In 2011, the Court of Justice of the European Union in Flos v. Semeraro held that artistic works that qualified for copyright protection were entitled under the EU’s directive on the term of protection of copyright to that protection for the full copyright term of the life of the author plus seventy years if that term had not yet expired when the directive came into force. The decision further held that this was irrespective of whether the design had previously been protected in some other way, such as by registered design protection and the term of protection under that other law had already expired. The decision did, however allow countries to make transitional provisions to safeguard those who had relied on the expiration of, for example a design right, as long as such provisions did not unduly delay restoration of full copyright protection to the articles affected by the decision.
Following this decision, the UK government carried out a consultation on the question of whether the limitation on the period of copyright protection for artistic works after they had been applied industrially was still appropriate and, despite recommendations to the contrary by a number of prominent academics in the intellectual property field, concluded that it was not and that Section 52 of the Copyright, Patents and Designs Act should be repealed. This was done on July 28, 2016. However, because of the effect that this could have on existing rights and contracts, a number of transitional provisions were adopted.
Artistic works to which the change in the law applies are defined in Section 4 of the Copyright, Patents and Designs Act as “a graphic work, photograph, sculpture or collage, irrespective of artistic quality, a work of architecture, being a building or model for a building or a work of artistic craftsmanship”. The change in the law is expected to have its greatest impact with respect to works of artistic craftsmanship. This term is not defined in the Act, but some guidance as to its meaning can be found in cases such as LucasFilm Ltd v. Ainsworth. As pointed out in that decision, not only did a work have to be original but it also had to be a work of craftsmanship but also “artistic” in the sense that the author had to have intended to produce something having aesthetic appeal, to qualify for copyright protection. It may be noted that furniture manufacturers took a particular interest in participating in the UK government consultations.
As a result of the changes, it has since July 28, 2016 been an infringement of UK copyright to deal with any replicas or unauthorized copies made in reliance on Section 52 of the Copyright, Patents and Designs Act because the work had been exploited industrially by the author and a period of twenty-five years had elapsed from the end of the year in which the work was first marketed. Works which had previously fallen into the public domain have therefore been brought back into the realm of copyright protection. However, mere possession of such a work without the intention to sell it is not an infringement.
In order to safeguard those who might be adversely affected by the restoration of copyright to works that had fallen into the public domain prior to July 28, 2016, for a transition period running up to January 28, 2017, it will not be an infringement of copyright to sell or deal in copies of a work affected by the change in law produced or imported before 4:30pm on October 28, 2015 (the time of publication of the governments consultation document), or produced or imported between the consultation and January 28, 2017 under a contract entered into before the publication. After January 28, 2017, copyright protection becomes fully applicable to such articles. Consequently, although private possession of any such articles will be permitted, any future sale or stocking for purposes of sale will be an infringement so that any commercial stocks of articles affected by the change in law should be destroyed by that date unless permission has been received from the copyright owner to make other arrangements.