Dinwoodie & Dreyfuss on Brexit & IP

In prior work such as A Neofederalist Vision of TRIPS, Graeme Dinwoodie and Rochelle Dreyfuss have critiqued one-size-fits-all IP regimes and stressed the value of member state autonomy. In theory, the UK's exit from the EU could promote these autonomy values by allowing the UK to revise its IP laws in ways that enhance its national interests. But in Brexit and IP: The Great Unraveling?, Dinwoodie and Dreyfuss argue that these gains are mostly illusory: "the UK will, to maintain a robust creative sector, be forced to recreate much of what it previously enjoyed" through the EU, raising the question "whether the transaction costs of the bureaucratic, diplomatic, and private machinations necessary to duplicate EU membership are worth the candle."

The highlight of the piece for me is that Dinwoodie and Dreyfuss give numerous specific examples of how post-Brexit UK might depart from EU IP policy in ways that serve its perceived national policy interests, which nicely illustrate some of the ways in which the EU has harmonized IP law. For example, in the copyright context, it could resist the expansion in copyrightable subject matter suggested by EU Court of Justices cases; re-enact its narrow, compensation-free private copying exception; or reinstate section 52 of its Copyright, Designs and Patents Act, which limited the term of copyright for designs to the maximum term available under registered design law. In the trademark context, Dinwoodie and Dreyfuss describe how UK courts have grudgingly accepted more protectionist EU trademark policies that would not be required post-Brexit, such as limits on comparative advertising. Patent law is the area "where the UK will formally re-acquire the least sovereignty as a result of Brexit," given that it will continue to be part of the European Patent Convention (EPC) and that it still intends to ratify the Unified Patent Court Agreement—though the extent of UK involvement remains unclear.

Of course, whether such changes to copyright or trademark law would in fact further UK interests in an economic sense is highly debatable—but if UK policymakers think they would, why would they nonetheless recreate existing harmonization? I think Dinwoodie and Dreyfuss would respond that these these national policy interests are outweighed by the benefits of coordination on IP, which "have been substantial and well recognized for more than a century." Their argument is perhaps grounded more in political economy than economic efficiency, as their examples of the benefits of coordination are all benefits for content producers rather than overall welfare benefits. In any case, they note that coordination became even easier within the institutional structures of the EU, and that after Brexit, "the UK will have to seek the benefits of harmonization through the same international process that has been the subject of sustained resistance as well as scholarly critique, rather than under these more efficient EU mechanisms." While it is plausible that the lack of these efficiency gains will tilt the cost-benefit balance in favor of IP law tailored to national interests, Dinwoodie and Dreyfuss suggest that a desire for continuity and commercial certainty will override autonomy concerns.

With all the uncertainties regarding Brexit (as recently reviewed by John Oliver), intellectual property might seem low on the list of things to worry about. But the companies with significant financial stakes in UK-based IP are anxiously awaiting greater clarity in this area.