Tuesday - 16 September 2014

Striking a balance between artistic merit and function

18 December 2012Written by Ivan Macquisten

‘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 rights Acts.

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 1907.

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 for competition".

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.

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