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05 Feb 2016

Repeal of Section 52 of the Copyright Designs and Patents Act 1988 - when will it happen and how?

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Under the Copyright Designs and Patents Act 1988 ("CDPA"), artistic works are afforded copyright protection for 70 years from the end of the year in which the artist dies. However, section 52 CDPA limits the period of copyright protection afforded to artistic works (excluding films) which are produced by an industrial process (i.e. works of which more than 50 copies were produced) and marketed for sale to 25 years. This means that, after the expiry of a period of 25 years from when the articles were first marketed, anyone is free to make copies of such works without infringing copyright.

In 2013, the UK Government passed legislation to repeal section 52 so as to extend the period of copyright protection for mass-produced artistic works to 70 years. The change in law will affect those that produce replicas of artistic works but also those that create and use 2D images of works, such as museums and photographers.

In March 2015, the Enterprise and Regulatory Reform Act 2013 (Commencement No.8 and Saving Provisions) Order 2015 (the "Commencement Order") was passed to give effect to the repeal of section 52. To allow businesses and institutions time to dispose of existing stock, the Commencement Order provided that the repeal would come into force on 6 April 2020 and that any copies of mass-produced artistic works made in the UK or imported into the UK before this date would not be considered to infringe copyright. However, the compatibility of the transitional provisions was challenged by way of a judicial review. Consequently, in July 2015, the Government announced the revocation of the Commencement Order.

The Government recently held a consultation (from 28 October 2015 to 23 December 2015) inviting interested parties (including designers; rights holders; manufacturers; retailers; publishers; museums and educational establishments) to provide their views on the proposed transitional arrangements. The results of this consultation have not yet been released. It remains to be seen how and when the repeal will be introduced.

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