This article has been superseded by our article of 6 November 2020: 'What does Brexit mean for intellectual property?'
Brexit presents challenges and upheaval for intellectual property law as the system, which is a complex mesh of national and EU law, is unpicked and reformed.
Exactly when and what the impact of Brexit for intellectual property will be will depend upon: firstly, the terms of any agreement(s) finalised between (i.e. ratified by) the UK and the EU on the UK's withdrawal from, and its subsequent relationship with, the EU; and secondly, the UK Government's national legislative steps. The UK's national legislative steps have largely been completed in respect of intellectual property.
- EU treaty provisions
- The status of EU law in the UK
- The legislative context of intellectual property law
4.1 Free movement of goods and services and exhaustion of intellectual property rights
4.3 Competition law
- The impact of Brexit for Patents
- The impact of Brexit for SPCs
- The impact of Brexit for Trademarks
- The impact of Brexit for Designs
- The impact of Brexit for copyright and neighbouring rights
- The impact of Brexit for quality schemes for agricultural and food products
- The impact of Brexit for plant variety rights
- The impact of Brexit for confidential information and trade secrets
- The impact of Brexit for enforcement
- The impact of Brexit for new EU legislation entering into force before the UK exits the EU
On 29 March 2017, the UK's Prime Minister notified the European Council, in accordance with Article 50(2) of the Treaty on European Union (TEU), of the UK's intention to withdraw from the EU. The notice triggered a two-year term for the negotiation and conclusion of an agreement, setting out the arrangements for the UK's withdrawal, taking account of the framework for its future relationship with the EU. Upon the expiry of the two-year term, the UK would cease to be a member of the EU.
On 25 November 2018, the EU and the UK reached agreement on the terms of the UK's withdrawal from the EU (the 'Withdrawal Agreement'). However, as an international treaty, the Withdrawal Agreement will only bind its parties once it has been ratified by the approval of their respective parliaments: the European Parliament and the UK Parliament. On three occasions (15 January 2019, 12 March 2019, 29 March 2019), the UK Parliament has voted against passing the Withdrawal Agreement.
In the meantime, the EU and the UK have agreed two extensions to the date of the UK's departure from the EU. Presently, the UK will cease membership of the EU on 31 October 2019, unless Parliament approves the Withdrawal Agreement before then.
The Withdrawal Agreement provides for a "transition period" lasting from the date of the UK's exit from the EU until 31 December 2020. During the transition period, the status quo would largely remain in place for intellectual property. The Withdrawal Agreement also provides for the management of the UK's exit from (among other things) the EU regimes concerning intellectual property at the end of the transition period. The relationship between the UK and the EU beyond 2020 remains a matter for negotiation.
In the event that the UK leaves the EU without a binding agreement (a 'no deal' Brexit), the UK's participation in the EU's intellectual property regimes would end at the date of the UK's exit from the EU. There would be no transition period. The UK has legislated to ensure the on-going protection, under UK law, of rights existing under EU intellectual property regimes at the date of the UK's exit from the EU in the event of a no deal Brexit. The effects of these measures are discussed in sections 5-11 below. They are broadly consistent with the provisions in the Withdrawal Agreement addressing the extraction of the UK from the EU's intellectual property regimes at the end of the transition period, but with a lot more detail. Accordingly, the no deal arrangements in respect of intellectual property can also be seen as the default position at the end of the transition period if there is no agreement to the contrary, for example making provision for the UK to remain within any of the EU-wide regimes concerned with intellectual property.
2. EU treaty provisions
On 29 March 2017, the UK delivered to the European Council, in accordance with Article 50(2) of the Treaty on European Union (TEU), notice of its intention to withdraw from the European Union.
Article 50 states as follows:
- Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
- A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
- The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
- For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or in decisions concerning it.
- A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
The Court of Justice of the European Union has held that the UK may unilaterally withdraw its notification of its intention to withdraw from the EU (C-621/18, 10 December 2018).
If, after withdrawal, the UK sought to re-join the EU, its request would be subject to the procedure referred to in Article 49 TEU.
3. The status of EU law in the UK
It is perhaps worth noting that EU law is incorporated into the law of the UK by statute. The framework statute is the European Communities Act 1972, which was enacted in the course of the UK's ratification of the 1972 Accession Treaty, according to which the UK became a member of the (then named) European Economic Community.
The European Communities Act 1972 (as amended) establishes EU law into the law of the UK by the following general provisions:
- Section 1, which defines the treaties that govern UK membership of the EU (the "EU Treaties");
- Section 2, which provides that EU law in EU Treaties and EU legislation passes into law in the UK either directly through the medium of section 2(1) or pursuant to the implementing mechanism of section 2(2); and
- Section 3, which provides that any question as to the meaning or effect of the EU Treaties or any EU legislation shall be treated as a question of law and (if not referred to the CJEU) for determination as such in accordance with the principles laid down by and any relevant decision of the CJEU; and that judicial notice shall be taken of the EU Treaties and of any decision of, or expression of opinion by, the CJEU on any such question.
Independent of statute, EU law has no status in UK law (R (Miller & Ors) v Secretary of State for Exiting the European Union  UKSC 5).
Repeal of the European Communities Act 1972 (ECA 1972), however, would leave substantial gaps in UK law, including in respect of intellectual property.
The UK's legislative solution takes the form of the European Union (Withdrawal) Act 2018 (EU(W)A 2018). Pursuant to the EU(W)A 2018, on 'exit day' (as noted above, presently 31 October 2019 subject to earlier approval of the Withdrawal Agreement) the ECA 1972 would be repealed. However, as far as possible, the legal position which exists immediately before exit day would be retained by taking a snapshot of the EU law that applies in the UK and bringing it within the UK's domestic legal framework as a new category of law - retained EU law.
With some exceptions, retained EU law would consist of: direct EU legislation; EU-derived domestic legislation (both primary and secondary); any remaining 'rights, powers liabilities, obligations, restrictions, remedies and procedures' which are presently available in domestic law through ECA 1972 (including rights under EU Treaties); and principles laid down by, and decisions of, the CJEU in relation to the above (the UK Supreme Court would not be bound by the CJEU's jurisprudence and could depart from it in circumstances in which it could depart from its own case law). For more, please see our commentary Retained EU law - A Practical Guide.
