This paper examines the areas of patent law and copyright law in the context of Britain’s exit from the European Union, or “Brexit.” Although neither area of intellectual property (IP) is fully harmonized, the United Kingdom’s departure from the European Union could nonetheless have a sizable impact on both sets of rights. For patents, Brexit could lead the United Kingdom to diverge from EU principles on biotechnology and supplementary protection certificates, and also puts the United Kingdom’s role in the new Unified Patent Court system into doubt. In the area of copyright, the United Kingdom could use Brexit as an opportunity to move away from EU standards, including the key definitions of originality and parody. Ultimately, however, this paper argues that the slogan “take back control” is unlikely to lead to dramatic changes in the IP field. Both the European Union and the United Kingdom will likely seek to retain a great deal of regulatory convergence and cooperation over IP.

Part of Series

Brexit: The International Legal Implications is a series examining the political, economic, social and legal storm that was unleashed by the United Kingdom’s June 2016 referendum and the government’s response to it. After decades of strengthening European integration and independence, the giving of notice under article 50 of the Treaty on European Union forces the UK government and the European Union to address the complex challenge of unravelling the many threads that bind them, and to chart a new course of separation and autonomy. Brexit necessitates a deep understanding of its international law implications on both sides of the English Channel, in order to chart the stormy seas of negotiating and advancing beyond separation. The paper series features international law practitioners and academics from the United Kingdom, Canada, the United States and Europe, explaining the challenges that need to be addressed in the diverse fields of trade, financial services, insolvency, intellectual property, environment and human rights.
  • Luke McDonagh is a senior lecturer at the Law School at City, University of London. He has published widely on the subject of intellectual property in journals such as the Modern Law Review, Journal of Law & Society and Intellectual Property Quarterly.