Brexit’s Impact on Intellectual Property Law: Where Are We Now?

Under the European Union (Withdrawal) Act 2018, a category of “retained EU law” was created at the end of the transition period. Such law included EU-derived domestic legislation, some (previously) directly applicable EU legislation and some other EU rights that were recognised and available in UK law. Essentially, retained EU law began life as a “snapshot” of all EU law that was in place and enforceable in the UK at the end of the transition period.

However, following the end of the transition period, the Retained EU Law (Revocation and Reform) Act 2023 provided for substantial changes to the status, operation and content of retained EU law. This was done in order to remove or alter certain aspects of EU law which the UK either did not want to retain or had to amend in order to reflect its new status outside of the EU. One of the Act’s changes was that of replacing the term “retained” with “assimilated”, such that “retained EU law” ought to be referred to as “assimilated law” from 1 January 2024.

Moreover, on 1 January 2024, the UK government published a list of EU-derived domestic legislation relating to IP which fell within the scope of assimilated law. Various pieces of legislation relating to trade marks fell within the list, including the Trade Marks Act 1994, Trade Marks Rules 2008 (SI 2008/1797), European Union Trade Mark Regulations 2016 (SI 2016/229) and the Trade Marks Regulations 2018 (SI 2018/825).

Copyright is a national right provided by each country separately, but it is harmonised to a large extent by various treaties. As copyright works between the UK and EU is assured by international treaties, the issue of copyright was not addressed in the UK-EU Withdrawal Agreement. These conventions provide for ongoing protection for covered works, no matter where the creators and owners are based, be it the UK, the EU or indeed anywhere else.

However, the UK-EU Trade and Cooperation Agreement (TCA), signed on 24 December 2020, established that cross-border copyright arrangements unique to EU member states would no longer have effect as of 1 January 2021. Such arrangements included the EU Satellite and Cable Directive, which provided a country-of-origin principle for the licensing of copyright material in cross-border satellite broadcasts. Further EU-specific copyright laws that are no longer applicable in the UK include cross-border portability of online content services and the orphan works exception. The former allowed users to access online content services when travelling within the EU, whilst the latter enabled specific copyrighted works to be used without the copyright holder’s permission under certain circumstances.