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EU: Brexit 'no deal' will hit copyright and database owners

UK businesses will lose any database rights they enjoy across the EU at the point of Brexit as it stands, the European Commission has said.03 Apr 2018

An agreement on the terms of the future relationship between the UK and the EU has still to be reached by UK government and EU officials. Unless such an agreement is reached, or transitional arrangements are put in place, database rights obtained by UK businesses will expire in the EU from the date of Brexit, the Commission said.

Similarly, businesses from across the rest of the EU stand to lose database rights in the UK from the date of Brexit, it said.

The Commission outlined the position in a notice to stakeholders on the implications of Brexit in the field of copyright.

"As of the withdrawal date, United Kingdom nationals (unless they have their habitual residence in the EU) and companies/firms formed in accordance with the law of the United Kingdom will no longer be entitled to maintain or obtain a sui generis database right in respect of databases in the EU," the Commission said. "Conversely, EU member states nationals and companies/firms will not be entitled to maintain or obtain a sui generis database right in respect of databases in the United Kingdom."

According to the Commission, a 'no deal' scenario on Brexit would result in many issues regarding the cross-border application of copyright spanning the UK and EU jurisdictions governed by international agreements to which the UK and EU are both contracting parties. These include the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT), the WIPO Performances and Phonograms Treaty (WPPT), and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), it said.

There are "specific consequences" for broadcasters if this scenario plays out in relation to copyright clearance, it said.

"In order to broadcast a work or other subject matter, broadcasters only have to clear rights in the member state where the signal is introduced," the Commission said. "As of the withdrawal date, broadcasters in the United Kingdom will no longer benefit from the mechanism provided for by the [EU Broadcasting] directive when providing cross-border satellite broadcasting services to EU customers and they will have to clear rights in all member states where the signal reaches."

"Correspondingly, broadcasters in the EU will no longer be able to benefit from the mechanism provided for by the [EU broadcasting] directive when providing cross-border satellite broadcasting services to customers in the United Kingdom and they will have to secure clearance of the rights of all relevant rightholders if they wish to broadcast to the United Kingdom," it said.

The Commission's notice also addressed issues arising with so-called 'orphan works', collective rights management and access to published works for persons who are blind, visually impaired or otherwise print-disabled.

It also confirmed that the rights provided for under the EU's online portability regulation would not be enjoyed by UK consumers from the point of Brexit, unless specifically addressed in a Brexit withdrawal or transitional agreement. The UK government recently confirmed that it would update UK law to account for the outcome of Brexit negotiations.

Under the online portability regulation, online content service providers must ensure that they make their service available to paid subscribers "in the same manner as in the member state of residence" when those subscribers are "present in a member state other than the member state of residence for a limited period of time".

The regulation specifically provides that the obligation includes "providing access to the same content, on the same range and number of devices, for the same number of users and with the same range of functionalities", and  online content service providers are prohibited from charging subscribers extra to facilitate their new access rights.

The rules are premised on the basis that the provision of online content, as well as the accessing and use of that content, is deemed to have occurred in the EU country where subscribers are resident rather than in the country where they are temporarily present. It is for this reason that Brexit might have an impact.