Generally, a copyright protects musical, dramatic, literary and artistic works. Copyright protection is given to these types of works for a period of 70 years after the death of their creator. This rule comes with an exception!
According to section 52 CDPA, the current period of protection for artistic works (excluding films) which have been industrially manufactured (i.e. works of which more than 50 copies were made) and marketed for sale is limited to 25 years. This means that anyone can make copies of such works without infringing copyright once the period of 25 years from when the articles were first marketed has expired.
However, following the Case C-169/08 Flos v Semeraro, the UK government considered that section 52 was not compatible with the EU Copyright Term Directive and passed legislation to repeal that section. This means that the period of copyright protection for mass-produced artistic works will be extended to the lifetime of the creator plus 70 years.
Originally this repeal was meant to have a transitional period of 5 years, coming into effect in April 2020. However, the government conducted a new consultation late 2015 and concluded that this period was excessive.
It has therefore been decided that instead, the repeal will now occur on 28 July 2016, with the transition period ending on 28 January 2017.
What does this mean for businesses, organisations and individuals?
Well, from 28 July 2016, no new copies of affected artistic works may be made or imported unless:
- they were contracted before the publication of the consultation document at 16.30 on 28 October 2015;
- permission has been granted by the rights holder; or
- an exception to copyright applies under the CDPA 1988.
And from 28 January 2017, no replicas or unauthorised copies created in reliance on s.52 should be dealt with. By this date, unless an exception to copyright under the CDPA 1988 applies, all of these items must be depleted (sold or destroyed) or must have received authorisation by the rights holders.
Furthermore, it has to be noted by those affected businesses, organisations and individuals that the change has retrospective effect and industrially exploited artistic works whose copyright protection had expired under the 25 year rule will have copyright protection ‘restored’.
To explain what is meant by “restored”, here is an example: an artistic work was created by person “A” in 1985. More than 50 copies were manufactured and sold by “A” in that same year. “A” died in 2015.
Under Section 52, this artistic work would have had copyright protection until 2010. But following the change in law, that same work would be protected until 2085.
What to do now?
Following the change in the law, anybody who have copied artistic works should assess if any changes to their business models and product ranges have to be made, especially if they were relying on section 52. Some minor or substantial changes might have to be implemented in order to avoid being in a situation of copyright infringement.
To assist affected individuals, organisations and businesses, the IPO has prepared Guidance, which is very useful to obtain general information on the repeal of section 52 and its consequences. However, it does not provide legal advice which means that independent legal advice should be sought, if required.
Should you wish more information on copyright or any other IP protection in the UK or the European Union, the TrademarkHub team can assist you and your business with protecting, exploiting and enforcing your intellectual property rights. Please do not hesitate to get in touch.
