The slides of my talk 'Copyright and Brexit: What's Next?', delivered at the annual CILIP Conference held in London on 2 April 2019

1. COPYRIGHT & BREXIT
WHAT NEXT?
Eleonora Rosati
eleonora@e-lawnora.com
@eLAWnora

2. … Or rather: What now?
◦Brexit means ... What?
◦Changes brought about by
EU membership
◦ Subsistence
◦ Scope
◦ Infringement
◦ Remedies

3. BREXIT MEANS …
WHAT?

4. Types of Brexit
(NB: slides prepared on 24 March!)
◦Transposition of EU directives
◦Effect of EU regulations
◦EU-wide rules and recognition
principles
◦ Loss of EU citizenship
◦ Loss of qualification as EU business
◦Jurisdiction of the CJEU

5. More in detail
◦Transposition of EU directives - Directive on Copyright
in the DSM
◦Effect of EU regulations - Portability and Marrakesh
◦EU-wide rules and recognition principles
◦ Loss of EU citizenship: VIPs, content portability
◦ Loss of qualification as EU business: broadcasters, CMOs
◦ Sui generis database right
◦ Orphan works
◦ Exhaustion
◦Jurisdiction of the CJEU - section 6 EU (Withdrawal) Act
2018

6. CHANGES BROUGHT
ABOUT BY EU
MEMBERSHIP

7. Subsistence of
copyright
◦A work
◦Sufficiently original
◦Of the right kind
◦Fixed in a tangible
medium

8. Subsistence of copyright
◦A work – defined by CJEU
◦Sufficiently original – defined by CJEU; effects on
designs
◦Of the right kind – challenged by CJEU
◦Fixed in a tangible medium – defined by CJEU

9. Scope of copyright protection
◦Harmonized economic rights
◦Unharmonized economic rights
◦Rights attached to categories
◦Harmonized exceptions and limitations

10. Scope of copyright protection
◦Harmonized economic rights – defined and
challenged by CJEU
◦Unharmonized economic rights – do they exist? The
case of adaptation
◦Rights attached to categories – challenged by CJEU
◦Harmonized exceptions and limitations – increasing
(in)flexibility + ‘autonomous concepts of EU law’

11. Standard of infringement
◦Derivation (causal connection)
◦Substantial taking
◦Primary/secondary liability

12. Standard of
infringement
◦Derivation (causal
connection)
◦Substantial taking – from
Designer Guild to
Infopaq (and back?)
◦Primary/secondary
liability – does it still
exist?

13. Remedies
◦Injunctions against intermediaries
◦Costs of injunctions

14. Remedies
◦Injunctions against intermediaries – EU law and
CJEU case law
◦Costs of injunctions – Lack of an EU rule?

15. IN CONCLUSION

16. Brexit means …
◦In any case, no actual and immediate freedom
◦Medium and long term: Should the UK distance
itself from EU copyright law?
◦ Reasons for harmonization
◦ Topics in EU copyright agenda
◦ Future role of the CJEU

17. THANKS FOR
YOUR ATTENTION!
eleonora@e-lawnora.com
@eLAWnora