Where Brexit's Bold Slogans Fall Flat

The United Kingdom could "take back control" of intellectual property law — but it probably won't

Published: March 21, 2018

Author: Luke McDonagh

Lawyers in the United Kingdom are currently grappling with the slogan “take back control” — a signature claim made by those in favour of Brexit — and how that slogan will become a reality.

Although intellectual property (IP) concerns were not front and centre during the referendum campaign, the idea of “taking back control” undoubtedly has resonance in the IP field. An opportunity exists for the United Kingdom to freely write its own laws on copyright, reshaping the vibrant music, design and film industries. And rules on patents could be redefined, adding new value to the burgeoning life sciences sector. But for any of these opportunities to be realized, economic impact must be considered.

The first thing to note is that the UK legal system’s protection of copyrights and patents long predates the European Union. Even today, although compliant with EU law, UK copyright and patent laws remain largely rooted in domestic legislation and non-EU international agreements. For example, the Berne Convention has been ratified by 175 countries worldwide, and the European Patent Convention has a membership of 38 countries, exceeding that of the European Union. Thus, UK copyright and patent protection does not depend on the European Union, and the United Kingdom will still protect works of copyright and patented inventions post-Brexit.

Yet, as with so much of the Brexit process, the devil is in the detail: even if neither patent law nor copyright is fully “Europeanized,” EU law profoundly affects UK copyright and patent laws. For “taking back control” to have any meaning, surely, something would need to change — wouldn’t it?

Despite the lack of outright harmonization, EU law, enforced via the European Court of Justice (ECJ), has had a substantial effect on the legal protection of works of copyright and patented inventions in the United Kingdom. Regarding copyright, some of the key legal standards, such as the test for originality used when courts consider whether a work should be protected by copyright, emanate from the European Union.

In theory, UK courts could choose to move away from the EU test of originality, based on the ECJ’s Infopaq definition, i.e., “intellectual creation,” and move back to the classic UK definition of “skill, labour and judgment” found in cases such as Ladbroke, Designer Guild and Sawkins. The same is true of the test for “parody” in the context of fair dealing, which is currently an EU-wide test. Under the copyright banner, the European Union has also created certain unitary EU rights, such as the “artists’ resale right,” which gives artists the right to a royalty when their artworks are resold on the art market, and the EU database right, which gives a specific right — outside of the usual copyright protection — to companies that make investments in the compilation of a database.

Unless an agreement emerges that says otherwise, these unitary rights will automatically cease to function in the United Kingdom post-Brexit. The United Kingdom would be in a position to choose its own replacement rights, or may leave it to the UK courts to develop common law protection, if required.

Meanwhile, in the area of patents, EU legislation covers the patenting of biotechnological inventions. The same legislation also provides for the granting of supplementary protection certificates (SPCs), which give additional patent protection of up to five years where there has been a regulatory delay in allowing patented medicines to be sold on the EU market.

In addition, EU member states, via the enhanced cooperation legislative procedure, have recently brought forward a new system of unitary patent protection for 25 of the 28 EU member states. A unified patent court (UPC) has also been agreed by those same EU member states, with the United Kingdom due to host one of its central court divisions. Potentially, the United Kingdom could “take back control” by avoiding the standards of the EU Biotechnology Directive and setting its own standards. The United Kingdom could choose its own SPC regime or decide that this type of protection is unnecessary, stepping out of the unitary patent and UPC systems altogether.  Alternatively, the government could settle on continuation of these systems as part of a negotiated settlement with the European Union, as seems to be the current aim.

A lot will depend on which of the two potential outcomes — a “soft” or “hard” Brexit — comes to pass.

If the United Kingdom opts for a soft Brexit option, either as a transitional or permanent arrangement, EU law will remain binding. The European Free Trade Association (EFTA) option even requires accepting the EFTA Court, which follows the ECJ’s rulings on EU law. This would leave copyright and patent protection close to the status quo.

By contrast, a so-called hard Brexit would sever all links with the EU acquis, including ending the ECJ’s jurisdiction in the United Kingdom. Nevertheless, the malleability of the common law system means that, post-Brexit, UK courts can continue to apply EU-derived principles within patent law and copyright law until new UK legislation provides otherwise. Moreover, UK courts will likely find ECJ judgments persuasive in cases involving EU law-derived definitions and terms. But, in theory, the United Kingdom could “take back control” by enacting new copyright and patent legislation, free from the constraints of the EU institutions in Brussels.

Even if the United Kingdom takes the hard Brexit route, leaving the internal market and Customs Union and agreeing to a mere EU-Canada-style free trade agreement (FTA) with the European Union, EU law will remain highly relevant. Every FTA that the European Union has with countries around the world includes a chapter on IP, requiring the other country under the FTA to comply with some features of EU law.

The requirements of trade provide one cogent reason to believe that the United Kingdom’s “take back control” slogan will only lead to minimal changes to patent law and copyright law. Because the United Kingdom is a World Trade Organization member and party to the Agreement on Trade-Related Aspects of Intellectual Property Rights, minimum international IP standards will be default, regardless of the shape Brexit takes.

In theory, the United Kingdom can immediately depart from EU-specific standards on originality, parody of copyright works, or the requirements of biotechnology patenting. But in reality, the UK government’s proposed repeal bill aims to ensure continuity with EU law come March 2019.

The need for continuity in the IP field between the European Union and the United Kingdom will likely persist for the foreseeable future. The United Kingdom’s attempt to continue to participate in the proposed UPC, notwithstanding Brexit, is an indicator of this. And the most recent EU position paper on IP aims to establish reciprocity of protection for unitary IP rights within the United Kingdom post-Brexit, showing a determination, at least from the EU side, for convergence of IP protection.

As a result, opportunities abound for continued cooperation between the European Union and United Kingdom on IP issues — continuity in the IP field is both more likely and more beneficial than radical change. “Taking back control” might sound bold, but in practice, that control is likely to be exercised in upholding the status quo on patent law and copyright.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.