Law Society responds to Government’s proposals for section 52 transitional provisions
We last blogged on the proposed repeal of s.52 CDPA in November (click here). By way of reminder, s.52 CDPA limits copyright protection for artistic works which have been industrially manufactured (a criterion that is satisfied if more than 50 copies have been made) to 25 years. If / when s.52 CDPA is repealed, a potentially large number of artistic works whose copyright protection had expired (by virtue of s.52), will now be back in copyright. This means that individuals / businesses who had otherwise been free to copy the artistic works will infringe once s.52 is repealed and the standard copyright protection duration for such works (life of the author plus 70 years from the end of the calendar year in which the author dies) is reestablished.
The Government launched a consultation on 28 October 2015, seeking comments on the proposals for transitional provisions for repeal, including covering the time period until repeal of s.52 and how existing stock will be dealt with. The Government suggested a transitional period of 6 months from the publication of the consultation so that the repeal will come into effect on 28 April 2016. (Note, the consultation was only in relation to the transitional provisions and not the repeal itself). In response to this consultation, the Law Society has made some interesting comments:
Proposed 6-month transitional period
If a proposed 6-month transitional period is implemented, sufficient and swift publicity should be given to the proposals to ensure that affected businesses are: (a) aware of the change in legislation; and (b) have enough time to adapt and alter their business models accordingly. This is particularly the case if this 6-month period is calculated as running from the start of the consultation period (i.e. October 2015, resulting in a repeal effective on 28 April 2016).
Lack of clarity over meaning of “works of artistic craftsmanship”
There is uncertainty over which items would qualify for copyright protection when the repeal goes ahead. Functional items (such as furniture) will only qualify if they are classified as ‘works of artistic craftsmanship’ (a sub-category of ‘artistic works’). However, the CDPA provides no further definition of what this actually means, and both the UK IPO and case law have struggled with the ambiguity associated with this phrase. Some UK case law suggests that items that are both functional and mass-produced are unlikely to qualify as ‘works of artistic craftsmanship’ but other EU case law suggests otherwise. The Government has therefore assumed that some ‘designer’ furniture may attract copyright protection but other furniture may not. The upshot is that clarity must be provided if there is to be any predictability as to those items which are to be affected by the s.52 repeal (and, consequently the associated transitional provisions).
Need for further guidance / legislation?
In addressing the uncertain definition of ‘works of artistic craftsmanship’, the Law Society suggests that statutory guidance may not be enough to provide the requisite clarity. Instead, a restatement of the law in some form may instead be required. If not, there is a danger that the s.52 repeal will be unsuccessful for both owners and users of rights.
Comment
The Law Society set out many valid concerns that the proposed transitional provisions of the s.52 repeal raise. 6-months seems an incredibly short time-scale for those who currently make unlicensed copies of artistic works that have fallen out of copyright to (potentially) entirely change their business models. As highlighted in previous blogs, the stakes could not be much higher for such manufacturers as some rights holders have already indicated to the Government that, once the repeal is in force, they intend to take legal action against some businesses that produce or sell unlicensed copies of their designs.
The Law Society’s call for sufficient and swift publicity of the change in legislation will be welcomed by both rights owners and users of those rights. However, how this would work in practice remains to be seen. For example, would relevant rights owners / manufacturers be targeted? This seems unlikely, particularly given the difficulty in defining what is / is not a work of artistic craftsmanship. And, whilst the uncertainty associated with the definition of ‘works of artistic craftsmanship’ creates problems beyond the specific issue of s.52, it without doubt makes the application of s.52 (and its proposed repeal) particularly difficult. As such, rights owners and users of those rights are likely to have little idea which works are or are not covered by the legislation.