New Rights for Furniture and Jewellery Designers Against Copycats
The Copyright, Designs and Patents Act 1988 changed in July 2016, reviving copyright protection in artistic works which had previously had their copyright protection cut short to a period of 25 years as a result of industrial manufacturing.
If the original design qualifies as an artistic work (details below), then the length of copyright is significantly extended from 25 years to 70 years from the end of the year in which the creator (not the owner) dies. This applies to both two-dimensional and three-dimensional works.
The change brings copyright protection in many works back to life, which is particularly good news for the copyright owners of furniture and jewellery designs, where third parties have created or sold replicas and imitations of their work.
Copycats have been given a grace period of 6 months to allow for the sell off or destruction of any existing copies. The important date is 28 January 2017. Until this date:
- any replica or unauthorised copy created or imported on or before 28 October 2015 may still be sold; and
- any replica or unauthorised copy which was created or imported after 28 October 2015 but under a contract entered into earlier may still be sold.
After 28 January 2017, copycat businesses offering cheaper alternatives of artistic works, which take business away from the original designer and damage the value of an artistic work, are no longer legitimate without proper licensing in place. If copycat businesses continue to trade without an authorised licence, rights owners can pursue them for copyright infringement. A party will not be a breach of copyright by simply possessing a work but infringement may occur if done so in the course of business.
What is an ‘Artistic Work’?
The change will only have an effect on industrially manufactured artistic works which would otherwise have been protected by copyright.
An artistic work will be:
- a graphic work, photograph, sculpture or collage, irrespective of artistic quality;
- a work of architecture being a building or a model for a building; or
- a work of artistic craftsmanship.
The last point is problematic in practice. There is no statutory definition of “a work of artistic craftsmanship” and there is very little authoritative guidance on which works will be deemed artistic enough to benefit from copyright protection.
The UK Intellectual Property Office has issued guidance, which is summarised below:
- It is not enough for a work (such as a piece of furniture) to look attractive to qualify as a work of artistic craftsmanship.
- The phrase “artistic craftsmanship” designates two requirements combined in the same work: artistic quality and craftsmanship.
- “Craftsmanship” presupposes special training, skill and knowledge for production.
- “Artistic” means it will have a real artistic or aesthetic quality and must be a work of art or fine art.
- Whether an article is artistic must be determined in light of evidence.
- This could include: evidence of the intentions of the maker, in particular whether or not he had the conscious purpose of creating a work of art; evidence from ordinary members of the public; expert evidence; whether the maker already has works to his name which are acknowledged to be artistic, and the level of aesthetic appeal.
- Determining whether a work is a work of artistic craftsmanship turns on assessing the extent to which the particular work’s artistic expression is unconstrained by functional considerations.
If the above change affects you Briffa will be able to advise the best course of action. Contact [email protected] or 0207 288 6003 to discuss your available options.