Copyright takes the front line in Brexit divergence
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
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:
- The current position LINK
- What you have to do from 1 January 2021 LINK
- Brexit and English Intellectual Property Law LINK
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
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.
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.
Development of the EU
Publishers stress importance of robust copyright regime post Brexit
UK copyright law must continue to operate in a way that allows news media companies to continue to invest in agenda setting journalism and creative content as the UK leaves the European Union, the News Media Association has said.
In a submission to a Culture, Media and Sport Select Committee inquiry into the impact of Brexit on the creative industries, the NMA stressed the importance of a robust regime “that supports a healthy, functional marketplace for copyrighted works” with “no further dilution of the broad, exclusive rights granted to publishers as copyright-holders.”
The submission said: “In addition to preserving the robustness of its own arrangements, the UK must remain engaged in efforts at European and wider international level to create a strong, united front of copyright protection for publishers and creators.
“We urge Committee members to have at the forefront of their minds that in the digital news environment, the greatest threat to the sustainability of the independent news media comes from online platforms and news aggregators large enough to shrug off attempts to assert publisher/creator rights at national level.”
The NMA welcomed the European Commission’s proposal for a neighbouring right for publishers as an important acknowledgement that a free and pluralist press provides a fundamental contribution to the proper functioning of a democratic society.
“If EU copyright does evolve in this direction, the UK after Brexit should ensure that UK law remains in step with these developments. If UK news publishers are put in a position where they either have weaker copyright protection or weaker practical ability to enforce their rights, they will be put at a grave disadvantage, not just in relation to their European counterparts but also in relation to hegemonic online giants, with whom their relationship is already extremely unequal,” the NMA added.
The submission also highlights developments at a European level around the issue of ad blocking such the publication of guidance by BEREC that said that the installation of network-wide adblocking by mobile phone providers falls foul of EU net neutrality rules. “It is essential that both the rules and this interpretation of them continue after the UK exits the European Union,” the NMA added.
The submission also highlights other European initiatives in areas such as data protection, the Audio Visual Media Services Directive, and VAT, and pointed to potential advantages of being brought out of the scope of European legislation in these areas.
In an earlier statement setting out its Brexit Charter the Publishers Association called on the UK Government to legislate to create stronger copyright rules to encourage investment in the UK and to protect creators. It also asked the government to
Ensure the UK research community remains a global leader by developing new strategies for domestic investment
Ensure publishers and businesses have access to the people and skills they need, whilst taking into account the public’s concerns about immigration
The priorities reflect the main concerns the publishing industry highlighted in a survey conducted by the PA, which was responded to by major publishers across trade, education and academic publishing as well as many independent publishing houses.
Stephen Lotinga, Chief Executive of the Publishers Association, said: “The UK publishing industry is a great success both nationally and internationally, and it’s essential that our concerns are at the forefront of these Brexit negotiations to make sure our voice is heard and success is not taken for granted.