7 Years On: The Practical Effects Of The Resurrection Of Expired Copyright In Works Of Craftsmanship

• Law Firm: Marks & Clerk
• Subject Matter: Intellectual Property, Copyright
• Author: Mr Gina Lodge and Elizabeth Hickman
• Published date: 30 May 2023

In 2016, the Copyright Designs and Patents Act 1988 ("CDPA") was amended so as to extend the term of copyright protection for "industrially manufactured" artistic works, i.e. where more than 50 copies of the work have been made, from 25 years to life of the author plus 70 years or, if the author is unknown, 70 years from the end of the year in which the work was made or made available to the public. This brought the term of protection for industrially manufactured artistic works in line with other artistic works.

This means that expired copyright in industrially manufactured artistic works has been resurrected and can be asserted once more against third party use. The changes impact the 3D manufacture of copyright works as well as 2D representation of such works in publications and literature.

In practice, it is works of "artistic craftsmanship" which are most likely to be industrially manufactured and most likely to benefit from the change in the law. What constitutes a work of artistic craftsmanship is not defined by the legislation.

Unsurprisingly the changes have had serious ramifications. We have seen copyright owners of alleged works of artistic craftsmanship embarking on aggressive enforcement programs, whilst infringers have pushed back against claims that unlikely works (racing cars, for instance) are indeed works of "artistic craftsmanship".

In this article, we consider the conclusions of the government's 5 year post-implementation review, look at case-law which seeks to clarify what is meant by a work of artistic craftsmanship and consider real-world implications for both rights holders and alleged infringers who believe copyright owners are over-reaching.

Intellectual Property Office ("IPO") post-implementation review

In December 2021, the IPO published their post-implementation review of the repeal of s.52 CDPA. The IPO sought feedback from a wide range of stakeholders and considered how the changes have impacted rights holders and users who could now be considered potential infringers. As expected, the key message from rights holders was that the changes had had a positive impact and "prevented the detrimental effect of [...] poor-quality replicas being on the market". This is not surprising as rights holders will obviously want the maximum time possible to exploit works which may have been replicated by third parties seeking to ride on the coat-tails of their earlier success.

In contrast, feedback from users highlighted some of the unintended negative...