DExEU/EM/7-2018.2 1
EXPLANATORY MEMORANDUM TO
THE INTELLECTUAL PROPERTY (COPYRIGHT AND RELATED RIGHTS)
(AMENDMENT) (EU EXIT) REGULATIONS 2019
2019 No. 605
1. Introduction
1.1 This explanatory memorandum has been prepared by the Intellectual Property Office,
an Executive Agency of the Department for Business, Energy and Industrial Strategy,
and is laid before Parliament by Command of Her Majesty.
1.2 This memorandum contains information for the Joint Committee on Statutory
Instruments.
2. Purpose of the instrument
2.1 This instrument amends the Copyright, Designs and Patents Act 1988 (CDPA), and
associated regulations, to correct deficiencies in, and failures of, retained EU law to
operate effectively as a result of the United Kingdom leaving the European Union. It
also includes amendments to an Order and necessary revocations.
Explanations
What did any relevant EU law do before exit day?
2.2 As set out in Section 6, sub-paragraph 1, a substantial part of the law on copyright in
the UK is derived from EU law. There are 11 EU Directives all of which have been
implemented by the UK. The purpose of the Directives is to harmonise the copyright
frameworks in Member States, by reducing national discrepancies and maintaining a
level of protection which encourages creativity and enables consumers from across
the EU to access services. In doing this, the Directives create a number of ‘cross-
border’ mechanisms and arrangements which have reciprocal effect within the EU.
This includes mechanisms and arrangements such that any EU national can receive
copyright protection for their works (e.g. databases, broadcasts, computer
programmes etc.), in any EU Member State; and a country-of-origin copyright
clearance rule for satellite broadcasting (satellite broadcasters need only seek
permission to use the copyright in the Member State where the satellite uplink station
is situated, rather than in all the states in which the signal is received.
2.3 Additionally, there are two EU Regulations of relevance to copyright law in the UK, a
Regulation allowing consumers to access their online content services while
temporarily present in another Member State, and a Regulation facilitating the cross-
border exchange of accessible format (e.g. Braille) copies of works under certain
conditions.
Why is it being changed?
2.4 Given that EU legislation is in place to harmonise copyright provisions across the EU,
when the UK leaves the EU, it leads to the emergence of inappropriate references and
the breakdown of several cross-border mechanisms and arrangements which will
cease to operate correctly. This instrument ensures that inappropriate references are
amended (e.g. by substituting references to “another EEA state” with “an EEA state”).
DExEU/EM/7-2018.2 2
The instrument additionally ensures that cross-border mechanisms and arrangements
which breakdown are resolved on a rational basis (e.g. so that the UK does not give
unreciprocated effect to certain mechanisms).
What will it now do?
2.5 This instrument will ensure retained EU law contains appropriate references to the
“European Union”, “Member State”, etc., which does not presuppose the UK’s
membership of the EU. Additionally, the instrument aims to give continued effect to
cross-border mechanisms and their underlying policies wherever possible. Where this
is not possible (e.g. because the policy concerns a reciprocal obligation operating
between EU Member States), the mechanism is given unilateral effect within the
United Kingdom. Where it would not be appropriate to give unilateral effect (as it
would create adverse consequences for UK businesses if preserved in a one-sided
way), the mechanism is brought to an end.
3. Matters of special interest to Parliament
Matters of special interest to the Joint Committee on Statutory Instruments
3.1 This instrument was presented to the Sifting Committees for consideration on 26
October 2018 under the negative resolution procedure. The Sifting Committees
recommended in their reports published on 8 November 2018 that the instrument
should proceed under the affirmative procedure rather than the proposed negative
procedure.
3.2 The main reasons given by the committees for their recommendations are that the
instrument is extensive in the number of amendments it makes to UK copyright
legislation and that the accompanying impact assessments consider only impacts
arising out of the instrument, rather than broader impacts arising from the UK not
being party to the EU cross-border copyright mechanisms.
