Brexit Preparations

The main page for information provided by the Government is: gov.uk/transition

The UK left the EU on 31 January 2020. There is now a transition period until the end of 2020 while the UK and EU negotiate additional arrangements.

The current rules on trade, travel, and business for the UK and EU will continue to apply during the transition period.

New rules will take effect on 1 January 2021.

BAPLA have put together an overview to help members to prepare their businesses. We have selected what we believe to be the relevant issues for members: IP Rights (including copyright & trade marks), eCommerce Directive, trade (including contracts & VAT), geo-blocking, employing EU citizens and travel to the EU.

Please note this is only a small selection of the information provided by the UK Government and other relevant sources. It is not an exhaustive list and for member’s guidance only. Also note that the Government guidance is regularly changed and updated.

For further information and advice on specific areas, you can contact:

  • Legal Advice Line (Howard Kennedy)

The legal advice line is run in association with Howard Kennedy LLP a practice based in Central London with many years of experience in advising picture libraries and photographers.

The service is run on a ‘fair-use’ policy and is open to all BAPLA members in need of professional advice on copyright and general IP law.

Each member is entitled to use the service up to three times a year, with each of those three sessions lasting up to half an hour.

Details on how to use the Legal Advice Line are on the BAPLA website: bapla.org.uk/resources.

  • Legal advice for the sector (Open Plan Law)

Open Plan Law is a boutique law firm, established with the specific aim of providing legal advice to the photographic and creative industries. Its founder, Anna Skurczynska, specialises in legal issues affecting the photography sector.

BAPLA members receive the first consultation free of charge, and a 10% discount on legal fees.

Contact details: openplanlaw.com - contact@openplanlaw.com - +44 203 693 8113

  • Business Support Helpline

BAPLA members have access to the Croner Business Support Helpline. You can call Croner and get advice from one of their specialists on tax, compliance, HR & employments law and legal issues.

You don’t need to watch the clock as your call to Croner is not ‘on the meter’.

Details on how to use the Business Support Helpline are on the BAPLA website: bapla.org.uk/resources

EU Law on Brexit – general comments

Under the terms of the European Union (Withdrawal) Act 2018 all EU law that has been transposed into UK law such as regulations (e.g. the General Data Protection Regulation or the Collective Rights Management Regulation), or directives implemented by UK legislation (such as the Information Society Directive or the E-Commerce Directive) was retained as part of English law on exit day. Some of the rights granted under these laws were EU-wide - post-Brexit they are only UK-wide. So, while the UK rights continue, there may be rights created by UK residents in the EU (e.g. database rights) which may be lost, or which will not have the same level of legal protection and therefore may be more difficult to enforce.

IP Rights

Copyright

UK copyright works (such as still and moving images) continue to be protected abroad, both in the EU and around the world, because of the UK’s participation in the international treaties on copyright, which ensures reciprocal protection for nationals of signatory countries. This does not depend on the UK’s relationship with the EU. For the same reason, EU copyright works will continue to be protected in the UK.

Brexit may have consequences for other types of intellectual property rights which do not enjoy the same level of international protection. Aspects of copyright (e.g. orphan works) which enjoyed specific treatment under EU law are also impacted.

The following areas may be affected by Brexit and are likely to be relevant to members:

  • Database rights:

These rights were introduced by the EU Database Directive in 1996 and provide the owner of a database the right to restrict the use of or extraction of data from the database without their permission.

Databases that involve a substantial investment in time, money or effort in obtaining, verifying or arranging data, and were created by a European Economic Area (EEA) national, resident, or business receive automatic protection in all EEA Member States. The UK implemented the Directive in 1997 via the Copyright and Rights in Databases Regulations. Protected databases may include databases of photographic collections.

