45 more to life: A look at the implications of the U.K.’s Repeal of Section 52

By Jameel Odom

In recent copyright infringement news, the British government recently moved to repeal section 52 of the Copyright, Designs, and Patents Act. Removing section 52 will increase the copyright duration for artistic design, as opposed to traditional artistic works, from 25 years from the year the designs were first marketed, to the usual term of life of the author plus 70 years. A recent report from the British government detailed the provisions for implementing the change, set to take place on April 6, 2020, and also published the responses to comments made by those affected by the law. Naturally, the new repeal has stirred up a lot of controversy in the process.

The entire international copyright community has long grappled with what copyright protection, if any, should be available for functional, yet arguably artistic, designs. Such artistic designs can be hard to define, but certain iconic mass produced pieces, such as a Stiffel Co.’s Pole lamp or as Arne Jacobsen’s egg chair, serve as examples of the types of works implicated by this removal.

In cases like those mentioned above, the copyright world is split between rewarding an individual the full copyright protection for his or her work and giving the public the ability to access functional designs and articles. Section 52 of the Copyright, Designs, and Patents Act offered the U.K. a compromise by limiting copyright protection for artistic designs to 25 years.

Section 52 essentially carved out an exception for artistic designs. Instead of the standard ‘life of the author plus 70 years’ term of copyright protection, mass-produced artistic designs would receive a shorter term of protection. More specifically, designs

“derived from…artistic works” that have been made by “industrial process” and subsequently marketed to the public would enjoy protection for only 25 years after the date the design was first manufactured.

Simultaneously, the U.K.’s section 52 separated designs derived from artistic works as either pure ‘artistic works’ or pure utilitarian designs. Under this new scheme, without Section 52, the Copyright, Designs, and Patents Act seems to conceptualize the works in question as an intermediate work between utilitarian design and art, deserving equal copyright protection.

The extension of copyright protection provides artistic designers with an incentive to create and mass produce new designs. Baroness Neville-Rolfe, Minister for Intellectual Property, says that the repeal is “an important step, to bring about the fair treatment of all types of artistic works and to reward those that innovate and inspire.” She further states, “the innovative work of designers will have the appropriate copyright protection, whilst ensuring that UK-based businesses can adapt and thrive.”

Others affected by the change are less enthusiastic that the Minister. Repealing Section 52 would require manufacturing companies to pay licensing fees to rights holders long after the previous 25-year period in order to produce copies. The change would also require permission and possible licensing fees to reproduce the images of designs in books and other publications, as well as restrict what new designers could do if they wanted to build off of an already existing, protected design.

There is a strong chance that this new protection may slow down the output of new designs, as well as threaten the manufacture of current designs that are derivative works

of works that will regain or have extended their copyright. The counterargument to this is that any slowing effect the extended copyright may have may end up being mitigated by the increased protection due to the same designers creating more new original works. These designers may be more likely to create new works knowing that they have additional protection.

Despite protests and appeals to lawmakers by members of the intellectual property community, the House of Lords has approved the new reform. Originally, the government sought a three-year transition period, but due to feedback from commenters, the three years has been increased to the current five-year period in order to give those affected by the change more time for preparation. It seems like designers, museums, publishers, and onlookers alike will have to wait until then to determine the outcome of the repeal.