Under Irish law, copyright protection for artistic works lasts for 70 years after the death of the author. There are two exceptions to this: (i) copyright protection in a design registered under the Industrial Designs Act 2001 lasts only for 25 years from the filing date of the design and (ii) artistic works “exploited by an industrial process” receive copyright protection for 25 years from when they are first marketed (in this article, both of these works are collectively referred to as “industrially produced artistic works”).
Prompted by a decision of the Court of Justice of the European Union, Ireland is now set to follow the UK by amending the Copyright and Related Rights Act 2000 (the “Copyright Act”) to extend the term of copyright protection for industrially produced artistic works from 25 years to 70 years from the death of the designer. This increase in the term of copyright protection for such works means that where they are over 25 years old, copyright will effectively be restored. This proposed change in the law is likely to impact Irish designers, retailers, manufacturers and consumers.
THE ARCO LAMP CASE
In this case, the authorised manufacturers of the Arco lamp brought proceedings against a company for importing a lamp into Italy that imitated the visual features of the Arco lamp. The Court of Justice of the European Union held that Member States must ensure that all works that are protected by copyright must be protected for the life of the designer plus 70 years, and that a shorter term of 25 years for industrially produced artistic works is contrary to EU law.
THE UK APPROACH
The UK has changed its copyright laws as a result of the Arco lamp case. As of 28 July 2016, industrially produced artistic works that are protected by copyright are entitled to protection for the life of the designer plus 70 years. The six month transition period, which afforded UK importers, manufacturers and retailers a grace period in which to comply with the new regime, expired on 28 January 2017. Anyone who imports, manufactures or sells in the UK a replica of an industrially produced artistic work protected by copyright may now be infringing the designer’s rights.
THE POSITION IN IRELAND
Ireland is now set to follow the UK by amending the Copyright Act to bring it in line with the Arco lamp case. The Department of Jobs, Enterprise and Innovation published a consultation paper aimed at gathering stakeholder views on the potential impacts that the proposed change may have on different sectors of the Irish economy and publication of the submissions is awaited. While the wording of the proposed amendment to the Copyright Act has not yet been published, it is expected that a transitional period, similar to the six month grace period introduced in the UK, will be part of the proposed legislation, so that importers, manufacturers, retailers and designers can use this time to plan accordingly.
IMPACT OF THE PROPOSED CHANGE
It is no surprise that designers have welcomed this proposed change, which will give their industrially produced artistic works the same term of copyright protection that authors, artists and musicians currently enjoy with respect to their literary, artistic and musical works (although it is worth noting that some commentators are of the view that common items such as sofas, chairs and tables will need to be “works of artistic craftsmanship” in order to qualify for copyright protection – how this plays out remains to be seen). The extended term of protection will afford designers of such works increased control over the exploitation of their designs and may result in extended royalty payments or licence fees. Assuming the proposed amendment is adopted, designers may take action against any unauthorised importers, manufacturers and retailers of replica goods. In the meantime, designers and rights-holders should review their commercial arrangements to ensure that they stand to fully benefit from this change, assuming it will become part of Irish law.
For importers, manufacturers and retailers of replica goods, whose business models may rely on industrially produced artistic works having a term of protection of only 25 years (instead of the much longer period of 70 years from the death of the designer) this proposed change in the law will undoubtedly cause concern that dealing in certain goods may soon constitute copyright infringement. Such parties should review their stock and commercial arrangements now to determine whether they are likely to be impacted by this change in the law and if so, to use this time to obtain (or extend) licenses from the relevant designers to make, import or sell the goods in question.