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ICLG The International Comparative Legal Guide to: Copyright 2019 5th Edition A practical cross-border insight into copyright law Published by Global Legal Group, in association with Bird & Bird LLP With contributions from: Acapo AS LexOrbis Advance Partners Liad Whatstein & Co. Anderson Mōri & Tomotsune Løje, Arnesen & Meedom ARENAIRE LPS L@w Bereskin & Parr LLP MinterEllison Bird & Bird LLP Paradigma – Law & Strategy Daniel Legal & IP Strategy Patent & Law Firm YUS, LLC De Beer Attorneys Inc. PÉREZ CORREA & ASOCIADOS, S.C. Deep & Far Attorneys-at-Law S. P. A. Ajibade & Co. Fross Zelnick Lehrman & Zissu, P.C. Seow & Associates Grupo Gispert SyCip Salazar Hernandez & Gatmaitan Güzeldere & Balkan Law Firm Synch Advokat AB Hamdan AlShamsi Lawyers & Legal Consultants Wenger Plattner JIPYONG LLC ZY Partners Klinkert Rechtsanwälte PartGmbB The International Comparative Legal Guide to: Copyright 2019 General Chapter: 1 Brexit and Copyright: More Questions than Answers? – Phil Sherrell & Will Smith, Bird & Bird LLP 1 Country Question and Answer Chapters: 2 Australia MinterEllison: John Fairbairn & Katherine Giles 7 Contributing Editor Phil Sherrell, Bird & Bird LLP 3 Brazil Daniel Legal & IP Strategy: Antonio Curvello & 14 Hannah Vitória M. Fernandes Sales Director Florjan Osmani 4 Canada Bereskin & Parr LLP: Jill Jarvis-Tonus 20 Account Director Oliver Smith 5 China ZY Partners: Zhou Qiang & Fu Mingyang 26 Sales Support Manager 6 Denmark Løje, Arnesen & Meedom: Tanya Meedom & Susie P. Arnesen 33 Toni Hayward Sub Editor 7 France ARENAIRE: Pierre Massot & Mythili Thaya 39 Amy Norton Senior Editors 8 Germany Klinkert Rechtsanwälte PartGmbB: Piet Bubenzer & Dr. David Jahn 44 Suzie Levy Caroline Collingwood 9 India LexOrbis: Dheeraj Kapoor & Aprajita Nigam 50 CEO 10 Israel Liad Whatstein & Co.: Liad Whatstein & Uri Fruchtman 57 Dror Levy Group Consulting Editor 11 Italy Paradigma – Law & Strategy: Massimo Donna & Francesco Tripaldi 63 Alan Falach Publisher 12 Japan Anderson Mōri & Tomotsune: Masayuki Yamanouchi & Yuri Fukui 68 Rory Smith 13 Korea JIPYONG LLC: Seung Soo Choi & Seungmin Jasmine Jung 74 Published by Global Legal Group Ltd. 14 Malaysia Seow & Associates: Cheong Shih Wen & Joel Prashant 79 59 Tanner Street London SE1 3PL, UK Tel: +44 20 7367 0720 15 Mexico PÉREZ CORREA & ASOCIADOS, S.C.: Israel Pérez Correa & 87 Fax: +44 20 7407 5255 Hugo H. Zapata Email: [email protected] URL: www.glgroup.co.uk 16 Nigeria S. P. A. Ajibade & Co.: John C. Onyido & Yetunde Okojie 93 GLG Cover Design F&F Studio Design 17 Norway Acapo AS: Magnus Thomassen & Espen Clausen 99 GLG Cover Image Source 18 Philippines SyCip Salazar Hernandez & Gatmaitan: Enrique T. Manuel & 103 iStockphoto Vida M. Panganiban-Alindogan Printed by Stephens & George 19 Russia Patent & Law Firm YUS, LLC: Maria Lovtsova & Nikolay Medvedev 111 Print Group October 2018 20 Senegal LPS L@w: Léon Patrice Sarr & Bocar Balde 117 Copyright © 2018 21 South Africa De Beer Attorneys Inc.: Jacques Stemmet & Abduraouph Kamaar 122 Global Legal Group Ltd. All rights reserved No photocopying 22 Spain Grupo Gispert: Sönke Lund & Eric Jordi 128 ISBN 978-1-912509-37-9 23 Sweden Synch Advokat AB: My Byström & Sara Sparring 134 ISSN 2056-4333 24 Switzerland Wenger Plattner: Melanie Müller & Yannick Hostettler 139 Strategic Partners 25 Taiwan Deep & Far Attorneys-at-Law: Yu-Li Tsai & Lu-Fa Tsai 144 26 Turkey Güzeldere & Balkan Law Firm: Altuğ Güzeldere & Erdem Balkan 150 27 Ukraine Advance Partners: Oleg Zhukhevych & Elena Biloshuk 160 28 United Arab Emirates Hamdan AlShamsi Lawyers & Legal Consultants: Hamdan AlShamsi & 166 PEFC Certified Omar Kamel This product is from sustainably managed forests and 29 United Kingdom Bird & Bird LLP: Rebecca O’Kelly-Gillard & Phil Sherrell 170 controlled sources PEFC/16-33-254 www.pefc.org 30 USA Fross Zelnick Lehrman & Zissu, P.C.: David Donahue & Jason D. Jones 176 Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. WWW.ICLG.COM EDITORIAL Welcome to the fifth edition of The International Comparative Legal Guide to: Copyright. This guide provides corporate counsel and international practitioners with a comprehensive worldwide legal analysis of the laws and regulations of copyright. It is divided into two main sections: One general chapter. This chapter is entitled “Brexit and Copyright: More questions than answers?” Country question and answer chapters. These provide a broad overview of common issues in copyright laws and regulations in 29 jurisdictions. All chapters are written by leading copyright lawyers and industry specialists and we are extremely grateful for their excellent contributions. Special thanks are reserved