3.3 Chris Skidmore MP, Minister of State (Universities and Science) at the Department
for Business, Energy and Industrial Strategy (BEIS) has agreed to the
recommendations of the Sifting Committees.
Matters relevant to Standing Orders Nos. 83P and 83T of the Standing Orders of the House
of Commons relating to Public Business (English Votes for English Laws)
3.4 The territorial application of this instrument includes Scotland and Northern Ireland.
3.5 The powers under which this instrument is made cover the entire United Kingdom
(see section 24(1) of the European (Withdrawal) Act 2018) and the territorial
application of this instrument is not limited by the Act or by the instrument.
4. Extent and Territorial Application
4.1 The territorial extent of this instrument is the United Kingdom.
4.2 The territorial application of this instrument is the United Kingdom.
5. European Convention on Human Rights
5.1 Chris Skidmore MP, Minister of State for Universities and Science, has made the
following statement regarding Human Rights:
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“In my view the provisions of the Intellectual Property (Copyright and Related
Rights) (Amendment) (EU Exit) Regulations 2019 are compatible with the
Convention rights.”
6. Legislative Context
6.1 A substantial part of copyright law in the UK is derived from EU law. The UK has
implemented the existing EU copyright Directives via statutory instruments using
section 2 of the European Communities Act of 1972 (ECA). There are multiple
references to EEA/EU/Member States in both the CDPA and copyright regulations,
which presuppose the UK’s membership of these organisations.
6.2 Some of the references to EU/EEA occur in connection to European cross-border
copyright mechanisms and arrangements, which have reciprocal effect between
EU/EEA Member States.
6.3 In addition to this, there are two European regulations on copyright in the UK. These
are: Regulation 2017/1128 on cross-border portability of online content services in the
internal market; and Regulation 2017/1563 on the cross-border exchange between the
Union and third countries of accessible format copies of certain works and other
subject matter protected by copyright and related rights for the benefit of persons who
are blind, visually impaired or otherwise print-disabled.
6.4 This instrument rectifies inoperabilities in copyright law in the UK, giving continued
effect to cross-border mechanisms and arrangements wherever possible. This will
ensure consistency in the UK in relation to the treatment of UK copyright works and
EU/EEA copyright works. Where it is not possible to give continued effect to cross-
border mechanisms and arrangements (e.g. because the policy concerns a reciprocal
obligation operating between EU Member States), such mechanisms and
arrangements have been limited to a purely domestic basis. Where limitation to a
purely domestic basis would not make sense (e.g. as it would create adverse
consequences for UK businesses, if preserved in a one-sided way), the mechanisms
and arrangements are brought to an end. This includes the Portability Regulation
which will not be preserved.
7. Policy background
What is being done and why?
7.1 These regulations ensure deficiencies and inoperabilities in retained EU law (e.g.
references to “EU” which presuppose the UK’s membership) are corrected, so as to
give correct effect to the underlying policy. Where it is not possible to give continued
effect to the underlying policy (e.g. because it is one of the reciprocal obligations
between EU Member States), the policy is given unilateral effect; however, where it
would not make sense to give unilateral effect, the policy is brought to an end. This
will provide stability and certainty in the UK copyright framework as the United
Kingdom leaves the European Union. Under this broad rubric, the changes to
copyright law in the UK are set out below.
7.2 Sections 6A and 144A of the CDPA stem in part from the UK’s implementation of
the EU Satellite and Cable Directive1. Section 6A provides for certain safeguards to
1 Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright
applicable to satellite broadcasting and cable retransmissions.
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the country of origin copyright clearance rule2 in circumstances where a broadcast is
made from outside of the EEA but the commissioning / uplink station is in the EEA.
The amendments to Section 6A of the CDPA replace references to “EEA State” and
“European Economic Area” with “the United Kingdom”. Accordingly, the country of
origin principle will remain the same but the change will ensure that the safeguard
will apply only where the commissioning / uplink station is in the UK (rather than the
EEA).
