When Brexit happens, what will happen to existing UK IP laws? And what should the UK government’s proposals be in the field of IP law, in the forthcoming Brexit negotiations?
As with so many Brexit questions, the UK government needs to start deciding on its policy and strategy for Brexit, before the IP profession can sensibly suggest IP-specific proposals. One of these policy decisions is what is to happen to existing UK laws that are influenced by EU laws, immediately following the UK’s formal leaving of the EU. Many current IP laws in the UK consist of, or are affected by EU laws; very little is unique to the UK.
IP Draughts assumes that the UK government will have to pass UK legislation to take effect immediately following our formal leaving of the EU, and that there will be insufficient time before Brexit, to draw up individual measures covering every area that is currently influenced by EU laws. In other words there will need to be some kind of sweeping, interim master-law that defines the new legal regime, probably in combination with numerous exceptions and qualifications that are considered sufficiently urgent to be dealt with at the time of Brexit. Once this new legal regime in place, Parliament can take its time to develop new laws and revise existing laws across the policy areas that may be thought suitable for a distinctive UK approach.
If that is right, then it would be helpful to clarify how the new master-law will work. For instance (and some of the following questions overlap):
- Should we assume that all existing, national UK laws that are derived from EU laws (e.g. are designed to implement an EU directive) will remain in place immediately following the UK’s formal withdrawal from the EU? For example, the Data Protection Act 1998 currently falls into this category, as it is a UK law that implements an EU directive. However, this may not be a good example, as the Act may be repealed and replaced before Brexit by the new General Data Protection Regulation (GDPR), which is due to come into effect automatically throughout the EU (ie without the need for national legislation) in 2018.
- Should we assume that all EU laws that currently have direct effect in the UK will automatically cease to have effect on Brexit, or will the UK government introduce some kind of holding measure to continue them all in force as purely national UK laws, unless otherwise stated? If the GDPR is introduced before Brexit, it will fall into this category.
- In the area of laws affecting international trade (a category that may be thought to include IP laws), should we assume that, as a default position, immediately following Brexit UK laws will be aligned as closely as possible with current EU laws, with individual exceptions where it is felt to be in UK interests to have them? Or will the opposite policy position be taken? Or will every law be looked at on a case-by-case basis before Brexit?
- Should we assume that there will be a strong presumption against allowing any EU jurisdiction (eg by the CJEU) to continue in the UK in any field post-Brexit? Or will a more sophisticated and nuanced position be taken, eg distinguishing between EU controls over areas of major political interest, such as immigration, and areas of international trade that don’t affect core political concerns? This may seem like a theoretical question, but consider the case of UK participation in the Unified Patent Convention. If it is possible for the UK to participate post-Brexit, but it is a condition of continued UK participation that the CJEU has ultimate supervisory authority (as CJEU Opinion 1/09 suggests – see this recent opinion by Richard Gordon QC), will the UK government be unable to stomach this ‘loss of sovereignty’ or will it be treated like any other area where, in the interests of UK trade, the UK agrees to supranational authority over UK activities (as may be the case with certain international trade treaties that give authority to the World Trade Organisation). Will the UK government be brave enough to recognise the valuable benefits to the UK of this (minor) loss of sovereignty, even it risks giving the Daily Mail ammunition to write hostile articles? IP Draughts has considerable doubts on this issue, given the recent rhetoric of senior government ministers such as the Secretary of State for International Trade.
In IP Draughts’ view, it is in the UK’s interests for future UK IP laws, and other laws affecting high-tech business activities (eg the regulation of pharmaceuticals, data protection laws, recognition of judgments) to be aligned as closely as possible with those in the rest of the EU. Ideally, there should be ongoing, formal cooperation between the UK and the EU in these areas, so as to ensure such continuing alignment.
But it has yet to be seen what the UK government’s approach to trade laws, including IP, will be following Brexit. A great deal of work is being done by IP practitioners, through various technical committees, to consider the detail of what should happen to IP laws. But until we get a steer from government on their overall approach, and how they plan to deal with IP and trade laws, it is difficult to devise a strategy for negotiating the best outcome with the various actors (including governments, as well as industry and IP professionals, across the EU). This is not purely a matter for governments to negotiate. IP professionals will want to discuss these matters with their opposite numbers in other EU countries. as well as representatives of industry, and hopefully get their support, and their advocacy to their national governments, on areas of common interest. In an area as technical as IP laws, IP Draughts hopes that UK and EU governments will seek advice from specialists in the field.