UK Copyright law is about to provide a considerable boost for designers of mass produced artistic works.
On 28 July 2016, Section 52 of the UK's Copyright, Designs and Patents Act 1988 ('CDPA') will be repealed. Currently, under Section 52, the term of copyright protection for artistic works that have been industrially manufactured (i.e. more than 50 copies produced) is 25 years from the year they were first marketed. Typical works that could be captured by this Section are pieces of trendy furniture, lampshades, fabric designs and graphic works such as photographs and paintings. This 25-year term of protection will be repealed and after 28 July 2016, such 'mass produced' works will enjoy the same term of protection as all other artistic works, namely the life of the creator plus 70 years after their death.
The repeal of Section 52 has been firmly on the UK government's agenda since 2011 and we were expecting it to come into force in April 2020 after the government opted for a lengthy transitional period. However, after a further consultation, the five-year transitional period has been dropped and the repeal will now take place at the end of July, with a much shorter six-month transitional period ending on 28 January 2017.
What is going to happen and when - a summary
1. After 28 July 2016, it will be unlawful to make or import new replicas of industrially manufactured artistic works unless:
a. The works were contracted before 4.30pm on 28 October 2015;
b. The copyright holder grants permission;
c. An exception applies under the CDPA (which is unlikely as these do not normally apply under normal commercial circumstances).
2. Up to 28 January 2017 it will be lawful to sell through existing stock of replicas of industrially manufactured artistic works.
3. After 28 January 2017, it will be unlawful to deal in replicas of industrially manufactured artistic works. By this date, all stock must be depleted or destroyed, unless:
a.The copyright holder grants permission;
b. An exception applies under the CDPA (which is unlikely: see above).
Merely possessing a replica after 28 January 2017 will not in itself be unlawful, although possession may become unlawful if done so in the course of business.
What this means in practice?
- This is a good thing for designers of mass produced artistic works;
- It is an opportunity for such designers to prevent infringements for an extended period and in turn prolong existing revenue streams;
- The change is retrospective, which means designers' copyright which may have expired under the old 25-year term, will be resurrected to run for the new "life +70" term. This gives designers an opportunity to re-licence their work and sweep the market of infringers;
- A note of caution: designers can only take advantage of this change if their work qualifies as an artistic work under the CDPA. This may be obvious for mass produced graphic works such as stained glass windows or hand painted tiles, but not so for 3D items such as furniture. These items will need to qualify as works of artistic craftsmanship (WOACs) and the bar is set high in this regard, not least because the work must be made by a craftsman but also be deemed a work of art (and not just look good!);
- Designers of WOACs should still consider registering their work as designs for belts and braces protection.
For replica dealers and others
- This is bad news for those manufacturers and retailers whose business model is based on dealing in replicas of mass produced artistic works;
- There may well be a flood of litigation because such dealers have a significantly shorter time to adjust to the change in the law and it is inevitable that some will not be aware of the change;
- 2D reproductions, i.e. photographs, of the artistic works will also be caught under the new law, which means both online and offline publishers will also have to note the relevant dates above and cease using images unless they obtain permission or rely on one of the limited CDPA exceptions e.g. criticism and review.
Since this is a change of UK copyright law, which has not been completely harmonised in Europe, designers will be pleased to know that the change is not subject to Brexit terms.
To find out more about how this change may affect you and your business strategy, please contact Richard May.