Brexit & IP: what is the current position?

On 31 January 2020, the UK will formally leave the European Union.  The UK's relationship with the EU will no longer be governed by the EU Treaties, but instead by the terms of the Withdrawal Agreement agreed between the UK and the EU in late 2019.  Pursuant to that agreement, the UK will enter a "transition" period, which is currently set to end on 31 December 2020.

From a business perspective, during the transition period, it will feel like nothing has changed. Under the terms of the transition period, most EU law continues to apply to the UK and in the UK and continues to be interpreted and applied as if the UK were still an EU Member State.  EU law, including that relating to intellectual property, continues to be directly effective in the UK during the transition period, as it was during the period of the UK's EU membership.  This means that the UK's no-deal planning, including the various Statutory Instruments relating to intellectual property, which were enacted by the UK Government to prepare UK law in case of a no-deal Brexit, will now not come fully into force until the end of the transition period, at the earliest, if at all.

The UK will focus in 2020 on its negotiations with the EU on the terms of its future relationship with the EU, which the UK Government hopes to have in place by the end of the transition period on 31 December 2020.  Many believe this is an extremely demanding timetable, but the UK Government insists it will not request an extension to the transition period under any circumstances.  The outcomes of these negotiations – in particular whether an agreement on the future relationship is reached, whether that agreement provides for the continuing application of EU intellectual property law in the UK and/or whether the UK decides to diverge from the EU in any areas – will have a fundamental impact on UK intellectual property regimes applicable after the end of the transition period.  The UK government has recently stated, for example, that it does not intend to implement the EU Copyright Directive, which may be an indicator that copyright is an area where the UK may diverge.

It is vital that businesses monitor the negotiations closely and remain engaged with the process. The decisions that will be taken during the course of the negotiations will impact the shape of the UK economy for years to come. We, Hogan Lovells, are uniquely placed to help our clients over the coming months to prepare for the various potential outcomes. 

For more information, including our more detailed FAQs on Brexit, please visit our Brexit Hub and subscribe to our Brexit bulletin: hoganlovells.com/Brexit 

For our previous publications on IP & Brexit, including our blogs on the various no-deal Brexit Statutory Instruments see the links to Engage on the right.

Authored by: Penelope Thornton, Andrew Eaton and Sahira Khwaja