However, to the extent that the EU law that is retained - also called the acquis - establishes reciprocity of rights and obligations as between the law in the UK and the law in other EU member states, it will not be possible for the UK unilaterally to preserve this. For the UK to remain within the relevant system after exit from the EU, agreement would need to be reached between the UK and the EU to enable this, including the management of disputes concerning or under the relevant system.
This is the position, for example, with respect to the provision in EU treaties for free movement of goods and services, the EU Customs regime, the 'Recast Brussels' Regulation (no. 1215/2012 as amended on jurisdiction) and the unitary EU regimes for registered trademarks, Community designs, Community plant variety rights and geographical indications. Without specific agreement, each of these regimes would cease to cover the UK in the event of a no deal Brexit (or upon the expiry of the transition period without agreement to the contrary). In such a scenario, it is for the UK to legislate to minimise the disruption caused by the UK's exit from the EU.
4. The legislative context of intellectual property law
Intellectual property is not an isolated subset of UK law. It forms an important part of the complex mesh of interrelating legislative and common law regimes, which together provide the legal structure enabling business and commerce to thrive in the UK. This includes the following regimes, established by EU treaties and directly effective legislation:
4.1 Free movement of goods and services and exhaustion of intellectual property rights
The principle of free movement of goods and services within the European 'single market' (the countries of the 'European Economic Area' (EEA) and Switzerland) is enshrined in the governing treaties. The legislated principle is complemented by the case law of the Court of Justice of the European Union (CJEU), and in legislation in respect of particular IP rights, which provide, in general, for a type of regional exhaustion of intellectual property rights. Accordingly, although an intellectual property right may be national in scope, the placing of goods on the market in any EEA country by the owner of the relevant intellectual property or with his consent generally exhausts the proprietor's ability to enforce his intellectual property in those goods to prevent re-sale anywhere in the EEA.
If the Withdrawal Agreement becomes binding, then for the term of the transition period, the UK would remain within the present single market freedom of movement and exhaustion regimes.
However, outside the single market (following a no deal Brexit or upon the expiry of any agreed transition period and subject to agreement to the contrary), the UK would be able to define the scope of its geographical exhaustion regime.
In the event of a no deal Brexit, The Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2019 would maintain, from the UK perspective, the existing exhaustion regime. Placing goods on the market in the remaining EEA countries would continue to exhaust relevant intellectual property rights in the UK. The move is understood as intended to facilitate continuity in respect of parallel imports into the country; for example, of medicines placed on the market in the remaining single market being imported into the UK. However, from the perspective of the countries in the remaining single market, following a no deal Brexit, the UK would be outside their regional exhaustion scheme. Parallel imports from the UK into the EEA therefore may no longer be possible without the right holder's consent.
Looking beyond this immediate or temporary period, the UK Government has said that it is undertaking a research programme and considering all options for how the exhaustion regime should work. It is perhaps notable that there is some history of international exhaustion in the jurisprudence of England and Wales - before the UK's accession to the European Economic Community (the predecessor to the EU), legal tests focused on consent and, in some areas (such as passing off), the case law was very sparse. The recent decision of the US Supreme Court in Impression Products, Inc v Lexmark International, Inc 581 U.S.(2017) is noteworthy for its introduction of an exhaustion doctrine of international scope.
However, in the event that the UK left the EU but continued to participate in the (expected) Unified Patents Court (UPC) (discussed further below), regional exhaustion could be expected to continue to apply in respect of patents.
Presently, the EU's customs regime (in particular Regulation 608/2013, along with national implementing legislation) enables customs authorities in the EU Member States to detain, seize and destroy goods suspected of infringing an intellectual property right in a limited number of circumstances. The powers conferred on customs authorities by Regulation 608/2013 apply in respect of goods at their point of entry into or exit from the customs territory of the EU, not in respect of goods moving between the two EU countries. The customs authority in the UK is HM Revenue & Customs (HMRC).
Under the present system, in order to facilitate the detention, seizure and destruction of goods suspected of infringing an intellectual property right, the owner of that right may file an application for action (AfA). For customs action at the border of one EU Member State (for example the UK), a national AfA would be filed with the relevant national customs authority (for the UK, HMRC). For customs action in two or more EU Member States, an EU AfA may be filed with the relevant customs authority of one Member State.
If the Withdrawal Agreement becomes binding, then for the term of the transition period, the present regime would remain in place. Looking beyond the transition period, arrangements to facilitate cross-border trade between the EU and the UK remain a focus of disagreement between politicians within the UK, and a subject for negotiation between the EU and the UK after the ratification of the Withdrawal Agreement. The UK could potentially form a new customs union with the EU, similar to that which Turkey currently enjoys with the EU under the EU-Turkey Customs Union.
In the event of a no deal Brexit, the UK would no longer be within the EU-wide regime for making AfAs provided by Regulation 608/2013. For the UK, The Customs (Enforcement of Intellectual Property Rights (Amendment) (EU Exit) Regulations 2019 would amend the retained regulation (608/2013), so that the existing powers to detain, seize and destroy goods suspected of infringing an intellectual property right were retained by HMRC. Such powers would apply at the point of goods' entry into or exit from the United Kingdom, rather than (as is presently the case) the point of entry into or exit from the customs territory of the EU. However as exhaustion is a defence to infringement, retained Regulation 608/2013 (as amended) would not be expected to permit the detention, seizure and destruction of goods suspected of infringing an intellectual property right at their point of entry into the UK if the relevant intellectual property right had already been exhausted in the remaining EU/EEA (see section 4.1 above).
In practical terms, for holders of existing AfAs, the impact of a no deal Brexit would be:
- A new EU AfA covering the UK could no longer be made via a customs authority in an EU27 country; similarly, an EU AfA could no longer be made via HMRC.
- National AfAs made via HMRC existing on exit day would remain in place until expiry.
- EU AfAs covering the UK made via an EU27 customs authority and existing on exit day would remain in place in the relevant EU27 state(s) until expiry but would cease to be recognised by the UK after exit day. In order to maintain AfA coverage in the UK after a no deal Brexit, holders of such EU AfAs would be well advised to consider making a national AfA, via HMRC.
