The End of English Replica Furniture? The UK amends its copyright law
Current British copyright law: 25 years of protection for industrially exploited items
Currently, under British law, artistic works of which more than 50 copies have been made in the past are protected by copyright for 25 years only. This is a very short period of protection, especially when compared to other artistic works, which are usually protected by copyright for the life of the author plus 70 years.
This limited protection period for industrially exploited works is provided for by section 52 of the Copyright, Designs and Patents Act 1988 (“CDPA”).
Many British companies have been relying on section 52 CDPA for manufacturing and selling products that are elsewhere subject to copyright protection of 70 years after the death of their author. One example is the so-called replica furniture industry in the UK. Other examples of British industries relying on section 52 CDPA – apart from furniture – are jewellery, homewares (e.g. lighting, ceramics, etc.) or wallpaper.
It is needless to say that many European continental competitors in especially the furniture industry were very unhappy about the British exception of Section 52 CDPA, and even more so when British “replica’s”  entered their home-markets.
The repeal of Section 52 CDPA: copyright protection for the lifetime of the author plus 70 years
In 2013, the British Government passed legislation to remove the exception of section 52 CDPA, with an open implementation date. The main reason of this repeal is the concern that Section 52 CDPA is contrary to EU copyright law which provides a standard period of protection of 70 years “post mortem”, regardless of the question whether the works have been industrially exploited or not (needless to say that the decision to withdraw section 52 CDPA dates from before referendum on the Brexit).
When the repeal will be put into effect, any artistic work that qualifies for copyright will enjoy the full term of copyright protection (life of the creator plus 70 years).
This will bring British copyright law in line with the rest of Europe. Most international designers and furniture traders (such as Vitra, Cassina and Knoll) enthusiastically applaud this legislative change. Other – mostly British – businesses (such as traders of replica furniture, but also some publishers and photographers) are less happy with the change. Sellers of replica furniture in particular fear for their further existence if their activities become illegal in the UK.
What are the consequences of the repeal of Section 52 CDPA? This depends on whether a piece of furniture is “original”
The first question to answer in a copyright case is always whether a “work” is protected by copyright or not. This question is determinable only on a case-by-case basis and is ultimately a matter for the courts to decide. Thus, after the repeal of section 52 CDPA, some pieces of furniture will be considered to be sufficiently “original” to qualify for copyright protection, while others will not. Indeed, not every piece of furniture designed decades ago qualifies for copyright protection.
This means that, after the repeal of Section 52 CDPA, some replica furniture will be considered to infringe upon the original furniture, while other replica furniture will not constitute copyright infringement (depending always on the level of originality of the original furniture and on the differences/similarities between the original and the replica).
Repeal of section 52 CDPA: transitional period of 5 years
Based on an extensive consultation round in 2014, the British Government concluded in February 2015 that a transitional period of 5 years would be appropriate for businesses which have previously relied on section 52 CDPA. This resulted in the “Enterprise and Regulatory Reform Act 2013 (Commencement No. 8 and Saving Provisions) Order 2015(b)” (“Commencement Order No. 8”) of 10 March 2015, which would have brought Section 74 (on the repeal of Section 52 CDPA) of the Enterprise and Regulatory Reform Act 2013 (hereafter “ERRA”) into force from 6 April 2020. This Commencement would have given the stakeholders 5 years time to adapt their business models (for instance: sellers of replica furniture would have enjoyed 5 years to gradually redirect their business to other furniture items).
Repeal of section 52 CDPA: transitional period reduced to 2 months only…
However, based on a legal challenge by an unknown party, the British Government suddenly decided to review its position published only a couple of months previously. On 20 July 2015, the British Government thus revoked its own Commencement Order No. 8 of 10 March 2015. Based on the Flos decision of the Court of Justice of the European Union (Case C-168/09), the Government reached the view that a 5 years’ transitional period was too long and that a shorter transition period would be justified.
The Government thus launched a second consultation (dated 2 October 2015), and, on 21 May 2016, the Government published its final response to the fresh consultation on the repeal of Section 52 CDPA.
The final position of the Government is as follows:
- the repeal of section 52 will happen on 28 July 2016 (nine months from the start of the consultation period, but only two months from the date of publication of the Government’s final decision); and
- the depletion period for contracts in place prior to consultation will remain six months following the repeal, but will therefore conclude on 28 January 2017.
This author believes that the repeal of Section 52 CDPA was probably unavoidable. The current short protection period of 25 years for furniture, jewellery and other industrially manufactured artistic works in the United Kingdom is a curiosum in Europe. The new copyright legislation for industrially manufactured artistic works will bring British copyright in line with the rest of the European Union (little did the British government know that voters would vote for the UK to exit the EU shortly thereafter…).
On the other hand, this author also believes that British companies that have been relying since at least 1956 on the exception of Section 52 CDPA were entitled to a reasonable transitional period. In its Flos decision, the CJEU judged that a transitional period should strike a “balance” between “the acquired rights and legitimate expectations of the third parties concerned” on the one hand, and “the interests of the rightholders” on the other hand.
The current transitional period granted by the British Government (an effective transitional period of only 2 months after the publication of the Government’s final position) can hardly be considered as striking a reasonable ‘balance’, especially after the Government’s previous grant of a 5 years’ transitional period and its subsequent change of position.
Also, this author believes that, under good governance principles, the transitional period should start from the date of the final decision published by the Government, not from the start date of the consultation when the Government’s final decision is still unknown.
Bart Van Besien
 You could call these products copycats instead of replicas – I will stick with the term replica in this article, since this is the term most widely used in the UK.