On 28 July 2016, copyright law will change because section 52 of the Copyright Designs and Patents Act 1988 (CDPA) will be repealed, i.e. with effect from this date, section 52 will cease to have any effect.
The impact of this change is likely to be particularly felt by businesses in industries such as furniture, homeware and jewellery. Designers of relevant works will, post repeal, benefit from an increased period of copyright protection. However, businesses that manufacture or import replicas of certain works that had fallen into the public domain will, once again, require permission to continue manufacturing and/or importing replicas of works whose copyright protection is restored.
What is section 52 CDPA?
Section 52 CDPA limits copyright protection for certain artistic works where they have been industrially manufactured.
This means that where more than 50 copies of certain artistic works are manufactured then copyright protection is limited to 25 years from the end of the year in which the relevant articles were first marketed. This period of protection is much shorter than other artistic works, which expires 70 years after the end of the year in which the creator dies.
Why repeal section 52 CDPA?
The Government’s rationale for the change is that all artistic works should have the benefit of the same period of protection. The change was prompted by a desire to harmonise UK law with EU law, as well as a strong campaign by designers who sought greater protection for their designs in the face of cheaper imitations being manufactured and/or imported (particularly from China).
What works will be affected?
Works of “artistic craftsmanship” are those that are most likely to be affected by the change in law because these are most likely to be manufactured by an industrial process.
What is a work of “artistic craftsmanship”? Rather unhelpfully, this is not defined in the CDPA. As such, it is for the Court’s to interpret what it means. The Court’s interpretation suggests that a hand engraved, one-off piece of fine jewellery may be a work of “artistic craftsmanship” whereas mass-produced items of jewellery manufactured for retail are unlikely to be works of “artistic craftsmanship”. Any protection for the mass-produced jewellery is likely to be any applicable design rights (please see our article further discussion on design rights).
The Intellectual Property Office (IPO) has issued helpful guidance for businesses, organisations and individuals that may be affected by the change in law. Page 7 of the guidance helpfully summarises the 2 most relevant cases, being Henscher (George) Ltd v Restawile Upholstery (Lancs) Ltd  and (2) Lucasfilm Limited and others v Ainsowrth and another . In both cases, the Court held that the relevant subject matter (being a prototype for a mass produced sofa and a Stormtrooper helmet respectively) was not a work of “artistic craftsmanship”.
To summarise, a Court is likely to take into account the following when determining if a particular work qualifies as a work of “artistic craftsmanship”:
- Attractiveness, by itself, is not enough to qualify as a work of “artistic craftsmanship”;
- “Artistic craftsmanship” denotes 2 qualities: (1) artistic quality; and (2) craftsmanship;
- “Artistic” means real artistic or aesthetic quality - it must be a work of art or fine art;
- “Craftsmanship” presupposes special training, skill and knowledge for production;
- The balance between functionality and artistic expression - it is suggested that the more a designer is constrained by functional requirements, the less likely it is to be deemed a work of “artistic craftsmanship”; and
- Mass production in itself does not preclude an item from being a work of artistic craftsmanship but does cast doubt on whether it can be said to be such a work.
Clearly, not all classic designs will benefit from any further period of copyright protection. It will be a matter of fact as to whether designer furniture, lamp or jewellery qualifies as a work of “artistic craftsmanship” and is affected by the change to copyright law.
What about works whose copyright protection has already expired?
Copyright protection for works that have fallen into the public domain will be restored from the point that it had previously expired.
By way of example, “A” created an artistic work in 1990 and manufactured more than 50 copies of that work in the same year. “A” dies in 2016. Applying section 52 CDPA, “A’s” copyright expired in 2015. On section 52 being repealed, “A’s” copyright protection will not expire until 2086.
What do I need to do?
This depends on whether you are a rights holder of relevant artistic works or a business, organisation or individual that has copied relevant artistic works (copyist).
For rights holders, it will depend on whether the relevant artistic work is within the 25 year period provided by section 52 CDPA or whether that period has expired. In both cases, it is first important to assess what, if any, artistic works for which you own copyright are likely to be affected by the change in the law.
Where the artistic work is within the first 25 years of protection, the term of copyright will extend until 70 year’s after the creator’s death. In this case, any licences for the exploitation of that artistic work could continue until 70 years after the creator’s death (subject to any earlier expiry or termination rights).
If the copyright period had expired (i.e. 25 years had passed since the relevant artistic work had been industrially manufactured) and you are aware that copyists have been manufacturing or importing imitations of that work since the work entered the public domain, you should monitor those copyists’ actions. Since copyright will be restored for that artistic work from 28 July 2016 (subject to the transitional period – see below), you could seek to enforce the restored copyright to prevent the copyist from continuing with such action or to negotiate a licence with the copyist.
Copyists, i.e. those who have legally (until 28 July 2016) based their products on pre-existing artistic works, should consider whether those pre-existing artistic works will be protected by the extended period of copyright protection.
If so, it will be necessary to adapt your business model if your inspired pieces copy a substantial part (i.e. key features) of the pre-existing artistic work. Failing to adapt your business in such circumstances could mean that by continuing to manufacture or import those products you infringe the rights holder’s copyright.
Changes affected copyists could make range from negotiating a licence with the rights holder (if possible) to stopping the manufacture or importation of those products.
Section 52 CDPA will officially be repealed on 28 July 2016. However, there are transitional period that intends to allow affected copyists to adapt their business models, with a “depletion date” of 28 January 2017 being set. Depletion means selling or destroying the copies.
|On or before 28 October 2015||
|29 October 2015 to 27 July 2016||
|28 July 2016||
|28 January 2017||