- EU AfAs made via HMRC and existing on exit day would remain in place in the UK until expiry, but would cease on to have effect in the EU27 state(s) after exit day. In order to maintain AfA coverage in EU27 countries after a no deal Brexit, holders of such EU AfAs would be well advised to consider making a new application, for an EU AfA, in an EU27 country.
4.3 Competition law
The UK's national laws prohibiting anti-competitive arrangements and abuses of dominance are enacted under Chapters I and II of the Competition Act 1998 ('CA 98'), and respectively modelled on Articles 101 and 102 of the Treaty on the Functioning of the EU (TFEU) (save that the prohibitions under the CA 98 apply to conduct that may affect trade within the UK).
Various EU block exemption Regulations presently provide exceptions covering, for example, vertical agreements, research and development and technology transfer.
In the event of a no deal Brexit, or upon the expiry of the transition period without agreement providing for the UK's continued involvement in the EU's antitrust regime, the present block exemptions will be preserved in the UK as retained EU law.
It should be noted that even if the UK leaves the EU's antitrust regime, UK undertakings and undertakings operating in the UK would remain subject to the application of Articles 101 and 102 TFEU where their activities are either (i) implemented in the EU or (ii) capable of having a substantial, immediate and foreseeable effect in the EU.
As between the courts of different EU member states, issues of service, jurisdiction and enforcement are governed by EU wide Regulations. Outside the EU (and following the expiry of any agreed transition period), these regimes would cease to apply to the UK, or to any remaining EU27 country in respect of an issue concerning service, jurisdiction or enforcement between its own courts and a court of the UK.
In the event of a no deal Brexit (or absent agreement following the expiry of the transitional period), issues of service, jurisdiction and enforcement as between the courts in the UK and the courts in EU and EEA countries would be governed by the common law in the UK and the applicable national law in the remaining EU27/EEA countries. The UK's well-established common law rules and procedures presently govern matters of this nature in respect of parties and courts in non-EU/EEA countries, such as the US.
The EU-wide regimes governing service, jurisdiction and enforcement apply to and between EU member states well beyond the intellectual property sphere. An agreed replacement of these regimes would be the sensible course irrespective of the shape of the UK's post-Brexit relationship with the EU, an obvious solution being for the UK to accede to the Lugano Convention of 2007 (amended as necessary). The successful resolution of this issue underpins the solutions available for a constructive relationship between the UK and the EU following Brexit in many areas of the law, including in respect of the Unified Patent Court (see section 5 below).
5. The impact of Brexit for patents
5.1 The current system
At present, and in basic terms, there are two systems pursuant to which a patent may be granted covering the UK: the national system, in which an application is made to the UK Intellectual Property Office (UK IPO); and the European system, pursuant to which an application is made to the European Patent Office (EPO). Either system may be preceded by, or may provide the receiving office for, an application under the international system.
Both systems are largely outside the remit of EU law, although there are some exceptions, most notably, the Biotechnology Directive (no. 98/44) and the IP Enforcement Directive (no. 2004/48). In respect of each directive, necessary implementation into national law has already taken place and upon Brexit, would form retained EU law.
Aside from the EPO's remit to hear post-grant oppositions filed within the first nine months of grant and centralised applications by the proprietor for amendment or revocation, questions of infringement and validity of each national designation are, in basic terms, at present a matter for the courts of each relevant country. For patents covering the UK (both national patents and UK designations of European patents), such issues are therefore a matter for the courts of the UK.
Consequently, the impact of Brexit for the existing patent systems will be minimal, whether the Withdrawal Agreement becomes binding or there is a no deal Brexit. Necessary tweaks to national legislation to prepare for Brexit in respect of patents have been enacted in the form of The Patents (Amendment) (EU Exit) Regulations 2019. Notably, there would be no immediate change to the current system of requiring an applicant for a UK patent to supply an address for service which is in the UK, another EEA state or the Channel Islands. The reciprocal position, for EU27 countries, would be a matter for the relevant national legislatures.
Uncertainty remains, however, regarding the UK's involvement in the new Unified Patent Court and Unitary patent systems following Brexit, as discussed in section 5.2 below.
5.2 The UPC and UP system
In 2013, the vast majority of EU member states signed the Agreement on a Unified Patent Court (UPC Agreement). The UPC Agreement establishes a new court, the 'Unified Patent Court' (UPC), for the settlement of disputes relating to i) "European patents" and ii) "European patents with unitary effect".
"European patents" are those granted by the EPO pursuant to the European system referred to above. Granted European patents are essentially a bundle of national designations. Pursuant to the UPC Agreement, all disputes regarding such patents would become a matter for the UPC instead of national courts, unless the proprietor of the relevant patent has, during the transitional period, "opted out" the patent from the exclusive competence of the UPC. A judgment of the UPC would apply across the participating countries.
"European patents with unitary effect" would be, essentially, a new designation of European patent made available by the UPC Agreement and supporting EU legislation. Commonly referred to as 'Unitary Patents' (UPs), they would be available for an applicant to request within one month of grant of a European patent. Where a UP designation was requested, it would be granted for all states which had, at the time of grant of the patent, signed and ratified the UPC Agreement (and joined the UP part of the system).
The system for grant of, and dispute resolution in respect of, national patents would not be impacted by the new system.
Since serving its notice of intention to leave the EU, the UK Parliament has ratified the UPC Agreement. Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Lithuania, Luxembourg, Latvia, Malta, Netherlands, Portugal and Sweden have also ratified it. Accordingly, pursuant to the terms of the UPC Agreement, it will enter into force three months after Germany completes its own ratification: the entry into force would be in all the countries which had completed ratification. German ratification has been delayed, however, by a challenge filed in the Federal Constitutional Court of Germany, which could resolve in Q2/3 of 2019. Germany could, therefore, complete its ratification before the UK exits the EU or, if the Withdrawal Agreement becomes binding, within the term of the transition period.
