Replicas at risk: extension of UK copyright protection for 'industrially produced' artistic works imminent

27 May 2016

Ewan Grist, Daisy Dier

Imminent changes to UK copyright law will see designers of 'industrially produced' artistic works afforded the same length of copyright protection as other copyright works, meaning an increase from the currently afforded 25 year term to 70 years from the death of the creator. This means that copyright protection for industrially produced artistic works which are over 25 years old will effectively be reinstated. These changes will, for instance, have profound implications for designers (or their assignees/licensees) of iconic industrially produced artistic works which are over 25 years old and which hitherto may have had no basis to take action against unauthorised replicas in the UK. There will of course also be major implications for manufacturers and retailers of such replicas, whose business model may well depend on such products.

What's changing in the law?

From 28 July 2016, industrially produced artistic works will be entitled to copyright protection for the life of the creator plus 70 years. This is significantly longer than the 25 year protection period currently afforded to such works by section 52 of the CDPA 1988, which is being repealed.

As a transitional arrangement, there will be a grace period of 6 months running to 28 January 2017 (the 'depletion date'):

  • Copies imported or made before 4:30pm on 28 October 2015, or produced or imported between this date and the depletion date of 28 January 2017 but for which the contract entered into was before 4:30pm on 28 October 2015, may be sold or dealt with until 28 January 2017;
  • Copies produced, imported or acquired under a contract entered into after 4:30pm on 28 October 2015 but before 28 July 2016 may be sold or dealt with until 28 July 2016; and
  • Copies made or imported with a contract date after 28 July 2016 must be licensed, or used under a copyright exception.  

It is important to note that not all classic designs will qualify as 'artistic works' within the meaning of copyright law. Unless it can be established that a given article has the requisite artistic quality to be deemed an 'artistic work', it will not be entitled to copyright protection in the first place. Most everyday articles of furniture, for instance, are unlikely to be deemed 'artistic works', even if they are generally considered to embody attractive (and possibly even iconic) design. Such non-artistic articles can only be protected in the UK by design law, the maximum protection for which (in the case of registered designs) is 25 years.

What does this mean for designers?

Designers of industrially produced artistic works are set to benefit from the extension as the lifetime (and hence potentially value) of their rights has been very considerably increased. Designers may wish to review their commercial arrangements, such as licence fees.

Designers may also wish to take action against non-compliant manufacturers and retailers of unauthorised replicas after the relevant deadline date.

What does this mean for the manufacturers/retailers of unauthorised replicas?

Manufacturers and retailers which have legitimately been making or selling unauthorised replicas of classic designs now need to carefully review their product range and decide whether they can safely continue to sell these products after the afore-mentioned deadlines, or indeed whether they should approach the copyright owner for a licence.

What does this mean for consumers?

Simple possession of an unauthorised replica (other than in the course of business) will not amount to an infringement of copyright. However, it is likely that unauthorised replicas of classic designs may become harder to find following the sell-off deadlines. It remains to be seen whether a market for lower cost authorised items will now develop.

For more information or advice on the change of law and how it may affect your business, please contact Ewan Grist.

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