The UK now only recognises databases created by UK residents, and there is no obligation for EU member states to provide database rights to UK businesses. How the EU treats database rights held by UK creators that were acquired prior to exit depends on the legislation in the relevant territory. UK owners may want to consider relying on other forms of protection (e.g. restrictive licensing agreements or copyright where applicable) for their databases. For any databases created by EU subsidiaries of UK parent company, it is worth considering assignment of rights in databases and other relevant IP to the UK entity.

  • Orphan works copyright exception:

The EU orphan works directive provides an exception to copyright infringement that allows cultural heritage institutions (CHIs) established in the EEA to digitise and make orphan works available online across all EEA member states without the permission of the right holder.

The EU orphan works exception will be repealed from UK law after the end of the transition period.

  • Orphan Works Licensing Scheme:

CHIs will be able to utilise the UK’s Orphan Works Licensing Scheme, but this only extends to the UK, and so institutions that currently use the exception may want to consider whether they need to remove works from their websites or limit access to content on a geographical location basis in the EEA, such as implementing geo-blocking to reduce the risk of infringement in the EEA.

Read more: gov.uk/guidance/orphan-works-and-cultural-heritage-institutions-copyright-after-the-transition-period

Trade marks

Trade marks commonly take the form of words, logos, or a mixture of both - you may own several as part of the identity of your business. Trade marks can be renewed every ten years on payment of a fee and may last indefinitely.

EU Trade Marks (EUTMs) only cover EU Member States, and do not provide protection in the UK. To ensure that UK protection is preserved, holders of existing EUTMs can register a comparable UK trade mark.

If you have registered an EUTM it will continue to be valid in EU Member States and UK businesses can register an EU trade mark, which will cover EU Member States.

Read more: gov.uk/guidance/eu-trademark-protection-and-comparable-uk-trademarks#receiving-a-comparable-uk-trade-mark

eCommerce Directive

The eCommerce Directive applies to ‘information society services’. These are defined as:

  • any service normally provided for payment, including indirect payment such as advertising revenue
  • ‘at a distance’ (where customers can use the service without the provider being present)
  • by electronic means
  • at the individual request of a recipient of the service

The eCommerce Directive covers the majority of online service providers, for example online retailers, video sharing sites and search tools, as well as social media platforms and internet service providers.

The eCommerce Directive continues to apply to the UK for the duration of the transition period.

In accordance with the internal market clause (also referred to as country-of-origin principle) of Article 3 of the Directive on electronic commerce, a provider of information is subject to the law of the EU Member State in which it is established, and not to the various laws of the EU Member States where its services are provided, although the clause does allow for certain exemptions.

As of the exit date, information society service providers established in the United Kingdom and providing information society services into the EU are no longer able to rely on the country-of-origin principle. Companies established in the United Kingdom providing information society services into the EU will fall under the jurisdiction of each individual EU Member State.

You should consider determining your online service’s ‘place of establishment’ to understand whether you will be impacted by the loss of the Directive’s country-of-origin principle.

If you are established outside the EEA, you should:

  • check for any compliance issues in any EEA countries in which you operate resulting from the loss of the Directive’s country-of-origin principle
  • build on your existing processes for ensuring compliance with the legal requirements relating to online activities in each individual EEA country
  • ensure that you have processes in place for ongoing compliance in the event that individual EEA states change their requirements governing online activities
  • consider legal or other professional advice

Read more: gov.uk/guidance/ecommerce-directive-what-online-service-providers-in-the-uk-should-do-to-get-ready-for-brexit

Trade

During the transition period EU trade agreements continue to apply to the UK. After 31 December 2020, EU trade agreements will not apply to the UK. The UK is seeking to reproduce the effects of existing EU agreements for when they no longer apply to the UK.

If the effects of an existing EU agreement are not reproduced, trade with other World Trade Organization (WTO) members will take place on WTO terms when EU trade agreements cease to apply to the UK.

Read more: gov.uk/guidance/uk-trade-agreements-with-non-eu-countries

gov.uk/guidance/trading-under-wto-rules

Structuring your business

There will be changes to cross border business operations and European specific corporate entities from 1 January 2021. UK businesses that own or run business operations in EU member states will likely face changes to the law under which they operate, depending on the sector and EU member state.

