Improved copyright protection for the creative industries as section 52 of the CDPA is repealed

Posted: 03/08/2016

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.

What’s new?

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.

Who can use the new law?

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:

• the phrase “artistic craftsmanship” designates two requirements combined in the same work: artistic quality and craftsmanship;
• “artistic” means it will have a real artistic or aesthetic quality and must be a work of art or fine art. Whether an article is artistic must be determined in light of evidence. This evidence could be evidence of the intentions of the maker, in particular whether or not he had the conscious purpose of creating a work of art; evidence from ordinary members of the public; expert evidence; whether the maker already has works to his name which are acknowledged to be artistic, and the level of aesthetic appeal; 
• “craftsmanship” presupposes special training, skill and knowledge for production;
• the balance between functionality and artistic expression – it is suggested that the more a designer is constrained by functional requirements, the less likely it is to be deemed a work of artistic craftsmanship;
• if the article is mass produced, this does not in itself preclude an item from being a work of artistic craftsmanship but it may cast doubt on whether it is truly one of artistic craftsmanship;
• it is not enough for a work to look attractive to qualify for artistic craftsmanship.

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. 

What should you consider?

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. 

Timescales for new law

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:

• any copy which was manufactured or imported on or before 28 October 2015 may be sold until 28 January 2017;
• any copy which was manufactured or imported after 28 October 2015 but under a contract entered into before 28 October 2015 may be sold until 28 January 2017;
• any copy manufactured or imported under a contract entered into after 28 October 2015 but before 27 July 2016 must be sold by 28 July 2016;

After the relevant depletion date, third parties must request permission from the right holder to manufacture or import copies.

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