This guidance sets out how UK copyright law will change from 1 January 2021, subject to any changes under the future UK-EU relationship. It is not legal advice. You should get legal advice where you have specific questions relating to the law.

Background

Copyright is a national right that each country provides separately. However, copyright is largely harmonised internationally by a number of treaties and, in the EU, by a body of EU copyright legislation that builds on the international treaties.

A substantial part of UK copyright law is derived from the EU copyright framework. Because of this, there are references in UK law to the EU, the EEA, and member states. Some of these references occur in the UK’s implementation of EU cross-border copyright arrangements. These arrangements apply only within the EU and EEA and provide reciprocal protections and benefits between member states.

To address these issues, we introduced the Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019(Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019) under the powers of the European Union (Withdrawal) Act 2018.

These regulations remove or correct references to the EU, EEA, or member states in UK copyright legislation to preserve the effect of UK law where possible.

The reciprocal cross-border arrangements will be amended or brought to an end, as appropriate. The regulations are due to come into force on 1 January 2021. During the transition period, the EU and UK will negotiate a new relationship. Depending on the outcome of these negotiations, these regulations may be amended.

Protection of UK copyright works in the EU

Most UK copyright works (such as books, films and music) will still be protected in the EU and the UK because of the UK’s participation in the international treaties on copyright.

For the same reason, EU copyright works will continue to be protected in the UK. This applies to works made before and after 1 January 2021.

Copyright clearance in satellite broadcasting

Sui generis database rights

Portability of online content services

Orphan works copyright exception

Accessible format copies of copyright works

Collective rights management

Artist’s resale right

Artist’s resale rights entitle creators of artistic works to a royalty payment each time their works are sold by an art market professional. Under the EU Resale Right Directive, nationals of EU Member States and third countries that provide resale rights on a reciprocal basis are eligible for the right in the EU.

The UK has implemented the Resale Right Directive through the Artist’s Resale Right Regulations 2006. These regulations will be amended to reflect the UK’s position outside the EU, while continuing to provide the right to foreign nationals on a reciprocal basis.

Nationals of the UK and other countries that provide reciprocal treatment for UK nationals (including EU member states) will continue to receive resale rights in the UK from 1 January 2021. This is in accordance with the Berne Convention. No changes are being made to the calculation of royalty payments.

Cable retransmissions of works

When a copyright work is broadcast between EEA member states and retransmitted by cable in the receiving member state, the copyright holder can only exercise their rights through a collective management organisation. The UK applies this rule to cable retransmissions of broadcasts from any other EEA member state.

From 1 January 2021, member states may no longer apply this rule to broadcasts originating in the UK.

Copyright holders whose works are broadcast from the UK and retransmitted via cable in the EEA:

• may need to negotiate licences with the cable operator directly
• could see statutory licensing terms imposed on the cable retransmission of their works in EEA states

UK legislation will continue to apply existing rules to cable retransmissions of broadcasts originating in an EEA member state.

Qualification for copyright

Works that are currently eligible for copyright in the UK will continue to be eligible from 1 January 2021.

Works are eligible for copyright protection in the UK if they are:

• made by a national of the UK, EEA or any country that is party to the international copyright treaties

or

• first published or transmitted in the UK, EEA or any country that is party to the international copyright treaties

References to the EEA will be removed from UK law. This will not stop EEA works qualifying for copyright, because all EEA states are party to the international treaties.

Copyright duration

Copyright duration in the UK for works from the UK, EEA, or other countries will not change from 1 January 2021.

Currently, EEA works are given the same copyright duration in the UK as UK works. For works from outside the EEA, copyright lasts for the term granted in the country-of-origin or the term granted to UK works, whichever is less.

References to the EEA will be removed from UK law in this area so that duration for EEA works is calculated in the same way as for non-EEA works. Because copyright duration is equal across the UK and the EEA, there will be no immediate impact on copyright duration in the UK.

Use of EU satellite decoders

On 1 January 2021 (the end of the transition period), unregistered Community designs (UCDs), will no longer be valid in the UK. On 1 January 2021, these rights will be immediately and automatically replaced by UK rights.

If you own an existing right, you do not need to do anything at this stage.

Continuing unregistered design

Designs that are protected in the UK as a UCD before 1 January 2021 will be protected as a UK continuing unregistered design and will be automatically established on 1 January 2021.

It will continue to be protected in the UK for the remainder of the three year term attached to it.

The fact that a corresponding UCD was established before 1 January 2021 through first disclosure in the EU but outside of the UK will not affect the validity of the continuing unregistered design.

Supplementary unregistered design

Under the new law, we are creating a UK unregistered design right called supplementary unregistered design (SUD).

This right will ensure that the full range of design protection provided in the UK before 1 January 2021 will remain available after the end of the transition period.

The terms of SUD protection will be similar to that already conferred by UCD. However, the protection it provides will not extend to the EU.

SUD will mirror UCD by providing UK protection for both three and two dimensional designs for a a period of three years. The right will be subject to interpretation by the UK Courts.

Disclosure

SUD will be established by first disclosure in the UK.

First disclosure in the EU will not establish SUD. However, it may destroy the novelty in that design, should you later seek to claim UK unregistered rights.

Similarly, first disclosure in the UK may not establish UCD and could destroy the novelty in that design, should you later seek to claim EU unregistered rights. However, you should check guidance from the EU Intellectual Property Office on this.

You should carefully consider how, when and where you first disclose your designs in order to establish unregistered protection in the UK and the EU.

UK design right

UK design right will continue after 1 January 2021 and will function alongside continuing and supplementary unregistered design.

It will continue to provide protection for the shape and configuration of three dimensional articles for up to 15 years from the end of the year in which the design was first recorded or a corresponding article was first made.

The qualifying criteria for UK design right will change on 1 January 2021.

Until the end of the transition period UK design right can be established in the following circumstances:

• by an individual who is resident in the EU
• by a business formed under the laws of an EU member state
• where first disclosure of the design occurs in an EU member state

This means that activity inside of the EU but outside the UK can be sufficient for establishing UK design right.

From the end of the transition period, qualifications for the UK design right will be limited to:

• people resident in the UK or a qualifying country (as defined in The Design Right (Reciprocal Protection) (No. 2) Order 1989).
• businesses formed under the laws of the UK or a qualifying country

Where qualification is a result of first marketing, you will need to have disclosed your design in the UK or a qualifying country.