We have published extensively on the imminent repeal of section 52 of the Copyright Designs and Patents Act 1988 here, here and here and the Government has now published a Summary of Responses to the consultation launched on 28 October 2015, (including a draft commencement order for which there is a 14 day period for anyone to respond, after which the Government will proceed to make the order). There is also a helpful guidance note for affected parties on the new transitional arrangements for the repeal.
The new transitional provisions provide that from 28 July 2016, all types of artistic works will have copyright protection for the life of the creator plus 70 years, rather than the 25 years it previously had under section 52. The depletion period for existing stock produced or acquired under a contract entered into before the publication of the consultation will end on 28 January 2017.
(Please note a further technical consultation will be launched relating to works made prior to 1957 and compulsory licensing of works where copyright is revived).
Section 52 of the CDPA 1988 currently limits the term of copyright protection for industrially exploited artistic works to 25 years. This means that when more than 50 copies of artistic works have been made, the period of protection is limited to 25 years from first marketing, compared to other artistic works which are protected by copyright for the life of the creator plus 70 years. The Government passed legislation in 2013 (section 74 of the Enterprise and Regulatory Reform Act 2013) to repeal section 52 and extend the full copyright protection of 70 years plus life of author to any artistic work which qualifies for protection. The Government decided to bring industrially manufactured articles into line with other artistic works and the change will also then bring the law into line with most other EU member states.
When the repeal of section 52 is put into effect, the section 52 exception will cease to have effect and any artistic work, whether 2D or 3D, which qualifies for protection, will benefit from the full term of copyright protection of the life of the author plus 70 years and not just the limited 25 years after first marketing.
The main beneficiaries of the change in law are likely to be copyright owners whose industrially-manufactured artistic works that had fallen out of copyright will once again be able to benefit from copyright protection. For those businesses on the other side, however, who used to be able to make unlicensed copies of artistic works that had fallen into the public domain, they will no longer be able to do so. Therefore, anyone who is not a copyright owner or licensee of an artistic work that is over 25 years old and is industrially manufactured will need to seek the copyright owner's permission, or a licence, to make lawful copies (unless they can rely on a copyright exception).
Exact timescales as to when the repeal should take effect, however, have remained the subject of scrutiny for some time and the purpose of the October consultation was to seek responses from those who would be affected as to a reasonable timescale for such a repeal.
As a result of this consultation, the Government has decided to extend the transitional period from the initially proposed six month period to nine months from the consultation. While rights holders were very much in favour of allowing all artistic works to benefit from the full protection as soon as possible, there was significant concern about the impact of a six month transitional period from various other respondents to the consultation, such as replica furniture businesses, publishers, photographers and libraries and archives who felt that six months would not allow sufficient time to make the necessary changes to their businesses.
Relevant dates during the transitional period
The IPO guidance sets out some helpful information about relevant dates and which contracts could benefit from the depletion date:
- Copies (either 2D e.g. book or magazine containing images of works of artistic works or 3D) imported or made before publication of the consultation at 16.30 on 28 October 2015, or produced or imported between the consultation publication and the depletion date of 28 January 2017 but for which the contract entered into was before the publication, may be sold or dealt with until 28 January 2017.
- Copies (either 2D or 3D) produced, imported or acquired under a contract entered into after 28 October 2015 but before 28 July 2016 may be sold or dealt with until the repeal takes effect on 28 July 2016.
- Copies made or imported with a contract date after 28 July 2016 must be licensed, unless they benefit from an exception.
- From 28 January 2017, it will not be possible to deal with any replicas or unauthorised copies made in reliance on section 52. By this date all articles must be depleted (sold or destroyed), have permission from the copyright owner or rely on an exception. Simple possession of an article after this date will not be in breach of copyright, although it will be if acting in the course of business.
What artistic works are covered?
Section 52 refers to artistic works that are industrially manufactured. The definition of artistic works in section 4 of the CDPA includes "works of artistic craftsmanship" which are the works most likely to be affected by the repeal. Rather unhelpfully, however, there is no statutory definition of a work of artistic craftsmanship and very little UK case law on the subject, but the IPO guidance provides some useful guidelines on the few relevant precedent cases:
- It is not enough for a work of art, e.g. a chair, to look attractive to qualify as a work of artistic craftsmanship.
- A work of artistic craftsmanship requires artistic quality and craftsmanship. The latter presupposes special training, skill and knowledge. Artistic means it should 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 through evidence e.g. evidence of intentions of the creator, evidence from members of the public, expert evidence, evidence of previous artistic portfolio, and the level of aesthetic appeal.
- it is important to assess to what extent the work's artistic expression is constrained by functional considerations - the more constrained the designer is by functional considerations, the less it is likely to fall into the artistic works camp.
Businesses, organisations or individuals who have copied artistic works (lawfully until the repeal) should start planning now (if they have not already) to assess whether they need to make any changes to their business models or product ranges and obtain legal advice promptly if necessary. The guidance provides useful information for business to think about, such as:
- Identifying existing articles which are copyright protected and determine whether any licences are available to make copies and negotiate them;
- Removing specific articles from a product range if necessary;
- Reviewing existing licences to ascertain whether the repeal impacts on any of the terms of the licences; and/or
- Considering whether any copyright exceptions could apply when making or using new or existing copies.
Copyright owners also need to monitor their copyright protected articles to ensure they are not being infringed and if they are, they should consider whether they want to negotiate a suitable licence.
Whether you are a copyright owner, or a business or individual dealing in copies, review the IPO guidance and seek legal advice as soon as possible to discuss options.