7.3 The Satellite and Cable Directive also sets out rules on cable retransmission. This is
implemented in Section 144A of the CDPA. The amendment to Section 144A omits
a reference to “another EEA state” to remove the suggestion that the UK is an EEA
state.
7.4 Sections 12, 13A, 13B, 14 and 15A of the CDPA stem from the UK’s
implementation of the EU Term Directive3, and put into effect certain special
treatments in respect of copyright duration for copyright works originating from EEA
states, when held in contrast to works originating from outside the EEA. When the
UK leaves the EU, copyright works originating from the UK will no longer be classed
as originating from an EEA state for the purposes of the Term Directive and therefore
will no longer qualify for treatment under that Directive, although the UK will be
subject to the provisions in the Berne Convention and Rome Convention.
Consequently, the amendments to Sections 12, 13A, 13B, 14, and 15A of the CDPA
replace references to ‘EEA’ with ‘UK’, to ensure that (i) UK right holders will still
benefit from certain special treatments in respect of the duration of copyright in their
works, and (ii) there is consistency in the treatment of copyright works in the EEA
originating from the UK, and copyright works in the UK originating from the EEA.
7.5 Sections 154, 155, and 156 of the CDPA include references to “EEA” which stem
from the Intellectual Property Act 2014 and seek to ensure that the copyright
qualification criteria in the UK apply equally to UK and EEA nationals. The
amendments to Sections 154, 155, and 156 delete references to “another EEA state”
to (i) remove the suggestion that the UK is an EEA state, and (ii) ensure that there is
consistency in the treatment of EEA citizens’ copyrights in the UK and the treatment
of UK citizens’ copyrights in the EEA.
7.6 Section 170 of the CDPA includes a reference to “Directive 2006/116/EC”, which
stems from the Enterprise and Regulatory Reform Act 2013, and ensures compliance
with the Term Directive4. When the UK leaves the EU, there will be no obligation to
comply with the terms of the Term Directive. While the Government has no plans to
depart from it, there is no good reason to directly refer to third country law in statute
and limit the UK unnecessarily. Consequently, the amendments to Section 170
remove reference to the Term Directive.
7.7 Sections 172A, 178 and 179 of the CDPA stem in part from The Intellectual Property
(Enforcement, etc.) Regulations 2006, which further implement the Enforcement
Directive5. Changes to Sections 172A and 179 are consequential to changes made
2 The country of origin rule allows satellite broadcasters to gain copyright permissions from rightsholders to
broadcast only in the country of origin, and not have to worry about gaining such permissions in the country of
destination. 3 Directive 93/98/EEC harmonising the term of protection of copyright and certain related rights, repealed by
Directive 2006/116/EC on the term of protection of copyright and certain related rights. 4 Directive 2006/116/EC on the term of protection of copyright and certain related rights. 5 Directive 2004/48/EC on the enforcement of intellectual property rights.
DExEU/EM/7-2018.2 5
under the rest of Part 1 of the CDPA in relation to references to EEA. The change to
Section 178 is also consequential and ensures there is a definition of a “national of the
United Kingdom” in the CDPA.
7.8 Section 191 of the CDPA contains a reference to “EEA” that stems from the Duration
of Copyright and Rights in Performances Regulations 1995, which implements the
Term Directive6 and certain obligations arising under the EEA Agreement. The
amendments replace “EEA” with “UK” to (i) reflect that the UK is no longer a
member of the EEA, and (ii) ensure there is consistency in the duration of rights
available to UK performers in the EEA, and EEA performers in the UK.
7.9 Section 206 of the CDPA contains a reference to “EEA” that stems from the
Intellectual Property Act 2014 and ensures that “another EEA state” is a qualifying
country for the purposes of that Part of the CDPA. The amendments to Section 206
remove “another EEA state” as a qualifying country.
