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Checking the EU-UK agreement for copyright shenanigans

The EU presents all the agreement drafts

A trustworthy source for the agreement draft

SO WHAT effect will the proposed EU-UK agreement have on your copyright? Not a great deal that we can see so far.

The agreement requires both the UK and the EU to abide by the World Intellectual Property Organization Treaties and the World Trade Organization "TRIPS Agreement" (on Trade-Related Aspects of Intellectual Property Rights).

It then includes a summary of the standards to which both the EU and the UK must adhere. In the case of the EU these provisions are utterly unremarkable and merely re-state its position in international negotiations. In the case of the UK... by the pricking of our thumbs the UK wasn't really paying attention, which would be a Good Thing. The headings are:

  • Authors' exclusive rights
  • Performers' exclusive rights
  • Producers of phonograms
  • Broadcasting organisations
  • Broadcasting and communication to the public of phonograms published for commercial purposes
  • Term of protection
  • [Artists'] Resale right
  • Collective management of rights - this mandates "endeavours" to meet a set of general principles reflecting the goals of the EU Directive on collecting societies
  • Exceptions and limitations
  • Protection of technological measures - that is, of anti-copying systems
  • Obligations concerning rights management information

So what is in the draft agreement is sound. We reproduce this list in case any eagle-eyed reader can spot something missing that should be there.

Under "Exceptions and limitations" it explicitly includes in the text the "TRIPS three-step test", which limits the laws that states may make that permit use of works without permission or payment to:

  • certain special cases
  • which do not conflict with a normal exploitation of the work or other subject-matter and
  • do not unreasonably prejudice the legitimate interests of the right holders.

This is a Good Thing.

One possible cause for concern is the measure - or rather absence of a measure - on "exhaustion" of copyright. The traditional example of this is the sale of second-hand books: the author's copyright is "exhausted" when a volume is first sold and they receive a royalty (always presuming that they have been able to negotiate a decent contract and not signed away their rights). The author (or other rightsholder) is not entitled to any payment from subsequent re-sale of the physical book.

The draft Agreement states that it "does not affect the freedom of the parties to determine whether and under what conditions the exhaustion of intellectual property rights applies". This may become more relevant as courts and parliaments address the vexed (and deeply technical) question of what "exhaustion" means for digital works. What fun!