Copyrighting art and designs: All change?

Posted by Simon Stokes on

New copyright exception for parody

The UK Government continues to seek to reform UK copyright law with a series of legislative reviews in recent years.

A lot of the lobbying here comes from Internet companies with search engines and service providers on the one hand (together with users of copyright works (music, videos, books, images and so on) who see copyright law as stifling innovation and private use, and those who own copyright-protected content on the other wanting stiffer laws against online piracy.

In December 2012 the UK’s Intellectual Property Office (IPO) issued its proposals for legislative reform planned to take effect in October 2013. If enacted some of its proposals will have a bearing on sections of the UK art market and design industry - for example the proposal for a new exception to copyright to permit parody, caricature and pastiche.

So artists or designers who parody others' works, or copy copyright works to create new artistic works (including appropriation art), may find themselves with greater legal protection. And other proposals include giving libraries, museums and galleries the right to copy artistic and other copyright works (e.g. films, photographs) for preservation and archiving purposes. But this proposal is only likely to benefit public galleries and not private art dealers. The details of the proposed new law here are awaited.

The expansion of copyright protection to artistic designs/applied art

Of more immediate concern and relevance to the art and antiques market, and the design industry, however, are proposals likely to become law shortly in the Enterprise and Regulatory Reform Bill (“Bill") currently before Parliament. Tucked away in the proposed Bill is the repeal of section 52 of the Copyright, Designs and Patents Act 1988.

This important but little known provision has operated to limit the period of copyright protection to artistic designs (other than sculptures, plaques, medals and medallions and printed matter primarily of a literary or artistic character) made by an industrial process (i.e. in copies of more than 50) to 25 years.

So at present designer wallpaper, artistically decorated ceramics, possibly replica chairs and other articles which are copies of an artistic work (but not e.g. sculptures, prints or similar – these remain fully protected by copyright) are only protected by copyright for 25 years. Once section 52 is repealed that will no longer be the case: the protection would last for the life of the artist/designer plus 70 years - the full copyright term.

This will potentially bring back into copyright works currently out of copyright with significant implications for designers, manufacturers and retailers of artistic designs. At present clarity on the shape of any "transitional" provisions which will clarify how the law will apply to works currently benefitting from section 52 (and so not protected by copyright in the UK) is eagerly awaited.

Addressing the problem of orphan works

Another area of copyright law the Bill seeks to address is the difficulty that can often happen when you try to track down the copyright owner of a valuable old work e.g. a painting, a photograph, a film.

You or your business might want to make copies (including by photographing it) but there is a concern there might be a copyright owner in the background that can’t easily be traced. What do you do? Take photographs, publish and take a risk of legal action, or not do so? What is now proposed for these so called “orphan” works (“orphaned” because the copyright owner can’t be traced "after a diligent search") is that copying them should be much less risky in the future.

Quite how this will work in practice remains to be seen. What is clear is that the provisions in the Bill go beyond those which already exist in the 2012 EU law (Directive) on this area - the Directive only applies to the use of orphan works by public institutions for limited public interest purposes; the Bill is broader and of greater relevance to the art market. The Directive must be implemented into UK law by 29 October 2014.

It is expected the UK provisions on orphan works under the Bill will be finalised and in force much sooner.

This article is a revised version of a piece first published in the Society of London Art Dealers' newsletter April 2013.

About the Author

Leading the firm's technology practice in London, Simon specialises in information technology law, including outsourcing, cloud services, protecting software IP and licensing of market leading data analytics software.

Simon Stokes
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