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This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

Inside IP: Extended copyright protection for industrially produced artistic works
 Briefing 
Date
26 July 2016

Inside IP: Extended copyright protection for industrially produced artistic works

key message

Currently, mass-produced artistic works (i.e., where at least 50 are produced by an industrial process) have a shorter term of copyright protection compared to other artistic works.  The general term of protection for artistic works is 'life plus 70 years' (i.e., copyright expires 70 years after the end of the calendar year in which the creator dies).  However, industrially produced artistic works are currently only protected by copyright for 25 years from the end of the calendar year in which the work was first marketed. 

From 28 July 2016, the term of protection for industrially produced artistic works will be extended to 'life plus 70 years'.  This has potentially far-reaching consequences in many design-led industries, not least as certain works which had fallen out of copyright will now benefit from resumed protection.  Whilst the focus has been, in particular, on the implications for the replica designer furniture industry, this change in the law will also have consequences in other sectors including in art publishing. 

However, it is important not to assume that all industrially produced designs will be protected by copyright.  There is no statutory definition of what will qualify as a work of artistic craftsmanship (the most relevant category of artistic work) and the Government recognises in its guidance note on the change in the law that this is a complex issue and one that the Courts will no doubt need to review in the future.   Further, it is possible that some exceptions providing a defence to copyright infringement may be available in certain circumstances.  

background

Following an ECJ decision in 2011 (Flos v Semeraro), the UK Government considered that UK law on the length of protection for industrially produced artistic works was not in line with most other EU member states. Accordingly, it decided to repeal the relevant provision (section 52 of the Copyright, Designs and Patents Act 1988), initially setting a 5 year period for the repeal to take effect (i.e. until 6 April 2020).  However, following a judicial review challenge, the Government enacted a significantly reduced transitional period. The repeal of s.52 will now take place on 28 July 2016, with a transitional (i.e depletion) period ending on 28 January 2017, so that certain existing stocks can be sold.

impact of the change in the law

The Government's guidance note summarises the implications of the repeal of section 52 CDPA, for copyright owners, as well as businesses dealing in replica products.   

New industrially produced artistic works

From 28 July 2016, any new artistic work that has been industrially produced will be afforded the same length of protection as all other artistic works, i.e. life plus 70 years.

Existing industrially produced artistic works

Any industrially manufactured artistic work in which copyright had expired will resume copyright protection for the remainder of the 'life plus 70 years' period.  For example, an item of jewellery which is industrially produced may qualify as an artistic work as a work of artistic craftsmanship.  Assume the jewellery was first marketed in 1989 and the creator died in 2000: under the current law, copyright protection expired at the end of 2014; under the new law, copyright protection will resume and will now expire at the end of 2070.

Protection will also extend against reproduction of an artistic work in a 2D form, e.g. in photographs and images. For example, reproducing a photo of the jewellery in our example in a magazine could require a licence from the creator of the jewellery.   In addition to copyright protection, moral rights will also be available to protect against e.g., derogatory treatment of a copyright work.

Depletion period for certain existing industrially produced artistic works

The new rules provide for a 'depletion period' expiring on 28 January 2017. During this period copies of works which now fall back into copyright protection (because of the change in the law) may continue to be made or imported – but only where those copies were contracted before 16.30pm on 28 October 2015 (the publication date of the Government consultation).

The effect of this for companies dealing in (i.e., importing, making or acquiring copies) industrially manufactured artistic works is as follows:

Copies made or imported before 28 October 2015 Copies may be sold or dealt with until 28 January 2017
Copies made or imported between 28 October 2015 and 28 January 2017 under a contract entered into before 4.30pm on 28 October 2015 Copies may be sold or dealt with until 28 January 2017
Copies made or imported or acquired under a contract entered into between 28 October 2015 and 28 July 2016 Copies may be sold or dealt with until 28 July 2016
Copies made or imported with a contract date after 28 July 2016 Copies must be licensed by the rights holder or used under a copyright exception from 28 July 2016
After 28 January 2017 After this date no unauthorised copies may be sold, put into circulation or communicated to the public unless the rights holder consents or an exception applies.

Meeting the criteria as an artistic work

Whether an industrially produced work will qualify as an artistic work is not straightforward and each work has to be assessed on a case by case basis, depending upon the evidence.  The Government's guidance note sets out the factors that the UK courts might take into consideration when assessing whether a work qualifies as a work of artistic craftsmanship.  For example, it is not enough for the work to look attractive; it must have some real artistic or aesthetic quality (and must be a work of art or fine art) and must also be a work of 'craftsmanship' (i.e., involving special training, skill and knowledge for production).  Where the work's artistic expression is constrained by functional considerations (as will often be the case in relating to mass-produced designs), the guidance note suggests it is less likely to be a work of artistic craftsmanship.

Possible defences

There are a number of exceptions to copyright infringement which may allow companies to deal in copies of artistic works without the relevant permission. These include, for example, general fair dealing for educational purposes or for the purposes of criticism and review. The guidance note sets out further details on some potentially relevant exceptions, and also notes that some rights holders have indicated that they will not pursue actions against publishers in relation to 2D copies of their works where it contributes to their marketing or reputation. 

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