Cooperation agreement between the EU and the UK: Intellectual and industrial property provisions

On December 24, the European Commission finally reached an agreement with the UK on the terms of their future cooperation (the “Agreement”). The president of the European Council signed the Agreement on behalf of the 27 Member States on December 30, 2020.

We recall that this Agreement was published less than a week before the UK finally left the European Union. Awaiting its parliamentary ratification by both the UK and the EU, the Agreement will apply provisionally from January 1, 2021 to February 28, 2021. If the Agreement is ratified by the respective parliaments before February 28, 2021, it will continue to apply continuously. Although it is not the final version of the text, we list some of the basic aspects currently included in Title V on intellectual and industrial property below. We also analyze the agreements reached on personal data protection in another blog post.

With regard to intellectual property rights, the Agreement establishes the following regulatory bases:

• Exploitation and remuneration rights: it determines the exploitation rights exclusively belonging to authors on their works, performers on their performances, phonogram producers on their phonograms and broadcasters on their broadcasts. It also establishes the single equitable remuneration for performers and phonogram producers for broadcasting and public communication of phonograms for commercial purposes.
• Duration of the exploitation rights: it specifies the minimum duration for copyrights (the life of the author and 70 years after death), broadcasters (50 years after the first transmission of a broadcast), performers (50 years after the recording date or, if it was published or communicated to the public legally during this period, 50 years after the first publication or communication to the public, whichever happens first), and phonogram producers (50 years after the recording was made or, if it was legally published during this period, 70 years after it was published). The periods will run from January 1 of the year after the triggering event.
• Collective management entities: it promotes cooperation between UK, EU and Member State collective management entities in promoting the availability of works and other objects protected in their respective territories, as well as the diligent payment of the revenue generated by exploiting them.

The Agreement also establishes the authority of the UK, the EU and Member States to regulate actions against circumvention of technological measures and infringement of any intellectual property rights. It also recalls their freedom to establish limits and exceptions in some special cases if they do not affect the normal exploitation of the rights or unjustifiably harm the legitimate interests of their holders.

Regarding industrial property, a brief summary:

• Trademarks: the Agreement determines what signs can be protected by a trademark, the rights that that protection grants its proprietor, the procedure for registering trademarks, the concept of well-known trademark, the exceptions to the rights granted by a trademark, the grounds for revoking a trademark and the consequences of registration in bad faith.
• Designs: it establishes the mechanism for protecting designs with and without registration, the duration, exceptions and exclusions of the design protection, and the compatibility between these and copyrights.
• Patents: it refers to the relationship between patents and public health, particularly focusing on patents on medicines and phytosanitary products. The Agreement recalls that the period between filing an application for this type of patent and the first authorization to market the product can shorten the effective protection period under the patent if there is a prior administrative authorization procedure. As compensation, it offers the parties the possibility of giving additional protection to this type of products.
• Trade secrets: following Directive 2016/943 on trade secrets, it defines the requirements that information must meet to be considered a trade secret and lists conduct contrary to honest commercial practice.
• Plant varieties: it refers to the International Convention for the Protection of New Varieties of Plants, revised in 1991 in Genoa.

For all intellectual and industrial property rights, the Agreement establishes the national treatment principle, and it does not affect the freedom of the UK, the EU and Member States to determine under what conditions these rights are exhausted.

We will follow the Agreement’s processing and report on any significant changes in our blog.

Authors: Paula Conde y Pedro Méndez de Vigo