Designers’ work will now be protected for longer after they die, thanks to a change in copyright law – but only if their designs qualify as “artistic” and “crafty” enough.
The change to the Copyright, Designs and Patents Act – which is the repeal of Section 52 – sees copyright extended from 25 to 70 years after a designer’s death, meaning that “classic” or “iconic” designs will receive greater protection.
But in order to qualify for this length of copyright, the designs have to be proven to be Works of Artistic Craftsmanship (WOACs), says Richard May, senior associate at intellectual property law firm Rouse.
Qualifying as a WOAC is “quite a hurdle”
“It’s not the case that any designer with a product that has been mass produced – i.e. over 50 items – will benefit from this,” he says. “Qualifying as a WOAC is quite a hurdle, and the law is not particularly clear on what a WOAC is.”
Because there is no formal definition of a WOAC, it has to be decided on a case-by-case basis by the UK courts, states the UK Intellectual Property Office (IPO).
Craftsmanship and artistry
But the UK IPO does provide rough guidelines, which state that: “craftsmanship” indicates special training and skill; “artistic” indicates the piece is a “work of art”; and there should be evidence that the designer of the work “intended” to create a work of art. It also states that “it is not enough for a work to look attractive to qualify”.
May says: “Ultimately, this extension of copyright protection will boost designers in their ability to stop infringers and increase their revenue streams – but they should treat it with caution.”
Designs deemed likely to fall into the category include pieces where the designer has “used their hands or a traditional way of developing a product”, he adds, for example hand-painted tiles or stained glass windows.
Designers should register their designs
It is recommended that designers also register their designs if they are uncertain whether it is a WOAC, says May. A registered design is a different IP right, which, in most cases, gives the designer protection over their work for 25 years.
“Once that term has expired, designers could potentially rely on the extended copyright term – but only if the product qualifies as a WOAC,” says May.
Dids Macdonald, founder at Anti-Copying in Design (ACID), says there needs to be more clarity around what designers can and cannot rely on, and that ACID will be producing their own set of guidelines to help.
“Registering a design does not always provide safety for designs, as in last year’s Trunki vs Kiddee suitcase case,” she says. “ACID is pressing for two things – for unregistered rights to have criminal provisions in the same way as registered rights, and for unfair competition to be brought in when intellectual property law fails a designer.”
“It’s not just the way something looks – it’s about quality”
The extended copyright ruling was meant to come into action in 2020, but has been brought forward to July of this year.
“Replica” companies have been given a period of six months until the end of January 2017 to either gain a licence to carry on selling their products, or stop production altogether and remove stock from sale.
May suggests that original designers also “check the expiration date” of any licences they hold on their products, and “do a sweep of the market” to find products that might infringe their rights, then “consider carefully” whether they qualify as a WOAC.
While copyright extension may not be applicable to everybody, Macdonald says that the ruling helps to “place importance on original designs”.
“It’s not just the way something looks, it’s the integrity of how it’s put together,” she says. “It’s about quality and supporting originality. There are so many designers in the UK producing fantastic, zeitgeist work – so why make a business on fakes?”
The new ruling comes into force on 28 July 2016.