Thursday - 23 October 2014

Peers challenge change in law on copyright

04 February 2013Written by Ivan Macquisten

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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