THERE could be some immediate Brexit effects on intellectual property rights but the slow, painful untangling of ideologies bound together by law is where the real drama will unfold.
And as the ideology changes some groups, like authors, will see a change in their rights. “In the UK, the idea has always been that copyright is there to incentivise the creation of works”, says Eleonora Rosati, Associate Professor in Intellectual Property (IP) Law at the University of Southampton and keynote speaker at CILIP’s Copyright Conference on 2 April. “It is a utilitarian view and different from the approach in France where copyright is seen as a natural right enjoyed by authors, giving them the right to control how their work is used.”
The French and UK approaches have been in competition for decades, Eleonora says. “At EU level, when you adopt a piece of legislation there is a lot of lobbying going on and according to some critics, the continental block, led by France, has contributed to strengthening the position of rights holders to the detriment of users.”
UK and EU ideologies differ, in particular, over the moral rights of authors. “These are a bunch of rights granted by copyright to safeguard the personal connection between an author and their work. For example the right to oppose any derogatory treatment of the work, like making a pornographic version of your novel. The understanding of what moral rights are for is very different between the UK and France.”
The EU’s intention is to protect authors and this, she says, is evident in a number of other initiatives: “At the contractual level, the EU is considering enhancing transparency in authors’ contracts and it is considering introducing a bestseller clause that will give authors the power to renegotiate their contracts in case their work is indeed a best seller.”
There are other initiatives relating to protection online and “these are all measures that might be also beneficial to UK authors but they might be left out of all this with the UK out of EU.”
After Brexit, divergence between EU and UK copyright law is likely to widen. “This divide between UK and continental approaches has arguably been one of the reasons why, for instance, there has never been a real project of harmonisation of moral rights at the EU level,” Eleonora says. “If the UK leaves it might be a lot easier to come to an agreement over an EU approach to moral rights and a greater approximation of national laws in this area. And when you sell your book into countries with less different laws, there will be less room for different approaches and uncertainties. Brexit doesn’t mean the UK will be out of this market of 500 million consumers, but UK rightholders might face higher barriers to trade and to enforce rights outside the UK.” And in a soft Brexit, she says the “UK loses its voice if just remains in the Economic area. It will need to comply with this new legislation without having any say on how it is drafted.”
However, Eleonora’s keynote speech – four days after the UK is due to leave the EU - will focus on the legacy of CJEU case law and how this might make it difficult for the UK to diverge from the EU.
“If you look at how extensive the action of the Court of Justice has been, you will see that it has shaped the UK law in a very precise way and it has changed the approaches that existed before at the UK level alone.”
Change may not be easy: “There are decisions of UK courts that incorporate CJEU-made standards and are binding precedents: this means that if you wanted to depart from the direction taken at the EU level as incorporated into UK law, you would need to follow the process that is required for a court to depart from an existing precedent.”
At the moment the UK is aiming to maintain stability but, in some cases, this might not be easy – Exhaustion provides an example. “After the first lawful sale of a protected work or copy in the EU, this item is free to circulate across the entire EU”, Eleonora says: “So, if a copyright owner sells a copy of their book in France, this copy can then circulate anywhere in the EU without the owner of the copyright being able to object to this. This is meant to facilitate the free movement of goods.
“The UK has so far said that, unilaterally, it will recognise EU exhaustion as applied to the UK, so a book first sold into France can then enter the UK without any problems. But the EU might not do the same. The consequence might be that copies first sold in the EU might enter the UK quite easily but that might not be the case the other way around. What the EU agrees may depend on final deal with UK.”
In some areas the UK faces bigger changes if there is no Brexit. Under UK law there is a closed list of protectable works. It means, for a work to be protected by copyright it must fit a category.
“But now,” Eleonora says, “there is case law at the level of the CJEU that suggests that this approach might be incompatible with EU law because EU law does not require a work to belong to any specific category: copyright protection is available to any work that is sufficiently original.”
There are implications. “In one famous case, replicas were made of the Stormtrooper helmets from Star Wars. Lucasfilm litigated this case saying that the defendant was infringing copyright in the helmets. The UK Supreme Court conclusion was that Lucasfilm could not prevent it because the helmet was not a sculpture and did not fit any other existing category so was not a protectable item.”
She said: “If this case was litigated today, I’m not sure a court in the UK would come to the same decision without also considering whether EU law permits all this but, after Brexit, yes, it might be the case that the approach will remain that of a closed list.”
At the other end of the scale, the UK might go back to protecting items that won’t meet EU criteria in future. For a work to warrant protection it must be original. Eleonara says: “In the UK that has traditionally meant a work has not been copied and its creation involved sufficient, skill or labour. But countries in continental Europe have traditionally required more: that a work reflects the personality of the author, so it is not just ‘not copied’ but has some sort of creativity.”
She adds that the EU has made this issue clearer in this area. “The CJEU has said that indeed this modicum of creativity is required for copyright protection to arise.”
So, if it stays, the UK will need to comply with this higher threshold, meaning “low-originality works that might have been protected under traditional UK law should no longer be protected. An example might be digitised images of paintings in museums and galleries.”
The Berne Convention, which predates the UK’s membership of the EU, should prevent major differences between the copyright regimes of its signatories. But, according to Eleonora many areas face uncertainty: cross-border recognition mechanisms, database rights (less ability to control how the content of databases are extracted and reused by third parties) and also UK libraries will no longer be able to rely on the EU directive’s pan-European “orphan work” status. Other areas to watch are broadcasting and the implementation of the Marrakesh treaty.
Eleonora will take a closer look at these key areas in her keynote at CILIP Copyright Conference on 2 April.