Repeal of Section 52 Copyright, Designs and Patents Act 1988
Original artistic works such as drawings, paintings, sculptures and photographs enjoy a long period of copyright protection. They remain protected for the life of the author and for seventy years following the date of the author's death. An exception to this long period of protection applies to certain artistic works that are manufactured through an industrial process with the consent of the copyright owner. More than 50 copies of the work must be made. In these circumstances, Section 52 of the Copyright, Designs and Patents Act 1988 ("CPDA") reduces the period of protection to 25 years from the date of first marketing of such articles.
The exception applies largely to those artistic works that fall within the class of works known as works of artistic craftsmanship. Examples include furniture, vases, jewellery and other decorative items that are considered to be functional art with potential for commercial exploitation.
The UK Government has announced that Section 52 will be repealed on 28 July 2016. The main reason for this change is to bring the law in the UK more in line with other EU Member States which give artistic copyright works full protection for the life of the author plus seventy years, irrespective of whether they have been industrially exploited.
The repeal of Section 52 does not have retrospective effect. Any artistic work that has been industrially exploited and which is still in its 25 year term of protection on 28 July 2016 will automatically revert to the remainder of the life of the author plus seventy years. If the 25 year period has expired by 28 July 2016, the work will be protected for remainder of the life of the author plus seventy years from the date on which the 25 year term expired. Guidance from the Government helps explain this. If W created an artistic work in 1980 and in the same year manufactured and sold 51 copies, the work would have been protected by copyright until 2005 (25 years from first marketing). Assume W died in 2010. Following the repeal of Section 52, the work will resume copyright protection from 2005 until 2080, being the remainder of the life of the author plus seventy years following the death of the author.
The Commercial Effect
The repeal of Section 52 has a two-fold effect. Copyright owners who exploit relevant artistic works will enjoy a longer period of copyright and may be able to benefit from granting licences and charging royalties. Businesses that rely on the protection of Section 52 to copy artistic works will no longer be able to do so without infringing copyright. Those businesses will need to design their own products in the future or apply for a licence from the copyright owner. There will be transitional arrangements from 28 July 2016 to enable businesses that have relied on Section 52 to sell off existing stock, but the transitional periods are short.
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.