Section 52 of the Copyright, Designs and Patents Act 1988 (“CDPA”) has been repealed. You could probably be forgiven if, during all the tumult and general clamour surrounding the triggering (or not triggering) of a certain Article 50, you missed this news. It’s slightly less gripping I grant you – but if you are involved in the industrial manufacture of goods, then it’s definitely something to be aware of. It could have a real impact on your business, and at the very least spark a review of some of your product lines.
Section 52 of the CDPA limited the term of copyright protection for industrially exploited artistic works to 25 years. This period of protection is far shorter than that afforded to other artistic works, which are protected for the life of the creator plus 70 years.
Repeal of section 52 has been on the cards for a while. The wheels were set in motion back in 2012 when the government legislated to bring industrially manufactured items into line with other artistic works. This decision was brought about partly to harmonise the UK position with EU law and partly due to successful lobbying by designers.
Simply put, it means that industrially exploited artistic works are now subject to the same period of protection as other artistic works. But of course it is never quite that simple. The repeal applies to all works, not just new artistic creations. Transitional arrangements were therefore agreed to provide time to deplete stock or negotiate new licences – arrangements which were further complicated by a successful challenge by way of judicial review – meaning that there are a few dates to be aware of.
The 28 July 2016 is the date the repeal came into force. From this date, you cannot make or import new copies of artistic works unless:
The 28 January 2017 is being referred to as the “depletion” date. From this date all items contracted for in (iii) above must be sold or destroyed, and you will no longer be able to rely on this exception.
Copyright protection is not afforded to all designs; only those that are regarded as an “artistic work” under the CDPA. The category of artistic works most likely to be affected by repeal of section 52 are those classed as “works of artistic craftsmanship”. Rather unhelpfully, there is no statutory definition of this term and there has been little guidance from the courts as yet. The crux of the issue is therefore the extent to which underlying works will fall into this category – as if they do not, then they will not be afforded copyright protection and the impact of repeal will be minimal.
What makes a design a work of artistic craftsmanship? As ever, the court takes into account a number of factors. However, most relevant here is that they will consider the extent to which the work’s artistic expression is unconstrained by functional considerations. The more constrained the design by such considerations, the less likely it will be deemed to have the necessary artistic quality. This is obviously a key point as works specifically designed for industrial manufacture are far more likely to have been influenced by functional concerns. In addition, the intentions of the creator are also relevant to the courts deliberation: if the creator did not have the conscious purpose of creating a work of art then, again, the work is less likely to have the aesthetic quality required. Works designed specifically to be mass-produced are unlikely to have consciously been made as a work of fine art – another factor against them being considered a work of artistic craftsmanship.
Of course, not all works that are industrially exploited were specifically designed to be so. But generally speaking this means that, yes, the impact of repeal is probably going to be less significant than you might think. Ultimately, however, it is difficult to judge exactly how many works will be affected as it will be necessary to carry out a case by case assessment for each design. This means that we’ll have to wait to ascertain what the overall impact will be.
Rights holders: you are the main beneficiaries of the section 52 repeal. If you own the copyright in protected works then, if possible, you should look to capitalise on this change in the law – you should check whether any third parties are making copies of your works and, if so, negotiate appropriate licences with them. If you control a work under an existing licence, you might also want to carry out a sense check in case any terms were originally negotiated in light of the limitation in section 52 and require to be updated.
Businesses/individuals dealing in copied artistic works: you will need to be conscious of the repeal and depletion dates. If you intend to continue using artistic works which are subject to copyright, you will need to seek a licence or permission from the rights holder. Depending on the level of use you make of works affected by the repeal, you may need to review your business models – in any case, it is certainly worth carrying out a general assessment of your product lines to ensure that you do not fall foul of copyright infringement.