In this context, Brexit presents uncertainty, both for the UK's ongoing participation in the new system and for the legality of the new system as a whole, if the UK remains a participant:
(i) The legality of the UPC system with post-Brexit UK included
There is uncertainty regarding the compliance of the UPC Agreement (and therefore the UPC) with EU constitutional law if the UK remains within the system following Brexit. The most notable issue in this respect concerns Article 267 of the TFEU. Article 267 establishes the jurisdiction of the CJEU to receive references from "any court or tribunal of a Member State"; this is consistent with the provisions of Article 71a of the Recast Brussels Regulation (as amended) which says that: "a court common to several Member States … shall be deemed to be a court of a Member State". Following Brexit, unless agreement to the contrary is reached, UK and EU law would no longer enable references to be made by a UK court to the CJEU. Accordingly, there is uncertainty as to whether the UPC (including the UK) would still be a court or tribunal of a Member State, and therefore whether the UPC (including the UK) would be compliant with EU constitutional law.
It is perhaps noteworthy that this was the principal issue identified by English barristers Richard Gordon QC and Tom Pascoe in their opinion, issued in September 2016, considering whether the UK could remain involved in the UPC and UP system following Brexit.
It would seem that agreement is needed between the UK and the EU in order to clarify the legal position, and that complementary adjustments would need to be made to framework agreements.
For similar reasons, arrangements may also be appropriate to safeguard the continuing operation in the law of the UK, to the extent necessary for compliance with the UPC Agreement, of a number of EU Treaty obligations, in particular, Article 4(3) TEU, Articles 258, 259 and 260 TFEU, The Charter of Fundamental Rights, and, potentially, TFEU Articles 101 and 102.
(ii) The legality of the UK remaining within the UPC following Brexit
The jurisdiction and operation of the UPC is dependent upon the existence in the national law of the Contracting Member States (to the UPC Agreement) of the Recast Brussels Regulation 1215/2012 (as amended by Regulation 542/2014). Despite reference to the Lugano Convention of 2007 in the UPC Agreement, accession by the UK to Lugano would not be sufficient to compensate for the Recast Brussels Regulation ceasing to apply. At the very least, the Lugano Convention would need amendment, as Regulation 1215/2012 was amended by Regulation 542/14, to give effect to the UPC Agreement; the UPC Agreement would also need complementary amendment.
Similarly, EU Regulations 593/2008 & 864/2007, on contractual and non-contractual liability respectively, form part of the EU legal framework in which the UPC Agreement sits.
For the UK to remain within the Unitary Patent system, Regulations 1257/2012 (on the creation of the unitary patent) and 1260/2012 (on the language regime regarding the unitary patent) would also need to continue to apply.
All of this legislation is reciprocal in nature; following the UK's exit from the EU, it would not remain in force as between the UK and the other member states of the EU, or as between the UK and the other Contracting Member States of the UPC Agreement, unless agreement was reached with those other states.
Additionally, to the extent necessary for continuing compliance with the terms of the UPC Agreement, the UK would need potentially to ensure the continuing operation in UK law of SPC Regulations 469/2009 and 1610/96, (which interact also with Regulations 1901/2006,141/2000 and 726/2004 and Directives 2001/83 and 2001/82), the limitations on the effects of a patent contained in Regulation 2100/94 and Directives 2001/83, 2001/82, 2009/24, 98/44), and the IP Enforcement Directive 2004/48.
Further, the UPC Agreement would need adjustment, in particular: to change the definition of "Member State" and/or "Contracting Member State" so that it no longer required a contracting party to the UPC Agreement to be a member state of the European Union; and to ensure that lawyers authorised to practice before a UK court remained authorised to represent parties in the UPC.
(iii) Providing certainty regarding the UPC and UPC system
In practice, if Germany completes ratification of the UPC Agreement in order to get the new system up and running before Brexit, or during a transitional period following Brexit, its commencement would entail a considerable degree of uncertainty regarding the impact of Brexit.
Without the resolution of the legal difficulties noted above, challenge to the jurisdiction of the new court and/or the enforceability of a judgment could be expected, resulting in a reference to the CJEU and a ruling in respect of the legality, as a matter of EU law, of the court and/or the UK's involvement within it. There would seem to be a risk of the CJEU ruling that with the UK within the UPC system, the court, as presently constituted, was not compliant with EU law.
That said, the risks would be reduced considerably if the potential legal issues were addressed and appropriate steps taken to resolve them. These may include, to the extent necessary for the UPC Agreement, the following: agreement between the UK and the EU to resolve the Article 267 question; agreement between the UK and the EU (and potentially the EEA) to resolve the Recast Brussels Regulation issue and/or for the UK to accede to the Lugano Convention 2007 (amended to accommodate the UPC Agreement); agreement between the UK and the EU with respect to the other legislation of a reciprocal nature noted above, and potentially all EU legislation relevant to any dispute before the UPC; and agreement with the other Contracting Member States of the UPC Agreement to adapt the UPC Agreement accordingly (including with respect to the definition of Contracting Member State).
The UK Government, however, has given no indication of how it plans to address the issues identified in sub-sections (i) to (iii) above, in view of its stated intent to repeal the ECA 1972. This state of affairs gives rise to considerable uncertainty for all stakeholders.
6. The impact of Brexit for SPCs
A supplementary protection certificate (SPC) is a form of intellectual property that extends patent term in respect of pharmaceutical or plant protection products in qualifying circumstances. The maximum duration of an SPC is five years, which is intended to compensate, to some degree, for the period elapsing between the filing of an application for a patent for a new medicinal or plant protection product and the grant of authorisation to place the medicinal product or plant protection product on the market.
For EU member states, including the UK, SPCs are granted at the national level by the relevant patent office (for the UK, the UK IPO) pursuant to the relevant EU Regulation(s) and national implementing legislation. Accordingly, as a national right, the impact of Brexit for existing SPCs would be minimal, although references to the CJEU in the course of litigation would no longer be possible - the UK Supreme Court would be the final court of appeal on the interpretation of retained EU law.
If the Withdrawal Agreement becomes binding, the present system would continue to apply for the transitional period and in respect of the grant of any application for an SPC pending at the end of the transitional period.
The UK's tweaks to national legislation to prepare for Brexit (no deal; or following the expiry of the transition period without agreement to the contrary) have been enacted in the form of The Patents (Amendment) (EU Exit) Regulations 2019. The term of SPC protection would continue to be calculated by reference to the date of the first authorisation to place the product on the market in the area comprising the EEA and the UK.
7. The impact of Brexit for trademarks
If you would like only high-level commentary on the impact of Brexit for trademarks, our article 'Brexit: the effect on European trademark rights' covers the key points. For more detailed commentary, please continue in this section.
The tort of passing off may protect goodwill attached to goods or services in the UK, in the event of misrepresentation leading or likely to lead the public to believe that the goods or services offered are the goods or services of the claimant, or there is some other authorised link, and the claimant suffers damage as a result. The law of passing off is outside the remit of EU law. It is a cause of action, operating as a sort of unregistered right, which is confined to UK activity, and so will not be impacted by Brexit.
At present, there are two systems pursuant to which a registered trademark may be granted covering the UK: the UK national system, under which an application is made to the UK IPO; and the EU system, under which an application is made to the EU Intellectual Property Office (EUIPO). Either type of registration may alternatively be sought by designating the UK or the EU in an international registration under the Madrid system.
7.1 The national registered system
The UK national registered trademark system is governed by the Trade Marks Act 1994 (as amended) - which is framed so as to comply with harmonising EU-wide legislation. Being governed by UK legislation, the present system of registration and enforcement would remain intact upon Brexit. The UK's tweaks to the legislation governing the national trade mark system to prepare for Brexit (no deal; or following the expiry of the transition period) are contained in The Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 (Schedule 3). The most notable change is that an EU trade mark would no longer count as an 'earlier trade mark' for the purposes of relative grounds for refusal of registration or invalidity. (EU trademarks existing at the date of Brexit would, however, count as UK trademarks for these purposes in accordance with the discussion in section 7.2 below). There would be no immediate change to the current address for service rules, which permit addresses in the UK, the EEA or the Channel Islands.
In the medium term, if the UK is outside the EU, there is potential for some legislative divergence between the UK trademark system and the EU system, although in the context of the widespread international alignment of trademark systems this is expected to be minimal. Although much CJEU jurisprudence is also likely to remain persuasive, trademark law is an area in which the courts in the UK have at times struggled to reconcile the guidance of the CJEU with the terms of the relevant legislation, as exemplified by the judgments of Arnold J in Nestlé v Cadbury  EWHC 50 (Ch), Supreme Petfoods v Henry Bell & Co  EWHC 256 (Ch) and Sky v Skykick  EWHC 155 (Ch). There is, therefore, scope for the UK national system to steer a different course on some issues, once it is no longer subject to EU harmonising legislation and the CJEU.
7.2 The EU registered system
The EU trade mark (EUTM) system is governed by EU Regulation 2017/2001 and predecessor legislation. An EUTM is a unitary right covering the EU. It may be enforced or challenged for the whole of the EU in a single court action.
If the Withdrawal Agreement becomes binding, then for the term of the transition period following Brexit (i.e. until the end of 2020), the UK would remain within the EUTM system.
If a no deal Brexit occurs, then on 'exit day', the UK would cease its participation in the EUTM system. The EU would no longer consider EUTMs to cover the UK or the UK to be within the EUTM system. Right owners would need to be aware of this and to ensure, for example, that EU rules about representation continued to be met. In the EUIPO, natural or legal persons that are domiciled or have a seat only in the UK will continue to be able to file an application for registration of an EUTM. Where representation is necessary, applicants and owners of EUTMs must comply with Article 120(1) of Regulation 2017/1001.
However, for the UK, The Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 (Schedule 1) would mitigate the effects of the UK leaving the EUTM system. Essentially, on exit day, the UK would extract from each (EU-wide) EUTM a UK right of the same scope (a 'comparable trade mark (EU)'), which could be enforced in the UK courts as a national right. The extraction would be automatic and without any fee (although right owners could opt out provided certain conditions were met).
A comparable trade mark (EU) would maintain the priority and seniority of the existing EUTM. It would not be liable to revocation on the ground that the corresponding EUTM had not been put into genuine use in the UK before the end of the transition period. Where the existing EUTM had a 'reputation' in the EU at the date of the extraction of the comparable trade mark (EU), the proprietor would be entitled to rely upon it in the UK, but thereafter the reputation of the comparable trade mark (EU) would be based on use in the UK. Licences existing on exit day authorising acts in the UK which would otherwise infringe an existing EUTM would, subject to agreement to the contrary, continue after exit day to authorise such acts in respect of the comparable trade mark (EU). Proceedings in the UK courts pending on exit day concerning the validity or infringement of an existing EUTM would become proceedings concerned with the daughter comparable trade mark (EU).
The owner of an application for an EUTM pending on exit day would have nine months in which to file a UK application for the same trademark, in respect of identical goods and services, maintaining the benefit of the same filing, priority and seniority date.
Similar provision is made for international trademarks which are protected in the EU on exit day (The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019): a UK right of the same scope would be extracted.
7.3 What brand owners can do now
Brand owners can file UK national trademarks now, in parallel with EUTM protection. This would seem likely to provide duplicate protection in due course (if a deal is done for the UK to remain within the EUTM system or pursuant to the extraction of a comparable trade mark (EU)). However, having a newer UK registration may be useful in any case because there are no proof of use requirements in the first five years of a UK registration.
Brexit poses questions for European trademark law also. For example, an EUTM may be revoked if it has not been put to genuine use in the EU within five years of registration. An EUTM for which use is mostly concentrated in the UK may be at additional risk of revocation following Brexit by the General Court or a court in an EU27 country following Brexit. Brand owners may, therefore, be well advised to consider their options for preserving their interests in this respect.
8. The impact of Brexit for designs
If you would like only high-level commentary on the impact of Brexit for designs, our article 'Brexit: the effect on UK and European design rights' covers the key points. For more detailed commentary, please continue in this section.
There are four systems pursuant to which a design may be protected in the UK, the national registered and unregistered systems; and the EU registered and unregistered systems.
