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MPA Policy Update 27 Nov 2018

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United Kingdom

  1. Withdrawal from the European Union UK Copyright

In the absence of a definite political decision on the relation between the UK and the European Union UK government has put forward a draft Statutory Instrument on copyright in case of a “no deal Brexit” (presumably affirmative).

The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2018 is aimed at correcting deficiencies in, and failures of, retained EU law to operate effectively as a result of the United Kingdom leaving the European Union. The Regulations amend the CDPA for instance by removing references to “another EEA state” and similar changes). The instrument additionally addresses questions arising from reciprocity or mutual recognition in cross-border situations within the European Union/ European Economic Area.

Specifically, the Regulations address the Portability Regulations (which will be removed post withdrawal) and the Regulation implementing the Marrakesh treaty for visually impaired people (which will be amended). This includes changes to specific areas of copyright such as the sui generis right for databases (which will be removed moving forward) and orphan works (which will be limited to the UK system of licensing orphan works). Of main relevance for the music industry will be changes to Sections 6A and 144 CDPA implementing the Satellite and Cable Directive and for multi-territorial licensing based on the Collective Rights Management Directive.  Section 6A provides for certain safeguards to the country of origin copyright clearance rule in circumstances where a broadcast is made from outside of the EEA but the commissioning / uplink station is in the EEA. Reference to the EEA will be replaced by reference to the United Kingdom. As regards multi-territory licensing of musical works the IPO guidance suggest that UK Collective Management Organisations that currently rely on the Collective Rights Management Directive may want to consider seeking to continue existing arrangements with EEA Collective Management Organisations via new contractual arrangements.

Notably, the question of exhaustion has not been addressed in this draft Statutory Instrument but it might be covered in future legislative initiatives.

The geo-blocking Regulations will cease to have effect in the UK following a no deal Brexit (nb it applies from 3rd December 2018 onwards). It is not clear what will happen to the online (re-) Transmission regulations extending the country of origin principle to ancillary broadcasting services, should they be adopted.

  1. Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union

The UK government published the draft agreement setting out the terms of the United Kingdom’s withdrawal from the European Union on 14 November 2018 which has to be adopted by both the European Union and the UK Parliament, ideally before the United Kingdom leaves the European Union on 29 March 2019. The Articles on Intellectual Property (Articles 54-61) focus on registered rights such as trademarks and design rights (including unregistered design rights); as far as copyright is concerned Article 58 refers to the continued application of the sui generis database right which arose before the end of the transition period; Article 61 states that rights which were exhausted both in the Union and in the United Kingdom before the end of the transition period shall remain exhausted both in the Union and in the United Kingdom.

The outline of the political declaration setting out the framework for the future relationship between the European Union and the United Kingdom refers to the protection and enforcement of intellectual property rights beyond multilateral treaties to stimulate innovation, creativity and economic activity.

  1. Free trade agreements

UK Music responded to the consultations on free trade agreements with the United States, Australia, New Zealand, and members of the CPTPP highlighting the importance of international standards of protection and enforcement of copyright as well as identifying specific aspects in the respective countries which create barriers to trade for the music industry. Comments addressed general areas of copyright education, exceptions, exhaustion, collective management and safe harbours as well as specific aspects such as the bars and grills exception in the United States and the private subsidy in Australia.

 

  1. Post implementation review of the implementation of the amended Term Directive

Government estimates that approximately £600,000 has already been paid out to performers via the session fund, in addition to approximately £1.7 million which have been paid out in royalties to performers for the public performance and broadcast uses of music for which the copyright would have otherwise expired. There will be a second post implementation review in 2023.

  1. Call for views regarding illicit IPTV streaming devices – UK Government response

 

The response identified that recent prosecutions demonstrate that current laws are working. Additionally, the government is taking a range of additional steps to counter the problem such as a public education campaign while also highlighting the importance of tackling the organised criminal networks behind much of this activity. The Police Intellectual Property Crime Unit (PIPCU) will continue prioritising this area

  1. European Union

 

  1. Directive on Copyright in the Digital Single Market

In preparation of continued interinstitutional negotiations (trilogue) between representatives of the European Council presidency (Austria; followed by Romania in 2019); member states are discussing their respective position on the Articles of the draft Directive on Copyright in the Digital Single Market. Further interinstitutional meetings are scheduled for end of November through to January 2019 (if needed). Notably, a compromise text needs to be ready for vote at the Council and Parliament respectively by end of January to allow adoption by the European Parliament Plenary and the European Council before the end of the term of the European Parliament. As a reminder the Directive covers diverse areas such as exceptions for text and data mining, teaching activities, and preservation of cultural heritage; out of commerce works; access and availability of AV works on VOD platforms; press publishers right; fair compensation for statutory exceptions; certain uses of protected content by online services; fair remuneration in contracts of authors and performers. The main area of interest relates to Article 13 (Use of protected content by online content sharing service providers) and Articles 14 to 16 (fair remuneration for authors and performers).

  1. Other initiatives of the European Union copyright package.

The Geo-blocking Regulations preventing companies from differentiating their online offers (currently excluding digital content) within the European Union will come into force on 3rd December 2018. It is expected that these regulations will be removed from the United Kingdom in case of a no deal Brexit.

The instruments implementing the Marrakesh Treaty for the benefit of visually impaired persons who come into force on 12 October 2018. In case of a no deal Brexit, the United Kingdom will have to ratify the Treaty itself (nb currently the European Union has exclusive competence to ratify such International Treaties).

There this limited progress regarding the Online (re-) transmissions Regulations which are still in inter institutional negotiations (since early 2018); this is due to disagreements on the scope of Articles 2 and 3 as well as on “direct injection”.

  1. International

 

  1. Music Modernization Act

On 11 October 2018 the president of the United States signed the music modernisation act together with The Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society (CLASSICS) Act (basically to provide Federal protection to the digital audio transmission of a sound recording fixed before, 1972) and the Allocation for Music Producers (AMP) Act (designating that SoundExchange distribution includes royalties to “a producer, mixer, or sound engineer who was part of the creative process that created [the] sound recording.” The Act will be implemented in the coming years for instance by establishing a Music Licensing Collective.

 

The objective of the MMA is to:

 

  • Streamline the licensing process of mechanical rights in the US primarily by suggesting changes to Section 115 US Copyright Act.
  • Introduce blanket licenses in Section 115 to be administered by a new music royalty collective organisation.

 

  1. WIPO

The Standing Committee of Copyright and Related Rights will continue its discussions on an international instrument on exceptions for libraries and educational institutions respectively at the meeting and of November 2018. They will also continue discussing an international broadcasting treaty and a possible international instrument on artist resale right.

Florian Koempel 20 November 2018

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