Change to copyright law for industrially manufactured artistic works

William Morris pattern

On 28th July this year the repeal of Section 52 of the Copyright, Designs and Patents Act 1988 (CDPA) came into force. The transition period will end on 28 January 2017. This blog post sets out what library and information professionals need to know about this recent change to a complex area of UK copyright law.

What is Section 52?

Section 52 of the CDPA contains an exception limiting copyright protection for certain artistic works when they have been industrially manufactured. This means that when more than 50 copies of these artistic works are made, the current period of protection is limited to 25 years, compared to other artistic works which are protected by copyright for the lifetime of the creator plus 70 years.  This exception has now been repealed, bringing industrially manufactured items into line with other artistic works:  

“Works in which copyright has expired under s.52 will assume the new term of life of the creator plus 70 years. For example, if an industrially manufactured work was created in 2000, copyright protection would have expired in 2025 under s.52. Now, copyright protection will expire 70 years after the death of the creator. If the creator died in 2010, copyright will expire in 2080” (IPKat blog post, 29th April 2016)

Which artistic works are affected?

The works most likely to be affected are “works of artistic craftsmanship”, a category of artistic works which first appeared in the Copyright Act of 1911.  Prior to this copyright protection was only given to fine art, reflecting the general understanding of the nature of art until the Arts and Crafts Movement, led by William Morris, began making items of applied and decorative art [Colston, C., 1999. Principles of Intellectual Property Law. London: Cavendish Publishing, p183]

There is no statutory definition of a “work of artistic craftsmanship” so it will ultimately be up to the UK courts to decide what would be classified as such.  However, precedents set in case law have established a set of criteria that must be satisfied for an item to be categorised as a “work of artistic craftsmanship”. Guidance from DACS says that, in general terms, these criteria are:

  1. A conscious intention to produce a work of art
  2. A real artistic or aesthetic quality
  3. A sufficient degree of craftsmanship and artistry (existing simultaneously)

Examples may include the Faberge Egg and the textile works of William Morris.

2D images of works of artistic craftmanship are found in, for example, books, magazines and journals, and some library and archival collections include 3D artistic works.

What does this mean for libraries and archives?

This is a complex area of law, made even more so by the lack of a statutory definition of a work of artistic craftsmanship.  Despite this, our advice to library and information professionals is quite simple – Just remember these three things:

  1. Copyright lasts for lifetime plus 70 years for most works now 
  2. Unless you are clear that an exception applies or you already have permission, make sure that rights are cleared.
  3. There can be more than one layer of copyright and other rights in any one item – so you need to consider all of them.

Here are some examples of what will and will not change as a result of the repeal of S.52:
1. Digitising and supplying embedded images from published text based works for use to support teaching and learning under the terms of the Copyright Licensing Agency licence – no change.  

  • There is, however, a possibility that CLA might need to remove publications with now infringing images from circulation from Jan 2017, the end of the transition period, but we think the risk here is very low 

2. Using non CLA licensed images in teaching and learning activities and other uses outlined within the terms of a Creative Commons Licences or other licence – no change.

3. Using images of works of artistic craftsmanship under the copyright exceptions within the context of teaching and learning activities and other uses outlined within the exceptions to copyright – deem duration of copyright to be lifetime plus 70 years, instead of 25 years. If the image is still in copyright, there is no change to what the copyright exceptions enable. 

  • For example, the education exceptions allowing general fair dealing for teaching apply to all types of works and any form of copying as long as it is not for a commercial purpose and it is illustrating a point. 

4. Including images of works of artistic craftsmanship in publications, MOOCs etc and other uses not covered by 1-3 above – deem duration of copyright to be lifetime plus 70 years, instead of 25 years.

5. Making a copy of a work of artistic craftsmanship for a user, or user self-copying under the research and private study exceptions – deem duration of copyright to be lifetime plus 70 years, instead of 25 years.  If the image is still in copyright, there is no change to what the research and private study exceptions allow.

6. Displaying a work of artistic craftmanship - if the work being displayed is the original and not a copy, then there will not be any copyright or design rights issues.

    References

    Image source: "William Morris Gallery" by Matthew Rees, used under CC BY-NC 2.0 / original cropped and resized

     

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