8.1 National designs systems
Under the UK national registered system, an application for a registered design covering the UK may be made to the UK IPO. A registered design has a term of 25 years from filing, provided renewal fees are paid. It protects the appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation. Registration, and any subsequent questions of infringement and validity, are governed by the UK Registered Designs Act 1949 and associated legislation. Although the UK national registered designs system has factored in various EU harmonising changes over the years, the present system of registration and enforcement will remain intact upon Brexit. As with patents, there will be no immediate change to the current address for service rules, which permit addresses in the UK, EEA or the Channel Islands.
Pursuant to the Copyright Designs and Patents Act 1988 (CDPA), an unregistered design right (UDR) covering the UK arises automatically in qualifying circumstances. It protects the shape or configuration of the whole or part of an article and lasts for (the shorter of) ten years from first sale or 15 years from first creation (dates calculated from the end of the relevant calendar year). In either case, the final five years of protection are subject to licence of right requirements. The present system of subsistence and enforcement will remain intact upon Brexit, with a couple of notable tweaks on qualification criteria: neither habitual residence in an EU27 country nor first marketing in an EU27 country would enable the subsistence criteria to be met (The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019, Schedule 8).
For completeness, it should be noted that in some circumstances a protection for a design may arise under copyright law. The impact of Brexit for the law relating to copyright is discussed in section 9 below.
8.2 EU designs system
EU Regulation 6/2002 and Implementing Regulation 2245/2002 together establish unitary EU-wide regimes for registered and unregistered design protection; the rights arising may be enforced or challenged for the whole of the EU in a single court action (depending on where the defendant is based). Like the UK registered design system, the Community regimes protect the appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation. A Community registered design has a term of 25 years, provided renewal fees are paid, whereas the unregistered Community design right lasts for three years from the point the design is first disclosed or made available to the public within the Community in some manner.
If the Withdrawal Agreement becomes binding, then for the term of the transition period following Brexit (i.e. until the end of 2020), the UK would remain within the EU designs system.
If a no deal Brexit occurs (or upon the expiry of the transition period without agreement to the contrary) the UK would cease its participation in the EU designs system. The EU would no longer consider Community designs (registered or unregistered) to cover the UK or the UK to be within the EU designs system. Right owners would need to be aware of this and to ensure, for example, that EU rules about representation continued to be met. Where representation is necessary, applicants and owners of EU design registrations would need to comply with Article 78(1) of Regulation 6/2002.
However, in the UK, The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 would mitigate the effects of the UK leaving the EU designs system. The way this would work would differ slightly as between the registered and unregistered rights.
Registered Community designs: the UK would extract from each registered Community design existing immediately before exit day a UK right of the same scope (a 're-registered design'), which would then be treated as if it had been made and registered under the UK national registration system. Such re-registered designs would therefore be enforceable in the UK courts as a national right. The extraction would be automatic and without any fee (although right owners could opt out provided certain conditions were met). A re-registered design would maintain the application and registration dates of, and the same claim of priority as, its parent 'existing registered Community design'. Licences existing on exit day authorising acts in the UK which would otherwise infringe an existing registered Community design would, subject to agreement to the contrary, continue after exit day to authorise such acts in respect of the daughter re-registered design right. Proceedings in the UK courts pending on exit day concerning the validity or infringement of an existing registered Community design would become proceedings concerned with the daughter re-registered design.
Owners of an application for a registered Community design pending on exit day would have nine months in which to file an application for a UK national registration, in respect the same design, maintaining the benefit of the same filing and priority dates.
Similar provision is made for international designs in respect of which the EU is designated. Upon exit, a UK right of the same scope would be extracted.
Community unregistered designs: Existing unregistered Community designs would, following no deal Brexit (or at the expiry of the transition period without agreement to the contrary), continue to be recognised and enforceable in the UK as a 'continuing unregistered Community design'. Proceedings in the UK courts pending on exit day concerning an existing unregistered Community design would become proceedings concerned with the daughter continuing unregistered Community design.
Further, a new form of unregistered design right, called 'supplementary unregistered design', would arise for qualifying designs after that time. The supplementary unregistered design would mirror the scope of Community unregistered design right. The reason for this is that UDR and Community unregistered design right protect different aspects of a design (the UK right covers only shape and configuration, whereas the Community right covers surface decoration, materials, textures, colours and so on). They also have different durations (UK is 10-15 years, Community is three). So, whereas some see the EU right as narrower than that of UDR, as differences of surface decoration could be sufficient to avoid infringement under the EU regime, nevertheless the EU regime enables protection for surface decoration whereas UDR does not. The creation of supplementary unregistered design right prevents a gap arising in the scope of unregistered design protection available in the UK upon Brexit.
8.3 What designers can do now
Since the geographical scope of the EU unregistered right is broader than that of the UK right, Brexit raises challenges for UK-based designers. Should they ensure their designs are first made available to the public in the EU rather than the UK? Or should they go to the expense of registering a Community right? Businesses that rely on unregistered design rights should consider this as a matter of priority, and given the relatively low cost of registration compared to patents, it is worth considering registration carefully. It is important to bear in mind that designs cannot be registered more than one year after they were first disclosed, so if a business normally relies on Community unregistered design right, which may fall away at the end of October 2019, now is the time to register those designs.
In the meantime, when seeking to register a new design, designers can apply for a UK registered design in parallel with any application for a registered Community design. Brexit will not impact the UK registered design regime. A new UK design registration would not be valid if it is for a design disclosed more than 12 months previously; however, where the Community design registration is less than one year old, a UK application can be filed taking priority from the Community registration. In view of the legislative arrangements made in the UK, such parallel filing would be likely to result in duplicate protection.
Designers that currently rely on Community unregistered design right to protect surface decoration can file an application for a UK registered design for any designs disclosed in the past year, and by this mechanism secure ongoing protection in the UK for the same aspects of a design as are protected under the Community unregistered design right.
9. The impact of Brexit for copyright and neighbouring rights
Copyright and related rights are governed in the UK by the CDPA, national legislation, which has been framed so as to give effect to the terms of international treaties, for example the Berne Convention of 1886. For the more traditional forms of copyright protection, provided a work qualifies by its author's nationality or domicile or by the place of first publication, protection arises automatically upon recordal in writing or some other form, and may subsist in original works in any of the protected categories: literary, dramatic, musical and artistic works, sound recordings, films, broadcasts and typographical arrangements of published editions.