For example, this could involve meeting additional requirements in order to acquire real estate and/or requiring additional approvals to operate. Restrictions may be more burdensome for branches or representative offices, as opposed to subsidiaries which have their own legal identity and are incorporated in the EU member state concerned.

  • UK companies and limited liability partnerships that have their central administration or principal place of business in certain EU member states may no longer have their limited liability recognised. This is the case in certain jurisdictions that operate the ‘real seat’ principle of incorporation.
  • Further information on the requirements in EU member states can be found via the European e-Justice Portal. Information on restrictions in particular service sectors in other countries including EU member states can be found via the Organisation for Economic Co-operation and Development (OECD) [Note under OECD: The digital network is seen as a service, wherein the digital supply chain consists of 1. content such as audio-visual services, design and other knowledge-capturing products, 2. the capture, compression and ingestion of content into transmission networks, 3. digital rights management, and 4. content delivery].
  • UK companies using the EU Cross Border Merger regime should be at an advanced stage of the process if they are to complete mergers by 2021. These mergers must be completed before 1 January 2021. Companies may wish to seek professional advice.

Read more: gov.uk/guidance/structuring-your-business-from-1-january-2021

Trading between the UK and EU

Most picture agencies will be licensing online to EU customers, rather than moving goods across borders. The Government website does not have an explicit section relating to this for image licensing, the closest example refers to ‘Online Selling’.

The UK will no longer operate under the European Economic Area (EEA) regulations for the cross-border trade in services from 1 January 2021. This means that the rights and protections provided by the EU Directives and EU Treaty rights of will no longer apply to the UK after this date. UK businesses will be regarded as originating from a ‘third country’ by the EU. UK firms and service providers may face additional legal, regulatory and administrative barriers as a result.

  • As UK businesses will be treated as originating from a third country by the EU, you’ll need to look at national regulations of individual EU states you’re doing business in. You can find country guides for providing services and travelling for business to the EU, Switzerland, Norway, Iceland and Liechtenstein here.
  • Business contracts: Businesses and individuals can generally continue to use the same rules to determine which law would apply in cross-border disputes. This is because all parts of the UK will retain the Rome I and Rome II rules on applicable law in contractual and non-contractual matters, which generally do not rely on reciprocity to operate. However, it is important to check contractual agreements where there maybe cross-border implications, these will likely vary depending on what each agreement states. You can also check if you can use standard contractual clauses (SCCs) for transfers from the EEA to the UK.

Provisions for goods

From 1 January 2021 you will need to make customs declarations to move goods into and out of the EU.

You’ll need an EORI number that starts with GB to move goods in or out of the UK. You’ll not usually need an EORI number if you’ll only provide services. Examples of exporting goods may be sending photographic prints, negatives or transparencies.

The Government also provides a page on exporting or importing ‘objects of cultural interest. If any of the objects you are moving are ‘objects of cultural interest’ or ‘cultural’ goods e.g. a photographic positive or negative or any assemblage of such photographs over 50 years of age, you should check whether you will need a license to take them out of the UK.

The Arts Council have a dedicated section on their website with useful information.

Tax on foreign income

On termination of EU membership, the benefits in the relationship to the United Kingdom conferred by the Directives in the area of direct taxes (Parent-Subsidiary Directive, Interest and Royalties Directive, and Merger Directive) will cease to apply. In addition, primary law no longer applies, as a consequence of which corresponding national rules by which tax benefits were extended to the EU/EEA territory are no longer applicable. (Source: Deloitte Brexit: Legal and Tax Implications)

If you're taxed twice

You may be taxed on your foreign income by the UK and by the country where your income is from. You can usually claim tax relief to get some or all of this tax back. How you claim depends on whether your foreign income has already been taxed [Note: there’s a different way to claim relief if you’re a non-resident with UK income].

