Aug 12, 2016

Copyright Protection Extended for Industrial Design Works

The repeal of section 52 of the Copyright, Designs and Patents Act 1988 (CDPA) has been repealed and the impact of this has been misreported on several news websites. Here we explain the change in the law and the position as things stand, and the impact the change will have.

Copyright and section 52 CDPA

Copyright protection typically spans the life of the author of a work plus 70 years, and copyright protection extends to artistic works, subject to other qualifying factors. Artistic works can include, for example, furniture (so long as it can be classed as a sculpture or some other defined type of artistic), jewellery and fabric designs. However, section 52 CDPA limited the copyright protection for industrially produced (more than 50 copies) artistic works to 25 years, bringing protection for such articles broadly in line with the duration of protection for registered designs. The impact of this was that after the reduced 25 year term of protection anyone was free to reproduce such works without infringing copyright.

Repeal

Section 52 CDPA was repealed on 28 July 2016, following the results of a recent Consultation published online here (the Consultation). The impact of this is that the copyright protection for industrially produced artistic works will no longer be limited to 25 years, it will revert to the typical copyright term of the life of the author plus 70 years. Artistic works that will benefit from traditional copyright protection must still qualify as an artistic work.

Transitional period

Government consultation on the repeal of section 52 CDPA has been ongoing for a number of years. It had been widely reported in the press that the repeal was taking place in April 2016 but that was not correct. The repeal will took effect on 28 July 2016. This date had originally been set as 28 April 2016 but was extended by 3 months following the Consultation. This transitional period is to allow affected persons to adjust their business practices to suit the new framework.

There is also a further cut off point of what is referred to as the depletion period, ending on 28 January 2017. The depletion period continues for 6 months after the repeal date and applies where a contract in respect of goods has been entered into before the start of the Consultation, which was 28 October 2015. Persons trading in relevant stock acquired prior to 28 October 2016 should therefore dispose of the same within the depletion period.

By way of further background, the Government initially consulted on the repeal of section 52 CDPA in 2013, when the appeal was first announced in the Enterprise and Regulatory Reform Act 2013, and indeed passed an Order in March 2015 providing for the practical implementation of the repeal to take effect on 6 April 2020. However, this Order was subsequently challenged by way of judicial review and revoked. A further consultation on how to implement the repeal was opened in December 2015, the results of which lead to the present position.

Impact

Some articles, such as works of sculpture, greetings cards and postcards were already excluded from the reach of section 52 CDPA by the Copyright (Industrial Process and Excluded Articles) (No.2) Order 1989, and so benefitted from the typical copyright protection of the life of the author of a work plus 70 years. However, other artistic works qualifying for copyright protection, which were not excluded by the 1989 Order, will now once again benefit from the full term of copyright protection as discussed above.

Press Reporting on the RepealĀ 

There have been various press reports on the repeal over the last few days which has been inaccurate at best. Many newspapers are framing articles around this point using headlines regarding items of 'classic design furniture' and have been advising members of the public to buy replicas now, stating they will be back in copyright protection by 28 October 2016 and then copies will likely not be available. This reporting has centred on items such as Eames chairs. That is not technically correct. In order for such items to regain copyright protection it will first need to be proven that such works fall within the scope of copyright protection by being legally classed as artistic works. If that is the case, then such articles already had full term copyright protection under the Exempted Articles Order discussed above. In any event whether such articles do acquire copyright protection is certainly not clear cut so do not automatically believe what you read in the press or think this applies to you and what you are doing.

If you do have any concerns over anything you produce, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.

in: Copyright, News

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