Section 52 of the Copyright, Designs and Patents Act 1988 has been a section of the UK Copyright regime which, over the last few years, has attracted much attention. Following considerable debate and consultation it has now been repealed and transitionary provisions are in place. But what is the effect of this repeal and what does it mean for copyright holders?
The original section 52
Section 52 provided that where an artistic work possessing copyright was “exploited” through making copies by an “industrial process”, then the period of protection enjoyed by that copyright work was limited to 25 years. After that period, copies could be made without infringing the copyright in the original work.
This effectively limited copyright in artistic works which were subsequently mass produced – rolls of fabric patterns or sculptures which were subsequently mass manufactured as household items are two good examples.
Repeal of section 52
Following a case in the Court of Justice of the EU, concerning a much more restrictive Italian provision which completely stripped a work of copyright, the UK concluded that section 52 was not compatible with EU Law and therefore would need to be repealed. Following consultation of various stakeholders it was finally agreed to withdraw section 52. As of 28 July 2016, section 52 has been repealed, with a date of 28 January 2017 marking the end of transitionary provisions.
Effect on copyright
The major effect of this repeal is that works which were previously covered by section 52, and were therefore artificially limited in the duration of protection, may now once again protected by copyright. The full term of protection is 70 years following the death of the creator. In some cases this will have significantly extended the term of protection and will potentially bring all manner of works back into protection.
This is of course excellent news for those copyright owners who were hit hard by section 52. The main beneficiaries are likely to be those who, for example, create fabric patterns or mass print and produce paintings. Other beneficiaries may be the makers of artisan furniture which may be classed as works of artistic craftsmanship.
The impact must, however, not be overstated. The work must still be regarded as a work of artistic craftsmanship and the previous definitions and limitations of this key term still applies. The actual number of products which will now be covered by copyright may therefore be limited and there are significant hurdles to overcome in order to fall within this definition.
There are transitionary provisions in place to try and alleviate the effect of this repeal. However even here there may be a shock in store for some. While the original plan was for a five year transitionary provision ending in 2020, this was recently accelerated and instead a much shorter 6 month period has been implemented. This reflects quite strongly the lobbying by copyright holders and is a strong statement in favour of those rights holders.
This means that parties who stock products which were previously out of copyright thanks to section 52 now only have until 28 January 2017 to destroy, sell or secure authorisation from the rights holder for their copies.
Furthermore, from the date of repeal, no further copies of articles previously covered by section 52 can be made or imported, subject to a number of narrow exemptions. These include having authorisation from the rights holder, or that the products were contracted or made before the publication of the consultation document on 28 October 2015 – earlier even than the repeal date of section 52.
These transitionary provisions are therefore likely to be regarded as small crumbs of comfort for third parties who now find themselves with stock they must rapidly dispose of and orders they may not be able to fulfil.
Impact for Copyright Holders
In terms of the impact of copyright holders, it is now more important than ever to ensure that there is good recordal of copyright creation and the people who are to be regarded as creators. With the long duration of protection which will now be enjoyed by copyright owners in their artistic works, even when mass commercialised, keeping accurate records to allow tracing of the term of copyright has never been more important.
Impact on Third Parties
Due to the arguably draconian transitionary provisions, great care needs to be taken to ensure that any articles which might have previously been covered by section 52 are now sold or destroyed by the 28 January 2017. Alternatively authorisation could be sought from the rights holder, but in many cases such authorisation is perhaps unlikely to be forthcoming, or a licence fee may be required.
It is also important to check the date of orders for any products not yet created to ensure that they were placed before the 28 October 2015 deadline or that the goods were made before this date. Otherwise it will not be possible to fulfil these orders and stock cannot be sold.
In any event, from 28 July 2016, third parties will have to be extremely careful when seeking to exploit an artistic work and extra checking will be required to determine whether copyright still exists. This is likely to make it significantly more complicated and expensive to determine whether a copy can be made.
Following the repeal of Section 52, the UK copyright regime has removed one of the major exemptions and limitations to copyright and has extended full protection to those who were taking their artistic works and mass producing them.
However one needs to be careful not to overstate the effect, as “artistic works” is still a narrow category. For those it does affect however, the consequences are broad with care needed both by third parties seeking to copy and by copyright owners seeking to enforce their rights.