Brexit, copyright and liminality


I’ve always liked the word “liminality” – a threshold that marks the boundary between two phases. If nothing else, Brexit presents an opportunity for its appropriate use. The UK’s current state, where we are still in the EU but apparently heading somewhere else, does feel liminal, with its quality (to quote Wikipedia) of ambiguity or disorientation.

You can sense this in the way the Commission’s significant proposals for copyright reform have been greeted in the UK. The Proposal for a Digital Copyright Directive (more on which below) and Regulation on rights clearance for online TV programming, if adopted, will represent significant modifications to European copyright law. But the response in the UK seems muted, reflecting an uncertainty about their applicability to a post Brexit UK, a sense in which they seem both relevant and irrelevant to the UK.

EU regulations will remain central

I’m going to stick my neck out: notwithstanding the UK Government’s current “hard Brexit” stance, and whatever the form of the UK’s exit from membership of the European Union and our subsequent relationship with the EU as a third country, EU copyright law will remain central to UK digital business. I believe the same is true of other key EU regulations which apply to the digital market, especially the forthcoming General Data Protection Regulation.

I say that for the following reasons:

  1. The EU currently accounts for 50%+ of UK exports. The UK services sector as a whole contributes around 79% of gross domestic product and employs over 25 million people. Whatever new markets beyond the EU are available to the UK in the ‘brave new world’ post Brexit, the UK will have to safeguard this existing market.
  2. A hard Brexit, with nothing to replace our membership other than relying on the World Trade Organisation rules is a non-runner. According to the CBI, the WTO option would see new tariffs imposed of around 90% by value of UK goods exported to the EU.
  3. This means that, following the UK’s exit from EU membership, it will need an association agreement (probably several, and by whatever name called) with the EU.
  4. Whilst agreements on tariffs will be an important element of any such agreement, a cursory glance at any Free Trade Agreement shows that a substantial component are common rules on intellectual property, data protection and competition.
  5. Even if I am wrong about hard Brexit – quite possible! – and that’s what we get for political reasons, I’m still of the view that it’s highly unlikely, and more probably impossible, for UK rules in these areas to diverge to any significant extent from the corresponding EU rules in these areas.
  6. In the specific case of Data Protection, we will have to have rules corresponding to the GDPR if the UK post Brexit, as a third country, wishes to export personal data to the EU.

The proposed Directive

Here is a very short summary of some key provisions of the Proposal for the Digital Copyright Directive, from which you will readily see that there are some extremely important developments in EU Copyright law:

  1. A new 20 years right for publishers of press publications to authorise the reproduction and “making available by wireless means” for digital use of their press publications. This does not detract from authors’ rights in the works included in press publications. It does not constitute a law on hyperlinking. What it would do is allow the press which invest substantially in their publications to get a fair return on digital re-use.
  2. A framework for legal agreements between content owners and “information society service providers” (ie ISPs, platforms & hosts), including a requirement for a more active role by the latter to deal with infringing content by more effective use of content recognition technologies.
  3. New mandatory copyright exceptions covering text and data mining, the use of works and other subject matter in digital and cross-border teaching activities and the preservation of cultural heritage.
  4. Provision for licensing agreements between collective societies and cultural heritage institutions to cover “out of commerce” works and also provisions to deal with the cross border licensing of out of commerce works.
  5. Provisions dealing with fair remuneration in contacts of authors and performers.

An IP-positive legal framework

So we need to shake off our “liminal blues”, pay active attention to this spate of new regulations and make our voice heard. On that subject, the House of Lords EU Internal Market Sub-Committee has just launched an inquiry into future trade in services between the UK and the EU after Brexit following on from its inquiry into trade in general between the UK and the EU after Brexit. The inquiry will focus specifically on the following sectors: digital and telecommunications; professional business services; aviation; and creative and broadcasting.

The Press Release announcing the inquiry states that the committee is interested in what specific issues Brexit raises for different sectors and what opportunities it provides. It is also interested in what the impact would be on these sectors of trading on World Trade Organisation terms, under the General Agreement on Trade in Service. It will consider whether the UK leaving the EU, but remaining a member of the European Economic Area would mean that present levels of market access will be retained, and whether a negotiated UK-EU Free Trade Agreement is an attractive option. The committee wants to establish what should be the government’s key negotiating objectives for each sector.

The UK creative industries, as a vital part of the service economy, need to make their voice heard. To encourage the growth of this sector, we need an IP-positive legal framework which is not out of sync with the rest of Europe. For instance, if the EU introduces the proposed new press publishers right, we need to ensure that it is incorporated into, and remains part of, UK copyright law. The same should apply to any adjustments to the legal framework within which social media and other platforms operate.

Yes, there may be opportunities from Brexit. For instance, Brexit may offer the opportunity to strike the right balance between territoriality and portability of services. But in a cross-border, multi-platform world, we cannot afford to be isolated by our legal framework.

Laurence Kaye ( is an IP & Digital Media Consultant. Drawing on his experience working as a leading digital lawyer since the 1980s, he now acts as a consultant to a wide range of digital businesses. He is also a consultant with Shoosmiths LLP. Email Twitter @laurencekaye.

An earlier version of this article appeared in Computers & Law, October/November 2016.

Image cc by Marketa on Flickr.