How changes to UK copyright laws offers greater protection for designers

The UK Government has extended the period of copyright protection available for any artistic work that you've sold more than 50 copies of from 25 to more than 70 years. Here's what that means to you.

For copyright owners of what's known as 'industrially exploited' artistic work – ie works you've sold more than a few copies of, including graphic designs, photographs, drawings and paintings – the reform brings a welcome change.

Those who have been previously prevented from exercising their right due to its early expiry after 25 years – rather than the 'lifetime of the artist + 70' given to individual or very-limited-edition works – will now benefit from the full term of copyright protection. And copyright holders will now be gearing up to seek to enforce their new rights and pursue court action for enforcement.

The reform will also bring big changes to website owners and businesses such as designers, publishers and replica goods’ manufacturers as some of their activities which were considered legal will soon result in copyright infringement of artistic works. Those affected will need to prepare themselves to comply with the new regulations or risk exposing themselves to court action for copyright infringement.

Aligning copyright laws across Europe

The new law on copyright infringement will attempt to harmonise protection in the United Kingdom for 'industrially exploited' artistic works to match the protection given elsewhere in Europe. As part of the Enterprise and Regulatory Reform Act 2013, the UK Government announced the repeal of Section 52 of the Copyright, Designs and Patents Act (CDPA) (“Section 52”).

It has now announced that the change of law will come into effect on 28 July 2016.

How the areas for copyright infringement have been extended

Under the current Section 52, an artistic work such as a graphic design or photograph that has been exploited by industrially producing the work – and more than 50 copies are made and marketed – the period of copyright protection is limited to 25 years after it is first marketed.

The repeal of Section 52 means that the period of copyright protection for an artistic work, which has been industrially produced and marketed in the UK or elsewhere, will be extended from the existing 25 years to the full copyright term which is the life of the artist plus 70 years.

The rationale behind this new change is that artistic works that are reproduced on a commercial scale should enjoy the same degree of protection as other copyrightable work.

What this will mean is that the duration of copyright protection for industrially manufactured artistic work will significantly extend. Importantly, the copyright protection for those works that had expired under the 25-year term will be resurrectEd, so that it has the same term as that afforded to other copyright works.

Implications of the reform

For artists, designers and photographers, the new reform will come as a positive change as it will increase the life of their work and create opportunities to bring enforcement actions to protect their new rights against those who fail to comply with the new rules.

The impact will be negatively felt by businesses currently using the 25 year limit to produce materials such as websites, reference books, guide books and catalogues featuring photographs and artwork that have regained their copyright protection. However, there may be arguments to raise in defence of this use, such as whether the claimed copyrightable work actually qualifies for protection and ownership rights in the first place.

These firms will need to either change their business model to use designs that are old enough that their full copyright term has expired, sell through existing stock before the 'transitional period' allowed by the law ends on 28 January 2017; commissioning new designs and photography (which in itself is an opportunity for creatives) or negotiate new licence agreements.

All of these changes will have cost and legal implications and there could be serious consequences for businesses who fail to take the necessary steps or get it wrong and find that they are presented with an allegation of copyright infringement. I expect to see that these reforms will lead to an increase in activity in both copyright infringement actions and new copyright agreements.

Himanshu Dasare is head of intellectual property law at Gannons, and works with clients who both produce and use artistic works.

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