What now for copyright in the UK?

Nicola Solomon
Opinion - Books Monday, 16 March 2020

Nicola Solomon outlines the issues that the Society of Authors is lobbying government to address in post-Brexit trade negotiations


So it has finally happened. Three and a half years after the June 2016 Referendum, the UK exited the EU on 31 January. And after all the doom and gloom it all seems… much the same. Were we wrong to worry, and what will happen to authors now? The fact is we don't know. The real detail is not agreed. The future relationship between the UK and EU is still to be negotiated, and without a comprehensive agreement that addresses key issues such as IP, data, mobility and services, the impact of Brexit on publishing will be much like that of a no-deal Brexit.

This doesn't give us much time, given that the government has committed not to extend the transition period beyond 31 December 2020. During the transition, the UK will continue to be bound by EU law and will still benefit from its existing trading and mobility arrangements. However, it will not be part of the EU's political institutions, nor take part in its law-making activities.

Alongside partner organisations such as the British Copyright Council, Creators' Rights Alliance and ALCS (Authors' Licensing and Collecting Society), we at the Society of Authors (SoA) are lobbying government and politicians to press for a post-Brexit settlement which does not adversely affect authors. These are our key asks of Government.

Exports
Exports of published material are currently worth £2.9bn to the UK economy, with 36% of these exports going to Europe. It is vital that access to these markets is maintained after Brexit and that there are no additional barriers to trade.

Copyright Directive
One devastating casualty of Brexit is that the EU Directive on Copyright in the Digital Single Market will not be transposed into UK law. We worked hard with our European partners to reach the stage where it was passed by the European Parliament last year. But in January, Chris Skidmore, minister of state at the Department for Education and the Department for Business, Energy and Industrial Strategy, confirmed that it would not be implemented and that "any future changes to the UK copyright framework will be considered as part of the usual domestic policy process".

The directive includes many provisions which would create a more level playing field for authors when their work is used by platforms and publishers, including provisions for transparency, fair pay and reversion of rights that are no longer being exploited. It includes checks on the activities of platforms which are vital to maintain privacy and the value of content.

It is worth recalling that the directive is intended to ensure "a well-functioning marketplace for copyright". We believe that our European trading partners are likely to insist on us applying law analogous to the directive when negotiating trade deals in order to maintain and support that well-functioning marketplace. If we fail to enact it, we risk losing important trade to the detriment of UK publishers and authors. The government supported the directive when it was originally passed, and it would be fairer and less time-consuming to transpose it in full than to reinvent the wheel by considering copyright in isolation or applying different provisions piecemeal in different trade deals. We and other creators' organisations will continue to press government to legislate for similar provisions in UK law.

Copyright
The UK has a well-functioning and balanced copyright framework, which underpins the success of the creative industries. Existing copyright laws must be maintained, and there must be no attempt to water these down in future trade negotiations. In particular, the "fair dealing" doctrine for application of copyright exceptions and limitations (as opposed to US style "fair use") must be maintained and not conceded as a condition of US trade deals.

Exhaustion of rights
The UK government should adopt a "national exhaustion" framework. If "international exhaustion" is adopted, a book could be legitimately re-sold anywhere in the world, even if a publisher had been granted exclusive rights only for specified countries. Books not intended for sale in the UK could enter the country, undermining the success of our publishing industry.

Freedom of movement
EU citizens who arrive in the UK after 31 January but before the end of the year will be eligible to apply for the EU Settlement Scheme until the end of June 2021. This will enable them to retain their existing rights to live, work and study in the UK. Given the likelihood that only tariff-free access on goods will be negotiated by the end of this year, there are specific risks to the publishing industry in accessing international talent and the ability of our SoA members and other creators to tour and collaborate with EU counterparts.

It is vital that the government reforms existing immigration rules to ensure that visa restrictions do not prevent European creators from entering the UK for work (either long or short term) and British authors from travelling across Europe for work or touring. Freedom of movement has enabled the UK to access talent and ideas from Europe, as well as strengthening the diversity of our arts and culture sector. Many of the SoA's historic prizes such as the Somerset Maugham Awards and Travelling Scholarships were set up precisely so that authors could benefit from the contacts and creativity generated by foreign travel. It would be a disaster if those opportunities were curtailed due to Brexit.

Arts funding
Arts and cultural organisations in the UK benefit hugely from EU funding programmes such as Creative Europe. Organisations that successfully apply for EU funding during the transition will still receive money granted, but we don't know what will happen thereafter. The UK Government should either commit to remaining within these programmes, or to increasing domestic funding for the arts via the Arts Council or another equivalent body.

Translation
In particular, UK translation is heavily funded through various EU grants and prizes. The UK must continue to invest in funding for translation, in order to maintain a diverse range of literature and understanding of other cultures.

Over the next few months we hope to start getting a sense of shape of future international relationships and the impact they will have on creative practitioners. We will lobby hard for an environment in which authors can earn a fair and reasonable living and in which creativity and culture are celebrated and supported.

Nicola Solomon is a solicitor expert in the publishing industry and the associated law, and the chief executive of the Society of Authors. She is also a deputy district judge and is a board member of the International Authors' Forum and the British Copyright Council.

This article was commissioned for the Publishers Weekly/BookBrunch London Book Fair Show Daily.

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