The UK Intellectual Property Office ("IPO") has opened a consultation on the impact of the repeal of section 52 of the Copyright, Designs and Patents Act 1988 ("CDPA"), inviting all interested parties to respond.
Before its repeal, section 52 CPDA provided that, unlike the usual 70 years for artistic works, the term of copyright protection for industrially manufactured artistic works should be limited to 25 years.
The consultation (details of which can be found here) forms part of the Secretary of State's post-implementation review of the regulations that repealed section 52 CDPA and made associated amendments. Although it will be primarily relevant to artists and designers, educational institutions and museums, publishers, and manufacturers, all interested parties and stakeholders are invited to provide responses.
All responses (including any evidence, questions and any requests for meetings) should be sent to the UKIPO, such as by email to Section52CDPA@ipo.gov.uk by 31 August 2021.
Background to the consultation
At the time of its implementation, the repeal of section 52 CPDA was the latest development in a decades-long debate over (i) what type and length of protection should be provided for manufactured articles and (ii) whether the categories of works for the purpose of copyright law, should be open or closed. The key tenets of the CDPA (which amended the Copyright Act 1956) were:
- Copyright was inappropriate for the protection of the three-dimensional representation of industrially produced designs (section 51) and thus UK unregistered design right was introduced
- Even if the designs were still capable of being classed as 'artistic works', then the usual length of copyright protection of 50 years after the death of the designer (as it was then) was, within the context of the fast-changing world of industry, inappropriately long – thus came about the introduction of section 52 CPDA.
As mentioned above, before its repeal, section 52 CPDA limited the term of copyright protection for industrially manufactured artistic works to 25 years, unlike the usual 70 years for other artistic works.
However, as most European Member States do not distinguish one type of work from another – instead, providing protection for anything which is fixed and the result of intellectual creativity – the UK was compelled to abandon its 'closed category' model, which required the work to fall within a specific and identifiable category of 'work' to be capable of protection. Further, following a decision of the Court of Justice of the European Union in 2011, the UK Government decided to repeal section 52 CPDA in order to afford equal copyright protection for all types of artistic works.
Section 52 CPDA was repealed by The Enterprise and Regulatory Reform Act 2013 (Commencement No. 10 and Saving Provisions) Order 2016, which came into force on 28 July 2016. From this date, parties could no longer make or import new copies of artistic works unless (i) the works fell within the transitional provisions (which expired 28 January 2017), (ii) the rights-holder authorised such creation and/or importation, or (iii) an exception applied. This was followed by The Copyright (Amendment) Regulations 2016 ("2016 Regulations"), which amended Schedule 1 CDPA to provide that works created before 1957 should be protected by copyright.
In enacting the 2016 Regulations, the UK Government also sought to give intellectual property ("IP") rights-holders greater control over the exploitation and distribution of their works, by removing the requirement for compulsory licensing of works with revived copyright from the Duration of Copyright and Rights in Performances Regulations 1995 ("1995 Regulations").
The Secretary of State is required to carry out a post-implementation review within five years of any regulations coming into force. The purpose of such a review is to assess the extent to which the regulations' objectives have been achieved, whether those objectives remain appropriate, and if they could be achieved in a different way.
Scope of the consultation
The consultation comprises three categories of questions pertaining to the legislative changes.
The first category asks general questions regarding the repeal of section 52 CDPA, amendment of Schedule 1 CDPA and amendment of the 1995 Regulations. They seek input from interested parties as to what extent the changes have successfully achieved their original objectives to protect all artistic works equally. The questions also ask whether the changes remain appropriate, relevant and necessary post-Brexit, whether the changes have proven to be beneficial to relevant stakeholders, and whether they have led to any consequences that stakeholders did not anticipate.
Questions in the second category are aimed at rights-holders – for example owners, assignees, and licensees. The questions seek to ascertain whether the changes have led to increases in revenue on account of increased licensing and, if so, whether the increases were greater than expected. The consultation also asks right-holders what their original estimate of benefits was when the changes came into force and whether this is different to the actual benefits they accrued. The section concludes by asking whether the changes made any difference in rights-holders' ability to protect their rights.
The third and final category of questions is aimed at copyright users – for example retailers, manufacturers, publishers, photographers, interior designers, educational institutions and museums. In addition to exploring whether copyright users incurred any costs (such as for legal advice and time for clearing rights) and gained any benefits as a result of the changes, the consultation further asks whether as a result of these changes, copyright users made any changes to their business models.
Call for responses
Given the lack of data at the time of publication of the UK Government's impact assessment regarding the changes, it was not possible then to explore fully the anticipated benefits and drawbacks of the regulations. It is therefore important that all interested parties participate in the consultation, in order to inform the policymaking in this area of IP law.