Apply for tax relief before you get taxed on foreign income

You have to apply for tax relief in the country your income is from if:

  • the income is exempt from foreign tax but is taxed in the UK (for example, most pensions)
  • required by that country’s double-taxation agreement

Ask the foreign tax authority for a form, or apply by letter if they do not have one.

Before you apply, you must prove you’re eligible for tax relief by either:

Once you’ve got proof, send the form or letter to the foreign tax authority.

If you’ve already paid tax on your foreign income

You can usually claim Foreign Tax Credit Relief when you report your overseas income in your tax return.

How much relief you get depends on the UK’s ‘double-taxation agreement’ with the country your income’s from.

You usually still get relief even if there is not an agreement, unless the foreign tax does not correspond to UK Income Tax or Capital Gains Tax.

Contact HM Revenue and Customs (HMRC) or a get professional tax help if you’re not sure, or need help with double-taxation relief.

What you’ll get back

You may not get back the full amount of foreign tax you paid. You get back less if either:

  • a smaller amount is set by the country’s double-taxation agreement
  • the income would have been taxed at a lower rate in the UK

HMRC has guidance on how Foreign Tax Credit Relief is calculated, including the special rules for interest and dividends in ‘Foreign notes’.

[Note: You cannot claim this relief if the UK’s double-taxation agreement requires you to claim tax back from the country your income was from.]

Read more

VAT for businesses

Most picture libraries and agencies will be licensing online to EU customers, rather than moving goods across borders, therefore the most applicable information appears to be the rules for UK businesses supplying digital services.

‘Place of supply’ rules for UK businesses supplying services into the EU:

  • The main VAT ‘place of supply’ rules will remain the same for UK businesses (‘place of supply’ rules determine the country in which you need to charge and account for VAT).
  • For UK businesses supplying digital services to non-business customers in the EU the ‘place of supply’ will continue to be where the customer resides. VAT on services will be due in the EU member state within which your customer is a resident.
  • For sales made on or after 1 January 2021, you will not be able to use the UK’s VAT Mini One Stop Shop (VAT MOSS) service to declare sales and pay VAT due in EU member states. To continue to use VAT MOSS you’ll need to register for the VAT MOSS scheme in an EU member state, by the 10th day of the month following your first sale to an EU customer.

Read more: gov.uk/guidance/pay-vat-when-you-sell-digital-services-to-eu-customers-after-brexit

Claim VAT refunds from EU countries from 1 January 2021:

  • You can continue to use the EU VAT refund system to claim a VAT refund on expenses incurred before 1 January 2021 in EU member states, until 11pm on 31 March 2021.
  • You will not be able to use the EU VAT refund system to claim refunds of VAT on expenses incurred in an EU member state on or after 1 January 2021.
  • The VAT refund process varies across the EU and businesses will need to make themselves aware of the processes in the individual countries where they incur costs and want to claim a refund. Further information about claiming VAT refunds from EU member states is on the EU Commission’s website.

Data protection & geo-blocking

Data protection

During the transition period there will be no immediate change to the UK’s data protection standards. EU data protection laws, including the General Data Protection Regulation (GDPR), will continue to apply during the transition period alongside the Data Protection Act 2018. The Information Commissioner will remain the UK’s independent supervisory authority on data protection.

Looking ahead to 1 January 2021

The EU has an established mechanism to allow the unrestricted transfer (subject to GDPR compliance) of personal data to countries outside the EU, called adequacy decisions. The EU has committed to begin its adequacy assessment of the UK as soon as possible after Brexit endeavouring to adopt an adequacy decision during the transition period. If the EU has not made an adequacy decision in respect of the UK before the end of the transition period, you should act if you want to ensure you can continue to receive personal data from EU/EEA countries in the future.

The ICO provides detailed guidance on what actions might be necessary: ico.org.uk/media/for-organisations/documents/brexit/2617110/information-rights-and-brexit-faqs

Read more: gov.uk/guidance/using-personal-data-after-brexit

You can also check if you can use standard contractual clauses (SCCs) for transfers from the EEA to the UK.

