About Intellectual Property IP Training IP Outreach IP for… IP and... IP in... Patent & Technology Information Trademark Information Industrial Design Information Geographical Indication Information Plant Variety Information (UPOV) IP Laws, Treaties & Judgements IP Resources IP Reports Patent Protection Trademark Protection Industrial Design Protection Geographical Indication Protection Plant Variety Protection (UPOV) IP Dispute Resolution IP Office Business Solutions Paying for IP Services Negotiation & Decision-Making Development Cooperation Innovation Support Public-Private Partnerships The Organization Working with WIPO Accountability Patents Trademarks Industrial Designs Geographical Indications Copyright Trade Secrets WIPO Academy Workshops & Seminars World IP Day WIPO Magazine Raising Awareness Case Studies & Success Stories IP News WIPO Awards Business Universities Indigenous Peoples Judiciaries Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions Economics Gender Equality Global Health Climate Change Competition Policy Sustainable Development Goals Enforcement Frontier Technologies Mobile Applications Sports Tourism PATENTSCOPE Patent Analytics International Patent Classification ARDI – Research for Innovation ASPI – Specialized Patent Information Global Brand Database Madrid Monitor Article 6ter Express Database Nice Classification Vienna Classification Global Design Database International Designs Bulletin Hague Express Database Locarno Classification Lisbon Express Database Global Brand Database for GIs PLUTO Plant Variety Database GENIE Database WIPO-Administered Treaties WIPO Lex - IP Laws, Treaties & Judgments WIPO Standards IP Statistics WIPO Pearl (Terminology) WIPO Publications Country IP Profiles WIPO Knowledge Center WIPO Technology Trends Global Innovation Index World Intellectual Property Report PCT – The International Patent System ePCT Budapest – The International Microorganism Deposit System Madrid – The International Trademark System eMadrid Article 6ter (armorial bearings, flags, state emblems) Hague – The International Design System eHague Lisbon – The International System of Appellations of Origin and Geographical Indications eLisbon UPOV PRISMA Mediation Arbitration Expert Determination Domain Name Disputes Centralized Access to Search and Examination (CASE) Digital Access Service (DAS) WIPO Pay Current Account at WIPO WIPO Assemblies Standing Committees Calendar of Meetings WIPO Official Documents Development Agenda Technical Assistance IP Training Institutions COVID-19 Support National IP Strategies Policy & Legislative Advice Cooperation Hub Technology and Innovation Support Centers (TISC) Technology Transfer Inventor Assistance Program WIPO GREEN WIPO's Pat-INFORMED Accessible Books Consortium WIPO for Creators WIPO ALERT Member States Observers Director General Activities by Unit External Offices Job Vacancies Procurement Results & Budget Financial Reporting Oversight
Arabic English Spanish French Russian Chinese
Laws Treaties Judgments Browse By Jurisdiction

United Kingdom

GB387

Back

The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/605)

 Explanatory Memorandum to the Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019

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:

DExEU/EM/7-2018.2 3

“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.

DExEU/EM/7-2018.2 4

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.