© Crown copyright 2018
This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: firstname.lastname@example.org.
Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.
This publication is available at https://www.gov.uk/government/publications/changes-to-copyright-law-in-the-event-of-no-deal/changes-to-copyright-law-in-the-event-of-no-deal
Copyright is a national right that each country provides separately – there is no single worldwide or EU-wide copyright title. However, copyright is largely harmonised internationally by a number of treaties and, in the EU, by a body of EU copyright legislation that builds on the international treaties.
A substantial part of UK copyright law is derived from the EU copyright framework. Because of this, there are references in UK law to the EU, the EEA, and Member States. Some of these references occur in the UK’s implementation of EU cross-border copyright mechanisms. These mechanisms are unique to the EU and provide reciprocal protections and benefits between Member States, covering areas such as cross-border portability of online content services, sui generis database rights, and copyright clearance for satellite broadcasting.
To ensure UK copyright law functions properly if the UK leaves the EU without a deal, we have introduced The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2018. This removes or corrects references to the EU, EEA, or Member States in UK copyright legislation to preserve the effect of UK law where possible. For reciprocal cross-border mechanisms where continuing to extend provisions to the EU on a unilateral basis after exit would adversely affect those in the UK, we are limiting the mechanisms to operate on a purely domestic basis or bringing them to an end, as appropriate.
Although the UK is leaving the EU, UK and EU copyright works (e.g. books, films and music) will continue to be protected in the EU and UK respectively because of the international treaties on copyright (e.g. the Berne Convention and the TRIPS Agreement), which require all treaty countries to protect works originating in any other treaty country to a minimum standard. Our participation in these treaties does not depend on our relationship with the EU.
This guidance sets out in detail the changes we are making to UK law in the event of no deal and complements the recent ‘technical notice’ on copyright and EU exit 1. It covers the impacts on UK right holders, businesses, cultural heritage institutions and other organisations, and consumers.
2. What is the current state of UK copyright law?
Copyright protects original artistic, musical, literary, and dramatic works, as well as sound recordings, broadcasts, films, and typographical arrangements. Under the ‘national treatment’ rules of the international treaties on copyright (see above), the UK offers protection for works made by nationals of the UK or any other treaty countries.
The primary legislation on copyright and related rights in the UK is the Copyright, Designs and Patents Act 1988 (the CDPA). There is also a body of secondary legislation on copyright – both amending and standalone regulations. Some of these have implemented the EU Directives on copyright. These Directives go beyond the international treaties to further harmonise copyright law within the EU and remove barriers to cross-border access to copyright content. The UK’s implementation of the EU Directives has resulted in several references in UK legislation to the EU, the EEA and Member States.
There are also two EU Regulations on copyright and related rights. These apply directly across all Member States and are not implemented in domestic legislation. The Regulations provide for cross-border portability of online content services (e.g. video-on-demand services) and the import and export of accessible format copies of copyright works (e.g. braille copies of books) respectively.
3. Why are changes necessary?
Without any change to our law after we leave the EU, many of the references to the EU, EEA, or Member States will become unclear or inappropriate. This would include providing preferential treatment for the EU or EEA that adversely affects UK right holders and businesses and that, without a deal, would not be reciprocated.
It is necessary to fix these ‘deficiencies’ in our copyright legislation to ensure our law continues to work effectively in a ‘no deal’ scenario. For this reason, we have introduced The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2018 under the powers of the European Union (Withdrawal) Act 2018 (EUWA). The EUWA was introduced to ensure UK law continues to work after exit by transferring EU law into UK law and creating temporary powers to correct laws that would otherwise not operate appropriately.
4. What is changing? What isn’t?
Where possible, the government has sought to maintain existing copyright arrangements as the UK leaves the EU. For reciprocal cross-border EU copyright mechanisms where continuing to extend mechanisms to the EU on a unilateral basis after exit would adversely affect those in the UK, we are limiting the mechanisms so that they operate on a purely domestic basis or bringing them to an end, as appropriate.
The changes we are making do not affect the UK’s obligations under the international treaties on copyright and related rights. Books, music, films, and other copyright works made in the UK, EEA, and in other treaty countries will continue to be protected in the UK after we leave the EU.