7.10 Schedule ZA1 of the CDPA stems from the implementation of the Orphan Works
Directive7, and was inserted by the Copyright and Rights in Performances (Certain
Permitted Uses of Orphan Works) Regulations 2014. It provides for a copyright
exception for cultural heritage institutions to digitise and make available to the public,
across the EU, orphan works (copyright works where the right holder is unknown or
cannot be found). The exception works by recognising the orphan status of works
across the EU, as long as a diligent search has been completed and the details entered
onto a database held by the EU Intellectual Property Office (EUIPO). When the UK
leaves the EU, this mutual recognition will fall away and the EU will not recognise
the orphan status of works that UK libraries, museums, and other cultural heritage
institutions place online, and the UK will not have access to the database held by the
EUIPO. Consequently, the European orphan works exception will come to an end on
exit. UK cultural heritage institutions will no longer be able to make available online
across the EU orphan works, under an exception to copyright. However, cultural
heritage institutions in the UK will still be able to make use of the UK’s existing
domestic Orphan Works Licensing Scheme under the provisions of Section 116A, to
digitise, and make orphan works available on their websites in the UK. Sections 44B
and 76A will be omitted in line with Schedule ZA1. Amendments will also be made
to the Copyright and Rights in Performances (Licensing of Orphan Works)
Regulations 2014 to remove reference to the EU database.
7.11 Schedule 1 of the CDPA stems from the implementation of the Term Directive
20068. The Schedule concerns the term of protection of Artistic works, and treats
works from other EEA states, in a different way to UK or third country works. The
amendments to this section replace the reference to “another EEA state” with “an
EEA state”, to reflect that the UK is no longer a member of the EEA.
7.12 Schedule 2 of the CDPA stems in part from the implementation of the Marrakesh
Treaty Directive9. Paragraph 3B of the Schedule concerns an exception which allows
an ‘authorised body’ to make, communicate, make available, distribute or lend
accessible format copies of certain types of copyright works, for the benefit of both
6 Directive 93/98/EEC harmonising the term of protection of copyright and certain related rights, repealed by
Directive 2006/116/EC on the term of protection of copyright and certain related rights. 7 Directive 2012/28/EU on certain permitted uses of orphan works. 8 Directive 2006/116/EC on the term of protection of copyright and certain related rights. 9 Directive 2017/1564 on certain permitted uses of certain works and other subject matter protected by copyright
and related rights for the benefit of persons who are blind, visually impaired or otherwise print disabled.
DExEU/EM/7-2018.2 6
disabled people “in the United Kingdom or another member State of the European
Union” without infringing copyright. To take account of the United Kingdom no
longer being a member of the European Union, this exception will be amended so that
the exception only applies to accessible copies made for the benefit of disabled
persons in the United Kingdom.
7.13 The Duration of Copyright and Rights in Performances Regulations 1995 stem
from the implementation of the Term Directive 199310. When the UK leaves the EU,
it will no longer be part of the EEA. The amendments to the abovementioned
regulations, replace references to “another EEA state” with “an EEA state” to reflect
the fact that the UK will no longer be part of the EEA. Regulation 36 (3) which
provides a definition of “another EEA state” will also be removed.
7.14 The Copyright and Related Rights Regulations 1996 stems in part from the
implementation of the Rental and Lending Directive11. The Regulations contain the
legal basis of the ‘publication right’. The publication right is limited to works first
published “in the European Economic Area”, and to publishers who are nationals “of
an EEA State”. The changes make clear that, following Exit, the right will also be
available to works first published in the United Kingdom, by publishers who are also
nationals of the United Kingdom.
7.15 The Copyright and Rights in Databases Regulations 1997 implement the Database
Directive12, and provide the basis for a “database right” in the UK. In line with the
Database Directive, the abovementioned regulations limit the ability to qualify for a
database right to, inter alia, those who are nationals of EEA states. When the UK
leaves the EU, there will be no obligation for EEA states to recognise UK nationals as
eligible to qualify for the database right in the EEA. Consequently, the amendments to
the abovementioned regulations replace references to “EEA” with “UK” in order to (i)
ensure that UK nationals are still eligible to qualify for the database right in the UK,
and (ii) ensure there is consistency in the protection available to EEA nationals in the
UK, and UK nationals in the EEA in respect of database rights. Importantly, saving
provisions will apply to terms of copyright protection existing prior to Exit day (see
below). References to the laws of “an EEA state” are also being replaced.