At present, in basic terms, there is no unitary copyright protection in the EU. However, the EU has legislated, in multiple different Directives and Regulations so as to harmonise aspects of the law relating to copyright. National legislation has been updated accordingly and the UK courts' interpretation of aspects of national legislation has similarly evolved to reflect CJEU rulings in respect of European legislation. This will remain in UK law following Brexit as retained EU law.
However, in preparation for Brexit, changes have been enacted in the form of The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019. These changes remove from the governing national legislation many of the references to the EU or EEA which would otherwise confer preferential treatment for the EU or EEA after Brexit and which, without agreement to the contrary between the UK and the EU27, would not be reciprocated. However, in practice this will make no difference to the operation of the existing regime in respect of the more traditional forms of copyright protection. This is because international treaties (for example the Berne Convention and the TRIPS Agreement) require all treaty countries to protect works originating in any other treaty country to a minimum standard. The UK has ratified the relevant treaties independently of its relationship with the EU; and the EEA countries are participants in the international regimes also.
Turning to the rights 'neighbouring' copyright, this is an area in which the EU has legislated for some reciprocal cross-border mechanisms. If the Withdrawal Agreement becomes binding, the UK's participation in these mechanisms would be maintained for the transition period. However, upon a no deal Brexit (or expiry of the transition period without agreement to the contrary), the UK would cease to participate in these regimes, and in such event The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019 would tweak the relevant UK national legislation to mitigate in part the impact of the UK's exit. For example:
- The UK would no longer be within the EU-wide regime provided by the Portability Regulation 2017/1128. This regulation allows consumers across the EU to access their online content services (such as video-on-demand streaming services) which they have subscribed to at home wherever they are in the EU: upon exit, the Portability Regulation would be repealed, in the UK, from the body of retained EU law. Online content service providers would not be obliged, or able, under UK legislation to offer cross-border portability for customers temporarily travelling to or from the UK.
- The UK would no longer be within the EU-wide regime provided by Database Directive 96/9 for sui generis protection where there has been a substantial investment in obtaining, verifying or presenting the contents of a database. Sui generis database rights that exist in the UK prior to exit (whether held by UK or EEA persons or businesses) would continue to exist in the UK after exit. From exit, a UK-wide right of equivalent scope would arise where qualification criteria restricted to UK citizens, residents, and businesses, were met. However, the existing UK regime for copyright protection arising in respect of databases would remain intact.
- Similarly, the UK would be outside the EU-wide regimes provided by the Satellite and Cable Directive 93/83 (which enables satellite broadcasters to transmit copyright works from one EEA country to another having only cleared copyright in the country of origin), the Collective Rights Management (CRM) Directive 2014/26 (which requires collective management organisations to represent on request rightholders of any EEA member state), and the Orphan Works Directive 2012/28 (which provides an exception to copyright infringement that allows cultural heritage institutions established in the EEA to digitise and make orphan works available online across all EEA member states without the permission of the right holder).
Finally in this section, it is noted that the Marrakesh Treaty is an international agreement to improve the access of visually impaired people to copyright works around the world by allowing the making, distribution, and transfer between Treaty countries of accessible format copies of copyright works (e.g. braille copies of books). The UK's ratification of the Marrakesh Treaty is presently achieved through its membership of the EU. The UK Government has indicated intent to ratify the Marrakesh Treaty independently of the EU as soon as possible. Upon Brexit, implementing amendments to national legislation will be retained in the UK. However, if the UK's independent ratification is not complete by exit day, then until the UK has completed its ratification, businesses, organisations or individuals transferring accessible format copies between the EU and UK may not be able to rely on the EU Regulation.
In the medium term, without a broad negotiated arrangement applying in respect of copyright and neighbouring rights, Brexit is likely to lead to divergence in the legislative regime governing the law in the UK as compared with that in the remaining EU27. This is because the EU is progressing the development of its regulation of copyright law. Without the UK to negotiate with, EU regulation is likely to more rigorously harmonise certain concepts and areas considered important in some continental European legal systems, for example in respect of moral rights and author-publisher contracts.
10. The impact of Brexit for quality schemes for agricultural and food products
EU Regulations 1151/2012 and 1308/2013 on quality schemes for regulation of agricultural and food products govern unitary regimes for the application for and award of protected 'designations of origin', 'geographical indications' and 'traditional specialities guaranteed' (collectively referred to as "GIs"). Under the GI system, a named food or drink registered at the European level is given legal protection against imitation throughout the EU.
If the Withdrawal Agreement becomes binding, then for the term of the transition period the UK will remain within the EU-wide GI schemes. Upon the expiry of the transition period, persons entitled to use such terms under the EU scheme would be entitled to continue using such terms in the UK.
In the event of a no deal Brexit, a national scheme would be established by The Food and Drink, Veterinary Medicines and Residues (Amendment etc.) (EU Exit) Regulations 2019, taking effect on exit day and mirroring the EU schemes. All existing UK products registered under the EU GI schemes would automatically be given the relevant UK status and would remain protected in the UK. It is presently unclear whether producers of existing EU GIs from EU27 countries would need to apply to the relevant UK scheme to secure UK GI status.
11. The impact of Brexit for enforcement
At present, there are two systems pursuant to which a plant variety right may be granted covering the UK, for a new, distinct, uniform and stable plant variety: the UK national system, under which an application is made to the UK Plant Variety Rights Office; and the EU system (governed by EU Regulation 2100/94), under which an application is made to the Community Plant Variety Rights Office.
The UK national system is governed by the Plant Varieties Act 1997. It will not be impacted by Brexit.
If the Withdrawal Agreement becomes binding, then for the term of the transition period, the UK will remain within the Community plant variety right regime. At the end of the transition period, the owner of a Community plant variety right would, pursuant to UK law, become the owner of an equivalent national right covering the UK without any re-examination.
In a no deal Brexit (and upon the expiry of the transition period without agreement to the contrary) then on exit day the UK would cease its participation in the Community Plant Variety Rights regime. The EU would no longer consider Community plant variety rights to cover the UK or the UK to be within the EU system. Right owners would need to be aware of this and to ensure, for example, that EU rules about representation continued to be met.
