Section 52 CDPA has been repealed
Written by Thomas Mould on 10 August 2016« Return to Reading Room
Repealing section 52 Copyright Designs and Patents Act 1988
Section 52 of the Copyright Designs and Patents Act 1988 has after a lengthy consultation officially been repealed. Section 52 limited the term of copyright protection for industrially exploited artistic works to 25 years from the date of creation. Industrial exploitation is when at least 50 copies are made by an industrial process and commercially marketed.
Industrial exploited artistic works now last for the life of the creator plus 70 years. The effect of the repeal is retrospective. For those industrially exploited artistic works whose copyright protection had expired under the previous 25-year rule, the copyright may have now been revived.
Revived copyright protection could have a major impact on any businesses that use another’s copyright works in the thought that protection has ended. The repealing of section 52 and the revival of industrial works will mean that business may be subject to various copyright disputes and legal proceedings.
Manufacturers, importers, dealers and retailers of what they thought were lawfully copied works may now be infringing another’s copyright. The counterpoint for rights owners and some master licensees is that there may now be significant value in the intellectual property of works that have been revived.
‘Artistic works’ include ‘works of artistic craftsmanship.’ This is the most likely sub-category to be affected by the repeal. Although there is no statutory definition for such works, the UK's Intellectual Property Office (IPO) has published guidance on the changes and on the limited case law.
It is predictable that reproduction furniture and limited run designer products could be particularly affected. There are other categories of artistic work (but not all are industrially exploited). In addition to the usual graphic works (i.e. drawings, photographs etc.), a sculpture and a work of architecture are classified as artistic works. Every case will need close scrutiny as to what type of work it is and whether it has been industrially manufactured.
Those who have lawfully copied artistic works prior to the repeal of section 52 should consider whether they need to adjust to remain compliant with copyright law. For those in the replica business, whether as a manufacturer, importer, dealer or retailer, this legal change has a big implication on their business practices. For example, businesses may need to consider whether new licences need to be negotiated and their advisors should look at the boilerplate provisions and the duration clause in any existing contract or licence. In serious cases, changes may be needed to business models or product ranges. Where copies are made in reliance of section 52, businesses will need to ensure that they have taken suitable steps and copyright owners will need to monitor their copyright protected works in the future to ensure they are not being infringed.
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