Intellectual Property
2021.1.18
1. What are the main consequences of Brexit in the field of intellectual property/copyright?
Following the United Kingdom exit from the EU, it will become a third country for the EU as a whole, and the acquis communautaire on intellectual property/copyright will cease to be binding in the UK.
The main instruments that comprise this body of EU law are:
- Directive 1993/83 on cable and satellite transmissions.
- Directive 2001/29 on the information society.
- Directive 2001/84/EC on the right to participate.
- Directive 2004/48/EC on the enforcement of intellectual property rights.
- Directive 2006/116/EC on the term of protection of copyright and certain related rights (amended by means of Directive 2011/77/EU).
- Directive 2012/28 on orphan works.
- Directive 2014/26 on collective management and multi-territorial licensing.
- Regulation 2017/1128 on portability.
- Regulation 2017/1563 and Directive 2017/1564 on the Treaty of Marrakesh.
- Directive 2019/789/UE on the broadcasting of radio and TV programmes (still in the transposition period).
- Directive 2019/790/UE on copyright and related rights in the Digital Single Market (still in the transposition period).
The international treaties that the United Kingdom is a party to as a member of the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO) will remain as a stable reference.
2. When do these consequences begin to apply?
Once the Withdrawal Agreement has been signed, the legal effects of Brexit will be applied as from 1 January 2021 after the transition period established in the Withdrawal Agreement.
3. How will Brexit affect me as a citizen in the field of intellectual property/copyright?
The regulatory benefits on the matter of intellectual property/copyright deriving from the Single Digital Market to EU citizens will cease to apply in the United Kingdom. For example, the EU Regulation on portability will have no legal effects when an EU citizen travels to the United Kingdom.
4. How will Brexit affect me as a company in regard to copyright?
As a result of Brexit, the United Kingdom will become a third country, and hence the acquis communautaire will cease to be binding in the UK. Accordingly, the regulation of intellectual property rights in the United Kingdom will only be binding under the international treaties - WIPO and WTO - of which the United Kingdom is a signatory party.
As regards future relations with the United Kingdom, agreements will probably be entered into that regulate the protection of copyright and related rights between the EU and the UK as a third country.
5. How will the application of these new legal implications be guaranteed?
The Spanish authorities must oversee that in no case may (i) holders and users, or (ii) services that are provided from the United Kingdom or by British companies to the rest of the EU in the field of the creative industries, the marketing of rights and digital platforms, be are under equal conditions, as if it were the case of a Member State of the EU, or be able to benefit from the Single Digital Market.
6. How can an owner of an intellectual property right protect that right?
Before 31st December 2020:
Intellectual Property Rights holders can protect their products against counterfeiting by exchanging information about their products, intellectual property rights and contact details with the EU authorities in charge of protecting intellectual property rights, by submitting online applications of customs´ intervention (AFA).
With the new Trade and Cooperation Agreement:
Rightholders can protect their products against counterfeiting by sharing information about their products, intellectual property rights and contact details with UK authorities via an Intellectual Property Request / Surveillance Notice. Although, for greater security, a double notification to the authorities of the EU - filling out an AFA - and the United Kingdom is advised, since the exchange of information between both parties is planned in such cases.
Non official translation