CREATe is happy to present the third entry in our series of working papers released in 2022: “Copyright (in Design) Post-Brexit: Should Section 52 CDPA 1988 Be Reinstated?”. This working paper by Luis H Porangaba, Lecturer in Intellectual Property Law at the University of Glasgow and Co-Director of CREATe, is an edited version of a response to the UK Intellectual Property Office’s public consultation, published in volume 44, issue 1 (2022), of the European Intellectual Property Review.
On 22 June 2021, the UK Intellectual Property Office launched a public consultation on the impact of the repeal of section 52 of the Copyright, Designs and Patents Act 1988 (‘CDPA 1988’) and related amendments made in 2016. As part of the post-implementation review process, the consultation asked for views on whether the changes have achieved their original objectives within 5 years of coming into force.
Section 52 reflected a longstanding position in UK copyright (since at least the 1911 Act) of limiting protection in industrially applied artistic works to 25 years. Copyright duration was therefore made coextensive with the term of protection afforded by registered design, notably to ensure that cumulative protection would not unduly hinder the manufacture and commercial exploitation of three-dimensional objects such as furniture and designer jewellery.
Based on a perceived need to ensure consistency of UK law with the Court of Justice of the European Union’s judgment in Flos v Semeraro (C-168/09, decided on 27 January 2011), the UK government sought to repeal section 52. At the time, a group of prominent intellectual property scholars, including CREATe’s Prof Martin Kretschmer, publicly opposed the move. The repeal was nonetheless carried out and, following transitional arrangements, finally came into force on 28 July 2016. As a result, all artistic works are currently afforded the equal copyright term of life plus 70 years, regardless of their being exploited in mass-produced products, or their capability of being protected through other regimes such as design law.
As argued in the paper, the post-implementation review now takes place within a markedly different legal context; the UK’s departure from the European Union prompts more careful reflection of and meaningful engagement with copyright policy. Particularly, Brexit calls for a reassessment of the objectives which the repeal of section 52 sought to pursue—namely, a perceived need to ensure clarity and consistency with EU law—as those objectives may no longer be aligned with the interests or priorities of the UK. What should we expect from copyright, and for what (or whom) should it be conceived? What amounts to good, appropriate policy for the UK?
This response submitted to public consultation argues that section 52 of the UK Copyright, Designs and Patents Act should be reinstated, thereby limiting the term of copyright protection in industrially applied artistic works to 25 years. Particularly, Brexit calls for a reassessment of the objectives which the section 52 repeal sought to pursue—namely, a perceived need to ensure clarity and consistency with EU law—as those objectives may no longer be aligned with the interests or priorities of the UK. This is considered by the response within the context of freedom of competition and innovation, with concerns being raised in relation to the (cumulative) protection of product design. Additionally, UK court decisions assimilating recent CJEU jurisprudence on copyright subsistence suggest an expansion of protectable subject matter affecting previously unregulated creative industries such as fashion, which may warrant further analysis of the potential benefits of section 52.
The full paper can be downloaded here.