Event report: UK should enact ‘imperfect’ copyright directive

In light of the uncertainty surrounding Brexit, the UK should seek to implement the provisions of the EU Copyright Directive, said a panel of lawyers and industry representatives last Friday, July 5.

The comments came from a panel discussing the future of the UK copyright regime post-Brexit at “Westminster Media Forum Keynote Seminar: UK copyright policy - value exchange, international relationships and the Copyright Directive” in London.

Giles Derrington, head of policy for Brexit, international and economics at TechUK, a non-profit representing the British tech industry, said that while his organisation had “significant problems” with the directive, it would be “valuable” for the British government to implement it amid Brexit uncertainty.

In March, in a TechUK press release issued after the European Parliament’s approval of the directive, Derrington said the law failed to “strike the right balance” and could harm competition within the digital sector given the “high-cost” of meeting its requirements.

Speaking last Friday, however, Derrington said that ultimately, what stakeholders valued most was certainty.

In a more robust defence of the directive’s provisions, Nicola Solomon, chief executive at the Society of Authors, an industry trade organisation, also urged the UK government to set about implementing the new law.

She noted that it was beneficial for authors and writers, in particular drawing attention to articles 18-22 of the directive, which outline bargaining rights for authors. These provisions were “essential” to authors, she said, suggesting that these articles could be transposed into British law ahead of the more controversial elements of the law.

She also stressed the importance of adopting a national exhaustion of rights regime, warning that an international exhaustion policy would see the UK “flooded with cheap imports”.

Under a national exhaustion regime, the IP right associated with a product is considered to have expired within a country once it has been sold in that jurisdiction, while under the international exhaustion of rights, this applies to goods already sold in any part of the world.

‘Best efforts’ provision

Rachel Alexander, partner at Wiggin in London, noted that there was uncertainty in the language of the directive itself, which posed challenges for implementation. She cited the provision which requires platforms to demonstrate “best efforts” to obtain authorisation to display a copyright-protected work.

What exactly constitutes “best efforts”, she suggested, could possibly be a question best left to the judiciary to interpret.

In support of “best efforts” requirements more generally, William Bush, director of policy at The Premier League, drew on his own organisation’s attempt to stamp out abuse and racism at football matches

He said that a decade ago clubs would never have been required to use body cameras and microphones in stadia to detect those guilty of abuse.

As technology has developed, however, clubs are now required to use all means reasonably available to them and make “best endeavours” to prevent and punish abuse. This, he said, was more effective than overly-specific regulations, which become obsolete as technology develops.

Dids McDonald, CEO of Anti Copying in Design and vice-chair of the Alliance for IP, highlighted what she called an “inexplicable disparity” in the rights afforded to unregistered designs in the UK and other forms of IP.

According to McDonald, “policy has not chimed with the needs of the 21st century creative design sector”.

This was a particularly important issue, she argued, as the UK faced the risk of losing the rights covered by EU unregistered designs post-Brexit.

EU unregistered designs provide a greater scope of protection than the equivalent UK rights, covering categories such as ornamentation, texture and colour.

McDonald called for a supplementary UK unregistered design right needed to be created in order to address the disparity, as well as greater clarity from government on the future of unregistered designs post-Brexit.