A Bill going through the UK parliament concerning design copyright threatens to create significant obstacles for those wishing to publish catalogues when staging exhibitions in commercial galleries or museums, says a leading academic.
Lionel Bently, professor of Intellectual
Property at the University of Cambridge, further argues that the
legislation is misguided, will introduce needless red tape, and
could cause far wider damage to British business and education.
In a recent online debate with The
Guardian, Professor Bently said that: "On the face of it, the
bill looks like good news for design, but there are lots of people
that have been critically overlooked: from university lecturers
teaching design history, to book publishers, to museums - everyone
will now have to seek permission."
ATG first
reported on the proposal to repeal section 52 of the Copyright,
Designs & Patents Act 1988 earlier this year. It was
unveiled as part of the Enterprise & Regulatory Reform Bill
being championed by Business Secretary Vince Cable, a piece of
legislation that aims to iron out anomalies and injustices in
existing statutes.
Section 52 currently limits copyright in
commercially mass-produced designs to 25 years, a contrast to the
copyright for artists and photographers, which extends to 70 years
after their death. Repealing Section 52 would remove the 25-year
limit and bring it in line with the 70-year limit, a change
campaigned for by the Design industry and one which Whitehall says
is necessary under European Union harmonisation regulations and to
meet the demands of a recent court case in Italy.
What has caused particular concern is that
the repeal would be retrospective. In short, rights that expired
some time ago under the 25-year rule would be reassigned to the
original holder or their heirs until the 70-year limit is reached.
This would leave a significant number of businesses who have
legitimately invested in the manufacture or sale of
copyright-expired designs at the mercy of the re-enfranchised
copyright holders.
Skewed Rights
Professor Bently published a detailed paper
in July, pointing out why EU rules and the Italian court case do
not apply to Section 52. He argues that far from harmonising
rights, the proposed change would skew them because they ignore
protections carried by other laws, which police what he calls the
'design-copyright interface' to prevent the overlapping of rules
that might put commerce and the consumer at a disadvantage.
Professor Bently has been especially
critical of what he sees as a rushed, ill-thought-out approach by
the Government and the Intellectual Property Office in pushing the
repeal through.
Accusing them of "tinkering and
firefighting", he dubs the Enterprise & Regulatory Reform Bill
a "hopeless response" and, echoes ATG's own criticism of the lack of
due process in assessing the impact of the changes on
business.
"If the V&A has an exhibition of fabric
designs from the Second World War and post-War austerity era,
permissions will need to be sought to include images of these
designs in the exhibition catalogue and on postcards," he told
The Guardian.
"If the BBC commissions a short film about
the work of the Design Council, including images of designs made in
the 1950s and 1960s, permissions will be required to broadcast the
images."
And perhaps of most concern for those
publishing in the world of art and design: "The law will also apply
retrospectively, meaning any book published that illustrates a work
of 20th-century design will likely have to be edited and
reprinted."
Professor Bently concludes that the
Government and IPO have been driven heavily by interested parties
in the Design industry in what he refers to as "lobbynomics" rather
than forming policy on the basis of objective evidence.
Detailed ongoing research by ATG has provided much evidence to
support this argument.
Follow us on:
