The UK Government has increased the duration of copyright available to designers of artistic products which are industrially produced, in a change which passed into law on 25 April 2013.
Copyright provides protection against copying for various types of artistic works for the duration of the life of the creator of the work, plus 70 years after his or her death. However, in cases where the artistic work has been exploited by industrially producing articles to the design, an exception in the Copyright Designs and Patents Act 1988 previously limited the duration of copyright in such works to a significantly shorter term of 25 years from the date on which the work was first placed on the market.
The intention of this exception was to reduce the copyright term in respect of designs which qualify as artistic works, but which might also be eligible for protection as registered designs. The maximum duration of a registered design is 25 years, and it was evidently felt that this was an appropriate length of protection for an industrial design.
The Enterprise and Regulatory Reform Bill, which was given Royal Assent on 25 April 2013, amends the Copyright Designs and Patents Act 1988 to remove this exception and allow industrially produced artistic works to enjoy the full duration of copyright protection given to other artistic works.
The types of works affected by this change will include such articles as classic furniture designs which are argued by their designers to constitute a ‘work of artistic craftsmanship’, which is thereby eligible for copyright protection as an artistic work, rather than merely being a functional design which is eligible only for a shorter period of registered or unregistered design protection without the requirement for any special artistic merit.
Under the previous provisions, such ‘design classics’ were limited to a maximum of 25 years of protection by a registered design or the restricted copyright term, once more than 50 items had been produced to the design. This opened up the possibility of replicas being sold legitimately after the end of this period. However, under the amended law, other manufacturers will not be free to produce such replicas until decades later than before. For example, any registered design or copyright protection in the iconic Eames Lounge Chair, first produced in 1956, would previously have expired long ago. Under the amended law any copyright in such an article would be protected for the full duration of 70 years following the death of the last surviving designer, in this case 70 years from the death of Ray Eames in 1988.
The details of how this change will apply to existing works, and existing copies, remains to be seen, and the full details are expected later this year.
It is clear that the removal of this restriction will provide a greatly increased duration of copyright protection for certain products, which brings the UK into line with most other European countries.
Nevertheless, designers should bear in mind that copyright, by its nature, still requires them to demonstrate evidence of copying in order to enforce the right against an infringer. They may therefore still wish to consider obtaining a design registration which, although the maximum duration is limited to 25 years, protects their design against the production of identical or very similar articles, regardless of whether the design of such articles has been copied or arrived at independently.