5. Portability of online content services
5.1 What is the state of the law prior to exit?
The EU Portability Regulation 2 allows consumers across the EU to access their online content services (e.g. video-on-demand streaming services) as if they are at home when they travel within the EU. Prior to exit, this means that an online service provider can (and is obligated to) provide content ordinarily available in the UK to a UK customer temporarily present in any other Member State. The same is true for EU customers temporarily visiting the UK. The Regulation applies only to travel between EU Member States.
5.2 What is changing?
In the event of no deal, portability of online content services between the UK and EU will cease when we leave the EU. This is because the Regulation only applies to EU Member States and its effects will not be extended to the UK without agreement between the UK and EU.
In the UK, we intend to repeal the Portability Regulation from the body of retained EU law under the European Union (Withdrawal) Act 2018. Online content service providers will not be obliged, nor able, under UK legislation to offer cross-border portability for customers temporarily travelling to or from the UK.
These changes mean that UK customers visiting the EU and EU customers visiting the UK may see restrictions to the content ordinarily available to them when in their home state.
6. Sui generis database rights
6.1 What is the state of the law prior to exit?
Sui generis database rights were introduced by the Database Directive 3 and provide the owner of a database the right to restrict the use of or extraction of data from the database without their permission. Databases that involve a substantial investment in time, money or effort and were created by an EEA national, resident, or business receive automatic protection in all EEA Member States. The UK has implemented the Directive via the Copyright and Rights in Databases Regulations 1997.
6.2 What is changing?
If the UK leaves the EU without a deal, UK citizens, residents, and businesses will no longer be eligible to receive or hold sui generis database rights in the EEA.
UK legislation will be amended so that only UK citizens, residents, and businesses are eligible for new database rights after exit.
Database rights that exist in the UK prior to exit (whether held by UK or EEA persons or businesses) will continue to exist in the UK. Those in the UK that wish to use databases protected by these rights will continue to need the permission of the right holder.
7. Copyright clearance in satellite broadcasting
7.1 What is the state of the law prior to exit?
When a satellite broadcaster transmits a copyright work (e.g. a film) from one EEA member state to another, they are only required to obtain the copyright holder’s permission for the state in which the broadcast originates. This ‘country-of-origin’ principle was introduced by the EU Satellite and Cable Directive 4 and saves satellite broadcasters having to clear copyright for every state in which their broadcasts are received. For example, a UK broadcaster can transmit copyright works into Belgium, the Netherlands and Luxembourg, having only cleared copyright for the UK.
The UK applies the country-of-origin principle to broadcasts originating in any country, EEA or non-EEA, save for a limited safeguard in the case of broadcasts commissioned or uplinked to a satellite from within the EEA 5.
7.2 What is changing?
In a no deal scenario, the EU country-of-origin copyright principle will not apply to broadcasts from the UK. This means that UK broadcasters that broadcast copyright works into the EEA may need to obtain permission from the right holder in every country in which their broadcast is received. This will depend on the law on broadcasts in individual member states.
In the UK, we will continue to apply the country-of-origin principle to broadcasts from any country. We are replacing references of “EEA” in the safeguard to the country-of-origin principle with “UK” to reflect our departure from the EU and EEA; this will maintain the effect of the existing law on copyright clearance for satellite broadcasts into the UK after the UK leaves the EU: satellite broadcasts of copyright works transmitted into the UK will not require right holder permission for the UK, except where the broadcast is commissioned or uplinked to a satellite in the UK and originates in a country that provides lower levels of copyright protection.
8. Collective rights management
8.1 What is the state of the law prior to exit?
Collective Management Organisations (CMOs) are non-profit and/or member-governed bodies that act on behalf of right holders by selling blanket licences covering large numbers of copyright works. EEA CMOs are required by the EU Collective Rights Management (CRM) Directive 6 to represent on request right holders of any EEA member state. EEA CMOs that offer multi-territorial licensing of musical works for online services are also required to represent on request the catalogues of other EEA CMOs that do not provide those licences. The UK has implemented the CRM Directive and its obligations on UK CMOs via the Collective Management of Copyright (EU Directive) Regulations 2016.
