Copyright

Kitty Rosser
Copyright update:
Revocation of
s.52 CDPA 1988
COPYRIGHT PROTECTION
Kitty Rosser, Birketts LLP, provides a brief recap of the effect
of section 52 of the CDPA, and the proposed updates that
could make the law more effective for copyright owners,
consumers, and artistic creators.
Section 52 of the CDPA limits the term of
copyright protection for industrially exploited
artistic works to 25 years, running from the end
of the calendar year in which works are first marketed.
This has the effect of bringing the term of copyright
protection (for works falling within the scope of section
52) in line with the maximum term of registered design
protection afforded to the same works. Thus, representing
a significant limitation by comparison to the standard
protection period of the life of the creator plus 70 years
enjoyed by other artistic works.
Under The Copyright (Industrial Process and Excluded
Articles) (No.2) Order 1989 (the Order) an artistic work
is deemed to have been industrially exploited (and therefore
to fall within the section 52 limitation) if more than
50 articles are produced. The Order specifically excludes
“works of sculpture, other than casts or models used, or
intended to be used, as models or patterns to be multiplied
by any industrial process” from the scope of section 52.
Certain traditional uses of fine art, such as book jackets
and postcards, are also excluded. Whilst it is a relatively
simple matter to determine whether or not a work has
been industrially exploited, identifying an “artistic work”
for the purposes of section 52 is less clear cut. In practice,
the works caught by section 52 are most commonly
those described by section 4(1)(c) CDPA as “works of
artistic craftsmanship”; a term which remains largely
undefined by the UK courts (see box for further
commentary).
Résumé
Kitty Rosser
Kitty is an Associate at Birketts LLP. She advises a wide range of clients
on the identification, protection and exploitation of both registered and
unregistered intellectual property rights as well as advising on data protection
and IT matters.
What are “works of artistic
craftsmanship”?
In its response to the consultation, the Law Society
called for further guidance on the meaning of “works
of artistic craftsmanship” stating;
“The meaning of “a work of artistic craftsmanship”
is, in our view, unclear to the point of rendering the
law dysfunctional”.
The Law Society highlights the fact that only one
case concerning a work of artistic craftsmanship has
ever reached the Lords, and that each of the five Law
Lords came to a different conclusion as to the meaning
of the term. The IPO has also expressed concerns,
stating;
“[T]here is little clarity which items would be
protected by copyright once the changes in law take
effect, and it is impossible to predict how and when
case law will develop on which specific items will have
copyright protection.”
Whilst the Government has indicated that it will
provide guidance to assist in identifying works of
artistic craftsmanship, it is unclear how far such
guidance will go and it will, in any event, not carry
any statutory force. As the Law Society points out, the
leading case on the meaning of the term is a House of
Lords decision, and it is therefore unlikely that any
clear statement will be given until a case is litigated
to the Supreme Court. It is likely to be many years
before there is any genuine clarity as to the meaning
of “works of artistic craftsmanship”.
Reasons for repeal – the Flos case
Whilst the repeal is implemented by section 74 of the
Enterprise and Regulatory Reform Act 2013 (“ERRA”) it
is necessary to look to Europe in order to identify the
underlying reason for the statutory change. In 2011 the
CTC Legal Media
THE COPYRIGHT LAWYER
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