The UK’s vote to leave the European Union in a so-called ‘Brexit’ referendum throws up a host of issues for the Media, Sport and Entertainment sector, many of which will hinge on the outcome of negotiations following the triggering of Article 50 of the Lisbon Treaty:
Regulation in the EU Media Landscape
- There will be implications for the licensing of services in the UK by Ofcom, and an impact on pan-European/overseas audio-visual services that currently fall under the UK regime – such as the country of origin principle under the Audio Visual Media Services (AVMS) Directive.
- The continued application of European Convention of Transfrontier Television will be in question.
- Media companies may need to look into the possibility of obtaining broadcasting licences in one or more remaining Member States – and address jurisdiction issues under the AVMS Directive.
Operation of the Media Industry
- Digital delivery: A question remains over whether current digital single market challenges will still apply? These include portability, challenges to territorial licensing via e-commerce sector inquiry/studios investigation and Satellite and Cable Directive review.
- Free movement: Restrictions on the movement of cast and crew, and of physical goods such as DVDs – such as tariffs, taxes and permits – are possibilities.
- Competition: Factors to consider include the possibility of state aid or protectionist policies and the risk of two-tier regulation for services and undertakings covering the UK and EU.
- IP in General: It is likely that the UK would retain/implement new laws that largely mirror existing regimes where possible. However, the UK may have more flexibility in interpreting laws and shaping exceptions.
- European Trade Marks:
- There will be an impact on businesses that have opted for pan-European protection of European Union Trade Mark (EUTMS) Registrations over national filings in the UK
- In the short term the EUTMS will remain valid and enforceable in the UK and there will be no immediate loss of protection – the UK will remain an EU member during the two-year negotiation period.
- The long-term outlook will depend on exact arrangements to be agreed.
- Going forward – businesses would need to apply for national protection in the UK.
- Existing registrations – various possibilities here will depend on questions such as whether trademarks filed before date of exit will continue to have effect in UK, and whether there will be a period during which a rights holder will be able to convert a EUTM into a (new) EUTM and a national mark in the UK with the same priority.
- Copyright and Software – there will be a focus on opportunities for the UK to modify the protection of, and exceptions to protection, for software, which are currently partially harmonised through the Software and Information Society Directive.
- The Data Protection Act 1998 will remain in force until the General Data Protection Regulation takes effect in May 2018.
- Negotiators will be keen to preserve, as part of continued access to the free trade area, commercial benefits that a harmonisation of data protection, cyber risk and ecommerce law has brought across Member States as well as the “passporting” of data that compliance to the GDPR standards brings.
- ICO indicated it wishes to see equivalent UK laws in place to the GDPR to provide the “adequacy” needed to support data transfers to the UK from the EU. In addition GDPR provides a clear baseline against which UK business can seek continued access to the EU digital market.
- Companies processing data about individuals in context of selling goods/services to citizens in other EU countries will need to comply with GDPR irrespective of whether UK retains the GDPR post-Brexit.
The Production Industry
- Production quotas: A key question will be whether UK productions still “count” towards European production quotas applicable to European media service providers.
- British/European co-productions: Will the UK be required to sign as a European non-Member State to European Convention on Cinematographic Co-Production?
- There may be a loss of EU-specific funds and rebates for UK productions.
- New work permits/visa conditions may affect European citizens filming in the UK and British citizens filming in Europe.
- A weaker pound may mean it is cheaper to shoot films in the UK.