February 18, 2020

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Copying Classic Designs is Now Off Limits

In May 2016 we reported an important change in UK copyright law. The repeal of section 52 of the Copyright Designs and Patents Act 1988 removed an exception from UK law that when a work protected by artistic copyright has been exploited industrially (by making and selling more than 50 copies) the copyright term is automatically reduced from the usual life of the author plus 70 years to just 25 years from the date of first marketing. As a result, copyright protection for industrially produced artistic works which are over 25 years old will be reinstated. In practice, this will have a significant impact on businesses that manufacture and sell replica goods, such as furniture, ceramics, lighting products or jewellery, in the UK, since such goods could now fall under copyright protection.

Transitional arrangements meant that businesses were permitted to deplete their existing stock until 27 January 2017 (inclusive). The grace period is now at an end.

What does this mean in practice?

Businesses that manufacture, sell, rent, transport or otherwise deal with replicas of classic designs must urgently check whether their products replicate designs which fall under copyright protection that had previously expired. If so, businesses will have to seek a licence from the copyright holder if the product is to remain on sale.

Designers and, where the designer is no longer alive, successors to their estate should check whether they will directly benefit from the change in the law.  Revived copyright protection may mean that the value of their designs has increased. Existing licences should be reviewed, and new licences drafted, to ensure that this is reflected in the terms.  Designers may also need advice on enforcing the copyright they now own against businesses continuing to deal in replicas despite the change in the law.

The legal landscape for replica designs in the UK has changed. It is imperative that businesses urgently review their products and business models; otherwise, they risk falling foul of copyright law.

© Copyright 2020 Squire Patton Boggs (US) LLP

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