7.16 The Artist’s Resale Right Regulations 2006 implement the Artist’s Resale Right
Directive13, and provide the basis for a “resale right” in the UK. Under the Berne
Convention for the Protection of Literary and Artistic Works (amended 1979)
nationals of contracting parties (to the convention) receive protection only if the
legislation in the country to which the author belongs so permits, and to the extent
permitted in the country where this protection is claimed. The amendments to the
abovementioned regulations replace references to “EEA” with “UK” to reflect the fact
that there will no longer be automatic protection for EEA nationals, whilst ensuring
that the legislation is still compliant with the Berne Convention.
7.17 The Copyright and Rights in Performances (Extended Collective Licensing) Regulations 2014 allows Collective Management Organisations (CMOs) to apply to
be authorised to operate extended collective licensing schemes (ECL) in respect of
10 Directive 93/98/EEC harmonising the term of protection of copyright and certain related rights, repealed by
Directive 2006/116/EC on the term of protection of copyright and certain related rights. 11 Directive 92/100/EC on rental and lending right and on certain rights related to copyright in the field of
intellectual property. 12 Directive 96/9/EC on the legal protection of databases. 13 Directive 2001/84/EC on the resale right for the benefit of the author of an original work of art.
DExEU/EM/7-2018.2 7
rights for which they are sufficiently representative. Currently, there is no provision in
EU law for Member States to provide for the operation of such extended collective
licensing schemes. The regulations stipulate that in order to apply for permission to
run an ECL scheme, the CMO must have an address for service in the EEA (as
opposed to solely the UK). As the UK will be leaving the EU, it will no longer be
appropriate to continue to extend the address for service in the EEA and therefore the
address for service will be limited to the UK.
7.18 The Collective Management of Copyright (EU Directive) Regulations 2016 implement the Collective Rights Management (CRM) Directive14. In line with the
CRM Directive, the regulations institute the ability for Collective Rights Management
Organisations (CMOs) to offer multi-territorial licences in respect of musical works,
and stipulate the various governance, technical, and other requirements CMOs must
fulfil in offering such licences. UK CMOs that offer multi-territorial licensing of
online rights in musical works will continue to be required to represent on request the
catalogue of other CMOs (UK or EEA) for multi-territorial licensing purposes,
provided one of those territories is the UK. Inappropriate references to Member States
and the Treaty on the Functioning of the European Union are being removed.
Consequential amendments will also be made to remove the reference to the Directive
in Regulation 51(2).
7.19 The Copyright and Performances (Application to Other Countries) Order 2016 clarifies the UK’s international obligations with regard to copyright in performances.
There is a single reference to “another EEA state” which is corrected to “an EEA
state”.
7.20 The Portability Regulation15, and Portability of Online Content Services
Regulations 201816 enables the temporary portability of online content services
across the EU (e.g. allowing consumers to access their online content services on
holiday). The Regulation contains a legal fiction which assumes that the rights and
permissions of the home territory move with the consumer on a temporary basis, and
additional copyright licences are not required. The Portability Regulation, and the
2018 Regulations which relate to enforcement of that Regulation, came into effect in
the UK on 1 April 2018. When the UK leaves the EU, it will not be possible for UK
online content services to allow UK subscribers to access their services free of charge
when temporarily present in EU Member States in accordance with the terms of the
Regulation. It would not be appropriate to enable EU online content services to allow
EU subscribers to access their services free of charge when temporarily present in the
UK, when this freedom is not reciprocated. Consequently, this Instrument revokes
both the Portability Regulation (it will not be preserved), and the 2018 Regulations.