Geo-blocking from 1 January 2021

You do not need to make any changes to how you provide goods and services to customers based in the EU if you already comply with the EU Geo-Blocking Regulation.

The Geo-Blocking Regulation (as of December 2018) bans:

  • blocking access to, or forcing redirection away from, a website on the basis of an internet user’s EU nationality or place of residence within the EU
  • discrimination by traders on the basis of the customer’s nationality or place of residence when they are purchasing:
  • goods online;
  • electronically supplied services (such as web hosting or cloud storage, but not copyrighted material such as e-books and streamed movies);
  • services provided in a specific physical location (such as a theme park)
  • discrimination by traders against a means of payment solely on the basis of its place of issue within the EU

Unjustified geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the EU will no longer apply to the United Kingdom.

Actions for businesses

In general businesses do not need to take any action to prepare for changes to geo-blocking rules. However, it is worth noting the following:

Providing goods or services to the UK and EU

  • Traders from the UK, EU and other non-EU countries will no longer be obliged to comply with the EU Regulation for customers based in the UK. They will not be prohibited from discriminating between EU customers and UK customers. This means a trader can redirect UK and EU customers to different versions of a website, offer different terms of access to EU customers compared to UK customers, and would be less restricted in choosing which payment methods they accept.
  • Traders who are already complying with the Geo-Blocking Regulation prior to Brexit will not need to take any additional steps to continue to comply with the EU Geo-Blocking Regulation after Brexit - they will be free to continue treating UK and EU customers as they did when the Geo-Blocking Regulation applied if they wish.

Providing goods and services to EU countries

  • UK traders who wish to continue selling goods and services into the EU will continue to be bound by the provisions of the EU Geo-Blocking Regulation when dealing with customers in different EU countries. This means that a UK trader will not be able to discriminate between customers in different EU countries, for instance between a French and a German customer.
  • Check with your hosting provider if they are based in an EU-country about any geo-blocking applications to your website.

Read more: gov.uk/guidance/geo-blocking-from-1-january-2021

Employing EU, EEA and Swiss citizens

EU, EEA and Swiss citizens who entered the UK before Brexit will be able to apply to the EU Settlement Scheme to live and work in the UK – the application deadline is 30 June 2021.

  • Employers can use this employer toolkit to support employees and inform them about the EU Settlement Scheme.
  • Until 1 January 2021, EU, EEA and Swiss citizens will be able to prove their right to work in the UK as they do now, for example by showing a passport or national identity card.
  • A new immigration system will apply to people arriving in the UK from 1 January 2021 and EU citizens moving to the UK to work will need to get a visa in advance. EU citizens applying for a skilled worker visa will need to show they have a job offer from an approved employer sponsor to be able to apply. If you’re an employer planning to sponsor skilled migrants from 2021, and are not currently an approved sponsor, you should consider getting approved now.

Read more: gov.uk/guidance/employing-eu-eea-and-swiss-citizens-and-their-family-members-after-brexit#right-to-work

gov.uk/guidance/new-immigration-system-what-you-need-to-know

Travelling to the EU

Travel to the EU, Switzerland, Norway, Iceland or Liechtenstein will change from 1 January 2021.

For example, you’ll need to check whether you’ll need to renew your passport and get travel insurance that covers your healthcare.

Businesses should check whether a visa and/or work permit is required and otherwise comply with the immigration controls in place in each Member State where the service is being provided in person. This would vary depending on the Member State in question. If the provision of services relies on a UK qualification being recognised by a Member State regulator, individuals should check the host state national policies.

Read more

uk/visit-europe-1-january-2021

uk/visit-europe-1-january-2021/business-travel-extra-requirements

gov.uk/government/collections/providing-services-to-eea-and-efta-countries-after-eu-exit#country-guides

Updated 15.07.2020