Legal News | 30.10.19
How will Brexit impact Intellectual Property?
Businesses should be considering how they are protecting their Intellectual Property Rights with a No Deal Brexit on the horizon.
What are Intellectual Property Rights?
Intellectual Property (IP) is something that a business as an individual can create and own. The most common forms of IP rights include copyright, trademarks, logos, patents and designs. Intellectual Property can be a registered or an unregistered right.
What happens when the UK leaves the EU?
The UK will remain party to a number of international treaties which protect and enforce IP Rights independently of our EU membership. Although, Brexit will bring some changes to the Intellectual Property framework in the UK which might affect your business.
Copyright protects original artistic, musical, literary and dramatic works, as well as sound recordings, broadcasts, films and typographical arrangements.
Due to Brexit some cross-border copyright mechanisms between the EU and UK will change, including:
UK/EU portability of online streaming or rental services
This currently allows for consumers across the European Economic Area (EEA) to access their online content services as if they are at home when they travel within the EEA. This will change post Brexit. Online content service providers will no longer be required or able to provide cross-border portability for consumers travelling between the UK and EEA. UK consumers visiting the EEA and EEA consumers visiting the UK may see restrictions to the content normally available to them when at home. But, this will depend on the terms of service and licenses in place between service providers and right holders.
Mutual recognition of sui generis database rights
Currently, these rights prevent the unauthorised copying of data from their databases. However post Brexit, UK citizens will no longer be able to hold sui generis rights in the EEA and so will need to find alternative means of protection. Database rights that exist in the UK pre Brexit will continue to exist for the remainder of their duration.
The country of origin rule for copyright clearance in satellite broadcasts
At the moment, when a satellite broadcaster transmits a copyright work 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. Post Brexit, the country of origin principle will continue to be applied to broadcasts from any country. However, UK broadcasters may need to obtain additional right holder permissions covering each EEA state to which they broadcast. This will depend on how the domestic legislation of each EEA member state treats broadcasts originating in non-EEA countries.
The EU wide copyright exception for orphan works
Orphan works are copyright works where the right holder is unknown. The EU Orphan Works Directive provides an exception to copyright infringement that allows cultural heritage institutions e.g. libraries or museums. This directive will no longer extend to the UK and places may face claims of copyright infringement if they make orphan works available online in the EEA.
Registered Trademarks and Designs
Businesses can and will continue to register trademarks and designs via national, EU or international systems. After Brexit, existing EU trademarks (EUTM’s) and EU Registered Community Designs (EU RCD’s) will automatically receive an equivalent trademark, registered in the UK. They will come into force on exit day and will be subject to UK law going forward. Existing EUTM’s and EU RCD’s will continue to be valid in EU member states too.
UK patent law and the European patent systems are separate. Therefore, Brexit will not affect the current European patent system and the UK’s membership of it. UK businesses can still apply to the European Patent Office with existing patents unaffected. And existing patents in the UK will remain in force automatically after Brexit with no action required.
What is Parallel Trade?
Parallel Trade occurs where businesses place goods on the market anywhere in the EEA which contains protected intellectual property, by or with the permission of the rights holder. These goods are then subject to onward sale across the borders of the EEA. It allows goods to continue to be circulated within the EEA without the permission of the rights holder e.g. an owner of a brand.
What is the impact of Brexit?
Legislation (The Intellectual Property Regulations 2019) is in place so that on Brexit day, a temporary fix will maintain the current position as far as is possible. Although, there may be restrictions on what can be exported from the UK to the EEA and businesses that parallel export might need the right holders consent to do so.
In the long term, there are three options:
- National exhaustion. This will restrict parallel trade as an IP owner’s rights will only be exhausted when goods using its IP rights have been put on the market in the UK by the IP owner or with its approval;
- International exhaustion. Once the IP owners goods are put on the market anywhere in the world, they wold not be able to prevent the resale of those goods into the UK; or
- Retain regional EEA exhaustion. As things stand it would mean that IP owners would be able to use their EU IP rights to stop goods entering the EU from the UK.
How can we help?
If there is a no-deal Brexit, businesses need to obtain professional advice on their current licensing and business arrangements. Following this, they may have to renegotiate their licensing contracts or adjust their services.
Businesses that own IP rights may wish to seek legal advice if their IP protected goods are parallel exported from the UK to the EEA and consider if they wish such arrangements to continue in the event of a Brexit without a withdrawal agreement.
To get in touch please contact the commercial team on 01380 733000 or email us at firstname.lastname@example.org.