7.21 EU Regulation 2017/1563 on the cross-border exchange between the Union and
third countries of accessible format copies of certain works and other subject
matter protected by copyright and related rights for the benefit of persons who
are blind, visually impaired or otherwise print-disabled (Marrakesh Treaty)
relates to the EU’s membership of the Marrakesh Treaty, which enables certain
individuals and organisations in member countries to make copies of literary works in
14 Directive 2014/26/EU on collective management of copyright and related rights and multi-territorial licensing
of rights in musical works for online use in the internal market. 15 EU Regulation 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border
portability of online content services in the internal market (the EU Portability Regulation). 16 SI 2018/249
DExEU/EM/7-2018.2 8
accessible formats (such as Braille, audio, large print) for use by blind, visually
impaired and print disabled people, and to exchange such copies between member
countries (all of which are parties to the Marrakesh Treaty). A related Directive
intended to align EU Member States’ laws with the requirements of the Treaty was
implemented by the Government by amendment of Sections 31A-31F and Schedule
2, 3A-3E CDPA, on 11 October 2018. The Regulation supplements the Directive by
providing arrangements for cross-border exchange of accessible format copies
between the EU and “third countries” (which describes countries that are not in the
EU but are also parties to the Marrakesh Treaty). Following the UK’s exit from the
EU, the Regulation will be preserved, but minor changes will be made to remove any
internal EU cross border arrangements and references to the EU. This is because the
UK, post exit day, will not be part of the internal market so the provisions are
redundant. EU Member States will then be "third countries" to the UK, and cross-
border exchange of copies between the UK and EU Member States will be able to
continue under the normal arrangements provided by the Marrakesh Treaty, once the
UK has ratified the Treaty.
7.22 In addition to the above changes, various transitional provisions and savings are made
to ensure that there is no question of any deprivation of sui generis database rights
acquired prior to exit day.
8. European Union (Withdrawal) Act/Withdrawal of the United Kingdom from the
European Union
8.1 This instrument is being made using the power in section 8 of and paragraph 21(b) of
Schedule 7 to the European Union (Withdrawal) Act 2018 in order to address failures
of retained EU law to operate effectively or other deficiencies arising from the
withdrawal of the United Kingdom from the European Union. In accordance with the
requirements of that Act the Minister has made the relevant statements as detailed in
Part 2 of the Annex to this Explanatory Memorandum.
9. Consolidation
9.1 The Intellectual Property Office makes an informal consolidated copy of the CDPA
freely available to the public online. Following the entry into force of the Regulations,
they will be incorporated into the consolidated copy. Link:
https://www.gov.uk/government/publications/copyright-acts-and-related-laws.
10. Consultation outcome
10.1 This instrument creates necessary changes arising from the UK leaving the European
Union. There has not been scope for public consultation on the policy of the
instrument; however, the Intellectual Property Office has met with a broad range of
affected stakeholders to understand their technical concerns in relation to copyright
law in the case of leaving the EU without a deal.
11. Guidance
11.1 Guidance on the changes being made by this Instrument and what they mean for
copyright law in the UK in the event of no deal has been published on Gov.uk. Link:
https://www.gov.uk/government/publications/changes-to-copyright-law-in-the-event-
of-no-deal
DExEU/EM/7-2018.2 9
12. Impact
12.1 Some changes from the statutory instrument could have an impact on UK businesses,
but we expect there to be no significant impact on charities or voluntary bodies.
12.2 There is no, or no significant, impact on the public sector.
12.3 We have prepared three full Impact Assessments to consider separately the EU
Satellite and Cable Directive, the Portability Regulation and sui generis databases
rights. These are submitted with this memorandum and published alongside the
Explanatory Memorandum on the legislation.gov.uk website. They show that by
making the changes in the statutory instrument UK rights will continue to be
protected post-exit and the impact to UK businesses of leaving the EU will be
minimised. With regard to the Portability Regulation, reciprocal portability between
the UK and EU cannot be fully reproduced on a unilateral basis post-exit and is
therefore brought to an end. We have estimated that the rest of the changes in the
statutory instrument will have no significant impact on businesses, falling below the
£5 million threshold, and have completed a ‘de minimis’ self-certification form
showing this.