However, for the UK, The Plant Breeders Rights (Amendment etc.) EU Exit) Regulations 2019 would mitigate the effects of the UK leaving the EU system. Essentially, on exit day, the UK would treat each existing (EU-wide) Community plant variety right as if it were registered as a UK right for the remainder of its term. It would be possible for the holder to cancel, in the UK, the existing EU right and to re-activate a previously suspended UK right in relation to the same plant variety.
Owners of an application for a Community plant variety right which remained unresolved on exit day would have six months in which to make an application to the UK Plant Variety Rights Office in respect of the same variety maintaining the same application and priority dates as the EU application.
12. The impact of Brexit for confidential information and trade secrets
The English law against misuse of confidential information has evolved in the tradition of the common law. This, rather than legislation, has long been considered to be compliant with the country's obligations under the TRIPS Agreement with respect to "undisclosed information". The tort of breach of confidence protects information which has the "necessary quality of confidence", is communicated in circumstances importing an obligation of confidence, and is used (or threatened to be used) in an unauthorised way to the detriment of the owner (Coco v A. N. Clark  RPC 41, Attorney-General v Guardian Newspapers (No 2)  1 AC 109).
On 9 June 2018, the UK Trade Secrets (Enforcement etc.) Regulations 2018 came into force, to give effect to the EU Trade Secrets Directive, which broadly seeks to harmonise the law in this area in the EU. The Directive requires EU member states to provide protection for trade secrets, which are defined (broadly) as information which (a) is secret, in the sense that it is not generally known or accessible in the circles that normally deal with the kind of information in question, (b) has commercial value because it is secret, and (c) has been subject to reasonable steps to keep it secret. In practice, the new legislation is not expected to lead to a significant change to the legal protection available for trade secrets in the UK.
If the Withdrawal Agreement becomes binding, then for the term of the transition period, developments in European jurisprudence in respect of the Trade Secrets Directive will develop the jurisprudence in the UK in this area. This is not expected to result in a significant change to the headline level of legal protection for trade secrets in the UK.
In a no deal Brexit (or upon the expiry of the transition period without agreement to the contrary), the EU(W)A 2018 would preserve the acquis in respect of trade secrets at the exit date: in which event notable new European jurisprudence would be unlikely to emerge.
In the medium term, the EU's legislation in respect of trade secrets is likely to reduce the difference in available substantive protection for trade secrets which has been observed between the UK and some EU27 countries until recently. However, the difference between the (relatively high) level of procedural protection available in the UK for trade secrets that are peripheral to the subject matter of a dispute, and that available in some EU27 countries, is likely to remain, as this is outside the scope of the Trade Secrets Directive.
13. The impact of Brexit for enforcement
Across intellectual property law, the Intellectual Property Enforcement Directive 2004/48 (IPED) sets minimum standards for remedies in respect of the enforcement of intellectual property rights. The UK's national legislation was amended to implement the IPED to the extent considered necessary at the time, and the principles expounded by the IPED, for example of proportionality in the award of any injunctive relief, have become progressively more important in the analysis of applications for relief from the UK courts in intellectual property disputes.
Brexit is considered unlikely to impact this. In the event of a no deal Brexit, the IPED would form retained EU law and would continue to be drawn upon by the UK courts when considering the award of relief to restrain intellectual property infringement.
14. The impact of Brexit for new EU legislation entering into force before the UK exits the EU
As the European Council stated in its guidelines for Brexit negotiations, until the UK leaves the Union, it remains a full member, subject to all rights and obligations set out in the EU Treaties and under EU law, including the principle of sincere co-operation. In accordance with this, the UK is expected to progress the implementation into national law of EU legislation requiring national legislative provision before Brexit.
In the sphere of intellectual property law, this applies, for example, in respect of the Digital Single Market Directive 2019/790, which inter alia introduces provisions requiring large search engines that feature extracts of copyright protected content to pay for them, and requiring online platforms to filter or remove copyright protected material from their websites or be liable for infringement. It is unclear whether the UK will exit the EU before the deadline for implementation by Member States expires.
The UK's legislative preparations for the management of a no deal Brexit in respect of intellectual property are largely complete. From the UK's perspective, the legal position upon a no deal Brexit is very largely clear.
The UK's 'EU exit' regulations also provide a default position for the end of the transition period, should the Withdrawal Agreement become binding. However, if the Withdrawal Agreement becomes binding, the UK and the EU27 would move to negotiating forward-looking trade arrangements, including in respect of customs arrangements and exhaustion. The position provided by the UK's EU exit regulations, for the end of the transition period (end of 2020) could therefore be expected to develop to reflect stages of agreement reached in such negotiations.
There remains considerable uncertainty regarding the UK's continued involvement in the new UPC and Unitary patent systems following Brexit, although the UK Government has indicated its support for the UK remaining within the new system.
In the meantime, over the course of the last six months, the Brexit legal landscape for intellectual property has evolved considerably; a great deal of work has been done to minimise the impact of a no deal Brexit. Ratification of the Withdrawal Agreement also remains possible.
The intellectual property legal landscape will continue to evolve, whichever Brexit course is steered, so please do return for an update before too long!
 See Joined Cases 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85 Ahlström Osakeyhtiö and Others v Commission ECLI:EU:C:1993:120.
 See, Case T-286/09 Intel Corporation v Commission ECLI:EU:T:2014:547, paragraph 244.
 Reckitt & Colman Products v. Borden  UKHL 12; Starbucks v. British Sky Broadcasting  UKSC 31
 Satellite and Cable Directive 93/83, Database Directive 96/9, InfoSoc Directive 2001/29, Directive 2001/84 on resale right, Intellectual Property Enforcement Directive 2004/48, Directive 2006/115 on rental and lending rights, Software Directive 2009/24, Term Directive 2011/77, Orphan Works Directive 2012/28, CRM Directive 2014/26, Directive implementing the Marrakech Treaty in the EU 2017/1564, Regulation implementing the Marrakech Treaty in the EU 2017/1563, Portability Regulation 2017/1128, and a new Directive on copyright in the digital single market. In addition the E-commerce Directive 2000/31 and the Conditional Access Directive 98/84 impact copyright law to an extent.