Peers in the House of Lords have made a last-ditch plea to the Government to scrap plans to review design rights under copyright law.
They fear that failure to explore the
consequences of reform properly will lead to serious and
wide-ranging damage to business, education and the arts.
And because no details have been set out for
transitional provisions as the new law comes in, it could leave
auction houses, retailers and the public with secondhand items that
it would be effectively illegal to sell.
The reform - the proposed repeal of Section
52 of the Copyright, Designs & Patents Act 1988 - will extend
the copyright on designs with artistic elements in them from the
current 25-year term after their initial manufacture and marketing
to 70 years after the death of the designer, in line with copyright
for artists, musicians and photographers.
It will also be retrospective, which means
that countless designs whose copyright expired sometimes decades
ago will come back into a copyright which could last for decades
more. It is not just the designs themselves that will then need
licensing, but images of them and images of their manufactured
products too.
This will put unlicensed copies of
re-enfranchised designs that have been traded legally in the
marketplace until now beyond the law.
Furniture Example
For instance, a member of the public who
decided that they no longer wanted a replica Eames chair acquired
legally from a shop could well find that they were not able to sell
it on for fear of breaching secondary infringement rules, a
criminal offence under the 1988 Act. Auctioneers holding general
sales of such furniture would need to know which items breached the
new regulations and which did not - and this is just the tip of the
iceberg when it comes to what else may be affected.
Although only a comparatively minor part of
the Enterprise & Regulatory Reform Bill, nothing created more
of a stir than the proposal to repeal Section 52 in the Lords
debate on Monday, January 28.
Championed by the Design lobby, the
proposals have met stiff opposition from a number of other
quarters, partially because of a raft of unintended consequences
and partially because they are deemed unnecessary, potentially
restrictive to business and the creative industries, as well as
detrimental to consumer choice.
In the arts world, the retrospective element
of the proposals alone has the potential to wreak havoc for the
publishing arms of museums and galleries, both on and offline.
That is the conclusion of Lionel Bently,
Herchel professor of Intellectual Property at Cambridge, who has
been lobbying the Intellectual Property Office and parliament for
months in a bid to limit the damage.
"In short, the repeal of Section 52 will
create a whole host of new situations where permissions are
required (and rightholders are difficult to locate). While these
costs are evident, the public benefits from the extension are
non-existent or speculative," concluded Professor Bently in his
detailed paper The Return of Industrial
Copyright? published last July.
In a debate in the City of London last
month, he called the repeal "unnecessary, undesirable and
ill-considered", explaining how repeal would effectively put an end
to works 'inspired' by others - as often happens when new designers
work up concepts - and create enormous difficulties over the use of
images in publications because re-enfranchised designs would become
subject to individual licensing.
In practice this would mean the re-editing
of a vast number of publications, such as museum catalogues and
books, and severe limits on further publication, making many
otherwise worthwhile projects unviable.
In short, Professor Bently argues that
repeal is not required under the EU law the Government is insisting
on following and goes directly against the intention of balancing
protection across the 'copyright/design interface', while design is
well protected by other legislation.
Professor Bently now wants the Government to
withdraw the proposal from the Bill and consult properly.
ATG have been warning of the threat since
last summer. As discussed in detail in ATG No
2054, due process in drawing up the proposals and setting them
in the draft Bill has been widely ignored, with the Government
flouting its own clear and detailed rules, introduced in August
2011. Ministers have even confirmed that they will not follow the
strongly worded recommendation of their own statutory committee
that reviews measures to ensure they are fit for purpose before
being adopted.
Although the Government refused to amend the measures,
campaigners are hoping that the strength of opinion expressed in
the Lords will help the cause when it returns to the Commons for
final amendments before being passed into law.
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