13. Regulating small business
13.1 The legislation applies to activities that are undertaken by small businesses.
13.2 The changes in the statutory instrument will not create any disproportionate impact to
SMEs and so no specific action is proposed.
14. Monitoring & review
14.1 As this instrument is made under the EU Withdrawal Act 2018, no review clause is
required.
15. Contact
15.1 Rhian Doleman at the Intellectual Property Office Telephone: 01633 814818 or email:
rhian.doleman@ipo.gov.uk can be contacted with any queries regarding the
instrument.
15.2 Nadia Vally, Deputy Director for Copyright and Strategy at the Intellectual Property
Office can confirm that this Explanatory Memorandum meets the required standard.
15.3 Chris Skidmore MP, Minister of State for Universities and Science at the Department
for Business, Energy and Industrial Strategy (BEIS) can confirm that this Explanatory
Memorandum meets the required standard.
DExEU/EM/7-2018.2 10
Annex Statements under the European Union (Withdrawal) Act
2018
Part 1
Table of Statements under the 2018 Act
This table sets out the statements that may be required under the 2018 Act.
Statement Where the requirement sits To whom it applies What it requires
Sifting Paragraphs 3(3), 3(7) and
17(3) and 17(7) of Schedule
7
Ministers of the Crown
exercising sections 8(1), 9 and
23(1) to make a Negative SI
Explain why the instrument should be
subject to the negative procedure and, if
applicable, why they disagree with the
recommendation(s) of the SLSC/Sifting
Committees
Appropriate-
ness
Sub-paragraph (2) of
paragraph 28, Schedule 7
Ministers of the Crown
exercising sections 8(1), 9 and
23(1) or jointly exercising
powers in Schedule 2
A statement that the SI does no more than
is appropriate.
Good Reasons Sub-paragraph (3) of
paragraph 28, Schedule 7
Ministers of the Crown
exercising sections 8(1), 9 and
23(1) or jointly exercising
powers in Schedule 2
Explain the good reasons for making the
instrument and that what is being done is a
reasonable course of action.
Equalities Sub-paragraphs (4) and (5)
of paragraph 28, Schedule 7
Ministers of the Crown
exercising sections 8(1), 9 and
23(1) or jointly exercising
powers in Schedule 2
Explain what, if any, amendment, repeals
or revocations are being made to the
Equalities Acts 2006 and 2010 and
legislation made under them.
State that the Minister has had due regard
to the need to eliminate discrimination and
other conduct prohibited under the
Equality Act 2010.
Explanations Sub-paragraph (6) of
paragraph 28, Schedule 7
Ministers of the Crown
exercising sections 8(1), 9 and
23(1) or jointly exercising
powers in Schedule 2
In addition to the statutory
obligation the Government has
made a political commitment
to include these statements
alongside all EUWA SIs
Explain the instrument, identify the
relevant law before exit day, explain the
instrument’s effect on retained EU law and
give information about the purpose of the
instrument, e.g., whether minor or
technical changes only are intended to the
EU retained law.
Criminal
offences
Sub-paragraphs (3) and (7)
of paragraph 28, Schedule 7
Ministers of the Crown
exercising sections 8(1), 9, and
Set out the ‘good reasons’ for creating a
criminal offence, and the penalty attached.
DExEU/EM/7-2018.2 11
23(1) or jointly exercising
powers in Schedule 2 to create
a criminal offence
Sub-
delegation
Paragraph 30, Schedule 7 Ministers of the Crown
exercising sections 10(1), 12
and part 1 of Schedule 4 to
create a legislative power
exercisable not by a Minister
of the Crown or a Devolved
Authority by Statutory
Instrument.
