Claims of Brexit black hole for copyright is scaremongering, says Hogan Lovells

This month the European Commission issued a notice on the impact of Brexit on UK copyright law which states that all EU “primary and secondary law will cease to apply to the United Kingdom from 30 March 2019”.

The notice goes on to point out that, although the UK is a party to many of the main international copyright treaties, including the WCT, WPPT and TRIPS, these treaties do not provide the same level of cross-border protection as EU copyright laws. As a result, the UK will lose the benefit of cross-border copyright measures or rules in the absence of a transitional agreement.

Examples are:

  • The broadcasting 'country of origin principle' - Currently, UK broadcasters benefit from the 'country of origin' principle, meaning they only have to clear rights in the Member State where the signal is introduced. From the date of withdrawal, they will need to clear rights in all Member States where the signal reaches. Similarly, EU broadcasters will have to clear rights separately for broadcast into the UK.
  • Online content portability rules – The new Online Portability Regulation which came into force on 1 April introduced obligations on EU-based broadcasters to allow for online content to “travel” with the subscriber throughout the EU. The Notice says that UK subscribers will no longer benefit from these rules post-Brexit which could impact which TV programmes, films and music users are able to access when travelling abroad.

Alastair Shaw, Counsel, IPMT, at Hogan Lovells, commented: "There seems to be a bit of scaremongering going on here.  It is misleading to say, baldly, that all EU primary and secondary law will cease to apply on the withdrawal date. In fact, the UK’s copyright laws will not change on the day of withdrawal. Existing protection for copyright works in the UK will remain at least at EU prescribed levels, or in some cases higher."

"In addition, changes to the online portability rules are likely to affect more UK than EU channels", Alastair continued. "It seems unlikely that EU negotiators will want to limit EU users from accessing UK programmes, given the popularity of UK content abroad."

UK copyright has been subject to a number of directives aimed at harmonising copyright regimes across the EU. These have been implemented in the UK Copyright, Designs and Patents Act 1988 and other secondary legislation. Pursuant to the Government's proposed Withdrawal Bill (expected to be enacted around June 2018), they will form part of the body of law which is retained on Brexit.

For more detailed comment on the Commission's Notice, please visit:

For further comment on the impact of Brexit, please visit:

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