On 25 April 2013, the Enterprise and Regulatory Reform Bill, which was first published in May 2012, received Royal Assent. The Act addresses a number of aspects including: improving the employment tribunal system, establishing the new Competition and Markets Authority and giving shareholders more say on directors’ pay. The Act also includes provisions for modernising the UK’s copyright regime, bringing into force an important change to the current copyright legislation by repealing section 52 of the Copyright, Designs and Patents Act 1988. One of the most significant effects of this action is in extending the duration of protection of mass-produced artistic works, an important change seen by many, especially so by designers, manufacturers and distributors alike.
The Copyright, Designs and Patents Act 1988 (CDPA) provides the statutory basis of copyright law in the United Kingdom. The CDPA 1988 defines a number of so-called ‘works’ which are protected by copyright. It is the duration of the protection afforded to ‘artistic works’ which is amended as a result of the enactment of the Bill.
Section 4 of the CDPA 1988 defines an artistic work as a graphic work, including a painting, drawing, diagram, map, chart or plan; a photograph, sculpture or collage; a work of architecture being a building or a model for a building; and a work of artistic craftsmanship. Such works are protected by copyright for the life of the author plus 70 years. However, section 52 of the CDPA 1988, which concerns the effect of exploitation of a design derived from an artistic work, reduces the duration of protection afforded to 25 years for works which have been used to create articles conforming to the work by an industrial process and where those articles are marketed. The reduced duration of protection expires after the end of the period of 25 years from the end of the calendar year in which the articles are first marketed, thus significantly reducing the term afforded to the original work. Such a limitation is considered by many to be unfair, particularly in comparison to the duration of protection afforded to other copyright works.
The idea behind the introduction of section 52 of the CDPA 1988 was to prevent the abuse of copyright protection by manufacturers, in particular in relation to the manufacture of functional items, such as spare parts. However, section 52 had a far greater impact that first imagined, an effect which was not most certainly not intended.
The result of the recent change is that an artistic work, once exploited using an industrial process, will no longer have the reduced duration of protection imposed and will be able to benefit from the full term. This will bring the United Kingdom in line with EU legislation.
This is good news for the fashion industry, for example, where print designs, which would ordinarily be subjected to the section 52 limitation once the design is put into production, will benefit from the full term of protection. Photographers are also set to benefit from the repeal of section 52 of the CDPA 1988, in the case that a photograph is utilised as part of a mass-produced product, for example when used as a print on an item of clothing. However the enactment of the Enterprise and Regulatory Reform Bill and the subsequent repeal of section 52 comes with a word of warning to those who deal in works, such as replicas, which would have, until now, fallen subject to the limitation provision. This is an important point well worth considering.
The Enterprise and Regulatory Reform Bill also includes important provisions concerning the licensing of so-called ‘orphan works’, works where the author cannot be located or is unknown. The current situation is that many avoid using orphan works so as to prevent the likelihood of any recourse should the author be found or determined, and because it is not possible to obtain a licence to use the work. As such, there are many orphan works that exist, but which have yet to be used at the risk of possible infringement. In brief, the Enterprise and Regulatory Reform Bill inserts new sections 116A and 116B into the CDPA 1988, which allows licences to be granted on orphan works, such that these works can be used.
If you would like to find out more about this recent change, or to further discuss copyright protection, please contact Albright IP for more information and advice.