Brexit Brexit Brexit, a word that was non-existent five years ago is now on everyone’s lips. So what does it mean? Well, as we all now know, Brexit means Brexit. Although for some this may be enough, intellectual property lawyers need to know more.
Much has already been written about the potential impact of Brexit on patents, trade marks and designs but copyright is rarely mentioned. This is because, on a broad brush interpretation, copyright law may not actually change after the UK leaves the EU. However, is this strictly accurate?
To answer this question definitively we would need to know exactly what type of Brexit we’re going to have, be it hard, soft, or as our Prime Minister would prefer, red, white and blue, however, let’s start with where we are now.
The Current Position
Much of intellectual property law is harmonised across the EU and this is widely considered to offer significant commercial benefits to the member states. However, copyright is actually the least harmonised intellectual property right with much of the law being based on national and international legislation rather than EU Regulations.
Of course, there have been efforts to harmonise copyright law in the past, with the Software Directive, the Database Directive and the Information Society Directive. However they have all stopped short of offering a truly harmonised law and copyright is still incredibly nationalistic, with each member state relying on their own rules and interpretations. This is most evident in key issues such as the standard required for copyright to subsist (such as originality and intellectual creation), moral rights (the weight of which varies quite substantially from one country to next) and the assessment of infringement (more specifically the test which must be applied).
But why is this? Well, there are substantial difficulties in actually reaching multi-jurisdictional agreements and, since we already have the Berne Convention and the WIPO Copyright Treaty, there hasn’t been much of a need to push for further harmonisation in the past.
Over the next two years the UK and the remaining EU member states will need to agree on their future relationship. Their starting point will be to consider a number of existing “models”, these are as follows:
Full EU membership
This would require the UK government to completely reject the referendum result and the remaining EU member states to either ignore the Article 50 letter or allow the UK to withdraw its notice. Although this may be a popular option for some, it is undoubtedly the least likely.
The Norwegian model
This would mean that the UK exits the EU but remains part of the European Economic Area (“EEA”). In this scenario the UK would retain EU copyright law including any pieces of legislation which are introduced in the future. The problem with this is that although the UK would be required to follow all EU copyright rules, it would not actually have any voice in them. Politically therefore this could be disastrous and, following Theresa May’s Brexit speech at Lancaster House in January 2017, it now seems likely the UK will leave the single market and no longer be a member of the EEA.
The Swiss model
This would mean that the UK is a member of the European Free Trade Association but not the EEA. The UK’s access to the EU market would be governed by a series of bilateral agreements but, in return, it would need to make financial contributions to the EU and accept freedom of movement. The latter may be considered a deal-breaker for the UK’s negotiation team and, as result, this option might not be possible.
The Canadian model
This scenario involves a bilateral agreement between the UK and the EU without membership of the European Free Trade Association. Good in theory but it would essentially be a bespoke agreement requiring years of negotiation. Whether this can be done during the two-year notice period remains to be seen but the recent indications from EU negotiators are that no such agreement will even be discussed until the exact terms of divorce have been agreed.
The World Trade Organisation model
This is the default option if no agreement can be reached by the parties. Essentially, the UK would need to trade with the EU under World Trade Organisation rules, making it no different to a large number of countries who both geographically and politically have very little to do with the EU. Theresa May’s government have been keen to stress that this is a perfectly acceptable option for the UK however it’s hard to tell if this is their true belief or simply a sensible negotiating stance.
Crystal ball gazing
So what will all this mean for the future of copyright law? As the likely divorce moves from soft to hard the scope for UK and EU copyright law to drift apart increases. As the gap widens the speed and extent to which the laws would differ could also increase. As new paths and theories are pursued the previous restrictions on them will fall away, potentially leading to a very different legal landscape in the future. This, coupled with the fact that copyright law is required to evolve rapidly in order to cope with ever expanding digital technologies, suggests that the position is far from certain.
But is this really practical, or even likely? The principal of certainty is of fundamental importance to the legal system, without it, our laws are next to useless. Equally important as certainty is consistency, how can practitioners and businesses effectively trade across the UK and the EU without a consistent approach being taken throughout? Fortunately, in practice, supranational treaty obligations and general economics are likely to be big driving forces against the divergence of law and so the principals of certainty and consistency should be maintained.
Although the nature of copyright law means that it will be affected differently by Brexit in comparison to other intellectual property rights, the principals are the same; Brexit is likely to give the UK the right to influence the evolution of its law without supervision however, with that comes a loss of involvement with our most important trading partners.
Whether this will benefit the UK in the short, medium and long term remains to be seen but it will undoubtedly set the UK off on a new legal and political course.
For markets beyond Europe, the EU enjoys a significant reputation for the protection and development of copyright law internationally. Without the UK, this reputation may not grow at such a rate and perhaps this will diminish the EU’s influence on supranational treaties. Hopefully however this will leave a gap for the UK to grow into allowing us an opportunity to still have a voice in laws beyond our borders.
Either way, it’s an exciting time to be an IP lawyer.