Isle of Man: Design Rights In The UK And The Isle Of Man - Recent Changes

Last Updated: 31 January 2017
Article by   Simcocks

Under the Manx and UK copyright legislation it is not an infringement of a design document to make industrially (ie more than 50 copies) articles in accordance with the design which are not themselves artistic works, including works of artistic craftsmanship.

Under Manx and (until 28 July 2016) UK copyright legislation the period of copyright protection for industrially produced artistic works was reduced from life of author plus 70 years to 25 years from first marketing. In UK the change applies from 28 July 2016 to new products unless contracted before 28 October 2015 and from 28 January 2017 to replicas or unauthorised copies.

A more detailed discussion of the changes affecting English law is attached.

This is a change which is particularly important in UK for designs for such works originating more than 25 years before the change in the UK legislation took place since the period of protection against unauthorised copying has been significantly extended.

There is no definition of "works of artistic craftsmanship" but they may include items such as those produced by silversmiths, potters, woodworkers and embroiderers including, perhaps, some designer furniture (although a decision of the House of Lords in 1976 decided that a suite of mass-produced furniture was not a work of artistic craftsmanship).

There is anecdotal evidence to the effect that some producers or distributors of such items have transferred their operations to countries, including Ireland, where the above legislative change has not been implemented (at least not yet) from where the goods are shipped to the order of customers in UK and other countries on terms that delivery takes place and title passes in the country from which shipment is made.

The above change has not been – at least not yet – introduced in the Isle of Man. Accordingly, producers and distributors of such items in the Isle of Man may wish to consider having similar terms of sale in place.

APPENDIX

The repeal of section 52 of the Copyright Designs and Patents Act 1988 in the UK

On 28 July 2016, the repeal of section 52 of the Copyright Designs and Patents Act 1988 (CDPA) came into force, meaning some artistic works will now fall back under copyright.

Introduction

Under the CDPA, artist works are provided with copyright protection for 70 years from the end of the year in which the artist dies. Section 52 CDPA limited the term of copyright protection for artistic works which have been exploited by an "industrial process" (that is, more than 50 articles being produced) to 25 years (i.e. in line with the maximum available for registered designs). This is a lot less than the duration for other artistic works, which is the artist's life plus 70 years.

In March 2015, the Enterprise and Regulatory Reform Act 2013 (Commencement No.8 and Saving Provisions) Order 2015 (the "Commencement Order") was passed effectively repealing Section 52 CDPA. This change in law extended the period of copyright protection for industrially-produced artistic works to 70 years. This is likely to impact on the producers of replicas of artistic works including those that create and use 2D images of works, such as museums and photographers.

The impact of this change is likely to be particularly felt by businesses in industries such as furniture, homeware and jewellery. Designers of relevant works will, post repeal, benefit from an increased period of copyright protection. However, businesses that manufacture or import replicas of certain works that had fallen into the public domain will, once again, require permission to continue manufacturing and/or importing replicas of works whose copyright protection is restored.

The UK Government's rationale for repealing Section 52 CDPA is that all artistic works should have the benefit of the same period of protection. The change was prompted by a desire to align UK law with EU law, and in response to a strong campaign by designers who sought greater protection for their designs in the face of cheaper imitations being manufactured and/or imported (in particular from China).

What types of "work" are likely to be affected?

Works of "artistic craftsmanship" and sculptures1 are most likely to be affected by the repeal of Section 52 CDPA. However, works of artistic craftsmanship are not defined in the CDPA and, therefore, it is for the courts to interpret what it means – which is not always easy to predict.

For example mass produced chairs based on a prototype mock up have been held not to be works of artistic craftsmanship (Hensher v Restawile (1976)) and the helmets and costumes for Stormtroopers in the Star Wars films passed the "craftsmanship" test but were held not to appeal as pieces of art (Lucasfilm v Ainsworth (2006)2).

When deciding upon whether or not a particular piece of work qualifies as a work of "artistic craftsmanship", a court is likely to take into account the following factors:

  1. Attractiveness, by itself, is not enough to qualify as a work of "artistic craftsmanship";
  2. "Artistic craftsmanship" denotes 2 qualities: (1) artistic quality; and (2) craftsmanship;
  3. "Artistic" means real artistic or aesthetic quality - it must be a work of art or fine art;
  4. "Craftsmanship" presupposes special training, skill and knowledge for production;
  5. 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"; and
  6. Mass production in itself does not preclude an item from being a work of artistic craftsmanship but does cast doubt on whether it can be said to be such a work.

Not all classic designs will benefit from any further period of copyright protection. It will be a matter of fact as to whether designer furniture, lamp or jewellery qualifies as a work of "artistic craftsmanship" and is affected by the change to copyright law.

The Impact of repealing Section 52 CDPA

The removal of the 25-year limitation could give owners of some designs dating back to the 1960s (or earlier) a new way to pursue copyists where previously their rights may have expired.

When will the repeal take effect?

Section 52 CDPA was officially repealed on 28 July 2016. However, there is a transitional period in place that intends to allow affected copyists an opportunity to adapt their business models, with a "depletion date" of 28 January 2017 being set. Depletion essentially means the selling or destroying the copies. After 28 January 2017, any copyist should only manufacture and or import copies of artistic works with the copyright holder's permission (unless a copyright exception applies).

Footnotes

1 See Lucasfilm Limited v Ainsworth [2011] UKSC 39

2 Ibid

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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