Missing the point!

Are the recent changes to UK copyright law really such good news?

The Government's surprise proposal to abolish Section 52 of the Copyright, Designs and Patents Act 1988 ("CDPA") within the Enterprise and Regulatory Reform Bill 2012 has been widely trumpeted as a major breakthrough for designers. Nick Kounoupias of DMH Stallard and ACID’s Chief Legal Counsel said, “I wish it were so but sadly this looks to us as an opportunity missed and not the major reform we had hoped for”.

Nick further explains, “Section 52 provides that where artistic copyright subsists in a three dimensional design that has been created using "an industrial process", then it will only be protected for a period of 25 years rather than the full life plus 70 years of protection that other forms of copyright works get. Abolishing this peculiar form of discrimination and bringing parity with other copyright works is therefore of course to be welcomed.

However the proportion of three dimensional designs that in fact are protected by artistic copyright is very small indeed. Since 1 July 1989 all three dimensional designs that are not capable of being registered as designs or which do not qualify for copyright protection under the very restrictive terms in the CDPA are protected as unregistered designs in accordance with Section 213 of the CDPA and have a 15 year term of protection. The only designs that can be protected by copyright are a sculpture (Section 4(1)(a) of the CDPA or a work of artistic craftsmanship (Section 4(1)(c) of the CDPA). A sculpture is deemed to include a cast or model made for purposes of sculpture but a work of artistic craftsmanship is not defined in the CDPA. Whilst its meaning has evolved through case law it is clear that the Courts will only deem a design to be a work of artistic craftsmanship in very exceptional cases. After all Parliament's clear intention in 1988 was to relegate all designs to a non-copyright status and therefore obtain a relatively low period of protection.

So the chances of finding any design that will actually benefit from the abolition of Section 52 on the basis that it is a design protected by artistic copyright law is fairly slim and of course that's precisely why Government has done this! It looks good to the outside world but makes very little difference in practice. It should be said that the main motive for this change appears to have been to bring the UK into line with the rest of the EU in affording life plus seventy years protection to designs protected by artistic copyright. Perhaps someone who does benefit was threatening to take the UK to the European Court of Justice. As a design led nation (ranked 4th in the world) we were one of the last three countries to do this (UK, Estonia and Romania)”.

Dids Macdonald, ACID’s CEO said, “There is much that Government should be doing to bring parity between design laws and copyright laws. For example making an unjustified threat that someone has copied your design could lead to legal action being taken against you (Section 253 of the CDPA) but there is no unjustified threat provision in copyright law. Stealing someone's copyright can be a criminal offence. Stealing someone's design is not. This is bizarre. It's a criminal offence to copy someone's design drawing but not to copy the design itself! This is where Government should be legislating and not making changes which will look good but will hardly improve the lot of the average designer".