Design-replica sellers hit by 45-year copyright extension

Arco lamp

The government has expedited a change in UK copyright law that extends the copyright on industrially manufactured items that qualify as artistic works from 25 years after the designer’s death to 70 years after. This means that certain classic design works have moved back into copyright.

Businesses that sell unauthorised replicas of affected works should have already sold or destroyed their existing stock, except where the items were contracted for before 4:30pm on 28 October 2015, in which case a six-month grace period applies.

What has changed?

With effect from 28 July 2016, section 52 of the Copyright Designs and Patents Act, which had limited the term of copyright protection for industrially manufactured artistic works to 25 years, was repealed. Industrially manufactured works are those where the copyright holder has made over 50 copies. This brings the copyright duration for such works in line with the ‘70 years after the death of the author’ copyright rule that applies for most works.

Grace period

The government has given businesses a six-month grace period for unauthorised replicas of industrially manufactured artistic works created or imported under a contract entered into before 4:30pm on 28 October 2015. In such cases businesses have until 28 January 2017 to clear (that is, sell or destroy) their stock.

From 28 July 2016, unauthorised replicas that relied on section 52 for which a contract was entered into after 4:30pm on 28 October 2015 must be licensed by the copyright holder unless the trader has found a copyright exception that they can rely on.

Photos of affected works

Businesses that want to publish photos of designs that have moved back into copyright (whether in hardcopy form or on the web) will also need to acquire licence(s) from the copyright holder(s) or find an exception to copyright for each item.

Which works are affected?

The types of items that could be affected by the repeal of section 52 include furniture, ceramics, lighting products and jewellery. Well-known classic design works previously caught by section 52 include Charles Eames chairs, Eileen Gray tables and Arco lamps.

However, not all classic designs qualify as ‘artistic works’ under copyright law. To be considered an artistic work it must be established in the view of a court that the item has the requisite artistic quality. Items that are not deemed artistic works can only be protected in the UK by design law, which offers (in the case of registered designs) a maximum of 25 years’ protection.

The repeal of section 52 is intended to stop exact copies of existing industrially manufactured artistic works being made and sold. This means products ‘inspired by’ such works may still be allowed. However, determining where the distinction lies can be an inexact science and where there is doubt it will be down to the courts to decide.

The above creative commons image of the Arco lamp is courtesy of Andrea Pavanello.

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