8.2 What is changing?
If the UK leaves the EU without a deal, EEA CMOs will not be required by the CRM Directive to represent UK right holders or to represent the catalogues of UK CMOs for online licensing of musical rights. UK right holders and CMOs will still be able to request representation, but EEA CMOs may be free to refuse those requests depending on the law in individual Member States.
In the UK, the government will maintain existing obligations on UK CMOs, including those specific to multi-territorial licensing of musical works for online services. UK CMOs that offer multi-territorial licensing of online rights in musical works will continue to be required to represent on request the catalogue of other CMOs (UK or EEA) for multi-territorial licensing purposes.
9. Mutual recognition of orphan works
9.1 What is the state of the law prior to exit?
Orphan works are copyright works where the right holder is unknown or cannot be found. This can include historical letters or photos held by museums or archives. Because orphan works are protected by copyright, they cannot be used freely, even though it may be impossible to obtain the right holder’s permission.
The EU Orphan Works Directive 7 provides an exception to copyright infringement that allows cultural heritage institutions (CHIs – e.g. libraries, museums, or archives) established in the EEA to digitise and make orphan works available online across all EEA member states without the permission of the right holder. CHIs must register orphan works used under the exception on a database maintained by the EU Intellectual Property Office (EUIPO).
The orphan works exception has been implemented in the UK in Schedule ZA1 of the Copyright, Designs and Patents Act 1988 (CDPA), as amended by the Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014.
9.2 What is changing?
In the event of no deal, the Orphan Works Directive will not extend to CHIs established in the UK. UK CHIs will not be able to make use of the EU exception and may face claims of copyright infringement if they make orphan works available online in the EEA – including works that they have placed online prior to exit.
In the UK, the exception to copyright infringement for orphan works will cease. CHIs that wish to digitise and make available online orphan works in their collections will not be able to do so in the UK under an exception to copyright. Works that UK CHIs have previously placed online will need to be removed to avoid infringing the copyright in those works. CHIs that wish to maintain their online collections within the UK may be able to do so via the UK’s orphan works licensing scheme 8.
10. Marrakesh Treaty
10.1 What is the state of the law prior to exit?
The Marrakesh Treaty 9 is an international agreement to improve the access of visually impaired people to copyright works around the world by allowing the making, distribution, and transfer between Treaty countries of accessible format copies of copyright works (e.g. braille copies of books).
The EU is party to the Treaty and has implemented it via a Directive 10 and a Regulation 11. The Directive allows EU persons with visual impairments and bodies that support those persons (e.g. charities) to make or distribute accessible format copies of copyright works, while the Regulation permits the import and export of such copies between EU Member States and other Treaty countries.
The Regulation applies directly in all EU Member States. The UK has implemented the Directive via the Copyright and Related Rights (Marrakesh Treaty etc.) (Amendment) Regulations 2018.
10.2 What is changing?
The Regulation and the UK’s implementation of the Directive will be retained in UK law. References to the EU will be removed or substituted to ensure that the UK’s implementation of the Treaty continues to work as intended after exit. Persons with visual impairment or authorised bodies will, under UK law, continue to be able to make, distribute, and import or export with Treaty countries accessible format copies of copyright works.
However, the UK is party to the Treaty through its membership of the EU. The government is seeking to ratify the Treaty in its own right after exit. Until this happens, the law of Treaty territories (including the EU) may prevent the cross-border exchange of accessible copies of format works with the UK. Persons with visual impairments and authorised bodies in Treaty countries may therefore be prevented from providing or receiving accessible format copies of copyright works under the legislation in those Treaty countries.
10.3 Other changes
Orphan works licensing scheme:
The UK’s orphan works licensing scheme allows orphan works to be licensed in the UK for commercial and non-commercial uses, subject to the user paying application and license fees and completing a diligent search for the right holder. Licensees are currently required to consult the EUIPO orphan works database as part of the diligent search 12. This requirement will be removed from our legislation, with no other changes made to the requirements of the diligent search or the licensing scheme in general.
