Government consultation on time frame for the repeal of section 52 of the CDPA
Yesterday, the Government launched a consultation on the timing of the repeal of section 52 of the Copyright, Designs and Patents Act 1988 (CDPA). The consultation document is published here on the
Yesterday, the Government launched a consultation on the timing of the repeal of section 52 of the Copyright, Designs and Patents Act 1988 (CDPA). The consultation document is published here on the UK-IPO website.
Background
on 25 April 2013, the Enterprise and Regulatory Reform Act 2013 (ERRA) was passed and section 74 of the ERRA repealed section 52 of the CDPA on a date to be appointed by a commencement order. The Government has therefore now launched this consultation seeking views on its proposals for how and when to implement the repeal. It has highlighted the need to implement the repeal in a way that 'reduces negative impacts' on affected businesses and in a way that minimises 'unnecessary harm' to those business who have previously been relying on section 52.
What does section 52 currently do?
Section 52 of the CDPA contains an exception (or permitted use of a copyright work) which limits copyright protection for artistic works which have been industrially manufactured. When more than 50 copies have been made of such an artistic work, the period of copyright protection is limited to 25 years after the work is first marketed, in comparison to other artistic works which are protected for the life of the author plus 70 years.
Practical implications of the repeal of section 52
The change in law, when implemented, will bring UK legislation into line with EU copyright law. 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.
As a result, 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.
Some rights holders have indicated to the Government that, once the repeal is in force, they intend to take legal action against businesses that produce or sell unlicensed copies of their designs (indeed some businesses have already been sending warning letters in advance of the change in law). But what happens in situations where it is not clear-cut whether those designs constitute artistic works and would qualify for copyright protection? There is some concern in the design industry that such lack of clarity may result in more cases going to court in order to identify whether a product is or is not infringing.
Small and medium sized enterprises (SMEs) in particular have raised concerns that if they receive a letter from a rights holder asserting rights in a product that that SME is trading in, they may not have the funds to pursue legal action. Fear of infringing copyright in artistic works may also have a detrimental effect on planned investment in new products.
It is thought that many businesses already have, and will continue to seek legal advice on copyright law and the implications of the repeal of section 52. There is also a possibility that the Government will provide non-statutory guidance in the form of a 'Copyright Notice' setting out which products are likely to attract copyright as artistic works.
Time frame
The Government has stressed that whilst it wishes to ensure that rights holders and designers are able to benefit from the full duration of copyright protection for their industrially manufactured artistic works, they need to balance this against the interests of those UK manufacturers and importers (e.g. in the furniture industry) who have, until now, been able to legitimately rely on section 52 of the CDPA and who have been able to start manufacturing or importing products once the initial 25 year copyright protection has expired.
The Government has made it clear that it is committed to ensuring that the change in law is implemented in a way that 'provides for a fair and proportionate transition period' so as to allow businesses sufficient time to adjust to the changes - some of which may even need to remodel their businesses.
During the Government's previous call for evidence, suggested transition periods ranged from 4 months to 10 years. The latter, longer transition periods being favoured by businesses who manufacture, assemble, import or sell unlicensed 3D copies of artistic works or create unlicensed 2D copies of artistic works. However, case law indicates that a 10 year transition period is neither proportionate, nor lawful.
The Government has outlined three options for transitional periods of: 6 months, 3 years or 5 years - all starting from April 2015. Its preferred transition period is 3 years from April 2015 so that would mean the repeal would come into effect on 6 April 2018.
Consultation period
The consultation launched on 15 September 2014 and closes in 6 weeks on 27 October. We will keep you updated on progress.
Background
on 25 April 2013, the Enterprise and Regulatory Reform Act 2013 (ERRA) was passed and section 74 of the ERRA repealed section 52 of the CDPA on a date to be appointed by a commencement order. The Government has therefore now launched this consultation seeking views on its proposals for how and when to implement the repeal. It has highlighted the need to implement the repeal in a way that 'reduces negative impacts' on affected businesses and in a way that minimises 'unnecessary harm' to those business who have previously been relying on section 52.
What does section 52 currently do?
Section 52 of the CDPA contains an exception (or permitted use of a copyright work) which limits copyright protection for artistic works which have been industrially manufactured. When more than 50 copies have been made of such an artistic work, the period of copyright protection is limited to 25 years after the work is first marketed, in comparison to other artistic works which are protected for the life of the author plus 70 years.
Practical implications of the repeal of section 52
The change in law, when implemented, will bring UK legislation into line with EU copyright law. 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.
As a result, 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.
Some rights holders have indicated to the Government that, once the repeal is in force, they intend to take legal action against businesses that produce or sell unlicensed copies of their designs (indeed some businesses have already been sending warning letters in advance of the change in law). But what happens in situations where it is not clear-cut whether those designs constitute artistic works and would qualify for copyright protection? There is some concern in the design industry that such lack of clarity may result in more cases going to court in order to identify whether a product is or is not infringing.
Small and medium sized enterprises (SMEs) in particular have raised concerns that if they receive a letter from a rights holder asserting rights in a product that that SME is trading in, they may not have the funds to pursue legal action. Fear of infringing copyright in artistic works may also have a detrimental effect on planned investment in new products.
It is thought that many businesses already have, and will continue to seek legal advice on copyright law and the implications of the repeal of section 52. There is also a possibility that the Government will provide non-statutory guidance in the form of a 'Copyright Notice' setting out which products are likely to attract copyright as artistic works.
Time frame
The Government has stressed that whilst it wishes to ensure that rights holders and designers are able to benefit from the full duration of copyright protection for their industrially manufactured artistic works, they need to balance this against the interests of those UK manufacturers and importers (e.g. in the furniture industry) who have, until now, been able to legitimately rely on section 52 of the CDPA and who have been able to start manufacturing or importing products once the initial 25 year copyright protection has expired.
The Government has made it clear that it is committed to ensuring that the change in law is implemented in a way that 'provides for a fair and proportionate transition period' so as to allow businesses sufficient time to adjust to the changes - some of which may even need to remodel their businesses.
During the Government's previous call for evidence, suggested transition periods ranged from 4 months to 10 years. The latter, longer transition periods being favoured by businesses who manufacture, assemble, import or sell unlicensed 3D copies of artistic works or create unlicensed 2D copies of artistic works. However, case law indicates that a 10 year transition period is neither proportionate, nor lawful.
The Government has outlined three options for transitional periods of: 6 months, 3 years or 5 years - all starting from April 2015. Its preferred transition period is 3 years from April 2015 so that would mean the repeal would come into effect on 6 April 2018.
Consultation period
The consultation launched on 15 September 2014 and closes in 6 weeks on 27 October. We will keep you updated on progress.