Change in the Law on Artistic Works and Industrial Design

The UK Intellectual Property Office (IPO) has recently completed a consultation on a very specific aspect of Copyright Law. The plan is to repeal Section 52 of the Copyright, Designs and Patents Act 1988 (CDPA), which currently functions as an exception. The usual term of copyright for an artistic work is the creator’s lifetime plus 70 years, but by virtue of Section 52, where an artistic work is exploited as an industrial design, the duration of copyright in the original work is 25 years from the first marketing of the product. The product consisting of copies of the original artistic work produced by an industrial process. Under current legislation the artistic work which has functioned as an industrial design in this way can thus be freely copied by others when 25 years has elapsed.

The current exception applies to both 2 dimensional and 3 dimensional works. It could cover furniture, wallpaper, fabrics and jewellery for example, where the design comes from an original artistic work which has been copied.

With the removal of the Section 52 exception, the original artistic work will enjoy the much longer copyright term applicable to artistic works in general. The main motive for the change seems to be to bring the UK into line with EU copyright law, where there is no equivalent exception.

The IPO has just published its proposal for dealing with Transitional Arrangements . The repeal will take effect on 6^th April 2020, in order to give businesses relying upon the reproduction of original designs time to adjust. The overall effect is that many “works of artistic craftsmanship” which had already gone out of copyright will be protected once more, creating issues for among others, makers of reproduction furniture and publishers of books containing designs which will come back into copyright.

The IPO acknowledges that the most significant issue will be exactly which works qualify as “works of artistic craftsmanship” and therefore qualify for the full period of protection, something which is likely to be settled by the courts.