31/08/2016
The 1988 UK Copyright Designs and Patents Act (CPDA) introduced a provision in Section 52 to restrict the term of copyright protection for artistic works which were exploited by an industrial process. The intention was to bring the term for protection available to industrially produced articles to 25 years, the same as was available under registered design protection. This was seen as an equitable compromise at the time.
Repeal of Section 52 took place with effect from 28th July 2016 and sees the term of protection available for such works extended from 25 years to 70 years from the death of the creator. This will have the effect of bringing some works on which protection had already expired back into copyright and will have particular impact on the manufacturers of replica items, such as manufacturers of replica furniture.
While Section 52 was in force, the 25 year term of protection it gave, meant that it was no more useful to its owner than a registered design and as the protection available under a registered design is broader (it is not necessary to prove copying), it has been unusual for Section 52 to be used against infringers.
One area where the repeal of Section 52 is likely to have a significant impact is that of replica furniture. Mid-twentieth century replica furniture has become particularly fashionable and there are many for example, replica chairs sourced from Asia available for less than half the price of those available from an authorised supplier associated with the original creator. Section 52 enabled these to be produced after the 25 year copyright protection term had expired, and so designer furniture first mass produced in the mid-twentieth century has been widely available. Whether or not this can continue to be produced after repeal of section 52 is a moot point but many manufacturers are taking a cautious approach. The government has provided a six month grace period for these manufacturers to sell existing stock and this will expire on 28th January 2017.
The test as to whether or not an article industrially applied is protected by copyright after repeal of Section 52 will depend on whether or not it is a work of artistic craftsmanship or sculpture. Articles of furniture are unlikely to be held to be sculptures and copyright owners will therefore have to argue that they are works of artistic craftsmanship. Tests for this criteria will need some clarification. An article of furniture could, for example, be of high artistic value but may not require any exceptional craftsmanship to produce it. At this stage we do not know how the courts will apply these tests.
Consumers who have purchased replica furniture need not worry. Legislation makes clear that mere possession does not constitute an infringement. Therefore where, for example, a restaurant has purchased replica furniture it will not be caught by the legislation.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
