‘The Return of Industrial Copyright?’, as Professor Bently’s paper is titled, sets out how, for decades, UK law has struggled to establish a balance between artistic copyright, which arises naturally, and design protection, which depends on registration.
Attempts to achieve that balance have
frequently stumbled over the problem of delineating where an
object's artistic merit ends and its design function begins,
potentially qualifying designs for protection under two separate
As Professor Bently's paper explains,
an attempt to prevent such overlapping of rights was set in law by
the 1911 Act, which excluded from copyright designs that were
capable of being registered under the Patents and Designs Act
The struggle has continued down the
years in what has proved a long, complex and paradoxical argument.
However, the original thinking for limiting 'industrial copyright'
- for want of a better term - to 25 years can perhaps be best
explained by looking at the design of basic spare parts, as
Professor Bently does in his paper.
An anomaly within the law meant that
in the 1950s, when changes to copyright legislation were being
debated, spare parts such as washers, bolts and screws could be
covered by the full term of copyright if embodied in design
drawings as 'artistic works', because they could not be registered
under design law. This effectively prevented designers with
substantially different products from realising their potential
because they would not be able to assemble them using washers,
bolts and screws designed in the same way.
As Professor Bently concludes: this
"was pretty much universally recognised as good for lawyers but bad
This led to the introduction of
Section 52 as part of the 1956 Act to provide a defence against
breach of copyright where a copyright work had been applied
industrially. The right was limited to 25 years from the original
licensing of the design for manufacture and marketing, a move that
was deemed to acknowledge the designer's input while not hampering
valid commercial competition.
Later, the EU debate over harmonising
rights across member states culminated in amendments in 1996 that
allowed certain member states, including the UK, to retain their
exclusion clauses for the same reasons.
The amendment granted designs
protected by design law to be eligible for additional protection
under copyright law, but also granted the relevant member states
power to decide the limits to which such additional protection
should extend. In short, as Professor Bently argues, this means
that Section 52 does not have to be revoked.