This is a repost of a poster presented by the author at The Society of Legal Scholars Conference 2016, Oxford, 6-9 September 2016. Initial publication available here: https://www.linkedin.com/pulse/iprexit-intellectual-property-after-eu-referendum-guido?trk=prof-post
Is it true that we do not know anything about what will happen to intellectual property after the EU referendum, as the UK Government seems to think? I quite disagree. I believe we must tell consumers and businesses that there is something that we can already foresee.
ABSTRACT
The [British] Government is deciding how and when to trigger Article 50 of the Treaty on the Functioning of the European Union. In the meantime, some “remainers” are pointing out the allegedly tragic consequences of Brexit, whereas a more cautious approach would be wise. There is much uncertainty on the future of intellectual property (IP) in the UK after the referendum and one could foresee that there will be more cons than pros. However, some opportunities may as well arise. This poster aims to assess the impact of Brexit on IP by distinguishing between areas that do not need significant intervention, areas where no real intervention will be allowed and areas where there is need for an update. In the near future, the Government and the Parliament will be likely focused on the negotiations with the European Union and there is the risk that IP issues will be overlooked. Therefore, it will be up to the judiciary to modernise intellectual property and ensure that the UK does not depart radically from the IP systems of the Member States. Thus, by ensuring a substantial, albeit not full, harmonisation of the relevant rules, fragmented IP regimes will not constitute trade barriers and the UK will retain its appeal as a thriving marketplace for investors. In order to do so, some “IP regimes shopping” will be useful, although this will mean a partial departure from the EU rules. A takeaway is that since English judges will not be entitled to preliminary references to the Court of Justice, they will become eventually European judges.
TAKEAWAYS
1) Brexit will lead to a prominent role of the judiciary in ensuring that the UK will retain its position at the forefront of the protection of innovation
2) Some IP areas need to be updated (especially geo-blocking), but some others do not (trade marks)
3) The UK should leverage Brexit to do some “IP regimes shopping”
4) If the UK remains in the EEA, i) the UK judges will become more…European, because they will have to apply EU law without the power to refer to the CJEU for a preliminary ruling, ii) Trade-related IP policies + Annex XVII will remain European
* Guido Noto La Diega, PhD, is a Lecturer in Law at the Northumbria University and President of 'Ital-IoT' Center of Multidisciplinary Research on the Internet of Things.
The present republication is made courtesy of the author.
Please cite as : G. NOTO LA DIEGA, IPRexit. Intellectual property after the EU referendum, Poster presented at the Society of Legal Scholars Conference 2016, Oxford, 6-9 September 2016.