State why it is appropriate to create such a
sub-delegated power.
Urgency Paragraph 34, Schedule 7 Ministers of the Crown using
the urgent procedure in
paragraphs 4 or 14, Schedule
7.
Statement of the reasons for the Minister’s
opinion that the SI is urgent.
Explanations
where
amending
regulations
under 2(2)
ECA 1972
Paragraph 13, Schedule 8 Anybody making an SI after
exit day under powers outside
the European Union
(Withdrawal) Act 2018 which
modifies subordinate
legislation made under s. 2(2)
ECA
Statement explaining the good reasons for
modifying the instrument made under s.
2(2) ECA, identifying the relevant law
before exit day, and explaining the
instrument’s effect on retained EU law.
Scrutiny
statement
where
amending
regulations
under 2(2)
ECA 1972
Paragraph 16, Schedule 8 Anybody making an SI after
exit day under powers outside
the European Union
(Withdrawal) Act 2018 which
modifies subordinate
legislation made under s. 2(2)
ECA
Statement setting out:
a) the steps which the relevant authority
has taken to make the draft instrument
published in accordance with paragraph
16(2), Schedule 8 available to each House
of Parliament,
b) containing information about the
relevant authority’s response to—
(i) any recommendations made by a
committee of either House of Parliament
about the published draft instrument, and
(ii) any other representations made to the
relevant authority about the published draft
instrument, and,
c) containing any other information that
the relevant authority considers appropriate
in relation to the scrutiny of the instrument
or draft instrument which is to be laid.
DExEU/EM/7-2018.2 12
Part 2
Statements required when using enabling powers
under the European Union (Withdrawal) 2018 Act
1. Appropriateness statement
The Minister of State for Universities and Science, Chris Skidmore MP has made the
following statement regarding use of legislative powers in the European Union
(Withdrawal) Act 2018:
“In my view the Intellectual Property (Copyright and Related Rights) (EU Exit)
(Amendment etc) Regulations 2019 does no more than is appropriate”.
1.1 This is the case because: this Instrument is limited to correcting deficiencies and
inoperabilities in copyright law in the UK as a result of EU Exit and is intended to
give continued effect to the cross-border mechanisms and their underlying policies
wherever possible. Where this is not possible (e.g. because the policy concerns a
reciprocal obligation operating between EU Member States), the mechanism is given
unilateral effect within the United Kingdom. Where it would not be appropriate to
give unilateral effect (as it would create adverse consequences for UK businesses if
preserved in a one-sided way), the mechanism is brought to an end. The changes
made by this Instrument do not make changes to domestic policy going beyond this.
1.2 Additionally, the SI does not fall into any of the categories listed in Schedule 7
paragraph 1(2) of the European Union (Withdrawal) Act 2018.
2. Good reasons
2.1 The Minister of State for Universities and Science, Chris Skidmore MP has made the
following statement regarding use of legislative powers in the European Union
(Withdrawal) Act 2018:
“In my view there are good reasons for the provisions in this instrument, and I have
concluded they are a reasonable course of action”.
2.2 These are set out in the appropriateness statement above.
3. Equalities
3.1 The Minister of State for Universities and Science, Chris Skidmore MP has made the
following statement:
“The instrument does not amend, repeal or revoke a provision or provisions in the
Equality Act 2006 or the Equality Act 2010 or subordinate legislation made under
those Acts”.
3.2 The Minister of State for Universities and Science, Chris Skidmore MP has made the
following statement regarding use of legislative powers in the European Union
(Withdrawal) Act 2018:
“In relation to the draft instrument, I, Chris Skidmore have had due regard to the need
to eliminate discrimination, harassment, victimisation and any other conduct that is
prohibited by or under the Equality Act 2010”.
DExEU/EM/7-2018.2 13
4. Explanations
4.1 The explanations statement has been made in section 2 of the main body of this
explanatory memorandum.