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Monday, 21 December 2015

Santa Claus’s submission on the IPO Consultation on Transitional Arrangements for the Repeal of Section 52

Santa Claus ...
Following the release of the decision of the Court of Justice of the European Union (CJEU) in Flos [here] in 2011, UK Government has considered that section 52 of the Copyright, Designs and Patents Act 1988 with its 25-year term of protection for industrial process articles is in conflict with the Term Directive and, therefore, needs to be repealed [for some further background information, see here].

This has not happened yet. 

However, the IPKat has just entered in possession of a rare letter penned by Santa Claus himself and addressed to the UK Intellectual Property Office.

Here's (in exclusive for our very blog) the text of the letter:

"Dear IPO,

I am fairly sure I replied to the Call for Evidence you issued in 2013, and I was informed last February that transitional arrangements were to be put in place, so that section 52 would come into effect in 2020. With that in mind, I purchased large stocks of replica furniture and other design items that were copies of designs first marketed before the 1990s, books about designs (eg Victor Margolin’s World History of Design), and jigsaw puzzles, including a jigsaw puzzle of Art Deco pottery from the 1930s, some designed by Clarice Cliff (1899-1972). We have a budget, and this stuff was well-priced. To be honest, the way things have been since 2008, there is no way we could ever buy any of the “authorised copies” of designer furniture.

Anyway, I have just heard that you have revoked the provisions and now plan to bring forward the change, so that it will take effect in April 2016, and I will need to have got rid of any stock that I bought after October 28, 2015 by then (and any stock I got before October 2015 by October 2016). 

This is a real disaster for me. The elves and I always try and abide by the law. But I have only until Wednesday 23 December to reply, and I am really busy right now. So I will keep this short. I am told others, such as Professors Lionel Bently (University of Cambridge) [now tweeting at @LionelBently] and Graeme Dinwoodie (University of Oxford), will make lengthier submissions. 

When you wrote the Call for Evidence, you emphasised that until there were legal provisions in place to repeal section 52, dealing in copies of old designs was entirely legal. And I took you on your word. 

... his General Counsel
(casual Friday attire)
...
And when in March this year you said this would continue to be the case until 2020, I breathed a sigh of relief. Actually, I felt you had really listened to the concerns that had been raised and tried to come up with an “evidence based” transition. What has happened? Has the evidence changed? Has the law changed? Nothing in the Consultation explains what objectively has changed. All it says is that some design firms sought judicial review. Have you given up “evidence-based” policy in favour of “risk-avoidance”?

Some of the replica furniture relates to designs first marketed after 1956. I guess I will just have to give all the stuff I bought after October away this Christmas. But to be honest, this hardly seems fair. I never even knew there was a Consultation. A Consultation is not a Parliamentary Act. I really don’t see how you can have assumed I knew about it and so could have avoided buying any more replicas. 

As for the stuff I bought before October, I understand I will have until the end of October to dispose of it. That’s pretty bad news for me, as my business is actually pretty much confined to deliveries on the night of December 24/25th. May be we can think about bringing Christmas forward? I’m really not sure that you had my business fully in mind when you came up with these dates (despite my response to the 2013 Call for Evidence).

We also have some presents that are replicas of old designs: designs from before 1956. As you know, we run a big operation on a shoestring, so only have one elf who specialises in IP (our real concern is product safety, especially for the presents we buy in). Anyway, our legal elf always told us that you would not change the law on pre-1956 designs, as they never had copyright at all (so section 52 was irrelevant). So we have loads of stock. Now I read that you are thinking of making it illegal for us to sell this too. I am sure someone will benefit from this change, but you have really left us in a difficult position here. We can understand you want to change the law, but can’t you just let us dispose of the stock we have already acquired?

Our legal elf is tearing his hair out about the books and jigsaws. Looking at the law, he says that even lawfully taken images of original products will now need consent, because the images were only lawful because either (i) there was no copyright (for pre-1957 designs) or (ii) the images were copies of articles made after the 15 (later 25 year) period of exclusivity had passed, so fell within the section 52 defence? The Consultation seems to say that if the proposed provisions come into operation, these books and jigsaws are to be treated just like replicas. So we will need to get rid of all our stocks this Christmas, or try and procure licences to put these items on the market. This means we need to look at *every item* we have, every image in every book, and try and decide what we need to get rid of this year and what we can hold on to. We will need a team of legal elves, and a huge number of para-legals.

... and ... [fill out HERE]
I don’t know whether you knew this, but we also work really closely with some charities. We don’t always get our decisions right, so sometimes our gifts are unwanted and end up in charity shops. Sometimes we buy them back for next year. When our legal elf discussed the Consultation with one charity operator, it dawned on her that your proposal on second-hand sales has frightening repercussions too. You had previously said that all items put on the market already could continue to circulate. That seems like a clear and sensible rule. But you now seem to be saying that there are to be no second-hand sales of lawfully made and marketed copies (where the copies were unauthorised) other than between individuals. Like us, charity shops (and second-hand dealers in general) like to act lawfully. They don’t want to see counterfeit goods, for example. But how are they to know which design copies were authorised? Or which books contain images that were originally made under the exceptions, but which if your proposals go through will be made unlawful.

I have been doing this job a long time; from the look of my beard, probably too long. Bringing happiness to people at Christmas doesn’t ever seem to get any easier, especially on the legal side. If the IPO felt that it would like to give me as Christmas present, the thing I would most appreciate is if you had a big re-think about these proposals.

Have a happy Christmas,

S. Claus"

1 comment:

Anonymous said...

Excellent stuff Mr Claus! The good news could be that some of your "own brand" SC or FC products (elf-made) and related memorabilia could come back into copyright?

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