Implementation Deadline
The deadline for EU member states to implement the Copyright Directive is 7 June 2021, which is after the end of the "transition period" for the UK leaving the EU (currently set to end on 31 December 2020). Whilst it is possible that the transition period could be extended, the government has said it is committed not to extend it. It is highly likely, therefore, that the UK will not be required to implement the Copyright Directive. And we now know it doesn't plan to either.
Future Relationship with the EU
The government's statement is not that surprising. For the rest of this year the UK will be focusing on its negotiations with the EU on the terms of its future relationship with the EU, which the UK government hopes to have in place by the end of the transition period on 31 December 2020. Many believe this is an extremely demanding timetable, but the UK government insists it will not request an extension to the transition period under any circumstances. It is likely that the government will want to keep the UK implementation of the Copyright Directive as a potential bargaining chip in these negotiations. The government's position may therefore change between now and the deadline for implementation next June.
Implications
If the Copyright Directive is not implemented there are several implications UK businesses should be aware of. First, UK-based online businesses and platforms with customers and users in the EU will still be caught by the new rules in those remaining EU member states where the Copyright Directive has been implemented. For example, the new obligations on Online Content Sharing Service Providers (Article 17 of the Copyright Directive) apply to any OCSSP, wherever it is based, provided the works are made available to the public in the EU. For our previous blog on Article 17, see here.
Second, whilst certain aspects of the Copyright Directive, such as Article 17 and Article 15 (the new press publishers' right) have been controversial, other aspects of the Copyright Directive have not. For example, the Copyright Directive includes three new contracts-related provisions. Articles 18 through 20 of the Directive introduce mandatory rights and protections for authors and performers who licence or transfer their exclusive rights of exploitation. These provisions aim to harmonise the regulation of author contracts and ensure that creators are adequately remunerated for their works. If the UK does not implement the Directive authors and performers will consequently have weaker protection than their EU counterparts.
Finally, not implementing the Copyright Directive will inevitably leave the UK with freedom to diverge from the rest of Europe in the area of copyright. The government may use this as an opportunity to look for areas where diverging copyright laws may make the UK a more attractive place to do business. One example we can think of is text and data mining laws, where the provisions of the Copyright Directive are arguably more restrictive than existing UK exceptions for text and data mining. In this area, not implementing the Copyright Directive would give the UK freedom to introduce wider exceptions, where it considers there would be a benefit for the UK.
Next steps
We will be following the government's approach to the Copyright Directive closely. Follow us on Engage to keep informed. For our previous blog on the detail of the Copyright Directive, see here.
Authored by Penelope Thornton and Alastair Shaw
