With friends and colleagues in the industry I have been looking at formulating a debate to be held in November this year on the post-Brexit regulatory scenario for the information industry in the UK. I find myself in a quandary, and since it is the spirit of our age, I intend to share the problem with you, in search of therapy if not solutions.

First, some positioning confessional. I am a passionate European free trader. Left to myself, when the Great Repeal Act takes place after 2019, and all the existing regulation of the information marketplace is confirmed as part of the body of UK law, I would like to shut the book and leave it there. Furthermore, I believe that it is vital to facilitating free trade that regulatory regimes between trading nations are as equal as possible so that regulatory barriers and compliance requirements are diminished. In dear old EU days we called this “harmonisation”. I argue from this that if the EU, our largest trading partners, make further changes in their laws on intellectual property ownership or data protection, as examples, then we would do well to reflect those changes in our own legal infrastructure in order not to create fresh hurdles for those creating pan European information products and services. After all, would a sensibly organized European car industry deliberately introduce variable left or right hand drive regimes in one continent?

So my natural answer would be to the policy wonks and regulation nerds – leave everything alone! Yet I know that pressures will come from all sides of the commercial and political arena for post-Brexit change, and this will be quicker to effect in the unitary authority of the Disuited Kingdom than ever it was in the 28 nation veto-fest of the EU. And here are some of the “opportunities” for change that are currently in the wind for post Brexit debate:

1. COPYRIGHT   Copyright law in the UK bears all the marks of 43 years of EU membership. EU law is based firmly on the protection of creative acts and the recognition of the rights of creators to determine how their creativity is used. UK law had, pre-EU, moved strongly to protect the economic rights associated with creativity -“the sweat of the brow” – (lawyers – please forgive the level of generalisation!). Many of us lobbied hard and long and successfully to restore the balance with the little used Directive on the Legal Protection of Databases, which creates an ownership in the acts of collation and arrangement of data in a database, whether or not the data concerned where themselves wholly or partially protected by copyright. Others still seek a Publishers Right, akin to the rights enjoyed by record companies, which protects the act of getting the work published in the first place, distinct from any other rights enjoyed by authors. Obviously, plastic Brexit lobbying could see a stronger lurch in what is a very British direction.

2. DATA PRIVACY AND PROTECTION   Europe has one of the strongest data regulation regimes in the world. It centres on the privacy of personal data and is highly restrictive in terms of the accumulation and storage of data on people in marketing services and solutions. The signs from current proposals in Europe are that the regulatory burden on suppliers in this sector is likely to become more onerous rather than less. At the same time, the existing ways of equating data regimes across the Atlantic – from Safe Harbor to Privacy Shield are now themselves exhausted, and the UK will not be at the table when Europe and the USA next negotiate trade barriers in this increasingly vital area.

I still say “stay anchored to the trading blocs you depend upon and follow the European route”. And here is the other argument:

3. SCENARIO  Post Brexit suggests an opportunity for the UK to really grow its place in global information supply. Through tax breaks on data storage, data assembly and start-ups in the sector the UK could punch well above its weight IF it had

– a “sweat of the brow” copyright regime that fully protected acts of data assembly and service and solution creation.

– a safe harbor regime that allowed third party creation of data services using personal data offshore, with only the services and solutions, not the personal data, being capable of re-export to the countries from which the personal data derived.

– a protection regime like the Dublin financial services Freeport which defined the tax status of these operations.

– an English-language bias that turned the UK into a software and service development outsource, especially tuned to serving European customers as a route to global markets.

And there are wilder ideas – to quote a colleague “Why should Kazakstan have all the good tunes – we could be the offshore pirate radio of data services, hosting everything the world wants, including SciHub!”.

Enough! I am still in the free trader camp, but I invite any reader to post here ideas for post-Brexit – or better reasons than mine for staying where we are now.


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