Out of time to claim copyright? Not any more…

Posted: 14/02/2017

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Following the change in UK copyright law last summer with the repeal of section 52 of the Copyright Designs and Patents Act 1988 (CDPA), many mass produced artistic works can once again be protected by copyright.

The transitional provisions allowed those selling copies of products which were originally out of copyright but due to come back in, to sell through or destroy the copies until 28 January 2017. Anyone selling copies of works of artistic craftsmanship after 28 January 2017 may now be liable for copyright infringement, despite having not been liable for decades.

What the new law says

For artistic works where more than 50 copies are manufactured, the repeal of section 52 means that the period of copyright protection will be extended from 25 years to the life of the creator plus 70 years.

Who can use the new law?

The change in the law is most likely to apply to creators of works of ‘artistic craftsmanship’ as these are the most frequently industrially produced artistic works.

To qualify for protection as a work of artistic craftsmanship, you need to consider the following:

• you need both artistic quality and craftsmanship in the work you are claiming rights in;
• ‘artistic’ means it will have a real artistic or aesthetic quality and must be a work of art or fine art. Courts will look at the intentions of the maker, in particular whether or not he had the conscious purpose of creating a work of art; evidence from ordinary members of the public; expert evidence; whether the maker already has works to his name which are acknowledged to be artistic, and the level of aesthetic appeal;
• ‘craftsmanship’ presupposes special training, skill and knowledge for production;
• the balance between functionality and artistic expression – it is suggested that the more a designer is constrained by functional requirements, the less likely it is to be deemed a work of artistic craftsmanship;
• if the article is mass produced, this does not in itself preclude an item from being a work of artistic craftsmanship but it may cast doubt on whether it is truly one of artistic craftsmanship;
• it is not enough for a work to look attractive to qualify for artistic craftsmanship. 

Clearly, not all designs will benefit from any further period of copyright protection and it will be a matter of fact as to whether your design is classed as a work of artistic craftsmanship. Works in which protection has been conferred by the court include jewellery, hand-knitted woollen sweaters, a range of pottery and items of dinnerware.

What should I do?

It is worth looking into your back catalogue for works that you thought could only be protected for 25 years – these may now be protectable for the life of the creator plus 70 years. Although you may not use the works yourself anymore, third parties may be using them and you may now be able to stop them.

You can also consider establishing or expanding your licensing programme, particularly if you own works you do not want to use but which have a commercial value.

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