Artist’s resale right:
Artist resale rights entitle creators of artistic works to a royalty payment each time their works are sold by an art market professional. Under the EU Resale Right Directive, EU Member States recognise resale rights of nationals of all Member States and third countries that provide resale rights. The UK has implemented the Resale Right Directive through the Artist’s Resale Right Regulations 2006 13. We are removing references to the EEA from these Regulations. Nationals of the UK and countries that recognise the resale rights of UK nationals will continue to receive resale rights in the UK after we leave the EU, in accordance with the Berne Convention. No changes are being made to the calculation of royalty payments.
When a copyright work is broadcast between EEA member states and retransmitted by cable in the receiving member state, the copyright holder can only exercise their rights through a CMO, under the Satellite and Cable Directive . The UK applies this rule to cable retransmissions of broadcasts from any other EEA member state 14. We will amend the UK’s implementation of these rules to reflect our position outside of the EU while preserving the effect of the existing law. Copyright holders whose works are broadcast from the UK and retransmitted via cable in the EEA may be able to or may need to negotiate licences with the cable operator directly. Those right holders may also see statutory licensing terms imposed on the cable retransmission of their works in EEA states.
Qualification for copyright:
Currently, the UK provides copyright for works made by a national, resident, or business of, or first published in or transmitted from, the UK, another EEA state, or any third country that participates in the international treaties on copyright. Amendments will be made to the qualification criteria for copyright to remove explicit reference to the EEA; however, all EEA states participate in the international treaties on copyright such that the status quo will be maintained under this change.
Copyright duration in the UK depends on the country-of-origin of the work. For non-EEA works, copyright lasts for the lesser of the durations offered in the UK and the country-of-origin of the work. EEA works are protected for the same period of time as UK works (copyright duration is harmonised across the EU and EEA). After exit, UK legislation will be amended to remove preferential treatment of EEA works and apply the same general rule on duration as for non-EEA works. Because the duration of copyright is equal across the UK and the EEA, this will not have any immediate impact on copyright duration offered in the UK for UK, EEA, and third country works.
11. Frequently asked questions
11.1 Will the UK leaving the EU stop my work receiving protection in the EU?
UK copyright works will continue to be protected abroad, both in the EU and around the world, because of the UK’s participation in the international treaties on copyright, which ensure reciprocal protection for nationals of signatory countries. This does not depend on the UK’s relationship with the EU. Conversely, for the same reason, the EU copyright works will continue to be protected in the UK.
11.2 What about rights obtained before the UK left the EU?
The above applies to copyright works made before exit just as it applies to works made after exit.
For the sui generis database right, which the UK will no longer provide for new EEA databases, rights recognised in the UK prior to exit will continue to be recognised in the UK after exit. How the EU treats database rights held by UK creators acquired prior to exit will depend on the legislation in the relevant territory.
11.3 How does this guidance differ from the technical notice on ‘copyright if there’s no Brexit deal’?
The technical notice provided general information on the impact of no deal on copyright. This guidance explains in greater detail the changes the government is making to UK copyright law in the event of no deal.
11.4 Further information on Intellectual Property
Learn more about intellectual property by visiting the IPO web pages
IP and Brexit: The facts:
Facts on the future of intellectual property laws following the decision that the UK will leave the EU
This guidance sets out the general principles of the changes to copyright law, but it is not legal advice. It is recommended that you obtain legal advice in circumstances where you have specific questions relating to the law.
Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability of online content services in the internal market. ↩
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases ↩
Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission ↩
Section 6(4) of the CDPA provides the country-of-origin principle for satellite broadcasting. Section 6A of the CDPA provides the safeguard to this. ↩
Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market. ↩
Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works. ↩
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. ↩
Directive 2017/1564 of the European Parliament and of the Council of 13 September 2017 on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print- disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. ↩
Regulation 2017/1563 of the European Parliament and of the Council of 13 September 2017 on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled. ↩
Regulation 2017/1563 of the European Parliament and of the Council of 13 September 2017 on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled ↩
Regulations 4(3)(a), 4(5)(b) of the Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 make reference to the database maintained by the EUIPO (previously the Office for Harmonisation of the Internal Market). ↩
Section 144A of the CDPA. ↩