The nature of the UK’s future relationship with the European Union is still unclear, and there are chances of a “no-deal” departure. The Professional Publishers Association’s (PPA) member survey from earlier this year found that just 23% of respondents had made any investment in Brexit planning (deal or no-deal). Further, 58% were awaiting political decisions before deciding how, or whether, to act.
The PPA has released a guidebook presenting key information on how a no-deal exit could impact various areas including Intellectual Property, data, HR, company law and immigration. It also suggests measures that publishers can take to prepare their businesses for the scenario.
Owen Meredith, Managing Director of PPA discusses PPA’s Brexit guidebook and talks with industry experts about the practical measures publishers can take to protect their businesses:
Navigating changes in intellectual property laws
According to the guide, since much of UK copyright law is derived from the EU framework, there are references in UK law to EU cross-border copyright arrangements that provide reciprocal protection between EU Member States.
Moreover, the international European treaties on copyright requires all signatory countries to protect works originating in any other treaty country. So even if there is a no-deal Brexit, minimum copyright standards will still apply.
However, certain aspects of copyright law will change with a no-deal Brexit, and publishers need to prepare accordingly. For example, the rules related to orphan works—copyright works where the right holder is unknown or untraceable.
Currently, European laws allow institutions like libraries, museums, archives etc to digitize and make such works available online across EEA Member States without the permission of the rights holder. This will not apply in the UK which has a separate orphan works licensing scheme.
Publishers would also need to audit their trademark and design portfolios. UK Registrations, the equivalent to EU Trade Mark and Community Design Registrations will be created after Brexit. Two Registrations will mean two sets of renewal fees will need to be paid. Publishers may want to opt-out of the creation of the equivalent UK Right if they already have an existing UK Registration.
The guide recommends publishers to re-file for any EU Trademark Applications and Community Design Applications that are still pending on the exit day. A request to create an equivalent UK Application must be filed and the UK Application fees paid within nine months of the date the UK leaves the EU. It may not be needed if a publisher already has a suitable Registration in the UK.
Ensuring uninterrupted data flow
There has been much discussion about the impact of Brexit on a company’s personal data flows in and out of the European Union post- Brexit. The guide advises publishers to review their EU/UK data flows. But it assures that even in the case of a no-deal, there is no need to panic. While there will be several challenges in the area of data protection, they can be resolved without much trouble.
Our advice would be: don’t panic, review your EU/UK data flows and hope for the best in terms of a deal. But if the worst happens, rest assured the issues are not insurmountable – EU/UK model clauses are not excessively complex to put in place or to amend to reflect the UK’s new position as a third country post Brexit.PPA’s Brexit guide for Publishers
The UK Government has taken a pragmatic approach to this issue, setting out in their “no-deal” paper on data protection: “You would continue to be able to send personal data from the UK to the EU. In recognition of the unprecedented degree of alignment between the UK and EU’s data protection regimes, the UK would at the point of exit continue to allow the free flow of personal data from the UK to the EU. The UK would keep this under review.”
Publishers that transfer personal data into the UK from the EU will need to put mechanisms in place to ensure data flows are not interrupted. The European Data Protection Board (“EDPB”) recommends five steps that organizations transferring data to the UK should take to prepare for a no-deal Brexit.
- Identify what processing activities will imply a personal data transfer to the UK.
- Determine the appropriate data-transfer instrument for your situation.
- Implement the chosen instrument to be ready for Brexit day.
- Indicate in internal documentation that transfers will be made to the UK.
- Update your privacy notice accordingly to inform individuals.
Publishers are advised to consult the EDPB and ICO’s website regularly for updates.
Remind employees to apply under the EU Settlement Scheme
To ensure continued smooth functioning of business, publishers may need to guide their employees through the EU Settlement Scheme.
European Economic Area (EEA) citizens and their family members who are resident in the UK on 31 October 2019 will be eligible to apply under the EU Settlement Scheme by 31 December 2020 to protect their lawful immigration status in the UK.
Those who’ve lived in the UK for five years or more at the date of application, can apply for ‘settled status’. Those who have not been living in the UK for five years, will be granted ‘pre-settled status’ until they reach the five-year threshold.
Any EEA citizen who wants to stay in the UK for more than 36 months will need to apply under the post-Brexit immigration system which is due to be implemented from January 2021.
The guide advises publishers to manage their recruitment pipeline to ensure that proposed new employees enter the UK before 31 October 2019.
Further, publishers are also recommended to keep an eye on the length and nature of business trips. A no-deal Brexit would mean a limit on the number of days British citizens can spend in the EEA without a visa, and on the activities they can undertake on a business trip.
There are specific employment rights that publishers will need to consider before restructuring or relocating their business as a result of Brexit. They can review the in-depth details in PPA’s handy guidebook. The guide provides practical answers to the most frequently asked questions that publishers have related to a no-deal Brexit.
Further information about preparing for Brexit is available here: gov.uk/brexit
The publishers’ guide can be downloaded from PPA:
Brexit: Preparing your business for a no-deal exit from the European Union