Last Wednesday evening, news broke that the UK government had “shelved” the sunset clause in the Retained EU Law (Revocation and Reform) Bill. This Bill (aka the “Brexit Freedoms Bill”) was introduced during Liz Truss’s short premiership last autumn and has proved highly controversial. One particularly controversial aspect was the sunset clause (clause 1) under which retained EU law (REUL) was to be automatically revoked by 31 December 2023, unless ministers decided to restate, replace or retain each piece of legislation.

Since this Bill was introduced government departments have been extremely busy identifying all relevant pieces of REUL. Its interactive public Retained EU Law Dashboard became flooded with over 4800 pieces of REUL, across 300 unique policy areas. The UK Intellectual Property Office (IPO) identified over 80 pieces of IP-related legislation that potentially fell within the scope of the provisions of the Bill.

Following the government’s announcement on 10 May (made by Business Secretary Kemi Badenoch), the government tabled amendments to the Bill. These will be addressed during its report stage currently taking place in the House of Lords. Instead of automatically revoking all REUL in the sunset clause, it is replacing this with a list of the REUL it intends to revoke under the Bill at the end of 2023. As a result the list of affected legislation has been dramatically reduced from approaching 5000 laws to a “mere” 600.

The NEW list from the IPO

The IPO has now updated its list of affected legislation by greying out those pieces that remain affected. There's not very much grey in its list! Those it has identified are as follows:

• Artist's Resale Right (Amendment) Regulations 2009 (SI 2009/2792).
• Community Design (Fees) Regulations 2002 (SI 2002/2942).
• Council Decision of 22 December 1994 on the extension of the legal protection of topographies of semiconductor products to persons from a Member of the World Trade Organization (94/824/EC).
• Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs.
• Commission Regulation (EC) No 2246/2002 of 16 December 2002 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) in respect of the registration of Community designs.
• Commission Regulation (EC) No 877/2007 of 24 July 2007 amending Regulation (EC) No 2246/2002 concerning the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) following the accession of the European Community to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs.
• Regulation (EU) No 386/2012 of the European Parliament and of the Council of 19 April 2012 on entrusting the Office for Harmonization in the Internal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights, including the assembling of public and private-sector representatives as a European Observatory on Infringements of Intellectual Property Rights.

Thoughts

The IP legislation that remains affected by the Bill is REUL that has become inoperable or unnecessary since Brexit as well as, in the case of the 2009 amendment Regulations, a measure that was already redundant. Therefore from an IP point of view the Bill is little more than a tidying up exercise. Consequently, there is no immediate concern of significant changes being introduced at speed to IP law in the UK, although the government has not ruled out future reforms. (The government is not proposing to amend other arguably controversial aspects of the Bill. These include measures to make it easier for courts to depart from relevant EU case law. This is something for discussion another day!).

This very significant amendment to the Bill, means that the IPO will now have more time to progress with areas of potential reform, such as its ongoing consultations on changes to UK design law.