Posted by Philip Banks-Welsh, Partner
Are you ready for the changes to copyright protection for artistic designs?
Legislation introduced by the Government will bring an end to the shortened period of copyright protection for artistic designs which are industrially manufactured and sold.
When is the change going to be implemented?
The previous position was that the change was due to be implemented on 28 April this year with a 6 month transitional period running through until 28 October 2016. However, the Intellectual Property Office (IPO) has confirmed to us today that the responses to the Government consultation have been substantial and have raised a number of complex issues and, as a result, the publication of the final version of the transitional arrangements is now likely to be delayed until an unknown date in April. Also there is further uncertainty over the impact and timing of the changes in the event that the UK votes to leave the EU in June and this may end up delaying implementation further.
What is the legislation change?
The present period of copyright protection for a product which is said to qualify as an artistic design, and which is manufactured and marketed on an “industrial” scale (more than 50 items) is 25 years from the end of the year in which the product was first marketed. The law will be updated so that mass produced artistic works will benefit from the same length of protection as other works protected by copyright. In the UK this is for the lifetime of the creator plus 70 years, and so there is a clear disparity in the protection available at present.
While these changes will harmonise the position on copyright protection, there are concerns that the full implications of the changes are not really understood, and manufacturers and retailers are bracing themselves against their impact. Undoubtedly the changes will also affect consumers as the range of cheaper replica items for sale is likely to reduce substantially.
Will the changes apply retrospectively?
While the legislation is not retrospective, it will afford new protection to designs which had lost copyright protection but which would benefit from the extended protection had the legislation been in place at the time that the design was created. This means that many replica products which have enjoyed freedom of design up until the changes coming into force will become infringing products. There are some transitional provisions to limit the impact on the manufacturing and retail sectors but how much comfort will be derived from these is open to debate.
What are the implications for UK businesses?
As matters stand, any potentially infringing product which is imported into the UK before 28 April will still be capable of being sold without giving rise to a claim for breach of copyright up until 28 October this year, as can any stock of product which is already held in the UK as at 28 April. This date may change when the final version of the transitional arrangements is published. Whatever the position regarding the length of the transitional period, the uncertainty remains over which products will ultimately attract copyright protection, and so manufacturers and retailers will either have to withdraw products from the market as a protectionist measure until they are able to establish the extent of any risk, or will continue to trade and run the risk of being sued where a claim to copyright entitlement is made against them. We will report any further updates as we get them. For the present it is important to recognise that these measures will change the landscape of the market for reproduction products and the changes are imminent!
If you need further information or advice on copyright protection for artistic designs, or any other intellectual property law matter, please get in touch with our Technology & Media team.
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