Brexit and Copyright: A Pyrrhic Victory

Abstract

As things currently stand, the United Kingdom (UK) is set to leave the European Union (EU) in March 2019. At the time of writing (early January 2019) it is unclear on what terms the withdrawal of this Member State from the EU is going to happen, and whether there will be also a withdrawal from the European Economic Area (EEA).

The various scenarios on the table would have different implications as far as the freedom of shaping UK copyright is concerned. If the UK left the EU only and not also the EEA (a ‘soft Brexit’ scenario), then it would remain subjected to EU law and, together with this, also case law and jurisdiction of the Court of Justice of the European Union (CJEU). If, instead, the scenario was one of ‘hard Brexit’, ie one in which the UK leaves both the EU and the EEA, EU law would cease having character of supremacy. In such a situation, for the sake of the present analysis, there would be three main consequences. First, that country would no longer be bound to transpose relevant EU directives (should the relevant transposition term be still pending at the time of that Member State leaving the EU) into its own legal system or apply relevant EU regulations. Second, that country would no longer benefit from EU-wide rules and recognition principles found in certain EU legislation. Third, the CJEU would no longer have jurisdiction, including with regard to references for a preliminary ruling. While the first consequence appears relatively straightforward, the second and third consequences may be difficult to assess, due to their complexity. The second consequence relates to the implications that leaving the EU would have on the loss of EU citizenship for individual authors and rightholders or qualification as a EU business for corporate rightholders; the third consequence requires consideration of the legacy of CJEU case law, particularly in areas in which the Court has arguably gone beyond the literal text of relevant EU provisions and carried out a de facto harmonization of certain copyright concepts.

The brief analysis contained in this paper tackles these aspects in detail.

Keywords: Brexit, copyright, UK, exhaustion, cross-border, orphan works, broadcasters, recognition, databases, sui generis right, EEA, EU