Last week (Monday 11 March), Clause 65 of the Enterprise and Regulatory Reform Bill reached report stage, a chance for further scrutiny, in the House of Lords. The Government’s proposes to repeal section 52 of the Copyright Designs and Patents Act 1988, and thereby increase the term of protection of copyright in mass-produced designs from 25 years to the life of the designer plus-seventy years thereafter.
UK IP Professors (including several CREATe academics) have intervened in the debate since last June, arguing that this extension of term might harm fragile publishing interests (e.g. of arts publishers). Professor Lionel Bently of Cambridge University has assisted in drafting several amendments which would shield publishers from the need for licences for reproducing images of designed artefacts. Disappointingly, the amendments were not pressed in the Lords. The proposed amendments are explained in the attached letter to Lords Stevenson and Clement-Jones.
The original intervention in The Times of 31 July, 2012 is reproduced below:
31 July, 2012
To the Editor, The Times
If enacted, Clause 56 of the Enterprise and Regulatory Reform Bill would repeal section 52 of the Copyright, Designs and Patents Act 1988, so that copyright in the artistic features of mass-produced products will subsist until 70 years after the death of the designer, rather than the present period of 25 years.
One practical effect of the reform will be to make replica versions of classic designs, such as Jacobsen’s Egg chair, unaffordable to many consumers. Also, the creative freedom of future designers will be constrained because of the need to avoid stepping on the toes of their predecessors, which those using images of these designs for illustrative purposes will need to obtain permission. These social costs are clear, yet there is no evident public benefit from the reform.
The reform has been justified as a response to Case C-168/08, Flos v Semararo, where the European Court of Justice found that transitional provisions in Italian law that left the Arco lamp unprotected contravened the Designs Directive 98/71. The UK did not intervene and thus the Court was not informed that during the passage of that Directive, the UK secured permission to retain the 25-year term. Rather than repeal section 52, the Government should take the earliest opportunity to clarify that this freedom remains intact.
In any case, repeal of section 52 goes well beyond what would be required to implement Flos – member states remain free to limit the extent of protection of copyright in designs. There has been no consultation on this measure at all: public input would likely produce a more measured response.
Professor Lionel Bently, University of Cambridge
Professor Tanya Aplin, King’s College, London
Professor Ronan Deazley, University of Glasgow
Professor Graeme Dinwoodie, University of Oxford
Rt Hon Professor Sir Robin Jacob, University College, London
Professor Martin Kretschmer, Bournemouth University
Professor Hector MacQueen, University of Edinburgh