Following the UK's vote to leave the European Union, we consider the potential implications for the Media, Sport and Entertainment sector, many of which will hinge on the outcome of Brexit negotiations.
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.
- 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.
The production industry
- The Data Protection Act 1998 will remain in force until the General Data Protection Regulation (GDPR) takes effect in May 2018.
- Negotiators will be keen to preserve, as part of continued access to the free trade area, the 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.
- The ICO has indicated that 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 the GDPR provides a clear baseline against which UK business can seek continued access to the EU digital market.
- 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?
- 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.
- 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 State during the two-year negotiation period. The long-term outlook will depend on the exact arrangements to be agreed.
- There may be a loss of EU-specific funds and rebates for UK productions.
- 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. New work permits/visa conditions may affect EU citizens filming in the UK and British citizens filming in the EU.
- Competition: Factors to consider include the possibility of state aid and the risk of two-tier regulation for services and undertakings covering the UK and EU.
- 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.
- A weaker pound may mean it is cheaper to shoot films in the UK.
- 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.
- Going forward, businesses will need to apply for national protection of their IP in the UK. There are various possibilities for existing IP which will depend on questions such as whether trademarks filed before the 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.
- Companies processing data about individuals in the 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.
For a more detailed analysis of the issues, please contact the authors or your usual DLA Piper contact.