On 28 July 2016, copyright law in the UK relating to mass produced artistic works changed. For artistic works where more than 50 copies are manufactured, the repeal of section 52 of the Copyright Designs and Patents Act 1988 (CDPA) means that the period of copyright protection will be extended from 25 years to the life of the creator plus 70 years. This will have a significant impact on the jewellery, furniture, homeware and publishing industries.
Previously under section 52, designers of artistic works where more than 50 copies were manufactured could only stop third parties creating replica products for 25 years. However, after 28 July 2016, and subject to the transitional provisions set out below, many artists and designers will benefit from copyright protection in their artistic works for the entirety of their life plus 70 years after their death. Although the changes are not retrospective, if an artistic work has the full length of copyright protection restored, the creator of the artistic work could seek to enforce restored copyright to prevent third parties producing replicas or otherwise infringing copyright in the artistic work or require the third party to negotiate a licence to use the artistic work.
The change in the law is most likely to apply to creators of works of “artistic craftsmanship” as these are the most frequently industrially produced artistic works. To find out whether a work qualifies for copyright protection as a work of artistic craftsmanship involves considering the recent case law, which states that the court is likely to take into account the following factors:
Clearly, not all designs will benefit from any further period of copyright protection and it will be a matter of fact as to whether designer furniture, lamps or jewellery qualify as works of artistic craftsmanship. The court’s interpretation suggests that a hand graved, one-off piece of fine jewellery may be a work of artistic craftsmanship whereas mass produced items of jewellery manufactured for retail are unlikely to be works of artistic craftsmanship. Works in which protection has been conferred by the court also include hand-knitted woollen sweaters, a range of pottery and items of dinnerware.
The repeal will not only have an impact on right holders of relevant artistic works but also businesses or individuals that have copied relevant artistic works. For those that have legally based their products on pre-existing artistic works that were no longer protected, consideration should be given as to whether those pre-existing artistic works will benefit from the new, longer period of copyright protection. If so, it will be necessary to adapt those products so that they do not infringe the right holder’s copyright.
Publishers will also need to consider whether any of their publications contain 2D copies of artistic works in which copyright protection has been restored.
Section 52 was repealed on 28 July 2016. However, there will be a transitional period that intends to allow those selling copies to sell through or destroy the copies (depletion). The timescales are as follows:
After the relevant depletion date, third parties must request permission from the right holder to manufacture or import copies.