Repealed in ERRA - s52 copyright repeal repealed

24 July 2015


The Government has announced that its proposed repeal of section 52 of the Copyright, Designs and Patents Act 1988 has been put on the back burner; it was originally set for April 2020. This will come as good news for those selling copies of iconic works that were originally designed more than 25 years ago.

After much debate, the Government finally passed a law in 2013 to repeal section 52 of the Copyright Designs and Patents Act, as part of the catchily entitled "Enterprise and Regulatory Reform Act 2013". Given the saga involved, perhaps it is more appropriate to refer to it by its acronym (ERRA).

As a reminder, section 52 limits the term of copyright protection for artistic works to 25 years, rather than the usual 70 years after the death of the author, where the owner has made more than 50 articles that are copies of the work. In reality, this applies to things like sculptures and works of artistic craftsmanship, and is most likely to be relevant to owners of iconic designs that are no longer protected by designs or copyright.

The repeal was originally prompted by the Court of Justice of the European Union's judgment in Flos, a case about the famous Arco lamp by Achille Castiglione. This is exactly the kind of work that would be likely to benefit from this change - there are plenty of retailers of copies of classic 1960s designs, for example, that would have to stop selling them. At the moment, such sales are perfectly legitimate, provided they are sold in a way that makes it clear that they are not the originals.

Given the disruption to existing legitimate trade, the Government ran a consultation during October and November 2013, leading to a Commencement Order in March 2015 which said that there should be a further five years before the repeal came into effect - i.e. April 2020.

The latest twist in this saga is that the Government has now announced (on 23 July 2015) that the Commencement Order has been revoked, following a claim for judicial review.

So the process starts again; a new consultation, no doubt a new Commencement Order, and new transitional provisions. A blow for owners of iconic designs, and new designers looking for stronger protection for things that they hope will become classics, but an interim triumph for those who have built up legitimate businesses selling goods that are copies of classic older designs.


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