Implications of Brexit for UK copyright law relevant to producers, distributors and broadcasters of audiovisual works

6 January 2021 Reed Smith Client Alerts

Inicio Perspectivas Implications of Brexit for UK copyright law relevant to producers, distributors and broadcasters of audiovisual works

The Withdrawal Agreement between the UK and the EU, which governed the UK’s relationship with the EU during the transition period that ended at 11pm on 31 December 2020, included Article 127, which provided that “Union law shall be applicable to and in the United Kingdom during the transition period”. Now that the transition period has ended, participants in the UK audiovisual industries need to be aware of changes to UK copyright law that came into effect at that point, as well as of complications that may now arise from EU copyright law when they do business in EU member states.

Autores: Stephen Edwards

The Trade Agreement between the UK and the EU does very little to address those potential complications. Indeed, there is nothing in its provisions dealing with copyright law that requires either side to commit to change their respective copyright laws in ways that will reduce potential barriers presented by copyright. For example, under the agreement both parties affirm their commitments to the various international treaties and conventions to which they are already bound, such as the Berne Convention and the treaties entered into in 1996 under the auspices of the World Intellectual Property Organisation, namely the Copyright Treaty and the Performers and Phonograms Treaty. Nothing new there; the Convention and the treaties are already reflected in UK copyright law and in the laws of EU member states. There are commitments to retain some elements of present common ground, such as the term of protection for authors of 70 years after their deaths and the so-called three-step test for exceptions to copyright protection. In short, neither side has committed to change their respective copyright laws to address the immediate complications created by Brexit.

Yet there are many consequences in relation to copyright that will flow from Brexit. What are the ones of most importance to the audiovisual industries?

1. The unimplemented EU Directives

First, the UK will not be obliged to implement any EU copyright Directives that have not yet been implemented here. There are two of those, both otherwise required to be implemented by 7 June this year (and in fact already implemented in a number of member states).

The first is the Copyright Directive. In January 2020 the UK government stated that it would not be implementing this. But of course, any UK media business trading in the EU will have to adapt its business practices to comply with the Directive’s requirements, as transposed in each EU member state. So broadcasters and distributors certainly need to be aware of and to adapt to the Directive’s requirements when conducting business in Europe. The following are some of the issues that broadcasters, producers and distributors could run into:

The principle that authors and performers who assign or license their rights for exploitation should receive fair remuneration and be entitled to be informed at least annually about the exploitation of their work (though information provided to contributors’ unions under collective bargaining agreements could fulfil this requirement).
The right of authors and performers to have their contractual entitlements adjusted when the remuneration originally agreed turns out to be disproportionately low compared to subsequent revenues.
The right of authors and performers to seek revocation of rights they granted if there is a lack of exploitation (although states can disapply this right in the case of works like television productions that involve multiple authors).
The provisions of article 17, which make online content sharing services liable for copyright infringement in respect of works uploaded by users, unless the services meet certain best efforts standards.

The second unimplemented piece of EU legislation is Directive 2019/789 that, adopting the country of origin principle established in the Satellite and Cable Directive in 1993, applies that principle to certain online transmissions by broadcasting organisations (their transmissions of radio programmes, television news and current affairs, and their own fully financed productions other than sports coverage). The country of origin principle deems that such online transmissions (like satellite broadcasts) take place only in the country in which they originate, not in every country in which they are received. This avoids all the complications that would arise if the provider of such an online service had to obtain a licence to use a work from the differing holders of the rights in each individual country of reception.

This Directive also applies the mandatory collective licensing regime, which applies already to cable retransmissions in a member state of broadcasts from another member state, to online retransmissions of such broadcasts. That cable retransmission regime has been of considerable value to UK and other European public service broadcasters since being created by the Satellite and Cable Directive in 1993. It has meant that no individual copyright owner who has licensed a broadcast of a work in a member state can insist that the work not be retransmitted when the broadcast is relayed to subscribers by a cable operator in another member state.

This Directive also deals with the phenomenon of ‘direct injection’ of broadcasts, where a cable operator wanting to retransmit a broadcast makes arrangements with the broadcaster to receive the broadcaster’s channel in high quality by landline, for example, rather than simply by taking the broadcast signal off-air. There has been controversy and litigation surrounding whether the broadcaster or cable operator should be deemed to be liable to copyright owners for the retransmissions of works included in the channel in these circumstances. The controversy has been resolved in this Directive by making both the broadcaster and the cable operator liable for rights clearances. The UK government has not said whether it intends to amend UK copyright law to reflect the principles set out in this Directive but it seems unlikely that it will do so.

