Since the UK voted to leave the European Union (EU), speculation on the future of various intellectual property laws has been rife. Patrick Kingsland asks Henning Grosse Ruse-Khan, co-director of the Centre for Intellectual Property and Information Law, how intellectual property is protected across borders, what agreements the EU currently has in place and how things might change once the UK finally leaves.
The UK’s decision to leave the European Union (EU) may have split the country down the middle, but when Henning Grosse Ruse-Khan logged on to IPKat – an intellectual property (IP) law blog with a focus on Europe – in the days after the referendum, everyone appeared to feel and think the same.
“It was primarily comments and posts that were almost apologetic from the UK IP community,” says Ruse-Khan, a fellow at the faculty of law at the University of Cambridge. “People were saying, ‘we are really, really sorry European colleagues; it wasn’t us’.”
Over six months after the referendum, few questions have been answered. While the UK Prime Minister Theresa May has vowed to trigger Article 50 by March 2017, the British public and the wider business community remain largely in the dark about what this might mean. When it comes to IP, what is clear, according to Ruse-Khan, is that the legal systems in the UK and EU remain deeply intertwined, and that Brexit, whatever form it takes, will mean potentially significant changes.
“Certain rights are completely harmonised if not unified on an EU basis,” says Ruse-Khan. “The three core ones are trademarks, copyright and patents. From the 1970s onwards, the EU started to harmonise these different protections in the different member states. The basic idea or rationale was that having a common system of protection was essential for free movement of goods and services. It has always been driven by a common-market rationale. If we have some sort of Brexit-lite, where common-market principles and free movement of goods remain a core element, then we can expect some continuation of existing IP arrangements. If, however, we have a stronger version of Brexit, the chances are that IP arrangements will be more significantly affected.”
Three to consider
Of course, with each of the three core areas of IP – trademarks, copyrights and patents – the influence of EU legislation – and the possible impact of Brexit – differs significantly. When it comes to trademarks, the UK’s current system is based on two fundamental pillars. Either a business or individual can go to the UK Intellectual Property Office (IPO) and apply for a trademark that gives protection within the UK, or they can apply for an EU trademark in the Spanish city of Alicante that automatically covers the territory of all the different member states.
“As you can imagine, if the UK pulls out, that will mean the coverage of these EU trademarks will, at least in principle, cease to exist in the UK,” Ruse-Khan says. “That means anyone that has an EU trademark as its basis for protection within the UK will have to apply directly to the UK IPO. However, it is all subject to the sort of agreement the UK makes with the EU. Although nothing of any detail has emerged, if you go on to the website of the UK IPO, there was a statement made in early August that says that the UK is negotiating to extend or continue having EU trademark protections apply in the UK. I think they will try their very best to make sure that no gap of protection or regulatory vacuum suddenly appears.”
When it comes to copyright, things are slightly more complicated. Compared with trademark law, the system lacks EU harmonisation and depends, to a large extent, on national territory and rights. According to Ruse-Khan, this could prove a problem in post-Brexit negotiations.
“One of the most significant possible changes here is the extent to which the UK after Brexit would continue to adhere to past decisions of the EU Court of Justice (ECOJ),” he says. “Because there is only a little bit of harmonisation in this area, the ECOJ has taken a very proactive role in trying to improve things.
“Take, for example, a piece of copyrighted text or music. The ECOJ uses one core requirement, which is that the work needs to have its own intellectual creation: it needs to display an element of creativity, some degree of personal touches. But, in the past, UK courts, before EU harmonisation started to kick in, considered something original if it involved someone’s own skill, judgment or labour. The emphasis was more about the investment you put into creating. If the UK was to decide not to continue listening to the ECOJ, that might lead to different kinds of protections emerging. Things in the past that have received protection because the courts in the UK tended to follow the ECOJ might suddenly change.”
One pillar may stand strong
At first glance, the third of the intellectual property pillars – patents – seems unlikely to be affected too much by Brexit. As things stand, patents are based on the European Patent Office, which is not an EU institution. “The office is set up on the basis of an international agreement to which the UK is a member and nothing would change in that regard,” says Ruse-Khan. “The European Patent Office grants patents that then turn into different national patents and get enforced separately in different member states.”
But even here, there are problems. Over the past decade, EU member states have been in the process of creating the Unified Patent Court, a proposed common court that offers a unified protection mechanism in a similar vein to the trademark system. “In the past, you had a situation where patents existed in different national laws and the courts could take different views on whether it was actually valid,” Ruse-Khan says. “For example, you could have a patent be found invalid, say, in Germany but valid in the UK.”
The Unified Patent Court was supposed to solve that problem, but according to Ruse-Khan, Brexit has created a number of challenges. “In order for the agreement to come into force, it needs to be ratified by a minimum threshold of members including Germany, France and the UK,” he says. “So the question now will be: will the UK, if it wants to ratify, actually be able to do so, and, secondly, if the UK doesn’t want to ratify, will the other states need to reopen the negotiations? Bear in mind this has already taken years to negotiate and was a big political compromise: lots of people aren’t really very happy with it. So that might also trigger renegotiations with various other parts of the package.”
One of the key arguments made for the UK leaving the EU was about sovereignty. “Leaving the EU would give us more control over our own laws and regulations,” says one of the key ‘facts’ on the now defunct Leave.EU campaign website.
“Brussels, Luxembourg and Strasbourg are responsible for more than half of the UK’s legislation,” it continues. “The UK Government was taken to court 23 times for failing to implement EU law between 2007 and 2011.”
When it comes to intellectual property, however, these ‘facts’ are highly contested. According to Ruse-Khan, in certain areas, the UK may even lose the ability to influence and formulate new IP rules. “Take new copyright law,” he says. “The national British Copyright Act, like all other EU member state’s copyright laws, is strongly influenced by secondary legislation – so called EU directives. As things stand though, there is no EU-wide copyright. These directives are not automatically binding or enforced. In this area, therefore, we are looking into further harmonisation, and there is a discussion ongoing about dealing, for example, with certain types of exceptions and limitations to copyright protections. In this area, the UK may well lose out. If it entered into an arrangement that would require it to accept new EU laws on copyright without being able to have any say on it, that may be problematic.”Of course, as things stand, nothing much has changed. Brexit negotiations will take many years to complete and until something specific is announced, the UK’s IP landscape is likely to remain exactly the same. In the end, for Ruse-Khan, however frustrating the European IP community might be, it’s important to remember that this was a political vote about much more than patents, trademarks and copyright. “People may have been overwhelmingly negative,” he says of IPKat’s commenters. “But there were also many voices that said ‘look, this wasn’t about IP; we should respect the majority of the vote in favour of leaving’.”