Broadcasters may have to obtain copyright permission in every EU country they intend on broadcasting in and not just the state where transmission originates, new guidance on preparing for a ‘no-deal’ Brexit has warned.
The warning from the Law Society appears in a guidance paper for solicitors on changes that could occur in intellectual property (IP) law if the UK leaves the EU without a deal next month.
The guidance notes that under EU Directive 93/83/EEC (the SatCab directive), broadcasters can obtain a blanket broadcast right by obtaining copyright clearance solely in the member state where the broadcast signals are introduced.
However, the Society warns: ‘Under a “no deal” Brexit, broadcasters based in the UK will no longer benefit from the provisions of this directive when providing services to EU customers and they should be aware that they will have to clear rights in all member states where the signal reaches.’
Carolyn Pepper, partner at international firm Reed Smith, said solicitors advising UK-based broadcasters should be checking that they have the rights needed to allow reception outside the UK ‘so as to avoid copyright infringement issues in EEA member states.’
Louise Popple, a senior professional support lawyer at international firm Taylor Wessing, said incorporating the laws into domestic legislation will not provide a solution since they require reciprocity from the EU. She warned that the UK will also lose the benefit of similar laws, including the Audiovisual Media Services Directive and its successors.
‘This directive allows broadcasters to operate across the EU if they satisfy the regulatory requirements, and are licensed, in the member state in which their services originate,’ Popple said. ‘After Brexit, broadcasters may have to move some or all of their operations and workforce to (and become licensed in) another EU member state if they want to continue to take advantage of this regime.’
The Law Society also notes that if the UK leaves the EU without a deal, registered EU trade marks and community designs will no longer have effect in the UK.
The government has stated that it will provide registered EUTM and community design holders with an equivalent UK right but there are uncertainties for sectors such as the fashion industry which relies heavily on unregistered design right protection. The Society said it is unclear whether disclosing a design in the UK first will result in a loss of protection in the EU and vice versa.
Society president Christina Blacklaws said: 'The law governing intellectual property is largely harmonised across the EU. Much of the legislation and case law stems directly from EU level law. The government has taken steps to try to minimise disruption for rights holders but they will still need to be alive to the pitfalls resulting from a no deal exit as the current reciprocal arrangements between the UK and EU27 from which we have benefited until now will come to an end if we go out without a deal.’
Elsewhere the IP guidance reiterates concern regarding the UK’s participation in the planned Unified Patent Court (UPC). It warns: ‘It is unclear whether the Court of Justice of the EU (CJEU) would regard the participation of a non-EU member state in a UPC system with the power to refer matters to the CJEU as lawful, and in particular whether participation in the unitary patent part of the UPC is possible.’
The ability of solicitors to represent clients in the court would also be in doubt, the Society warns.
Whether the UPC comes into being at all is up in the air pending the completion of a constitutional challenge in Germany, one of the countries that must ratify the UPC agreement.