2. Portability of online content services

There is one existing piece of European copyright legislation that ceased to be in force after 31 December 2020. This is the Regulation on cross-border portability of online content services (the Portability Regulation). The Portability Regulation requires that subscribers in an EEA state to an online content service must be able to access that same service while temporarily in another EEA state, as if they were in their home state. Their access is deemed to take place in their home state, not in the state to which they have travelled. This legal fiction no longer applies to subscribers travelling between the UK and the EEA. UK and EEA providers of online services who wish to offer the same service to such travellers as they enjoy in their home countries will now have to consider what additional rights clearances they may have to obtain.

3. The EU Exit Regulations

Although the UK government has decided to turn its back on the two new copyright directives and not to try to preserve the effect of the Portability Regulation, it did make other preparations for Brexit in the UK copyright regime in readiness for the ending of the transition period.

Waiting in the wings for implementation at 11pm on 31 December 2020 was a statutory instrument that makes numerous amendments to the Copyright, Design and Patents Act 1988: The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019. The Regulations have been slightly added to by the 2020 Regulations with the same title.

What its authors – the Intellectual Property Office – have done is minutely examine the UK Copyright, Designs and Patents Act (CDPA) and for any provision in it that implies that the UK is a member of the EEA, they have considered what amendment should be made to it to respond to the situation created by the UK’s departure from that international alliance.

This has, though, been a unilateral exercise. The changes made to UK copyright law will not necessarily be reciprocated in the copyright laws of EEA member states.

For example, section 144A of the CDPA reflected the requirement in the 1993 Satellite and Cable Directive described earlier; namely that, in relation to cable retransmissions of broadcasts from another EEA member state, rightsholders (with the exception of the broadcaster itself in relation its own rights and any rights that the broadcaster may have cleared for the purpose) may only exercise their rights through collecting societies. The statutory instrument replaces the reference to “another” EEA state in the CDPA with a reference to “a” member state. Clearly the word “another” could not be retained. But what has been done is unilateral. The mandatory collective licensing rule is preserved in the UK, but there is no corresponding obligation on EEA member states to apply the same rule to cable retransmissions in their territories of broadcasts from the UK. If they do not do so, the arrangements that presently facilitate cable retransmissions of certain UK broadcasts in Europe could become more complicated to maintain. UK broadcasters can overcome this problem to a degree by making arrangements to originate their European channels from an EU member state.

4. Satellite broadcasting

Unilateralism operates differently in relation to satellite broadcasts. Again, in accordance with the EU Satellite and Cable Directive, UK law provides that the place where a satellite broadcast is deemed to occur is where the programme-carrying signals begin their uninterrupted journey that leads to the satellite and back down to Earth. This continues to be the case in the UK, but now EEA member states are at liberty to disapply this rule in respect of satellite broadcasts originating in the UK that can be received in European countries within the footprint of the satellite transponder that the broadcaster has used. In a helpful guidance note published on 30 January 2020, the Intellectual Property Office drew attention to this specific risk, recommending that UK broadcasters should check the domestic legislation of each EEA member state into which they broadcast their services, to identify how those states treat broadcasts originating in non-EEA countries. Additional rights clearances may be needed.

5. Collective management organisations

There have been important changes in respect of collective management organisations (CMOs).

The Directive has two principal features:

it requires CMOs in the EEA to represent, on request, rightsholders from any EEA member state (unless there are objectively justified reasons not to do so); and
it requires EEA CMOs that offer multi-territorial licensing of musical works for online services to represent, on request, the catalogues of other EEA CMOs that do not offer such licences.

Here again the changes are asymmetric. The UK will continue to apply the provisions of the Collective Rights Management Directive in relation to the treatment by UK CMOs of rightsholders from EEA member states, but there is no guarantee that EEA member states will reciprocate in relation to UK based rightsholders.

6. Use of imported decoder cards

From 1 January 2021, it has become an offence to import, distribute and use in the UK satellite broadcast decoder devices intended for use only by audiences located in the EEA, to access a programme included in a broadcast made from the UK with the intent of avoiding a charge associated with that programme. This overrides the so-called ‘Pub Landlady’ cases, which established that the EU principle of freedom of movement of services required that UK viewers be permitted to purchase and use decoder devices to gain access to UK satellite broadcasts where those devices had been placed legitimately on the market in another EU member state. Since the principle of free movement of services within the EEA has now ceased to be applicable in the UK, this loophole in the legislation, which allowed the use of such ‘foreign’ devices to avoid payment of UK pay-TV broadcasters’ charges, has been closed.

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