed before Brexit (9).
Regarding the DSM Directive and Broadcasting Directive (10), the EU Member States must transpose these directives into their national law by 7 June 2021, thus after the initial date of the transition period (31 December 2020). Therefore, if the UK has not yet transposed these two directives before 31 December 2020, it will no longer be obliged to do so after that time limit. According to the UK government, it committed not to extend the transitional period so that, in principle, the UK will not be required to transpose the directives (11). On the other hand, if the transition period is extended until 31 December 2021 (one year) or 31 December 2022 (two years), the UK will be obliged, as an EU Member State, in principle, to transpose the DSM Directive and Broadcasting Directive (12). As there have been no previous cases in this area, it is difficult to know the future of these transpositions in the British law.
On the judicial perspective, the Withdrawal Agreement provides that the Court of Justice of the European Union (CJEU) remains competent in any proceedings brought by or against the UK before the end of the transition period (13). Moreover, the CJEU remains competent to give preliminary rulings on requests from courts and tribunals of the UK made before the end of the transition period (14). After Brexit, according to the British act European Union (Withdrawal) Act 2018, the courts and tribunals could not refer any matter to the CJEU and, in addition, will stop being bound by the European directives, and therefore also by the interpretation of the directives (15). However, the British jurisdictions may take into account anything that the CJEU, another EU entity or the EU does, to the extent that it is relevant to a matter within their jurisdiction (16).
With respect to the enforcement of intellectual property rights by customs (17), the applications for intervention by customs by right holders will no longer have any effect in the UK upon withdrawal from the EU (18).
Finally, the UK is a member of several international treaties that protect these rights, such as the Berne Convention, the Rome Convention, TRIPS, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (19).
In case of a « no deal »
The « no deal » scenario seems to have become unheeded today but if the UK would leave the EU without a deal, it would become a third party overnight. There would be no transition period.
Regarding the DSM Directive and the Broadcasting Directive, the UK, no longer being an EU Member State, would no longer be obliged to transpose them into national law.
On the other hand, the directives already implemented in the UK would indirectly continue to apply. Nevertheless, assuming that the UK is no longer an EU Member State, it could, in principle, decide sovereignly to change its national law at a later date.
Finally, the UK IP Office has already underlined that the works of art created before and after Brexit protected by copyright law in the UK will continue to be protected in the EU because of their membership to international treaties (see supra), as well as that the works of art originating from the EU will continue to be protected in the UK (20).
The current level of protection of copyright law in the UK remains broadly equivalent to EU law. The possibility that the two recent directives are transposed into British law nevertheless seems thin (today) and we do not know exactly whether the UK would continue to follow the European line in the interests of the harmonisation in that matter or whether it will take a completely different direction.
(1) Article 50 of the Treaty on EU allows a voluntarily and unilateral withdrawal mechanism of an EU member state.
(2) Further to the resignation of the Prime Minister Theresa May on 24 July 2019, her successor Boris Johnson started new negotiations on the agreement with the EU in particular on the Northern Ireland’s question. On 17 October 2019, the EU and the UK have reached an agreement and on the same date the EU council approved the amended version of the Withdrawal Agreement. The last version of the Withdrawal Agreement does not modify the provisions regarding the intellectual property rights and can be downloaded here: https://ec.europa.eu/commission/publications/working-document-consolidat... (537 pages); for more details on the history of the negotiations, please see: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM:4301000
(3) Articles 126 and 132 of the Withdrawal Agreement.
(4) « PDO » refers to protected designation of origin; « PGI » refers to protected geographical indication; « TSG » refers to traditional speciality guaranteed.
(5) Please see Articles 54 to 61 of Title IV, Part 3 of the Withdrawal Agreement; we nevertheless note that Article 61 on the exhaustion of rights precise that the intellectual property rights, including copyright law, which were exhausted both in the EU and in the UK before the end of the transition period under the conditions provided for by EU law shall remain exhausted both in the EU and in the UK.
(6) Please see: https://www.gov.uk/guidance/changes-to-copyright-law-after-brexit; for the inventory of the EU legislation on copyright law, please see: https://ec.europa.eu/digital-single-market/en/eu-copyright-legislation and https://ec.europa.eu/digital-single-market/en/copyright.
(7) The European Union (Withdrawal) Act 2018 is the British act on the abrogation of the European Communities Act 1972 on the adhesion of the UK to the European Economic Community (ECC) and the British Parliamentary requirement for approving the Withdrawal Agreement negotiated between the UK and the EU.
(8) Section 3 of the British act European Union (Withdrawal) Act 2018: http://www.legislation.gov.uk/ukpga/2018/16/crossheading/retention-of-ex... please see the explanatory note of the European Commission of 22 November 2019 for more details : https://ec.europa.eu/info/sites/info/files/copyright_en.pdf.
(9) Section 5 of the British act European Union (Withdrawal) Act 2018: http://www.legislation.gov.uk/ukpga/2018/16/crossheading/retention-of-ex....
(10) Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC; Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC.
(11) Please see: https://www.parliament.uk/business/publications/written-questions-answer...
(12) A question that arises is whether, in the event that the UK does not transpose any of these European directives into its national system before the end of the transition period, the European Commission could still seize the Court of Justice of the European Union (CJEU) on the basis of article 258 of the Treaty on the Functioning of the EU (TFEU) (infringement procedure) against the UK. It should be noted that the Withdrawal Agreement provides a possibility for the European Commission to bring an action before the CJEU against the UK for breach of its obligations during the transition period and still within a period of four years from the end of the transition period (article 87.1 of the Withdrawal Agreement). It remains to be seen whether the European Commission will use this power in case of non-transposition of the DSM Directive and/or Broadcasting Directive.
(13) Article 86.1 of the Withdrawal Agreement.
(14) Article 86.2 of the Withdrawal Agreement.
(15) Section 6 du European Union (Withdrawal) Act 2018: http://www.legislation.gov.uk/ukpga/2018/16/section/6/enacted.
(17) Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning customs enforcement of intellectual property rights and repealing Council Regulation (EC) No 1383/2003.
(18) Please see the explanatory note of the European Commission of 4 January 2018 for more details: https://ec.europa.eu/info/sites/info/files/file_import/intellectual_prop....
(19) Berne Convention for the Protection of Literary and Artistic Works (1886); Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961); Trade-Related Aspects of Intellectual Property Rights (TRIPS) (1994); WIPO Copyright Treaty (1996); WIPO Performances and Phonograms Treaty (1996).
(20) Please see: https://www.gov.uk/guidance/changes-to-copyright-law-after-brexit; this provided that the concept of country of origin is met (please see article 5 of the Berne Convention and article 18 of the TFEU).