About this time last year there were still pages of daily newsprint warning about the dire consequences that would befall our United Kingdom if we left the European Union without a deal. For those not suffering from Brexit fatigue you could be reminded that the sky may suddenly be devoid of planes, panic buying would ensue and we would be poorer, indeed far far poorer for generations.
It occurred to me that all these things have in fact now happened though not as a result of Brexit. It did however lead me to reflect on the intellectual property casualties of Brexit and in particular the death of the EU Copyright Directive.
The stated objective of this Directive, one in a long list of reforming Directives, was to help European copyright industries to flourish in a digital single market and for copyright owners to reach new audiences by making their works available to European citizens under one harmonised regime. It passed all stages of the EU legislative process in May last year.
At the beginning of this year member states of the EU set about transposing the EU Copyright Directive into their national laws. All Member States have until 7 June 2021 to complete the process.
The path to the statute book of the EU has not been smooth. At times there was a chance it would not make it. The UK voted in favour of the legislation. Ironically without the support of the UK the Directive may have failed at the final hurdle. At its best, the Copyright Directive contains articles that give artists authors and performers more control over the use of their works on line. They have the right to negotiate with online platforms and receive appropriate and proportionate remuneration for use of their work.
There were however two very contentious Articles, Article 11 and Article 13 which were championed and opposed in equal measure. These articles are now Articies 15 and 17 of the Directive as it came into law.
Article 15 is dubbed the Google tax. It obliges publishers to pay media outlets for the press materials it links to. French publishers have already notched up a victory with an order form the French watchdog that the US Tech giants must ‘negotiate in good faith’ with French publishers and news services over the licensing fees it should pay for press content. It remains to be seen whether the two sides can come to any arrangement. If not Google may simply block French content from its results.
Article 17 establishes an obligation on platforms to use technical filers to prevent the uploading of copyright material which they do not have permission to use on its site.
This article was hailed by some as sounding the death knell for the internet as we know it. Others see it as necessary to avoid the free for all business model adopted by the dominant online platforms such as Youtube. whichever side of the argument you are on
Article 17 is presenting Member States with challenges about how the obligation can be met. The EU has promised it will publish guidelines but these are not yet available.
The UK left the EU on 31st January 2020. The Government has made it clear that it is committed to not extending the Implementation Period and is therefore under no obligation to adopt the Directive into UK law. Any future change to the UK copyright framework will be considered as part of the usual domestic policy.
In reality will the Government have the time to consider reform of copyright legislation when it is so busy passing other legislation to deal with the plethora of issues that will need more immediate attention after the end of the Implementation Period?
In so far as the Directive was uncontroversial and helpful to creatives in putting them in a better position to negotiate for fair remuneration for their work we have lost something in not adopting this Directive. More than ever intellectual property professionals, trade associations and other interest groups are going to have to shout to make their voices heard. It is beholden to us helping creatives who would benefit from such rules to keep focus on the need for these provisions until the Government is in a position to take it up again. If we end up with a law which enhances the rights of creatives somewhere down the line even if stamped with a huge ‘Law Made in Great Britain’ badge it will be an achievement. Let’s get to work.
Written by Margaret Briffa, Solicitor