Cap on copyright term for industrially processed designs to be lifted, Government proposes

Out-Law News | 28 May 2012 | 4:54 pm | 2 min. read

The term of copyright given to creative designs that are manufactured through an industrial process is to be extended under new Government plans.

The UK's Intellectual Property Office (IPO) said that designers of artistic works made by industrial process would obtain copyright for those works for the duration of their life plus 70 years after they die.

Currently copyright is capped at 25 years from the moment works made through industrial processes are marketed. However, the Government's draft Enterprise and Regulatory Reform Bill would "repeal" the section of the Copyright, Designs and Patents Act that places that cap on the term of copyright protection for those works, the IPO said.

The IPO said the planned change would bring the UK into step with the way the majority of EU countries reward copyright protection for artistic works made via industrial processes.

"In future, if an artistic work is exploited by an industrial process this will not affect the term of protection and it will enjoy the full term of copyright protection rather than just the 25 year term," the IPO said in a statement. "Products will still need to meet the relevant legal thresholds to qualify for copyright protection."

"So not all products will quality for copyright, irrespective of whether they have design protection. Some products with copyright protection (usually the more artistic works) may lack design protection. Equally many protected designs may not enjoy copyright protection. In the future however, those products which do meet the relevant copyright standards, even if manufactured on an industrial scale, will attract the life plus 70 year term once the new legislation is in force."

The Government believes extending the term of copyright will "promote innovation in the design industry and encourage investment in new products, while discouraging unauthorised copies," according to a statement by the Department for Business, Innovation and Skills.

Copyright law expert Cerys Wyn Davies of Pinsent Masons, the law firm behind Out-Law.com, said that creative businesses that produce commercially successful products would benefit from the proposed changes to the law, which she welcomed.

"Currently the threshold for determining whether designs are manufactured via an industrial process is pretty low," she said. "This means that whilst designers that create bespoke designs for a small number of customers may receive the full term of copyright protection, other businesses whose designs prove successful with many customers and are manufactured via an industrial process lose out on many years of protection."

"It seems unfair on creative businesses, such as, amongst many others, carpet and furniture manufacturers, to lose out on copyright protection when they manufacture products to meet popular demand," she said.

"The proposed change to the law would mark a significant departure for the UK away from its traditional position of limiting the protection of copyright for industrially manufactured designs. Whether extending the term of copyright for designs made by an industrial process will really have an impact in practice will depend on whether non-rights holders will be interested in copying designs and reusing them after 25 years. I think there are, and indeed have experience of, circumstances in which they certainly will be." Wyn Davies said.

Designs can be protected by both copyright and design rights. Design rights protect the appearance of functional products and automatically protect original, non-commonplace designs of the shape or configuration of products from the time they are created. Design rights can also be registered with the UK's Designs Registry providing the designs are new and have individual character.

To be new, the design is required to differ from known designs by more than "immaterial details". To have individual character a design must create a different overall impression on an informed user, who is normally a technically sophisticated user of the class of products and who is neither a designer nor a manufacturer.

A design registration can last up to 25 years, although it has to be renewed every five years within the 25 year period. They give designers a monopoly right to the appearance of the whole or part of a product resulting from its features, including the lines, contours, colours, shape, texture and materials used, or its ornamentation

Unregistered design rights apply to eligible designs for up to 10 years.