s.52 repeal comes into force July 28 2016

Transition period of s.52 expedited

The repeal of s.52 of the Copyright, Designs and Patents Act 1988 (CDPA) has been expedited due to the outcome of a government consultation. s.52 stipulates the term for artistic works which have been industrially manufactured as 25 years from the year that they were first marketed. This repeal was originally meant to have a transitional period of 5 years, coming into effect in April 2020. The length of this transition period was challenged in May 2015, leading to a review of the proposed period. The government decided that the period was in fact excessive, and withdrew the Commencement Order, and conducted a new consultation which ran from 28 October 2015 – 23 December 2015. The government response to the consultation can be viewed here. 

Transition period expedited from 5 years to 6 months

The repeal will now occur on 28 July 2016, with the transition period ending on 28 January  2017.

From 29 July 2016, no new copies of affected artistic works may be made or imported unless:

•         The works were contracted before the publication of the consultation document at 16.30 on 28 October 2015
•          The rights holder has granted permission
•         An exception to copyright applies under the CDPA 1988

From 28 January 2017, no works created in reliance on s.52 should be dealt with. By this date, unless the work falls within an exception to copyright under the CDPA 1988, the works must be:

•        Sold or destroyed
•         Authorised by the rights holder

Guidance is available for affected individuals, organisations and businesses.

What is s.52?

s.52 deals with artistic works which have been industrially manufactured. This section limits copyright protection for these types of artistic works, when more than 50 copies have been made, to 25 years. Under s.52(2) –

(2)After the end of the period of 25 years from the end of the calendar year in which such articles are first marketed, the work may be copied by making articles of any description, or doing anything for the purpose of making articles of any description, and anything may be done in relation to articles so made, without infringing copyright in the work.

The duration of protection is shorter than the term for other artistic works which is 70 years after the death of the creator. This section has been repealed to give industrially manufactured artistic works the same term of protection as other artistic works.

Why was s.52 repealed in the first place?

The decision to repeal s.52 was prompted by the outcome of Case C-169/08 Flos v Semeraro. Following this case, the government considered that s.52 was not compatible with the Copyright Term Directive.  The pertinence of the Copyright Term Directive is debatable in light of Article 17 of the Design Directive, which allows member states to determine the duration of copyright protection of designs protected by copyright. This was discussed on IPKat here.

Which artistic works are likely to be affected?

Under s.4 CDPA 1988, there are three types of artistic works. s.4(c) works of artistic craftsmanship are most likely to industrially manufactured, and affected by the repeal of s.52. There is no formal definition of works of artistic craftsmanship, but the published guidance has produced suggestions (pg 7) as to how the courts will approach this type of work based on the cases of Hensher (George) Ltd v Restawile Upholstery (Lancs) Ltd [1975] RPC 31, HL and Lucasfilm Limited and others v Ainsworth and another [2012] 1 AC 208:

• It is not enough for a work (such as a piece of furniture) to look attractive to qualify as a work of artistic craftsmanship.

 • The phrase “artistic craftsmanship” designates two requirements combined in the same work: artistic quality and craftsmanship.

 • “Craftsmanship” presupposes special training, skill and knowledge for production.

 • “Artistic” means it will have a real artistic or aesthetic quality and must be a work of art or fine art. • Whether an article is artistic must be determined in light of evidence.

 • This could include: evidence of the intentions of the maker, in particular whether or not he had the conscious purpose of creating a work of art; evidence from ordinary members of the public; expert evidence; whether the maker already has works to his name which are acknowledged to be artistic, and the level of aesthetic appeal.

• Determining whether a work is a work of artistic craftsmanship turns on assessing the extent to which the particular work’s artistic expression is unconstrained by functional considerations.

Previously expired works to resume term of protection

Works in which copyright has expired under s.52 will assume the new term of life of the creator plus 70 years. For example, if an industrially manufactured work was created in 2000, copyright protection would have expired in 2025 under s.52. Now, copyright protection will expire 70 years after the death of the creator. If the creator died in 2010, copyright will expire in 2080.

Effects on publications with 2D copies of affected works

Publishers will be required to secure licences when printing 2D copies of affected works of artistic craftsman ship. All existing publications containing such images must be sold before the end of the transition period on 28 January 2017.