Section 52 CDPA transitional arrangements on hold while Government consults
You may recall that we previously posted here and here on the progress of the repeal of section 52 of the Copyright Designs and Patents Act 1988 (CDPA). It now turns out that the repeal that was due
You may recall that we previously posted here and here on the progress of the repeal of section 52 of the Copyright Designs and Patents Act 1988 (CDPA). It now turns out that the repeal that was due to take effect in April 2020 is the subject of a judicial review.
What has happened so far?
As a reminder, section 52 of the CDPA provides 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. In practical terms, this means, for example, that furniture manufacturers and importers could start manufacturing and importing furniture that qualified as industrially-manufactured artistic works once the initial 25 year copyright protection had expired.
In April 2013, however, the Enterprise and Regulatory Reform Act 2013 (ERRA) was passed and section 74 of the ERRA repealed section 52 of the CDPA on a date to be appointed by a commencement order.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 proposed change in law was to bring UK legislation into line with EU copyright law so that once section 52 ceased to have effect, any artistic work which qualified for protection, whether 2D or 3D, would 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, copyright owners whose industrially-manufactured artistic works had fallen out of copyright after 25 years, would therefore once again be able to benefit from the longer term of copyright protection.
The Government launched a consultation in September 2013 seeking views on its proposals for how and when to implement the repeal and in February this year, the IPO announced that the repeal would be implemented on 6 April 2020.
Judicial Review
Now, however, it seems that this is no longer the case. The Government announced in a Press Release on 23 July 2015 that it had revoked the Commencement Order which implemented the repeal of section 52 CDPA because it had received a claim for judicial review challenging its compatibility with EU law. The current transitional provisions are therefore no longer in place.
Next steps
We have not yet seen any details on the judicial review itself but what we do know from the Government's Press Release is that a fresh consultation is to be launched on revised transitional arrangements, including the date for implementing the repeal.
We will be sure to alert you to the new consultation when it is published.
What has happened so far?
As a reminder, section 52 of the CDPA provides 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. In practical terms, this means, for example, that furniture manufacturers and importers could start manufacturing and importing furniture that qualified as industrially-manufactured artistic works once the initial 25 year copyright protection had expired.
In April 2013, however, 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 proposed change in law was to bring UK legislation into line with EU copyright law so that once section 52 ceased to have effect, any artistic work which qualified for protection, whether 2D or 3D, would 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, copyright owners whose industrially-manufactured artistic works had fallen out of copyright after 25 years, would therefore once again be able to benefit from the longer term of copyright protection.
The Government launched a consultation in September 2013 seeking views on its proposals for how and when to implement the repeal and in February this year, the IPO announced that the repeal would be implemented on 6 April 2020.
Judicial Review
Now, however, it seems that this is no longer the case. The Government announced in a Press Release on 23 July 2015 that it had revoked the Commencement Order which implemented the repeal of section 52 CDPA because it had received a claim for judicial review challenging its compatibility with EU law. The current transitional provisions are therefore no longer in place.
Next steps
We have not yet seen any details on the judicial review itself but what we do know from the Government's Press Release is that a fresh consultation is to be launched on revised transitional arrangements, including the date for implementing the repeal.
We will be sure to alert you to the new consultation when it is published.