Brexit: Important copyright considerations for Broadcasters and other copyright owners

As readers will already know, we are in the Brexit transition period, meaning that EU law and treaties continue to apply to, and in, the UK. At the end of December 2020, this transition period will end and the UK will be treated as a ‘third country’, meaning that EU law and treaties will cease to apply.

Copyright, even within the EU, is generally governed by national law and varies from country to country (albeit there is a relatively high level of global and pan-EU harmonisation due to various international treaties and EU Regulations and Directives). Therefore, the general consensus is that Brexit will have little impact in the world of copyright protection and enforcement.

To a large extent this is correct, but there are some key pieces of EU legislation which will fall away in respect of the UK at the end of the transition period. Some of these could have profound effects, especially on broadcasters.

The EU Commission has issued an updated notice on the effect of Brexit on Copyright and related rights, which is a useful summary of the possible impact that broadcasters (and others) should be aware of. The notice can be accessed in full here. The UK Government has also issued guidance here.

There are a few key things that will change, notably:

UK broadcasters will no longer benefit from the Satellite and Cable Directive (93/83/EEC) when providing broadcasting services to EU customers.

This Directive provides that, when transmitting broadcasts across Member States, the act of communication is only deemed to have occurred in the Member State that the broadcast was first introduced (effectively meaning that broadcasters only have to ‘clear’ rights (i.e. get permission from the copyright owner) in the Member State where the broadcast originates).

Following the end of the transition period, UK based broadcasters will no longer be able to rely on this Directive and they will now have to clear rights in all Member States that receive the signal (depending on the national law of the Member State in relation to non-EEA broadcasts).

The UK has indicated that the country-of-origin principle will continue to be applied to broadcasts from any country so legitimate satellite broadcasts of copyright works transmitted into the UK from abroad will not need specific right holder permission for the UK, except in limited circumstances.

UK-based Collective Management Organisations (CMOs) will no longer benefit from the Collective Rights Management Directive (2014/26/EU).

Currently, EU based CMOs are obligated, in certain cases, to represent the CMOs of other Member States in multi-territorial licensing (regarding online rights in musical works).

Following the end of the transition period, this obligation falls away with respect to UK based CMOs and therefore they will need to ensure their members’ rights are represented across the EU without the benefit of these obligations.

In the UK, existing obligations on UK CMOs will be maintained. These include those specific to multi-territorial licensing of musical works for online services. UK CMOs that offer multi-territorial licensing of online rights in musical works will continue to be required to represent on request the catalogue of other CMOs (UK or EEA) for multi-territorial licensing purposes.

UK residents can no longer rely on the ‘Cross-border portability of online content services in the internal market’ Regulation (2017/1128). 

Currently, when UK residents subscribe to an online content service provider in the UK, when travelling within the EU they are still able to access that content (as under the regulation, the service shall be deemed to occur solely in the subscriber’s Member State).

Following the end of the transition period, content providers will not be required to provide content to a UK customer who is travelling in the EU. They may still choose to do so, but may be liable if content is not cleared in the EU.

The mutual recognition for orphan works provided for by Orphan Works Directive (2012/28/EU) will no longer apply between the UK and the EU.

Certain institutions across the EU currently benefit form a system of mutual recognition of orphan works; meaning that once a work has been recognised in a Member State, it can be made available across the whole EU.

Following the end of the transition period, orphan works recognised in EU Member States will no longer be automatically recognised in the UK (and vice versa).

Access to copies of published works for the blind, visually impaired of otherwise print-disabled, under the Marrakesh Directive (EU) 2017/1564), will no longer apply to entities in the UK.

Currently, as a member of the EU, the UK is a member of the Marrakesh Treaty (although it is not a signatory in its own right). This means that there are various limitations and exceptions to copyright law in order to allow access to ‘accessible copies’.

Aside from this, certain entities in the UK (mainly educational and government entities) are able to obtain accessible copies of protected works from authorised entities across the EU under the Marrakesh Directive.

Following the end of the transition period, this will no longer apply to the UK and, there will be no obligations on entities within the EU to continue with this UK cross-border exchange. The UK Government has, however, indicated that the regulation and the UK’s implementation of the directive will be retained in UK law. Further, whilst the UK is not currently a signatory to the Marrakesh Treaty in its own right, the UK does intend to ratify the treaty.

There will be no reciprocal sui generis database right for UK / EU entities in the other territory

Currently, UK entities can benefit from a sui generis database right in relation to EU databases, and EU entities can similarly benefit from the right in relation to UK data bases.

Following Brexit, whilst the rights will still exist, there will be a separate UK system and EU system and residents or businesses in either will not be able to claim future rights in the other (unless they have a habitual residence there).

Databases already in existence in the UK or EEA before 1 January 2021 will continue to be protected in the UK and EEA for the rest of their duration. It is also worth noting that copyright protection in databases will not be affected.

Action Points

Broadcast Clearance: UK Broadcasters should review procedures for clearing content which is broadcast to the EU. Clearance in the UK is no longer enough.

Cross-border content provision: Content providers should review policies governing use of UK cleared content in the EU by their subscribers; neither content providers nor subscribers will be able to rely on the defences in the Portability Regulation after the transition period.

Orphan works: Anyone who is using Orphan works that have been derived though authorisation by EU Member States should re assess their use of those works and explore whether further licences are needed.

Sui Generis Databases: As future database rights created in the UK will not benefit from protection across the EU, consider if there is protection under copyright law or whether some form of contractual restriction is possible.