Tuesday, 26 July 2016

IP and Brexit: The Arts

Jane Lambert

This is the latest in my series of articles on IP and Brexit.  I set out the general position in What Sort of IP Framework do we need after Brexit and what are we likely to get?  3 July 2016 NIPC Law. As the effect of Brexit is likely to vary considerably from industry to industry I have considered the position of each economic sector.  So far I have covered fashion, software and private inventors.

In this article I consider the effect on the arts. I have published it in IP East because few regions have benefited more from investment in the arts than this one as I have mentioned more than once in this blog (see Why IP East 21 April 2014, Business Sustainability and Intellectual Property - how to make the Most of a Useful Essex Initiative 6 May 2014 and National College for the Creative and Cultural Industries 7 Dec 2014).  Thurrock, the district that has attracted much of that investment, was incidentally one of the local authorities that voted most heavily for Brexit: 79,916 people representing 72.72% of the electorate voted to leave the EU which was way above the national average (see EU referendum: full results and analysis The Guardian).

The arts will be one of the sectors least affected by changes in the low resulting from our withdrawal from the EU. Its work consists of literary and artistic works which fall into two categories:

  • Works in permanent form such as broadcasts, drawings, films, musical scores, novels, paintings, plays, poems, sculptures and sound recordings; and
  • Performances by actors, dancers, musicians, singers and others.
investment in creating, publishing and marketing works in permanent form is protected by copyright. Investment in performances is protected by a new intellectual property right known as rights in performances that came into being with the enactment of the Copyright, Designs and Patents Act 1988. Our law of copyright is codified by Part I of that Act and our law on rights in performances by Part II.

Now unlike designs, trade marks, plant varieties and to a lesser extent patents there has been no attempt to create an EU or Community copyright law. There have been a lot of EU directives that have been implemented by secondary legislation (see the Related Laws section on the Copyright Acts and related laws web page on the Gov.UK website) but many of these have been adopted to give effect to the EU member states' obligations under multilateral treaties to which HM government would probably have adhered whether the UK remained in the EU or not. Occasionally there have been disputes in several of the member states including Britain over the construction of those directives that have required a reference to the Court of Justice of the European Union but these have been far less common in copyright than in say trade marks.

After Brexit the directives will cease to bind the UK but the legislation that implements those directives will remain in force as it was made by or under an Act of Parliament. The one big change is that points of law arising from such legislation will cease to be referred to the Court of Justice. However, decisions of the Court of Justice on the interpretation of the directives are likely to have persuasive authority after we leave the EU. In her speech to the British group of the Union of European Practitioners in Intellectual Property on National and International-level concerns and developments regarding the IP landscape 30 June 2016 the Minister for IP promised that the UK would continue to lead in international IP discussions. One consequence of that is that we shall have to continue to implement changes in the multilateral IP treaties and when doing so it will be sensible to pay heed to what is happening in the rest of Europe.

There will be some sections of the arts that will be affected more by the disappearance of European trade marks and designs than others. The film industry, for example, depends heavily on brands but dance hardly at all (see my article Ballet as a Brand? How to bring More Money into Dance for Companies and Dancers 13 March 2014 Terpsichore). There will be some effect on merchandising and I have discussed these in IP and Brexit: the Fashion Industry (10 July 2016 4-5 IP).  

I shall discuss this topic as well as other IP issues arising out of Brexit at a seminar in Liverpool to be organized by Guy Williams Layton on 14 Sept 2016 and in London at 4-5 Gray's Inn Square on 15 Sept 2016. Both seminars are likely to be very popular and places will go very quickly. If you want to attend call me during office hours on 020 7404 5252 or send me a message through my contact form.

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