Anyone keen to net a cut price replica Charles Eames chair, a bargain ‘Arco-style’ lamp or a reproduction Barcelona chair would be well-advised to act quickly. A change to the Copyright, Designs and Patents Act 1988 which came into force last Thursday (28th July) will mean that in six months’ time, copies of such modern designer furniture will be outlawed in the UK.The change comes in the form of the repeal of Section 52 of the 1988 Act. This provision limited the term of copyright protection for industrially manufactured artistic works (i.e. artistic works where more than 50 copies are made) which are marketed to 25 years – as compared with the much more generous protection for other artistic works, being the lifetime of the creator plus 70 years. The repeal of Section 52 brings the protection for furniture designers into line with that for other creators such as authors and fine artists, and the original designers and their estates will now have the exclusive right to produce their chairs, lamps and other items of furniture for quite a few decades to come, in some cases. For example, copyright in an industrially manufactured work first marketed in 2000 would have expired in 2025 under the old law. Now, if the creator lived until, say, 2015, his heirs will benefit from copyright protection until 2085.
A transitional period of six months, ending on 28 January 2017, will allow retailers to sell off existing stock – and shoppers to acquire their final bargains.
The change will undoubtedly hit the many businesses dependent upon the replicas market very hard, and likely result in the closure of some. It was suggested in an article in the Guardian last weekend that there may be as many as 54 factories in China dedicated solely to the production Charles Eames reproduction furniture.
The road to repeal has been somewhat bumpy. The legislation implementing the repeal originally entered the Statute Books in 2013, with a Commencement Order bringing it into effect being passed in 2015. But this Order provided that the repeal would come into force on 6 April 2020. This prolonged transitional period was challenged by way of a judicial review, resulting in the revocation of the Commencement Order and a subsequent (second) consultation leading to the final decision to adopt the shorter six month transition.
This somewhat meandering course perhaps reflects, to some extent, the complexity of this area of law. It has arisen piecemeal over the centuries, layer upon layer added to the legislative picture, to the extent that we now have sections in the 1988 Act numbered 296ZA, 296ZB etc. For a business involved in industrial design and manufacture the potential for confusion is rife: where does copyright law end and the law of design right or patent law begin? And what exactly is a ‘work of artistic craftsmanship’ which might attract copyright in the first place? When do the scales tip from ‘drawing inspiration’ for a work into ‘copying’ a ‘substantial part’? And what about conducting business overseas in States which provide protection for works not covered by copyright in the UK?
A thorough consolidation and simplification of this area of law isn’t something we can expect to see in the coming years, or probably decades. Last week’s change won’t alter the general picture dramatically – but will no doubt mean yet more questions for intellectual property lawyers.