IP Cases & Commentary – Details
01 May 2013
Copyright Law Reforms
The Enterprise and Regulatory Reform Bill received Royal Assent on 29 April 2013 (“the Act”), which (despite its name) paves the way for reforms of the UK’s copyright law.
Commercially, perhaps the most interesting change is the repeal of s.52 Copyright, Designs and Patents Act 1988 (“CDPA”) therefore providing an extended term of protection of life plus 70 years for creative designs manufactured through an industrial process. Previously s.52 CDPA limited copyright protection in artistic works that had been exploited using the copyright owner’s consent to only 25 years where such works had been used in an industrial process, thereby mirroring the protection period of a registered design. The Government felt forced to make this change as a result of the Flos v Semeraro decision of the European Court and it has pleased creative designers (especially of iconic furniture), although how much of an impact it will have for them will depend on the Court grappling with difficult issues such as “what is a work of artistic copyright?”.
Whilst there will be transitional provisions allowing existing stock to be sold off, going forward artistic works created more than 25 years ago but less than 70 years plus the author’s life will no longer be available to copy without the copyright owner’s consent. This will impact not just replicas but even book publishers, museums and others who produce “copies” of a work.
As more works will now be protected by copyright, either there will be fewer replicas on the market or the licensing of relevant works increase. Certainly the risk of reputational damage due to poor-quality replicas is reduced.
Businesses that previously relied on protection expiring after 25 years will now have to use their own designs, those not subject to copyright protection, or will need to obtain a licence from the copyright owner. It is expected that there will therefore be a greater demand for new designs, creating opportunities for living designers.
The Act has introduced some other interesting changes. For the first time in the world, the Act allows commercial use of an “orphaned work” after the exploiter has carried out a “diligent search”, as confirmed by an independent authorising body. Orphaned works are copyrighted material for which the author cannot be identified. Exploiters will have to pay a market rate to use an orphaned work, which will act as compensation if the actual owner was later found. Whilst this can be seen as positive development, it will also become an administrative and costly burden for some, such as museums, who hold hundreds of thousands of orphaned works.
It may also have a remarkable effect for users of digital and social media. Currently, information that is able to identify the author of a copyright work is often stripped away from digital files, meaning that users will have to actively register their work, on a work by work basis, in order to record authorship. This will obviously take time and cost, and is made harder still as there is currently only one registry, PLUS, set up for this purpose.
Following the Act, future reforms of this nature will only require a regulation to be passed as opposed to wholly new Acts of Parliament. Importantly, a regulation is not subject to the same level of debate as an Act of Parliament and there is not as much scope for amendment as a draft regulation must be completely accepted or rejected in its entirety.
The Act itself is only the enabling legislation, and these changes are not yet in force. We will have to await various statutory instruments, expected later this year, which will contain the finer details on how these changes will work in practice.