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UNITARY PATENT

In 2012 Member States and the European Parliament agreed on the "patent package" - a legislative initiative consisting of two...

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Good news for merchandisers and craftsmen...Copyright extended to life plus 70 years

Copyright protection for three dimensional articles in the UK is curtailed by Sections 51 & 52 of the Copyright, Designs & Patents Act. The former denies protection to three-dimensional reproductions (other than sculptures and “works of artistic craftsmanship”) of “design documents” – any document which contains the design (shape and configuration) of an article. The latter curtails such copyright as may exist to 25 years from the point where a work is first “industrially multiplied”.
In response to the Flos decision of the EU Court of Justice (concerning the well-known ARCO lamp), the UK Government is repealing Section 52 as from July 2016, with the result that the lifetime of three-dimensional designs will be authors life plus 70 years (as for most other classes of copyright work). After that, existing stocks must be sold off and any further reproductions will be infringements.

Many have assumed that the main beneficiaries of the change will be the owners of rights in classic furniture such as the ARCO lamp itself. However, while Section 51 remains (and the Government have indicated that they have no 
intention of changing it) furniture would only qualify if it can be shown to be a “work of artistic craftsmanship”. The leading case, Hensher v Restawile [1975] RPC 31 (which concerned a sofa-armchair suite), indicates that to qualify for protection, such a work must both be intended to be artistic or seen as such by the public, and created using craftsmanship. Across the many countries that have parallel provisions, the number of works held to qualify has been minuscule. It therefore seems unlikely that the impact on the furniture industry will be significant.

On the other hand, the impact on the merchandising sector could be significant. In Lucasfilm v Ainsworth, which concerned Storm Trooper armour and helmets from the Star Wars film series, the costumes were all designed from scratch for the purpose of the film. However, the situation is different where there is an original cartoon on which subsequent three-dimensional objects are based, because all comics are “artistic works”, irrespective of artistic quality.

Many years ago, in King Features v O&M Kleeman [1941] AC 417, [1941] 2 All ER 403, copyright in a Popeye cartoon was enforced against makers of Popeye dolls. The effect of the repeal of Section 52 will be to restore such copyright protection to most cartoons and other preliminary drawings, whether or not they were intended to be designs of 3D articles. Elzie Crisler Segar, the artist who created Popeye, died in 1938 so that copyright in his original works expired in 2008. However, Walt Disney lasted until 1966, so copyright in Mickey Mouse and his other characters will run until 2036. More recent characters such as the Marvel™ and DC Comics™ Superheroes™ will remain in copyright for many more decades, and the repeal of Section 52 will enable their creators to retain control over toys, dolls and other merchandising for the foreseeable future.