for the contributing editor Phil Sherrell of Bird & Bird LLP for his invaluable assistance. Global Legal Group hopes that you find this guide practical and interesting. The International Comparative Legal Guide series is also available online at www.iclg.com. Alan Falach LL.M. Group Consulting Editor Global Legal Group [email protected] Chapter 1 Brexit and Copyright: More Questions than Answers? Phil Sherrell Bird & Bird LLP Will Smith Introduction A caveat The European Union (Withdrawal) Act 2018 (the “Withdrawal Any analysis of the impact of Brexit comes with the caveat that, at Act”) took its place in the UK statute book on 26 June 2018 following the time of writing, there is still huge uncertainty over the nature of months of debate, rebellion and compromise in Parliament and the future relationship between the UK and the EU. This difficulty Government. This legislation will repeal the European Communities is exacerbated as the two most likely options are so radically Act 1972 (the “ECA”) (the statute through which European Union different. On the one hand is a “hard” or “no deal” Brexit where no law takes effect in the UK) and sets out how European Union law agreement is reached as to the terms of the UK’s withdrawal from 1 will apply in the UK after “exit day”. or future relationship with the EU, and all current ties are severed, Copyright law is not fully harmonised at EU level, therefore it might at least initially. This is also referred to as the “cliff edge”, where be expected that the disruption to UK copyright law following exit membership of the EU, and all that entails, ceases overnight on day will be minimal. However, that would be to oversimplify the exit day. On the other hand is a “soft” Brexit under which the UK issue. There are a large number of EU instruments which apply retains a relationship with the EU (at least temporarily, and perhaps to industries which are underpinned by copyright, for example, in the medium to longer term) which largely preserves existing those businesses operating in the media sector. These instruments, arrangements, including access to the European single market. which are discussed in more detail below, are intended to bring into There is an intention on the part of both the UK and the EU to have effect the EU’s ultimate goal of creating a single market for goods a transition period from “exit day” to 31 December 2020, but this is and services which is free from regulatory barriers. The level of conditional on both sides agreeing a withdrawal treaty. cooperation between Member States required in order to achieve In July 2018, the UK Government presented a white paper titled “The a single market goes far beyond the setting of minimum standards Future Relationship between the United Kingdom and the European or harmonisation of certain laws and hence in many cases has Union” (the “White Paper”)3 which, at the time of writing, reflects required adjustments to specific parts of EU copyright law. The the UK’s most up-to-date proposal. It remains to be seen to what devil is therefore in the detail, rather than in the possible changes to extent the White Paper is acceptable to the remaining Member States underlying copyright law principles. (or indeed to the UK Parliament), however for the time being, this is A good example of this relates to exhaustion of rights. At present, the clearest expression of the Government’s intentions. the import into the UK of a copyright work legally in circulation anywhere in the European Economic Area (the “EEA”) is not an infringement of the copyright in those works, because the UK is The Withdrawal Act deemed to be part of the same market and the rights are “exhausted”.2 If, following exit day, the UK does not become part of the EEA then, During its passage through Parliament, the Withdrawal Act was without an amendment to the Copyright Designs and Patents Act 1988 known as the “Great Repeal Bill”; however, only the ECA will (the “CDPA”), sales in the UK would not be treated by EEA states as actually be repealed. The real purpose of the Withdrawal Act is relevant for exhaustion purposes, but sales in the EEA would exhaust to transpose EU law, as it stands at exit day, into UK law. The rights for the UK. Such an imbalance could put UK exporters at a mechanism by which this will be achieved depends on the nature of significant disadvantage compared to their European counterparts. the EU legislation in question. This is an example of a so-called “reciprocity gap”, a phenomenon The first category of legislation is so-called “EU-derived domestic which may arise in many different industries and hence is one of the legislation”.
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