The end of the Brexit transition period – changes for intellectual property

In this briefing, we will focus on the effect of the expiry of the transition period on 31 December 2020 on:

• patents and SPCs
• copyright
• databases
• protection for food and drink names
• plant variety rights

This briefing concentrates on the changes affecting these rights.

We discuss EU trade mark registrations and EU design registrations and unregistered design rights here.

Executive summary

The substance of most of the rights considered here remains the same.

Patents are protected through a system outside the European Union, although there are features of EU law that apply to and affect patents.  These will, at least initially, be replicated in UK law.

In legislation covering all areas, numerous detailed changes will be made to remove references to EU institutions and courts, and, for SPCs, protected food and drink names and plant variety rights, to set up parallel registration systems where required. Mutual recognition of existing registrations in most areas will see replication of rights with little or no requirement for rights holders to take action.

Mutual protection in some areas, notably involving copyright and database rights, will be affected. Subject to any arrangements yet to be agreed between the UK and the EU, these could affect cross-border activity after 31 December. These affect some sectors much more than others, and we have not discussed them in detail.

In the medium term, we can expect a degree of divergence between UK and EU law. New decisions of the European Court will no longer be binding in the UK, EU legislation yet to take effect will be implemented in the EU but not the UK, and different priorities will shape future legislation.

The position of Northern Ireland is different from the remainder of the UK, with EU registration procedures remaining relevant for protected food and drink names, for example. 

Patents

European Patents fall within a system that is separate from the European Union. That means that the system will not change for UK patent owners and applicants after 31 December.

Existing EU laws affecting patents, such as restrictions on the protection of biotechnology-related inventions, and exemptions for the testing of pharmaceutical products, will remain as they are, at least in the short term.

Supplementary Protection Certificates (SPCs)

Although SPCs extend patent protection, they are based on EU legislation, and so there are some changes as the transition period comes to an end.

Any granted SPCs will remain valid, and ongoing applications at 31 December will be dealt with under the existing EU system.

The SPC Regulation will become part of UK law, with appropriate changes to remove references to EU institutions, for example. Notably, the calculation of SPC duration will still refer to the first authorisation to place the product on the market in either the UK or the EEA.

Given the constant flow of European Court rulings on the SPC system, the position on abiding by those rulings is especially important for SPCs. After 31 December, UK courts will no longer have to follow judgments of the European Court as they do now.  The outcome of new cases at EU level will no longer be binding, and existing rulings can be disregarded by the UK’s appeal courts if they consider it to be appropriate.

Copyright and related rights

The basic elements of copyright law are internationally harmonised through international treaties and do not depend on EU membership. This will see ongoing mutual protection of copyright generated by nationals of either the UK or the EU.

However, EU legislators have introduced numerous additional elements and qualifications which are relevant both to whether such rights arise and what activities infringe - and continue to do so.

Some of these provide reciprocal effects between member states, such as the country-of-origin principle for licensing of copyright material in cross-border satellite broadcasts. We do not currently expect these benefits to last in the UK beyond 31 December although it is possible that an agreement on the future relationship could see enhancements to the basic position.

Existing EU legislation that tweaks and tailors copyright laws will remain embedded in UK law unless and until changes are made. For example, copyright duration at the life of the author plus 70 years, data mining rights and moral rights of authors to stop derogatory treatment of their works, will remain unless and until any changes are made.

In contrast, new EU rule changes will not apply in the UK without specific legislation. For example, the EU Copyright in the Digital Single Market Directive, with its controversial provisions on user uploaded content, is not due for implementation until June 2021. This is too late for automatic roll-over into UK law.

Overall, copyright owners should expect the basics of protection to continue, but some mutual recognitions and rights to fall away. Increasing divergence between the UK and the EU looks likely from 2021 onwards.

Database rights

The sui generis database right is based exclusively on EU legislation. The 2019 Withdrawal Agreement offers ongoing protection in both the EU and the UK for databases created up to 31 December. This will last for the remaining duration of that right – 15 years following the year of completion of the database.

From 1 January onwards, we expect the mutual protection provided under the current system to cease. New EU database rights will no longer be available for UK residents and businesses, and only UK residents and businesses will be eligible for new UK database rights.

We do not expect the renewal of protection that results from substantial changes to an existing database to extend the period of protection of existing databases. So the mutual protection of rights provided by the Withdrawal Agreement will end by 2036. In reality, most commercially important databases do not last this long without substantial renewal, and so the value of the rights benefiting from this mutual protection will fall away before this date.

Where a database attracts copyright protection, the changes will be more limited – see the copyright section above.

Protected indications for foods and beverages

The existing EU schemes for the protection of regional specialities will remain in place, and all UK GIs registered under the EU GI schemes by the end of the transition period will continue to receive protection in the EU.

The UK is planning to establish its own arrangements to replace the existing EU arrangements. Three new UK schemes will be set up for food and drink names:

• Protected Designation of Origin (PDO)
• Protected Geographical Indication (PDI)
• Traditional Speciality Guaranteed (TSG)

These are available both to UK and non-UK applicants. Existing products registered under the EU GI schemes before 1 January 2021 will remain protected in the UK.

For new applications, protection in the EU and Northern Ireland should be sought under the EU system, and protection in Great Britain should be applied for under the new UK scheme.

Plant variety rights

The EU will continue to recognise EU plant variety rights that have been granted to breeders by 31 December, and the UK will recognise existing EU registrations. Where an application for an EU plant variety right remains unresolved on 31 December, the applicant will have six months to add an application for UK protection benefiting from transitional protections for priority, novelty, etc.

From 1 January 2021, applications will need to be filed separately in the UK (with the Animal and Plant Health Agency, or APHA) and in the EU (with the Community Plant Variety Office, the CPVO).

If you would like to discuss any of the implications for your brands, copyright, IP disputes or patents with our IP team please do get in touch.