Re: [OSM-legal-talk] Brexit & EU database rights

[Simon Poole]

https://www.gov.uk/guidance/sui-generis-database-rights-after-the-transition-period is the UKs governments guidance on this.  On re-reading I agree that the withdrawal agreement itself is rather ambiguous, and there is a lot of conflicting advice on the matter, see for example https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwiL38fux83tAhXNCuwKHYHXAjgQFjABegQIAhAC&url=https%3A%2F%2Fwww.herbertsmithfreehills.com%2Ffile%2F37041%2Fdownload%3Ftoken%3DOr7GPtMf&usg=AOvVaw0jZK9j_3jP6xJNsnbzaKJ5 or https://www.gevers.eu/en/tb8PacLcwp/brexit--copyright-and-sui-generis-database-right.php that states just like the UK governments guidance that the rights will continue on post end of the transition period in the EEA.

Simon

Am 14.12.2020 um 13:34 schrieb Tom Hummel:

I suspect clarity on this could only come from the official EU side of things, not that it really matters as in any case action is required by the OSMF.

Hi Simon,

My understanding is that 58.2 covers the rights of UK based entities, with other words it extends the directives article 11 to cover UK residents and entities.

From 58 II: “The following persons and undertakings shall be deemed to comply” … (basically) people and entities in the UK.

I have found an english legal opinion:
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https://www.womblebonddickinson.com/uk/insights/articles-and-briefings/brexit-and-database-rights

Does “deem to comply” mean, those persons have to comply? It reads as if the people mentioned in 58 II are subject to an obligation (the duty to obey the rights from 58 I) not the beneficiary. 58 seems to talk about EU entities that are, essentially, UK based or active within the UK. Art 58 in general seems to be concerned with continuing EU database law within the the UK for EU subjects, not the other way around: “holder of a right in relation to a database […] maintain an enforceable intellectual property right in the United Kingdom, under the law of the United Kingdom”. Meaning, OSMF, or any EU entity ftm, continues to hold database rights within the UK, but not within the EU – only under more general provisions. Not even art. 4 TRIPs seems to grant any more rights, since lack of any other more favorable agreements among trips members.

Accordingly, in the event no agreement is reached […] whereby:

· the UK will continue to recognise Database Right of EU (and UK) qualifiers so they will not lose rights to which they were entitled in the UK on the date of withdrawal · the EU will cease to recognise Database Right of UK qualifiers in respect of databases created *before* the date of withdrawal.

Thanks for your courtesy!

Tom

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