Brexit, Copyright and Liminality

September 19, 2016

I’ve always liked the word ‘liminality’ – a threshold that marks the boundary between two phases. If nothing else, Brexit presents an opportunity for its appropriate use. The UK’s current state, where we are still in the EU but apparently heading somewhere else, does feel liminal, with its quality (to quote Wikipedia) of ambiguity or disorientation.

You can sense this in the way the Commission’s significant proposals for copyright reform have been greeted in the UK. The Proposals for a Digital Copyright Directive (more on which below) and Regulation on rights clearance for online TV programming,if adopted, represent significant modifications to European copyright law. But the response in the UK seems muted, reflecting an uncertainty about their applicability to a post Brexit UK, a sense in which they seem both relevant and irrelevant to the UK.

I’m going to stick my neck out: whatever the nature of the UK’s exit from membership of the EU and our subsequent relationship with the EU as a third country, EU copyright law will remain central to UK digital business. I believe the same is true of other key EU regulations which apply to the digital market, especially the forthcoming General Data Protection Regulation.

I say that for the following reasons:-

·   The EU currently accounts for 50%+ of UK exports. Whatever new markets beyond the EU are available to the UK in the ‘brave new world’ post Brexit, the UK will have to safeguard this existing market.

·   A ‘hard Brexit’, with nothing to replace our membership other than relying on the World Trade Organisation rules is a non-runner. According to the CBI, the ‘WTO option’ would see new tariffs imposed of around 90% by value of UK goods exported to the EU.

·   This means that, following the UK’s exit from EU membership, it will need an association agreement (probably several, and by whatever name called) with the EU. 

·   Whilst agreements on tariffs will be an important element of any such agreement, a cursory glance at any Free Trade Agreement shows that a substantial component are common rules on intellectual property, data protection and competition.

·   That being the case, it is in my view highly unlikely, and more probably impossible, for UK rules in these areas to diverge to any significant extent from the corresponding EU rules in these areas.

·   In the specific case of data protection, we will have to have rules corresponding to the GDPR if the UK post Brexit, as a third country, wishes to export personal data to the EU.

 Here is a very short summary of some key provisions of the Proposal for the Digital Copyright Directive; there are some extremely important potential developments in EU copyright law here:-

·   A new 20-year right for publishers of press publications to authorise the reproduction and ‘making available by wireless means’ for digital use of their press publications. This does not detract from authors’ rights in the works included in press publications. It does not constitute a law on hyperlinking. What it would do is allow the press which invest substantially in their publications to get a fair return on digital re-use.

·   A framework for legal agreements between content owners and ‘information society service providers (ie ISPs, platforms & hosts), including a requirement for a more active role by the latter to deal with infringing content by more effective use of content recognition technologies.

·   New mandatory copyright exceptions covering text and data mining, the use of works and other subject matter in digital and cross-border teaching activities and the preservation of cultural heritage. 

·   Provision for licensing agreements between collective societies and cultural heritage institutions to cover ‘out of commerce’ works and also provisions to deal with the cross border licensing of out of commerce works. 

·   Provisions dealing with fair remuneration in contracts with authors and performers.

We need to shake off our ‘liminal blues’, pay active attention to this spate of new regulations and make our voice heard.

Laurence Kaye is an IP & Digital Media Consultant: