What has happened?
On 22 September 2022 the UK government introduced the Retained EU Law Bill 2022-2023 (the Bill”). The Bill reverses the presumption that EU law that was retained on Brexit under the EU Withdrawal Act will remain in force until repealed or amended, by setting a sunset date for certain retained EU law to expire. The sunset date is 31 December 2023 however it may be extended for specific legislation until 23 June 2026. The Bill also aims to make it easier for UK courts to depart from EU case law.
The Bill has the potential to impact the protection and enforcement of a wide range of IP rights. The UK IPO now has to actively work out which retained EU law is affected by the sunset provisions and which laws should be preserved, amended or allowed to expire. This is no mean feat, given the UK was a member of the EU for nearly 50 years. So far the UK IPO has published a list of 70 pieces of retained EU law that is IP related. However, the list is subject to revisions and additions, as the IPO continues with the exercise of identifying relevant laws, and the IPO has said that not all of the retained EU law on its list is necessarily within the scope of the sunset clause as currently drafted.
Most of the legislation the IPO has identified so far amounts to EU regulations in the areas of copyright, database rights, trade marks, designs, enforcement of IP, SPCs and trade secrets. The IPO has not said whether it intends to amend any of these laws (or allow any to expire). There are areas of IP where the government has indicated in the past that it may want to diverge from the EU, such as overlapping copyright and design protection for designs, the complex system of protection for designs and hosting provider liability. However, given the challenging timetable involved, we think the government will find it extremely difficult to make decisions about which laws, and existing alignment with the EU, should be removed, without proper consultation of stakeholders. The current designs consultation has put been on hold, for example, to allow the IPO to work on the list of retained EU law. We think the government is therefore most likely to focus on ensuring that no fundamental aspects of the UK system are inadvertently lost or affected in the bonfire of legislation resulting from the sunset provisions of the Bill (should it be passed).
We will be tracking the Bill’s progress and updates from the IPO and reporting on the developments, so follow us closely for updates.
Authored by Penny Thornton