Un-Levelling The Playing Field: The UK Declines To Implement The New EU Copyright Law

The UK has announced that it will not implement a key change in the EU copyright regime after Brexit. As a result, for affected businesses, consistent Europe-wide digital compliance in the post-Brexit era just became a little bit harder.

The EU Digital Copyright Directive imposes greater obligations on online content-sharing platforms to avoid users' uploading copyright infringing content. The UK's position means that its post-Brexit liability regime will be more favorable to content-staring platforms than in the remaining 27 EU member states.

Three and a half years after the UK's referendum, Brexit has finally become a reality. Given the protracted negotiations around the UK's decision to leave the EU - and with a minimum 11-month transition period - you could be forgiven for thinking that it could take a while before UK law would begin to diverge from the EU in any material way. However, the UK now seems to be embracing its legislative freedom before Brexit has even arrived, by changing its position in relation to one of the EU's most controversial recent laws.

As we have previously reported, the EU approved a new Digital Copyright Directive in 2019 after a long and controversial legislative process. Now, however, a UK government minister has announced that the UK "has no plans" to implement that Directive. This means that the UK will have a different liability regime than the EU for uploaded or online content which infringes a third party's copyright. Perhaps not coincidentally - given the need for the UK to negotiate new trade deals with key global partners (especially the United States) - the UK's liability regime will be more friendly to technology service providers and operators of online platforms.

Under the Digital Copyright Directive, online content sharing service providers ("OCSPs") are required to take greater responsibility for infringing content that is shared on their platforms. The so-called "content filtering" provision (originally Article 13, now Article 17 as passed) in the Directive was fiercely opposed by many technology providers - and was even criticized by the current UK prime minister as being "terrible for the internet". Despite the opposition (and with the UK's active support), the Digital Copyright Directive passed and must be implemented in the 27 remaining EU member states by June 2021.

Here is a summary of the key takeaways in relation to this provision:

Any online content-sharing service providers must...