Section 52 of the CDPA as originally implemented reduced the term of copyright protection for “artistic works” that had been industrially exploited i.e., when more than 50 copies of these artistic works were created to 25 years instead of the usual term for copyright protection of life plus 70 years (previously life plus 50 years). This did not present a problem until EU terms of copyright protection were harmonised in the 1990’s to life plus 70 years, which meant that the UK position on Section 52 suddenly became an anomaly.
However following a case at the European Court of Jutsice called Flos v Semerao the UK chose to repeal Section 52 of the CDPA as it was incompatible with the Term of Protection Copyright Directive whose objective was to harmonise copyright terms across the EU and which allows member states to determine the duration of copyright protection of designs
In the Flos case the ECJ found in favour of Flos (Arco light) for which they had a licence to sell (created originally by the Castiglioni brothers) and the Semeraro (Fluida) design. Semeraro had argued the Arco was not a registered design and that it lacked “inherent artistic value” under the copyright law. However, the ECJ ruled that the Italian Court could not refuse copyright protection to designs which are eligible for this protection.
How does the repeal of Section 52 affect me?
The repeal of Section 52 of the CDPA has brought about changes to copyright law and the Intellectual Property Office has provided helpful guidance for potentially affected businesses. However, despite the fact that these are useful guidelines, the IPO, and, therefore, the Government has ducked the key issues of what kinds of designs constitute artistic works? This is key as the repeal only affects designs which can also be classified as artistic works.
What is an Artistic Work?
The term “artistic work” is defined in Section 4 of the CDPA to mean
(a) A graphic work, photograph, sculpture or collage irrespective of artistic quality (b) A work of architecture (c) A work of artistic craftmanship
The meaning of “a work of artistic craftsmanship” has never been clearly defined nor legally determined leaving confusion for many. The leading authority is a case called Hensher v Restawile from 1976 and concerning a boat shaped chair.
In this case five Law Lords each came to a different view over the meaning of the words “artistic” and “craftsmanship”. The balance between the terms “artistic” and “craftsmanship” is unclear and gives rise to a number of questions. For example, is it art which involves a “making” craft? Is it craftsmanship which has an artistic intent? Is functionality relevant? Is artistic quality relevant? Does it only apply to works from the Arts and Crafts period? It is also not clear whether a WAC needs to be fashioned by the artist-craftsman or whether it may be made by one artist but then crafted by another. It is not currently possible for parties or their advisors to give a confident answer to any of these questions. The IPO has itself stated that this phrase lacks clarity.
A more recent case involving a claim for a “work of artistic craftsmanship” was heard by the Supreme Court was between Andrew Ainsworth, who designed the original Storm Trooper helmet for the film Star Wars and the film director George Lucas who argued (to begin with) that the helmets were works of artistic craftsmanship that the 3D helmets were sculptures and, therefore, protected by copyright for the life of the author plus 70 years. Lucas lost allowing Ainsworth to sell replicas of the famous helmet. This case also reinforced the fact a “work of artistic craftsmanship” has never been formally defined nor determined in the UK to date.
This confusion has to be considered alongside the fact that on policy grounds in 1989 all three dimensional designs that did not qualify as sculptures or works of artistic craftsmanship were removed from the ambit of copyright protection and given their own separate (and weaker) protection of unregistered design right.
The consequence of this is that unless a design can be considered as either a work of artistic craftsmanship or a sculpture it will not be considered an artistic work and therefore remain unaffected by copyright laws and this repeal. This limnits the implications nof the repeal considerably.
How will the IPO implement the repeal?
According to the UK IPO any design that has been industrially produced (that is, more than 50 copies were made) but whose 25 term had expired under Section 52, will resume the remainder of the complete lifetime plus 70 year term at the point at which the old 25 year term had expired. However, this does not mean that the law is retrospective, as it does not affect acts done in relation to the work in the past”.
For example, if a designer created an artistic work in 1980 and manufactured 51 copies and sold them and then died in 2010. Under Section 52, this work would only be protected by copyright until 2005. Following the change in the law this work would be protection until 2080.
Exceptions and fair dealing
The IPO guidelines includes examples for publishers, museums, quotations, education establishments, incidental inclusion, display and research
Furniture designers and manufacturers
3D designs created after 1988 will be protected by EU laws (until Brexit) and UK unregistered and registered design right and, in the unlikely event they satisfy the criteria of a “work of artistic craftsmanship” i.e., a sculpture, copyright protection. Designs created before 1988 may be protected by copyright if they are “artistic works”.
Official Licensors of artistic works created before the 1988 CDPA
From 28 January 2017 the sale of any replicas or unauthorised copies of copyright designs will not be lawful in the UK without the permission of the official Licensor.
Publishers/photographers/ design historians/design writers and design educators
They are very unlikely to be commit acts of copyright infringement for the following reasons;
- If the image relates to furniture, the furniture/lamp etc itself needs to be a copyright work in the first place. Given the decision in the Storm Trooper Helmet case and Henshaw and Restawile it is very unlikely that furniture will be classed as a copyright work (work of artistic craftsmanship) in the first place because it is not a sculpture.
- If it relates to products that they have bought or have acquired for the purposes of interior design then there is a concept of what is known as exhaustion of rights. If it is say a fabric which has been used for making curtains and the curtains are in a picture, the rights holder cannot object to the picture as the interior designer has legitimately purchased the product for use as a curtain and will have a right to photograph the piece in the course of business. A contrary view would be a nonsense as it would mean that no-one could take a photo of the inside of their house
- In any event where it is a photo of an interior design/copyright work it is most likely that the whole scene will incorporate a number of pieces, any one of which would be what is called incidentally included; i.e. they are not the main focus of the picture but incidentally included in it”.
- A photographic image will be protected by copyright plus the life of the photographer for life plus 70 years
Please note: ACID does not advise that this guidance note is a substitute for your own specialist legal advice. It is intended to provide general guidance on the effect of a recent change in the law. Specific advice should be sought in connection with any particular issue. ACID members may call the ACID hotline on 0845 644 3617 and non ACID members may email firstname.lastname@example.org
©ACID, December 2106