Contact: Simon Stokes; Blake Morgan (Southampton, England)
Simon Stokes, a partner in our Intellectual Property team, looks at the controversial revival of industrial copyright in the UK from 28 July 2016.
Background
Unlike many other countries the UK has traditionally had limited copyright protection for industrially manufactured artistic works – iconic chairs, lamps, fabric and wallpaper designs, for example. Such designs are only protected by copyright for 25 years. This contrasts with the copyright protection for other artistic designs which are protected for the life of the designer plus 70 years. From 28 July 2016 this will no longer be the case. This will bring the UK more in line with its EU neighbours.
Good news for designers and design-based businesses
This is great news for designers and design-based businesses who should be planning now for the change – challenging those who currently make a living in importing, making or dealing in replicas of their designs. The law still contains some grey areas we expect to be tested in the courts in due course. This is because for 3D designs like chairs, lamps and so on to benefit from the new law they will need to be "works of artistic craftsmanship" under UK law to qualify for full copyright protection - this area is not currently very well defined. Nevertheless we see the law as giving substantially improved protection to design-based businesses.
Bad news for replica businesses, dealers/auctioneers and art/design publishers and advertisers
The change in the law has been greeted with alarm by those in the UK who have either made a living by creating, importing or dealing in replicas of industrially manufactured artistic works after the 25 year copyright term has expired, or who use images of these artistic works in art and design books or advertising, for example.
Transitional provisions
The UK has recently published a draft of the law that will give effect to the change and it contains "transitional" provisions which allow certain acts (which would otherwise infringe copyright on 28 July 2016) to continue until 28 January 2017 (called the "depletion date").
What to do now
Rights owners
If you are a rights owner you ought to be taking action now to ensure those currently making, importing or otherwise dealing in replicas or other items which will become infringing are put on notice of your rights and reminded of their obligations under the new law. Failure to comply should be backed up where necessary with legal action. Given the complexities here any such communications should be based on proper legal advice.
Rights users – replica makers, publishers, advertisers, etc
Replica makers and dealers/auctioneers will need to stop their activities by 28 July 2016 (subject to what is permitted up until 28 January 2016 in the transitional provisions). The same applies to publishers, advertisers and other image users (unless a copyright exception can be relied on). Such rights users would be well advised to contact rights owners for permission if they want to continue their activities beyond the relevant date.
Questions?
For more information on this area please contact Simon Stokes or any other member of our intellectual property team.
