The Stationers' Company

Copyright takes the front line in Brexit divergence

January 2021

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Copyright in the Digital Age has been tracking the implications of Brexit on copyright for a number of years, including a seminar on the subject held at Stationers' Hall in November 2017, recorded below. Separately we have been tracking progress on the new EU Copyright Directive. Perhaps inevitably these two topics have collided and the outcome could be something of a "big bang" which will be felt outside the arcane world of an often academic subject despite's mainstream implications

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On the issues (and no doubt unintended consequences) of regulatory divergence we feel we can do no better for now than offer the piece linked below:

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Key Links:

 

- The current position LINK 

- What you have to do from 1 January 2021 LINK

- Brexit and English Intellectual Property Law LINK

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BREXIT, COPYRIGHT, EUROPEAN UNION, LEGISLATIVE PROCESS, UNITED KINGDOM

Regulatory divergence post Brexit: Copyright law as an indicator for what is to come

Martin Kretschmer (Professor of Intellectual Property Law and Director of CREATe, University of Glasgow)/February 19, 2020 /Leave a comment

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Copyright law set to be first UK break from EU regulation

 

Ownership of intellectual property seems always to have been controversial. Following Stationers’ loss of pretty brutal Royal compliance powers, two attempts by the Company to introduce a law of copyright 1707 and 1709 did not succeed but ultimately resulted in the Statute of Anne in 1710, the first copyright legislation anywhere in the world.  Now copyright is set to make history again as the first instance of regulatory divergence as UK and EU battle over terms for separation.

 

Does this matter?

 

In this article Stationers' Liveryman Simon Hamlet explains

what is happening and why it’s important

 

March 2020

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The EU Copyright in the Digital Single Market Directive has caused a great deal of controversy during its gestation period. Intended to make European copyright law suitable for the digital age, there has been considerable disagreement over two articles in particular: article 15, the so-called 'link tax,' and article 17, the so-called 'upload filter' - the latter described by honorary liveryman Vint Cerf and other pioneers of the internet as a threat to its future.

 

Article 15, 'protection of press publications concerning online uses' (the 'link tax'), is intended to make search engines and news aggregators pay a licence fee to online news publishers for displaying short extracts. This 'publisher's right' already exists in German and Spanish law, and in both cases is regarded as ineffective. Those opposed to article 15 argue that it will make high-quality journalistic content more difficult to find and lead to the news media being (even more) dominated by large corporations, as smaller publishers will find it more difficult to negotiate the licensing deals that will be required. Its detractors also argue that exposure through aggregators and search engines actually increases traffic to news websites.

 

Article 17, 'use of protected content by online content-sharing service providers' (the 'upload filter'), makes online service providers liable for copyright infringement in content uploaded by users. The intent of this article is to try to reduce copyright infringement, which is widespread online, but its opponents say that it will be very difficult to implement, so, like the 'link tax,' will lead to greater domination by the large corporations who can afford to develop the necessary filtering technology. This would, they say, make the internet far less open and innovative, as sharing content would become much more legally risky (and is unlikely to be able to account for fair dealing or parody, for example).

 

The directive came in to force on 6 April 2019 and EU member states are required to transpose it in to national law within 2 years. However, in a move that seems to have taken many observers by surprise, then Intellectual Property Minister Chris Skidmore announced on 21 January 2020 that the UK would not be implementing the directive, thus making it the first example of UK divergence from EU law following its departure from the bloc on 31 January.

 

Ironically, given that it will not now be subject to the directive, it is possible that it would not have been approved by the EU Council without the UK's support. Voting is by qualified majority and 6 states voted against it, with 3 abstaining (Germany voted in favour, but added a protocol stating that national implementation should avoid 'upload filters'). In all, only 19 states, representing 71% of the EU population, voted for the directive; with around 13% of the union's population at the time, if the UK had abstained or voted against, it would have failed to achieve the 65% required to pass.

 

Just how controversial the directive is can be seen from the fact that, as well as voting against it, Finland, Italy, Luxembourg, the Netherlands and Poland have also issued a joint statement opposing the final draft of the text. While the UK has avoided some of that controversy for the time being by deciding not to implement the directive, it seems likely that it will have to address these issues at some point in the not-too-distant future, as the Copyright, Designs & Patents Act 1988 pre-dates the world-wide web.

 

Simon Hamlet

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Brexit and the realpolitik of trade agreements – Laurence Kaye

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Hamlet observed “There is a divinity that shapes our ends, rough hew them how you will.”

When it comes to the UK’s choices in a post EU, Brexit world, it isn’t the Divine, but rather existing international agreements, & the politics and power surrounding them, which will define & constrain what the UK can achieve.

This applies to all industries, for goods and services, although the specifics do of course vary.

This was the subject dated at Stationers’  Hall on November 6 2017 in the latest in the series of Ipso Facto debates.

“It is complex!” says Laurie.  See his blog on the subject here.