Last spring we wrote about an important upcoming change in copyright law. This will give designers of 'industrially produced' artistic works the same length of copyright protection as other copyright works, meaning an increase from the currently afforded 25 year term to 70 years from the death of the creator. This means that copyright protection for industrially produced artistic works which are over 25 years old will effectively be reinstated. Importantly, this will include replicas of iconic industrially produced artistic works and will have implications for both the designers, manufacturers and retailers of these products.
We are fast approaching the depletion date this Saturday 28 January 2017. This is the date on which the 6-month transitional period, which ran from the date the law changed in July, comes to an end. Businesses which were cleared to make and/or deal in products during this transitional period will no longer be able to do so after this Saturday.
What should companies dealing in (now) unauthorised replicas do now?
If you haven't already prepared for this change in the law, this is what needs to be done before 28 January 2017. Companies manufacturing, selling, renting, transporting or otherwise dealing with replicas of classic designs need to carefully review their product range and decide which can still safely be sold and which may now infringe the original designer's rights.
Businesses will need to ascertain whether copyright still subsists in the design: when was it created? Is the author still living? If they have died, how long ago? If the copyright subsists, the next question will be: who now owns the copyright?
Businesses will need to make sure that all infringing stock is sold before the depletion date or else suspend the sales until suitable licence arrangements with the owner can be made. They will then need to consider whether, in light of potential licence fees, continuing with the products concerned is still profitable.
In the longer term, companies can explore which classic designs were created too early to be affected by the change in law and can still be traded without infringing copyright.
What should designers do now?
Living designers of industrially produced artistic works are set to benefit from this extension as the lifetime (and hence value) of their rights has been increased. In view of this, they may wish to review and update any licensing agreements they've already entered into concerning these rights.
Where the designer is no longer living, successors to their estate should seek advice as to who now owns the copyright. If the designer has left a will, this will dictate the current ownership.
Companies will want to re-assess in which designs they now own copyright, either through designers they've employed (the rights will belong to the employer unless the parties have contracted otherwise), designs they've commissioned (the rights will belong to the creator unless the parties have contracted otherwise) or designs they've bought rights in by assignment. They will then need to review in which of these designs copyright has now been reinstated.
Once they've established their rights, designers, successors to estates and companies will all need to find out who may now be infringing those rights by dealing in their designs and consider approaching them to ask them to cease their activities or to enter into a licensce agreement. If they are not compliant, they may also choose to take further legal action.
What does this mean for consumers?
It is still completely legal to own a replica of a classic design purchased before the depletion date. Consumers can also expect sales of replicas this week but after Saturday it is likely that, without competition from replicas, certain designs will become more expensive.
This is the final week for businesses to "get their house in order" and means the start of a significant change in business strategy for both designers and those dealing in replicas of their classic designs, as well as the relationships between them.