Section 52 Copyright Designs & Patents Act 1988 provided for a reduced term of copyright protection for artistic works which had been industrially manufactured, that is over 50 articles have been made. The reduced term granted was 25 years from first marketing.
However, from 28 July 2016, section 52 will be repealed and all artistic works will be protected by copyright for the full term of 70 years plus the life of the author. This will lead to copyright being revived in those works which previously fell under section 52 where over 25 years have passed since they were marketed. Items such as furniture and jewellery, and photographs of them, will be particularly affected.
There is provision for a short six month period for depletion. This allows goods contracted for before 28 October 2015 (which would have been permitted under section 52 but for its repeal) to be sold. However, from 28 January 2017, no such goods should be made or sold without the copyright owner's consent. The goods most likely to be caught by this change in the law are replicas of works of artistic craftsmanship and the government has provided guidance for those who may be affected.
- Those businesses which deal in replicas of artistic works whose copyright had expired due to the operation of section 52 will now need to change their business practices. Businesses affected are thought largely to be furniture businesses, but there may also be some application to those dealing in jewellery. In many cases, copyright will now be revived for the remainder of the full term for these items. Any stock which is affected and which was ordered before 28 October 2015 (the date of the consultation) can still be sold before 28 January 2017. After that date any orders or sales will need either the copyright owner's permission or to fall within one of the usual exceptions to copyright for use of the work. Businesses will therefore need to remove affected lines from sale or make sufficient modifications so that they do not infringe copyright in the original article.
- Publishers whose books or catalogues include photographs or pictures of artistic works which were free of copyright due to the operation of section 52 will now need to consider their further use. As such pictures are a 2D image of a 3D work now protected by a revived copyright, publishers will need either to seek consent from the copyright owner to continue to reproduce the pictures, or will need to remove them from their publications by 28 January 2017.
- The types of work most likely to be caught are works of artistic craftsmanship. However, there is no definition of "works of artistic craftsmanship" in the legislation. Whilst the Government has given guidance that items must be both artistic and have some craftsmanship in them, ultimately what falls within the definition and whether any use made of a copyright work will amount to an infringement will remain a question for the court.
Following the CJEU decision in Flos (Case C-169/08), the Government concluded that any restriction of the full copyright term for goods was not consistent with the provisions of the Copyright Term Directive. They therefore included section 74 in the Enterprise and Reform Act 2013 which provided for the repeal to be introduced by the Secretary of State. The first consultation on the repeal ran in from September – October 2014 and concluded that a 5 year run off period before repeal in 2020 was appropriate. However, a judicial review challenge was brought by a number of furniture manufacturers on the basis that the Government had to make UK law comply with EU law as soon as reasonably possible. The Government withdrew the commencement order and went to a second consultation period which ran from 28 October – 23 December 2015. The second consultation came back with a very different conclusion with the Government brushing aside the concerns of affected businesses about the speed of the change. They concluded that the repeal could take place 9 months from the consultation, and that a depletion period of only an additional 6 months would be sufficient.
Which works are affected?
Section 52 applied to any artistic work which had been manufactured industrially (more than 50 articles made, as provided by Article 2 of The Copyright (Industrial Process and Excluded Articles) (No 2) Order 1989). In theory, section 52 can apply to any type of artistic copyright work: graphic works, photographs, sculptures or collages; works of architecture being a model of a building; or a work of artistic craftsmanship. It is however most likely to apply to works of artistic craftsmanship. The difficulty with the provision is that there is no definition of such works, with the court being asked to rule in several cases whether works qualified. Works which may be works of artistic craftsmanship are furniture, jewellery, and ceramics although other works could possibly also benefit, such as clothes. The Government have published guidance summarising the principles it gleaned from the case law, notably Henshaw v Restawhile 1976. The guidance states that the work must have artistic quality, being artistic or aesthetic quality, and must also be a work of craftsmanship suggesting that it has been produced by someone who had special training, skill and knowledge about the production of such goods. Ultimately, however, it will remain a question for the courts to determine.
Whilst the consultation considered whether there should be different rules for publishers who have produced 2D images of works in which copyright is now revived, the Government concluded that there should be no difference in the position.
Consequential amendments needed
The second consultation revealed that further consequential changes will be needed due to the repeal of section 52. There will need to be special provision made for works created before 1 June 1957 which at the time could also have been a registered design. The Government will amend Schedule 1 CDPA to ensure that the repeal of section 52 only affects those works which were capable of being protected by copyright under UK law at the time they were made.
Further, the Government will need to rescind a regulation which requires a copyright owner of a revived copyright to grant a licence if requested (Regulation 24 of the Duration of Copyright and Rights in Performance Regulations 1995). The Government concluded that this requirement of compulsory licences would undermine the revival of the copyright. There will therefore need to be a further consultation to finalise these consequential statutory amendments.