Posted on Feb 25, 2015 in Intellectual Property by Caroline Pigott
The government has announced plans to effect the repeal of section 52 of the Copyright, Designs and Patents Act 1988 "s.52".
You'd be forgiven for not knowing what s.52 is or why it even matters. S.52 offered a link between individual works of art (protected by copyright) and industrially produced articles (protected by design rights). The relevant difference between the two is that copyright lasts for the length of the artist's life, plus 70 years, whereas a registered design lasts for 25 years.
Under s.52, if a work which justified copyright protection was produced on an industrial scale, it would be treated as a design. The idea was that an original work of art, like a painting, should be treated differently from an individual's creative work, which is then manufactured en masse, like a designer lamp. Whilst this approach favoured consumers, as it allowed manufacturers to sell iconic replica goods after 25 years, the "designer lamp" manufacturers considered the current law was to their commercial detriment. They petitioned the government, claiming the replica market costs designers £millions each year and that s.52 stifles creativity. Astonishingly, these tactics were successful.
S.52 will cease to be law from 06 April 2020. Thereafter, consumers will have limited access to replica products and the legitimate replica industry will finish for all works after circa 1870. The logical route for replica manufacturers is to sell products which are similar, but sufficiently distinct, to avoid litigation. However, this ushers us towards a larger market for illegitimate copies.
In reality, s.52's repeal is unlikely to have wide reaching effects on our day to day lives, as only a few "classic" designs continue to be popular after many years of production, like the "designer chair" below.
In both pictures, the product on the left is the original design, and on the right, a legitimate replica. Together, the originals cost £5,685, with the replicas sold for £610. It's hard to believe that customers who buy replicas will start buying products from the original designers. It's therefore hard to reconcile the loss which the replica market supposedly causes these designer brands.
Copyright and design co-habitted quite happily, with a clear mechanism for how any overlap between the two should be dealt with. Designs and industrial copyright were protected for the same period of time (25 years) and any distinction was therefore irrelevant. However, we must now pay attention to which side of the artistic line a work falls on. A lesser degree of artistic integrity offers a design right whereas superior art provides copyright protection. We are now forced to ask "is it a chair with design features, or "art" that you sit on?"
The government seems not to have considered any of these factors and has offered little consumer led motivation for the change. The repeal of s.52 has caused a particularly messy break up between copyright and design rights, and it looks like they are never ever ever...getting back together!
Caroline Pigott and Loretta Maxfield are specialist Intellectal Property, Technology and Media Solcitors. We are always delighted to talk without obligation about whether we might meet your needs. Call Caroline or Loretta on 01382 229111 or email firstname.lastname@example.org or email@example.com