Moderated by myself, the panel featured Sir Richard Arnold (High Court Judge, Chancery Division), Nicholas Saunders (Barrister, Brick Court Chambers), Ros Lynch (Copyright and IP Enforcement Director, IPO), Ian Moss (Director Public Affairs, BPI), Tom Ohta (Senior IP lawyer, BT), and Estelle Derclaye (Professor of IP Law, University of Nottingham).
Asked what EU development has had the biggest impact - for better or worse - on UK copyright, Sir Richard highlighted at the outset how a number of developments would have occurred independently from UK membership of the EU. These include the changes mandated by the WIPO Copyright Treaties, TRIPS, the Marrakesh Treaty and the Beijing Treaty. However, there have been also legislative interventions prompted by EU membership, including the introduction into UK law of the resale royalty right (droit de suite).
In all this, however, the learned judge noted that what has had a systemic impact has been in particular the jurisprudence of the Court of Justice of the European Union (CJEU), which has touched upon basic concepts such as originality (which Prof Derclaye said to require more than just sufficient skill, labour or effort, as per the traditional UK approach) and has resulted in UK courts embedding - as is apparent from the SAS case - the idea/expression dichotomy into UK law. Also Mr Saunders stressed the relevance of CJEU jurisprudence, and discussed the case of the right of communication to the public, which so far has been subject to nearly 20 references for a preliminary ruling.
I asked Sir Richard whether he thought that CJEU case law also mandates an open-ended approach to copyright subject-matter. Sir Richard and the other panellists noted that it is not sure that EU law - or rather CJEU interpretation of it - requires to adopt this approach and possibly (but not necessarily) further clarity might be provided when the CJEU decides Levola Hengelo, C-310/17, ie the cheese case [see here].