UK copyright post-Brexit: The perduring legacy of CJEU case law

Abstract

Chapter 8 shows how the UK’s tenure as an EU Member State has profoundly changed that country’s copyright system. The impact of the case law of the Court of Justice of the European Union (CJEU) remains strong well after the completion of Brexit. More in detail, this chapter explores the extent to which this country’s copyright law has been shaped, not just by EU legislation, but also and most importantly by the CJEU’s interpretation of the EU acquis. Further to an overview of the default changes that the departure from the EU/EEA would have on any Member State, the analysis turns to the UK and the type of relationship that it has shaped with the EU going forward. The discussion subsequently moves on to reviewing the impact of CJEU case law on foundational aspects of UK copyright, including subsistence requirements and subject matter categorization, liability types, standards of infringement, exceptions and limitations, and enforcement (with particular regard to website blocking jurisprudence). More recent domestic case law further shows that, even in instances in which UK courts could have in principle ‘departed’ from CJEU case law, they have so far refused to do so. Overall, the UK experience does suggest that a clean break between a departing Member State and EU copyright law—standing compliance with international law provisions—might be possible in principle, but hardly realistic/feasible in a short- and medium-term perspective, especially lacking legislative amendment and/or repeal of the relevant domestic statutes.