Brexit

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

The UK left the EU on 31 January 2020. During the transition period until the end of 2020 existing rules on trade, travel, and business for the UK and EU continue to apply.

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

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.