More clarity on “normal use” in EU design law
The Court of Justice of the European Union has offered some clarity on what may be deemed ‘normal use’.
Section 52 of the Copyright, Designs and Patents Act 1988 is to be repealed with effect from 28 July 2016, effectively providing copyright protection to articles that could previously be copied legitimately. Will this affect you?
To answer that question it is first necessary to understand what section 52 does. This section of the act worked to reduce the term of copyright in artistic works, if they were industrially produced (by the author, or with his consent). The duration of protection was reduced to 25 years, whereas normally copyright lasts for 70 years after the death of the author.
In consequence, if more than 50 copies of an article that is both made by an industrial process and considered artistic are sold, the law has allowed other people to begin making copies 25 years later, e.g. by manufacturing replicas.
This section of the act is particularly important for manufacturers of replica furniture, but may apply equally in other areas. The relevance to iconic furniture designs comes from the fact that they are typically considered to be “works of artistic craftsmanship”, hence fall to be considered artistic works, and they are generally produced by industrial processes.
The UK currently has a number of suppliers serving the demand for legitimately produced replica furniture in addition, of course, to industrial designers and craftsmen. The change in the law will therefore damage these businesses, requiring them to cease selling their products, or attempt to seek a licence from the copyright owner (likely to be the craftsman’s employer or heirs).
On the other hand, the playing field for artistic craftsmen is levelled, to be equivalent to their peers such as authors and composers, whose works have long been subject to protection extending long after their deaths.
Originally a 5 year transitional period had been provided to allow companies dealing in replicas time to sell out and change their business model. This 5 year period was set to begin in April 2015. However, this period was challenged by copyright owners whose rights would become protected again when the law came into effect. Therefore, the transitional period has now been reduced to 9 months starting at 28 October 2015 (when the Government launched its consultation) and ending on 28 July 2016.
The final decision on the end of the transitional period was only announced late in April 2016, meaning that in effect it only lasts 3 months. However, an additional 6 month “depletion period” has also been introduced, to allow for sale of goods produced or acquired under a contract entered into before 28 October 2015. This period ends on 28 January 2017.
This change will come out of the blue for some companies, since amid the complication and unclearness about the deadlines, it has not been heavily publicised. It is expected to cause difficulty for lawyers and judges, and hence uncertainty for business, because “works of artistic craftsmanship” is undefined in statute and ill-defined in case law. One thing that is clear is that a work of artistic craftsmanship should have artistic merit, but historically, the courts have tried to avoid deciding on whether something is artistic or not, with artworks like Marcel Duchamp’s Fountain surely muddying the waters.
Case law has, however, suggested that a prototype of a mass-produced sofa could be a work of artistic craftsmanship, so those producing replica furniture should certainly be aware of the change of the law and consider its effect.
Further detail is provided in the Government’s guidance.
Of course, if you are concerned that you may be affected by the change in the law (either because your industrially produced artwork is being reproduced, or because you deal in copies of industrially produced artistic work, such as furniture), please contact one of our expert design attorneys.