18 February 2019

Copyright and No Deal Brexit for Cultural Heritage and Educational Establishments

By Naomi Korn

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©Naomi Korn Associates

As well as impacting existing and proposed data protection legislation as discussed in our last blog post, the current Brexit impasse has implications for copyright. The includes the specific impact of a No Deal Brexit on existing UK copyright legislation,  the relationship between existing and future copyright interpretations and the European Court of Justice (ECJ), together with how and if future EU copyright reforms (which include new exceptions to copyright as well as increased enforcement measures) will impact on UK law. https://ec.europa.eu/digital-single-market/en/modernisation-eu-copyright-rules

This latter point is particularly interesting as the EU is about to pass important new copyright measures which both strengthen the enforcement of copyright (Articles 11 and 13 in particular), as well as grant more user rights in the form of amended and new exceptions to copyright of benefit to the research and teaching communities. How far these will impact UK law, if passed, at this point is uncertain. What is probably more certain is that in the case of both a No Deal Brexit and the UK exiting the EU, the UK will look to increase measures to protect the Creative Industries who support the growth of UK PLC, and one of the ways of doing this is via more copyright and IP enforcement.

The UK’s Intellectual Property Office (UK IPO) has already prepared draft legislation in the case of a No Deal Brexit, which strips the UK of its EU-wide Orphan Works Exception of specific importance and help to UK educational establishments, public broadcasters and cultural heritage organisations. UK IPO has also recently launched a Post Implementation Review of the copyright exceptions which closes on the 10th April https://www.gov.uk/government/publications/call-for-evidence-to-review-2014-copyright-changes following the Hargreaves Review of Intellectual Property, which resulted in new and amended exceptions to copyright in 2014 of benefit to support education, preservation and individual use. It is important to note that the UK’s copyright exceptions have been specifically targeted at libraries and archives, as well supporting teaching, learning and research.

In light of these uncertainties and UK IPO reflection on the current state of play, what can copyright leads working across the UK educational establishments, cultural heritage and libraries do to prepare in case of a No Deal Brexit, protect themselves and future-proof their activities?

  1. Ensure that staff, contractors, volunteers, students and others who work for or on behalf of your organisation, are aware of their roles and responsibilities in terms of legal compliance, as well as optimising the existing UK copyright exceptions. This will ensure that extra provisions can already be put into place to protect organisations from the use and distribution of infringing content as well as helping organisations to optimise the use of the existing copyright provisions. The co-existance of the copyright exceptions and licences is an important ecosystem supporting the legitimate use of content.
  • A review of internal policies and procedures to take account of potentially more stringent copyright requirements will help compliance.
  • Awareness raising and training will re-inforce messages.
  • A licence review  will remind staff about what they might have in place already, authorised users, authorised uses and the materials that are covered.
  1. Review risk management and risk mitigation procedures. This will be important to help staff benefit more fully from the existing copyright exceptions, the use of which is many cases is not clear-cut and down to an organisation’s appetite’s for risk. The implementation of notice and take down policies and procedures, documentation of reasonable searches and clear procedures and polices will also help organisations to continue to use orphan works online, within a proportionate and pragmatic approach to risk, regardless of whether the EU Orphan Works Exception is stripped from UK law or not.
  2. Respond to the UK IPO’s current copyright exception review to ensure that UK Government understands the benefit of the copyright exceptions to supporting education, research, learning and the preservation of the UK’s cultural heritage. The Libraries and Archives Copyright Alliance (LACA) supported by Naomi Korn Associates will shortly be providing more comprehensive information about how to provide a response.

If you wish to learn more about this issue and others relating to your role as Copyright Lead – we are running a series of copyright training sessions. More details here or by contacting Patrick at patrick@naomikorn.com

© Naomi Korn Associates, 2019. Some Rights Reserved. The information here is licensed for use under a Creative Commons Attribution Share Alike Licence (CC BY SA)