The life + 70 years term of copyright is required by an EU Directive to be uniform throughout the EU. However, in some instances this uniform term has come into conflict with pre-existing national laws. In the UK, it clashed with a special provision for those artistic works which had been exploited industrially by the making of more than 50 articles derived from the work. In those cases, although the underlying copyright in the artistic work itself would have the normal life + 70 years term, it would be legitimate for third parties to make articles to the design after only 25 years from when the original marketing took place. In doing so they would not be infringing UK copyright.
The relevant UK law was section 52 of the Copyright Designs & Patents Act 1988 (CDPA). That section has now been repealed, with effect from 28 July 2016.
Most articles produced by an industrial process these days start off life as a drawing, whether made by a person or computer-aided in some way. The drawing eventually translates into a product for sale. The drawing would have copyright, but the product itself is not an artistic work and has no independent copyright. This is by virtue of section 51 CDPA.
Instead of copyright, the CDPA created a separate right for those items, called unregistered design right. This confers something analogous to copyright but for a limited period of 10 years from first marketing of the product.
The repeal of section 52 does not affect the existence of the short-term unregistered design right, nor does it affect the exclusion applied by section 51. Essentially, the repeal of section 52 is not relevant to those artistic works which are drawings. The repeal is however potentially relevant to two other types of artistic work, namely:
- sculptures; and
- works of artistic craftsmanship.
If the original work was in either of these two categories, and the work had been reproduced industrially, then the limited 25 year term is now history. The full term of copyright springs into life.
There has been much press comment about how the repeal of section 52 will kill off the trade in articles such as replicas of famous items of furniture. Many of these items date back to the 1950s and so the 25 year rule might have applied, with copyright now coming back to life. However, this very much depends on whether the original item was itself a sculpture, or alternatively the enigmatically-named “work of artistic craftsmanship.”
Firstly, sculptures are not limited to things on pedestals in museums. There can be sand sculptures on beaches, or works made of ice. There can be all sorts of materials and forms that qualify as sculptures, but a compendious definition has proved elusive. The UK Supreme Court had a go recently when it was deciding whether the white helmet worn by Imperial Stormtroopers in the Star Wars films fell within the meaning of the word. It held that it did not. Although the helmet contributed to the artistic effect of the film, it was essentially a utilitarian object, not a sculpture – Lucasfilm v Ainsworth  FSR 41.
Items of furniture like tables, chairs, sofas, and also other articles such as domestic lighting, can undoubtedly have an artistic flavour to them, but that does not mean that they are sculptures. Indeed the legislation expressly says that a sculpture, or indeed any other graphic work, will have copyright “irrespective of artistic quality” (section 4(1) CDPA). In the light of the “Star Wars” decision, it is difficult to see how an item of furniture which is to be mass produced for domestic use can qualify as a sculpture, however classic or iconic the piece might be.
The word “sculpture” is part of everyday speech. The phrase “work of artistic craftsmanship” is not; it is a construct created for the purposes of copyright law. The legislation provides no assistance as to its meaning, and the qualification “irrespective of artistic quality” does not apply to it. Lawyers advising on it have to fall back on the leading case of George Hensher v Restawile in the House of Lords –  RPC 31. This is a decision from which it is notoriously difficult to extract a definition, but it did concern a piece of furniture: a sofa.
The sofa was not a classic in any sense; indeed, the witnesses in the case were quite rude about it. It had eye appeal only in that some people wanted to buy it. None of those sitting in the House of Lords thought it was “artistic”, without actually saying why. However, “artistic” by itself is not the test. In order to qualify, the original item has to be a work of “artistic craftsmanship”. One of members of the House of Lords, Lord Simon, said that this was a composite phrase which had to be construed as a whole. This is probably the likeliest way in which a court would approach it now.
The actual work that is protected needs to be identified. A production item is not a work of artistic craftsmanship, but a prototype might be. The court would have to be told about how the prototype was created, and by whom. Some of the classic items of furniture which might be thought to benefit from the repeal of section 52 are made of moulded plastic. Questions could arise as to whether the process was one of craftsmanship, or one involving production expertise which might be skilled but which might not deserve the epithet “craftsmanship”. The making of a plastic shell from a mould could be more of an industrial process than a work of craftsmanship.
The UK IPO has issued some guidance on the effect of the repeal of section 52. This is not binding on anyone, but it is a helpful start. They say that “craftsmanship” pre-supposes special training, skill and knowledge for production, and that whether an article is artistic must be determined in the light of evidence. They say that whether something is a “work of artistic craftsmanship” turns on assessing the extent to which the particular work’s artistic expression is unconstrained by functional considerations.
Everything will depend on the facts of each particular case. Some of the furniture designs that might be in issue were made many years ago. Although loss or destruction of an original item will not destroy any copyright in it, there are potential difficulties with establishing provenance and chain of title, quite apart from the fundamental difficulty in satisfying the test that the original item is indeed a “work of artistic craftsmanship”.
A faction within the furniture industry was successful in pushing hard for an early date for the repeal of section 52. Those who made such an effort for the law to be changed quickly must be assumed to have targets to aim at. Time will tell what their targets are, and where their quest will lead.