Proposals to extend copyright on some designs from 25 to 70 years could set off a whole new era of legal disputes.
Business Secretary Vince Cable wants to
introduce the measures as part of the Enterprise and Regulatory
Reform Bill currently on its Third Reading in the House of
The desire for closer harmonisation of
rights across Europe, in line with EU law, has prompted the plan to
repeal section 52 of the Copyright, Designs and Patents Act 1988,
which currently limits the copyright period to 25 years for
artistic works that are mass produced.
However, although the proposals are aimed
largely at unlicensed and illegal operations, many of them doing
business out of the Far East, they have also left a number of
legitimate UK manufacturing and import businesses looking at a
The Design lobby, who say that the disparity
in rights costs them hundreds of millions of pounds a year, argue
that an extension of copyright to match that given to fine artists,
musicians and others will allow them to invest in innovation and
foster new talent. They also believe tightening the regulations
will lead to improved controls on quality and standards.
On the other side of the argument,
manufacturers or importers of replica objects, such as furniture,
say that despite considerable investment on their part in building
up businesses in a legitimate manner over a sustained period, they
will soon find themselves unable to continue, with the loss of a
substantial number of jobs and considerable tax revenues.
They also argue that earnings will not
necessarily be diverted back into the pockets of the Design lobby
because replicas tend to be more affordable to a wider number of
people who would not go on to buy comparatively expensive design
originals once the replica market was closed down.
It is a point acknowledged in the Impact
Assessment carried out by the Intellectual property Office (IPO)
just published by the Business department: "It is unlikely that in
some sectors (e.g. classic design furniture), the illegal [sic]
replicas are substitutes for the originals because of the large
Mr Cable addressed the House of Commons on
June 11, saying: "The sale of unauthorised replicas of classic
designs, such as a lamp or a piece of furniture, means that firms
that depend on design can lose out, so the Bill ensures that those
designs that are also artistic works and, therefore, qualify for
copyright protection will be protected for 70 years from the
creator's death, instead of for the current 25 years."
The change is likely to be retrospective,
restoring rights to those who lost them some time ago, and it is
this factor which is expected to cause the biggest headache for
those currently involved in the legitimate business of
manufacturing and importing replicas.
They will have to ask themselves the
• Is the work under consideration one that
fulfils the criteria of "artistic work", a term left undefined by
• Is the alleged replica close enough in
design to be deemed a copy of the original?
Disputes that arise as a result of these
points are likely to end in court where judges, rather than
parliament, will have the job of defining parameters using case
It seems that the choices left to the
importers and manufacturers will be: cease trading, negotiate a
licensing deal (assuming one is available at a reasonable price),
adapt what you produce so that it can't be taken as a replica or
move your business to where the law does not apply. In Europe
outside the UK, only Estonia and Romania operate reduced rights
systems that might allow them to continue in business as they
One irony of the change, acknowledges the
Impact Assessment, is that some works with designs over 25 years
old but less than 70 could disappear altogether "because of the
complexities and costs of copyright".
A considerable weakness in drawing up the
Impact Assessment recommendations is that the lack of any
recognised trade body for the manufacturers and importers of
replicas meant that the IPO was unable to consult them at all on
the likely costs and economic impact of the law change prior to
"We do not have adequate data to make
reasoned estimates of monetised costs" of changing the law, the
Impact Assessment notes.
The industry is now making a concerted
effort to get organised and has established a consortium. Meanwhile
the IPO has made it clear that there will be no delay in the
legislation or review of the Impact Statement to account for
stakeholders who were not consulted under Government guidelines,
but there may be room for manoeuvre over details of the
transitional period, which have yet to be set out.
Once the new rules are passed, the period of transition will
allow for stocks to be cleared, but there is no indication that
firms who are faced with going out of business, or major costs as
they adapt their business as a result, will receive any help or