Following the repeal of section 52 of the Copyright Designs and Patents Act 1988 (CDPA), a number of designs will jump back into copyright, and therefore become protected works again.
As it currently stands, section 52 of the CDPA 1988 provides an exception in relation to the protection of artistic works which have been industrially manufactured. In this situation, if more than 50 products have been made, copyright protection is limited to 25 years rather than the life of the author plus 70 years.
However, following the repeal, UK legislation will be brought in line with the EU copyright law so that any artistic work which qualifies for protection will be protected for the life of the author plus 70 years. This will mean that copyright owners whose industrially manufactured works have fallen out of copyright, will now fall back into copyright and overnight be granted protection once again.
As an example, the famous Arne Jacobsen Egg chair, which was designed in 1958 for the lobby and reception areas in the Royal Hotel in Copenhagen, is not currently protected by copyright law in the UK. As a result, we see a number of replicas being legitimately sold on the market, but following the legislative changes, the design will attract protection again. The Arne Jacobsen Egg chair retails at over £5000, whereas replica versions can be purchased for a fraction of the price at under £400.
As a result of the change in legislation, therefore, all replica versions risk being held to be infringing the ‘resurrected’ copyright following the expiry of a brief transition period during which existing stocks may be sold.
The change in legislation will occur on 28 July 2016, with the transition period ending on 28 January 2017. Businesses should therefore start reviewing their product lines now to ensure that they make the most of these changes, and do not fall foul of any ‘resurrected’ protected works.
Whether the repeal will open the floodgates to litigation is a question which we will have to wait to be answered, but my view is that this is unlikely. However, if you want a key replica piece of furniture such as the Egg chair it might be worth purchasing this before January next year!
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