The most well known issue is the Directive of the European Parliament and of the Council on Copyright in the Digital Single Market, which we’ll call the Copyright Directive.
Brexit and the Directive on Copyright in the Digital Single Market
The Copyright Directive, part of the Digital Single Market strategy, is one of a parcel of policies and draft laws relating to copyright. It is best known for its most controversial and contentious parts.
In March 2017 the European Scrutiny Committee of the House of Commons was told that “Working Groups have started negotiating other parts of the copyright package, and we expect substantive negotiations on the directive to begin this year”.
In June 2018, with the work having moved on to a new Minister, the ESC reviewed the proposal again and asked several good questions ahead of the plenary in Strasbourg, including:
c) In his letter of 30 March 2017, the then Minister (Jo Johnson) helpfully informed the then Committee of stakeholder views concerning various aspects of the Proposal. As regards the liability of online service providers which host copyright content those views indicated a substantial number of responses from members of the public who raised concerns around privacy, censorship and data protection. Could the Minister please set out how the current text of the Proposal addresses those concerns.
d) Could the Government explain (i) how they intend to meet the obligations set out at paragraph 2.6 above if the transposition date for the Directive falls within the UK’s transitional/implementation period (ie currently until 31 December 2020) and (ii) the extent to which the UK is likely to want to mirror these provisions in domestic legislation post the transitional/implementation period (ie post 31 December 2020).
e) More generally, whether it is intended to include, in the Future Relationship agreement with the EU, the substance of the legislative proposals and, if not, the extent to which the UK is likely to want to mirror, after the transitional/implantation period (post 31 December 2020), the substance of the legislative proposals where there is a deviation from current UK law.
The proposal, of course, was subsequently rejected in the European Parliament, and went back for further work. This, as we now know, turned out to be a brief reprieve.
In March 2019 the ESC returned to the copyright package and noted its interplay with Brexit:
We also ask the Minister to provide an indication of the approach that the UK would take to adopting voluntarily in UK law the provisions of this proposed Directive if the 24 month transposition period were to conclude after the end of any implementation period (according to the terms of the draft UK/EU Withdrawal Agreement, if ratified). Finally, we ask the Minister to indicate what, if any, the implications of the proposed Directive would be for the UK as a third country rather than as a Member State of the EU.
The copyright directive was approved by the European Parliament in April 2019, and would not have passed if the UK had voted against it. This is as clear as an example as you will ever see of the UK deliberately undermining European legislation in order to bolster their narrative of victims who need to “take back control”. They were in the room. They had control. They chose not to exercise it.
Many people have asked me what happens now. EU member States will have until 7 June 2021 to transpose the Directive into national law. What does that mean for the UK? In late April the Minister for Universities, Science, Research and lnnovation under whose remit the Copyright Directive falls, said:
“Whether the UK is required to implement the Directive will therefore depend on the nature of our departure from the EU. lf the transposition deadline of this Directive goes beyond the end of the implementation period for the UK’s departure from the EU, the UK will not be able to implement the Directive under the powers of the Withdrawal Act. Should the Government wish to implement the policy proposals contained in the Directive in the UK, it would need separate legislation.”
“The application of the Directive in the UK after our exit from the EU will be subject to the nature of the future relationship between the UK and EU. This is due in large part because of the cross-border nature of the provisions. The country of origin extension to catch up services, for example… This also applies to the other parts of the Directive, as they are intended to operate across borders.”
In other words, he is bluffing as much as any of us are.
The European Scrutiny Committee has now cleared the Directive from further scrutiny and has passed it to BEIS for implementation.
— Marietje Schaake (@MarietjeSchaake) April 15, 2019
Three months later, in January 2020, government flipped their position:
The deadline for implementing the EU Copyright Directive is 7 June 2021. The United Kingdom will leave the European Union on 31 January 2020 and the Implementation Period will end on 31 December 2020. The Government has committed not to extend the Implementation Period. Therefore, the United Kingdom will not be required to implement the Directive, and the Government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process.
Before you rejoice and tear up the EU flag, do remember that the UK will be still be implementing a massive and wholly domestic regulatory regime of content filtering, moderation, and restriction, and which will cover all content regardless of its copyright status, in the form of the online harms framework.
There was an interesting exchange in the Lords on 2 March regarding the UK’s decision not to implement the Directive (emphasis mine):
Lord Stevenson of Balmacara (Lab):
Does the Minister agree that unless Article 17 or an equivalent measure is introduced, creative personnel in this country are going to be disadvantaged relative to how they would have been had we stayed in the EU, and certainly in comparison with their counterparts in the EU, which was the basis of the Question? Is this not a case of cutting off your nose to spite your face? Why would we not want to make sure that those who are earning benefits from the cultural industries for this country and for themselves are able to earn, and that their copyrights are not being ripped off by the tech giants, as is currently happening?
We will continue to advocate for the rights of the creative industries. We shall see how the copyright directive is implemented and how the various enforcement regimes within it will work, but of course it is not possible for us to remain part of it, because we will not accept the jurisdiction of the CJEU in these matters. We will see how it works and will continue to keep the matter under review. It is of course a matter for this Parliament to determine how our copyright protection framework goes forward.
Other post-Brexit copyright legislation
The IPO has published a comprehensive fact sheet on IP and Brexit, last updated in April 2019. In addition to practical business guidance, it covers the Statutory Instruments laid down in relation to copyright:
- The Design Right (Semiconductor Topographies) (Amendment) (EU Exit) Regulations
- The Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations
- The Trade Marks (Amendments etc.) (EU Exit) Regulations
- The Patents (Amendment) (EU Exit) Regulations
- The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations
- The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations
The European Commission has also published a preparedness notice on copyright.
In September 2018 Government published its guidance on copyright in the event of a “no deal” Brexit, covering everything from the Marrakesh treaty to database rights.
The European Scrutiny Committee has issued three reports on broader aspects of copyright:
- Copyright in the Digital Single Market (2 November 2016) .
- Promoting a fair and efficient European copyright-based economy in the Digital Single Market (2 November 2016) .
- EU Implementation of the Marrakesh Treaty (2 November 2016) (response received 8 November)
Copyright and broadcasting
In February 2018 the ESC examined the proposal for a regulation on copyright, broadcasting, and TV transmissions, noting that it is almost wholly an internal matter for EU members. In March 2019 the ESC returned to the broadcsting proposal.