The strange case of the right to IP which will cease in the UK post-Brexit.
The Great Repeal Bill - now known by its new title of the European Union (EU) Withdrawal Bill – will take away a right to intellectual property (IP) granted under EU law. Here's why:

 

The European Union (EU) Withdrawal Bill was published today by the British government. The function of this Bill is to convert the entire body of EU law - acquis communitaire - into British law. The entire acquis that is, minus one. The one that is not being converted is the EU Charter of Fundamental Rights:


"The Charter of Fundamental Rights is not part of domestic law on or after exit day. "


To be clear, the Charter of Fundamental Rights is not the same as the European Convention on Human Rights (ECHR). The Charter was adopted by the European Union and came into effect in December 2009. The European Convention on Human Rights (ECHR) was drafted in 1950 under the auspices of the Council of Europe. However, the two documents overlap. The Charter incorporates the rights in the Convention, with some additional rights that were deemed to update it for the 21st century. And this is where the right to intellectual property (IP) comes in. Article 17(2) of the Charter states that " Intellectual property shall be protected". It is a sub-section of Article 17 which is the right to property.


I did once hear a strange story about how it came to be there. It was something about an industry lobbyist leaning over the shoulder of an MEP drafting an amendment. I cannot be sure if it is true, but it makes the notion of getting rid of it rather tantalising.


Of course, we will still have copyright and IP law. The 2001 EU Copyright Directive and 2004 IPR Enforcement Directive are already enacted in British law. Nothing changes there. However, Article 17(2) served to add weight to legal arguments in court when balancing copyright enforcement against other rights, such as the right to freedom of expression. For example, it is referenced in the judgment of Cartier V BSkyB.


In that context, the notion of intellectual property as a fundamental right is mainly of interest to the industries that rely on IP for their business model, especially the movie studios and the music labels  (who, incidentally, have offices close to Westminster on the South Bank).


The government argues that the Charter of Fundamental Rights will have no relevance when we leave the EU, since it is only intended to apply to Member States acting within the scope of EU law. The government also argues that the Charter did not create any new rights, but merely catalogued rights that already existed.


The government also asserts that the Human Rights Act remains in place, which gives effect to the European Convention on Human Rights, and the rights enshrined in the Convention will continue to be enjoyed by British citizens. According to the government,  only the new, updated rights, such as Article 17(2) will be removed from British law. However, serious concerns have been expressed by Amnesty International and Liberty that this proposed EU Withdrawal Bill  may be used by the government to roll back rights and freedoms that have been granted to British people via the EU.


It will no doubt be the entertainment  industry lobbyists who will have to make the case for Article 17(2) and with it the rest of the Charter. On the other hand, the legal balancing act is also done using the right to property, under Article 1 Protocol 1 of the ECHR, which tends to support the government's position.


So, in the context of all the challenges that Brexit is going to throw at us, do we really need the right to IP? It's an interesting philosophical question.


It might actually be more interesting and relevant to consider the position of the new Copyright Directive that is currently being processed in the European Parliament, with some new provisions that are somewhat problematic from a fundamental rights perspective (see analysis from EDRi).

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Are you analysing Brexit and technology or copyright policy? Need help?  I use a process-based methodology to analyse policy, that I have developed and tested over the past 12 years. It gets quickly to the heart of an issue and I use it especially when analysing policy change. Contact me via the Contact Us page on this website.

If you liked this article, you may also like my book The Closing of the Net which  discusses policy that governs the Internet, including chapters on UK copyright cases in the High Court. 

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The Copyright Enforcement Enigma 'accurate and absorbing account of the story of the Telecoms Package' -Journal of International Commercial Law and Technology

'...a must read for those interested in knowing in depth about copyright enforcement and Internet.' -Journal of Intellectual Property Rights.  

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Iptegrity.com is the website of Dr Monica Horten. She is  a trainer & consultant on Internet governance policy, published author& Visiting Fellow at the London School of Economics & Political Science. She served as an independent expert on the Council of Europe Committee on  Internet freedom. She has worked on CoE, EU and UNDP funded projects in eastern Europe and beyond.  She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy (and now Brexit). Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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