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Will you still be protected following a change to copyright law?

Currently Section 52 of the Copyright, Designs and Patents Act 1988 provides that where an artistic design has been industrially manufactured and more than 50 copies sold then copyright in that artistic work lapses 25 years after the article was first marketed. This has enabled businesses to import and sell copies of such works without fear of infringing copyright.

Artistic work” is defined by section 4 of the Act but in this context the repeal is likely to principally affect one category in that section namely what is described as, “a work of artistic craftsmanship”.  That term is, perhaps unhelpfully, not defined in the Act and is open to interpretation by the Court.

However, Section 52 is now being repealed and the production, use or sale of such artistic works will not be afforded the same protection for breach of copyright. Copyright in these artistic works will revert to running for the lifetime of the creator plus 70 years. Depending on the terms of any agreement or licence with the copyright holder that is in place may mean you will no longer be able to produce or sell these items without breach of copyright.

There are two important dates where changes to business practices will need to be considered:- 

  1. From 28 July 2016, you will be unable to produce or import copies of such artistic works unless:
    1. you entered into a contract to do so prior 12pm 28 October 2015;
    2. you have the permission of the copyright owner to do so; or
    3. an exception under the Act applies.
  2. From 28 January 2017 you will not be able to produce, sell copies or communicate such artistic works to the public unless:
    1. you have the permission of the copyright holder to do so; or
    2. an exception under the Act applies.

If neither of these conditions applies then you must ensure all copies are sold or destroyed prior to 28 January 2017.  

Failure to comply with the Act and the implications of the repeal of Section 52 could see a claim for breach of copyright.

It is therefore important to check the products you produce and whether you have the appropriate agreements and permissions in place to continue selling or importing such works past the above dates.

For more information and advice contact Marion Meager on 0113 220 6344

About the Author

Marion Meager

Director

Marion specialises in internet disputes, defamation/social media claims, commercial agent disputes,…

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