|01 June 2016|
Firstly, don’t panic.
Firms existing UK IP rights and EU Rights, pre-BREXIT, would not cease overnight. An exit will involve a two-year transition period. And along with many IP law changes that come into affect, the changes tend to start from the date new laws are introduced, and rights registered prior to that date, remain under the law/system that existed at the time of IP Rights registration.
UK IP law can also remain in line with existing EU IP law, without extensive change, and therefore remain aligned. The difference will come over time when EU IP consultations and legislative agreements reached between the remaining members, will not include the UK. However, it would not stop the UK from assessing the changes and adopting any changes that it decides are of benefit to UK rights holders or indeed from innovating and the EU following its lead.
Could BREXIT be an opportunity to innovate the UK IP system?
BREXIT may be a unique opportunity for the UK IPO to utilise new technologies and address IP issues that have arisen in the Digital Age, without being held back or innovation diluted due to ‘design by committee’. The UK would be free to innovate the IP systems unencumbered.
Unregistered copyright is automatic (only USA and China have a registered copyright system) and the UK remains signed up to the Berne Convention.
However, I would argue that the Berne Convention be reviewed and without a long drawn out process should instigate one minor amendment or indeed the UK (if unencumbered) could make a legislative change on its own to address issues that have arisen in the digital age.
These issues include:
1. a negative impact on creative and cultural history;
2. a significant increase in orphan works (Creator unknown);
3. the unintended facilitation of copyright infringement
4. a dilution of licensing income opportunity.
The Berne convention https://en.wikipedia.org/wiki/Berne_Convention was amended in 1989 when the USA joined the agreement and removed the mandatory use of © copyright [date] on creative assets due to the rights being recognised as automatic. However, that was 4 years before the arrival of the www, which launched the birth of the digital age and gave rise to search engines and social media platforms. Platforms, which today enable fast and easy access to copyright works, without any identifiers that communicate copyright, ownership, permissions or paid licensing status.
As such, that decision has arguably led to the 4 issues stated above
It is unlikely that the Berne convention will reverse that decision anytime soon and lead to a reinstatement of the mandatory inclusion of © copyright [date] – That opportunity could have been taken up in 1996 when the WIPO Copyright Treaty was introduced which addressed other issues arising in the digital age https://en.wikipedia.org/wiki/WIPO_Copyright_Treaty
However, it is a move that the UK could consider (even though it is signed up to the Berne convention) or at least strongly recommend that digital asset owners include name of owner, date and Country of origin be attached to works.
Blockchain technology also offers significant scope to innovate in the IP sector due to its potential for irrefutable public record, in perpetuity, irrespective of the UK vote to stay in or opt out of the EU.
BREXIT IP issues UK firms need to consider and plan for
EU Trademarks and EU Registered Design Rights for post BREXIT registrations would be affected to the extent that firms would need to register via the UK IPO to cover the UK separately and a second application to cover the EU member states. So yes, likely increased cost and paperwork.
Unregistered Design Rights currently gain 3 years automatic protection under a EU Community Design Right, which UK firms would lose, but national unregistered design right duration is 15 years maximum or 10 years from date of first sale and will not be affected.
A European Trade Mark is governed by EU Legislation and thus provides trademark holders with protection throughout all the member states. BREXIT would result in UK trademarks ceasing to be covered under the European system and instead involve a UK application and a second EU application. Conversely UK firms who currently hold a European Trademark would no longer be covered in the UK. UK firms would therefore need to apply to the UK Intellectual Property Office to obtain domestic protection. However, it is unlikely to cease immediately and more likely that cover would be retained under a conversion process, until due for renewal.
Whether the UK IPO reduces the cost of UK applications, if firms proceed simultaneously with a European Trade Mark application, remains to be seen.
The European Patent Office (EPO) is not a EU institution and therefore leaving the EU would have limited impact on existing patents or their effectiveness in the UK.
What will be affected is the new Unitary Patent system (which has not come into affect yet), which is limited to EU member states but is also conditional on UK ratification before it comes into affect.
Brexit will likely delay the implementation of the Unitary Patent system due to the existing agreement requiring a re-write and its potential extension to cover rights in the UK as a non-EU jurisdiction.
UK courts would no longer need to interpret UK IP law in light of EU law. This could result in an expedient positive or due to differences resulting over time, an increased cost when European and UK infringements are involved.
IP licenses principally fall under contract law, and whilst some will be subject to review and amendment once the impact on IP law is known, amendments may not be too arduous or complex
Intermediary organisations may need to review their assigned copyright agreements with their creator communities and likewise Collection Societies may also need to address their collective licensing agreements.
It is unclear what the IP landscape will look like should the UK leave the EU. However, change will be transitional and the UK has no desire to negatively impact on UK IP rich businesses.
And whether the UK remains in or out of the EU, the opportunity to innovate in the IP sector should remain a focus of attention.