18 November 2016

Designers enjoy restored copyright protection in the UK for iconic designs

The Enterprise and Regulatory Reform Act passed into law on 28th July 2016. This repealed Section 52 of the Copyright Designs and Patents Act 1988 (CDPA) with the aim of harmonising UK copyright legislation with other member states of the EU and to render it consistent with the Copyright Term Directive. Under Section 52 CDPA, the term of copyright protection in the UK for an artistic work was limited to just 25 years from the date on which the artistic work was placed on the market when the design derived from that artistic work was exploited by mass production of more than 50 articles with the copyright owners’s consent. This limited period of protection is in stark contrast to the copyright term for artistic works that have not been exploited on an industrial scale, and which extends to the entire life of the creator plus an additional 70 years after their death.

Following the repeal of Section 52 (CDPA), copyright applying to all artistic works will subsist for the life of the creator plus 70 years, irrespective of whether designs derived from those artistic works are industrially exploited.

The change in the law will apply to those industrially produced artistic works classed as works of “artistic craftsmanship”. Whilst there is no statutory definition of what constitutes a work of ‘artistic craftsmanship’ in the CDPA, a work of “artistic craftsmanship” tends to be a design whose creation has involved a high degree of artistic merit and quality, such as classic or iconic furniture designs which are considered to be more than just a functional design demonstrating little or no artistic flair. By way of example, copyright in the iconic Arne Jacobsen’s Egg chair, which he designed in 1958, expired long ago according to the provisions of Section 52 CDPA. However, under the revised law, copyright in this chair has now been restored and lasts for the full duration of 70 years following the death of Arne Jacobsen in 1971. However, it should be noted that not all artistic works will be deemed to be works of “artistic craftsmanship” that will benefit from restored copyright protection and it will be a question of fact in each case.

There is no doubt that the repeal of Section 52 CDPA will have a significant impact on the furniture, jewellery and homeware industries because, subject to some transitional provisions, many creators and designers of artistic works for which copyright had already expired will see their protection restored. Therefore, the owner of the restored copyright in a work may seek to enforce it against third parties whose business involves the legal manufacture replicas of pre-existing artistic works that were no longer protected but which now benefit from the new extended period of copyright protection under the new law. These businesses may find it necessary to stop manufacturing such products, adapt them to ensure that they do not infringe restored copyright or, negotiate a licence in order to continue manufacturing replica designs according to the artistic work.

To allow affected businesses to adjust to the new law, a six month transitional period has been implemented. This generally allows those legitimately selling low-cost copies of classic designs to sell off or destroy existing stock. However, companies may still be caught out by the change and many consider that the transitional period is not long enough for them to adapt to ensure that they avoid being liable for infringement.

In any event, the restored copyright in popular designs is likely to put an end to much of the replica designer furniture and homewares widely available at low cost on the internet and favoured by consumers unprepared to pay the price often associated with the “real thing”.