- Dominic McGonigal - C8 Associates
Creative Industries Left Out Of Withdrawal Agreement
It's not what's in the 585 pages of the draft Withdrawal Agreement.
It's what's been left out.
The Withdrawal Agreement reads like a partial reconstruction of the EU treaties, one piece at a time.
There is the creation of a new Customs Union between the EU and the UK. That will give us free flow of goods between the EU and the UK, including complex supply chains.
The Northern Ireland Protocol guarantees an open border between Northern Ireland and the Republic, including free movement of people and goods. That is a major feature of the Good Friday Agreement which has been enabled by a combination of EU measures and the Common Travel Area.
Underpinning this common regulatory framework is the ECJ and a new arbitration panel. The ECJ retains jurisdiction on all matters relating to EU law, while the new arbitration panel ensures all parties abide by the terms of the Withdrawal Agreement.
There are even provisions for people living the other side of the border, such as UK citizens living and working in France. They will be able to gain residency status in the Member State where they have been living, to replace the free movement rights they have had under EU membership. Effectively residency and working rights are frozen for people in those countries.
So, what is in the Withdrawal Agreement for artists and creative businesses?
Fortunately, the creative industries mostly do not rely on regulation to operate, because there is almost nothing for artists and creative businesses in the Withdrawal Agreement.
The new customs union will allow customs-free movement of CDs and DVDs between the UK and the EU. And, it will preserve the just-in-time supply of paper for the newspaper industry. And that’s it.
The creative industries are about people and most of the business has now moved online. Yet, freedom of movement and online market provisions are missing from the Withdrawal Agreement.
The residency provisions and working rights are limited to people currently living and working in another Member State. They do not apply to freelancers who live in one country and want to work in other countries. Within the EU, a musician can tour in Europe, doing concerts in any number of countries without needing a work permit. That freedom is absent from the Withdrawal Agreement.
There is no mention of copyright in the entire 585 pages of the document.
Consequently, all the cross-border provisions in the copyright acquis are absent from the Withdrawal Agreement.
The Enforcement Directive contains detailed cross-border cooperation procedures to tackle cross-border piracy, both physical and online. Creative businesses will lose that support of the law enforcement agencies. That is significant online because the internet transcends national borders so easily. It could become more significant for physical piracy because the new joint customs union will ensure an open border, but exhaustion of rights will apply separately in the UK and in the EU. Thus, a CD released legitimately in the EU will not automatically be cleared for distribution in the UK.
Creative businesses will also lose the cross-border provisions in the Portability Regulation, the Collective Rights Management Directive and the Cable and Satellite Directive.
Perhaps the biggest omission is TV licence regulation. Under the Audio Visual Media Services Directive, a TV broadcaster can obtain a licence where they are based and broadcast throughout the EU under that licence. That TV broadcast licence will regulate the content of the channel and the amount of advertising that is permitted within each hour of programming. The terms of the licence are broadly harmonised across the EU.
As a result of this single EU broadcast licence, broadcasters such as Discovery and Viacom broadcast several hundred channels from the UK, in multiple languages, throughout Europe, all under a licence from Ofcom. Under the Withdrawal Agreement, they will no longer be able to broadcast from the UK to the EU under an Ofcom licence.
Many broadcasters have already moved hundreds of editorial staff from London to Amsterdam and other creative hubs in the EU. They anticipated losing this EU single market provision and could not afford to risk waiting until March 2019 to find out whether they could continue to operate these channels from the UK.
Another cross-border provision that is absent from the Withdrawal Agreement is data transfer. There are clauses ensuring the confidentiality of data within each of the UK and the EU and there is a commitment to maintain equivalent standards of data protection.
However, there is no mutual recognition of equivalence and no mention of GDPR applying under the Withdrawal Agreement. Without the GDPR umbrella, creative businesses will not be able to move personal data from the EU to the UK and vice versa. That will create additional costs as data is ring-fenced within different jurisdictions and it will limit cross-border services.
Lastly, there is no mention of the Creative Europe and Horizon2020 programmes. Creative Europe has funded numerous cultural projects, especially collaborations between arts organisations in different countries. Co-productions and touring exhibitions have been regular beneficiaries with UK arts companies being able to take part in larger projects across Europe. Horizon2020 focuses on innovation and has provided R&D and seed funding for research and startups, usually at a time when no other funding is available for such innovative work. It’s particularly important in the academic world where primary research cannot attract commercial finance. UK academics have already found themselves excluded from research projects because they will no longer have access to the Horizon2020 programme.
Creative industries don’t ask for much from governments. This draft gives them almost nothing. The creative industries have been left out of the Withdrawal Agreement.
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Dominic McGonigal is Chairman of C8 Associates, a consultancy dedicated to taking creative businesses to the next level. He also chairs two creative startups, CICI and JazzUK. Read more at www.c8associates.com