Consultation outcome

Post-implementation review of the repeal of section 52 of the CDPA 1988 and associated amendments - Call for views

Updated 7 January 2022

Introduction

The Secretary of State must conduct a review of Regulations (a post-implementation review), within 5 years of their coming into force, and publish a report outlining its conclusions. This is standard practice for UK legislation. The report must, in particular:

assess the extent to which the Regulations’ objectives have been achieved;”

assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

Post-implementation reviews should be proportionate, and if the impact of a policy has been estimated at £5 million then it will only require a de minimis review. The impact figure is the net cost to business per year, as reported in the original impact assessments. These are published alongside the statutory instruments and are available on www.legislation.gov.uk website.

Background and overview of the legal changes

The Copyright, Designs and Patents Act 1988 (CDPA) sets the term of protection for works protected copyright. For artistic works, the term of protection is life of the author plus 70 years. For more information on the term of copyright, see our Copyright Notice: Duration of copyright (term) on this subject. Section 52 CDPA previously reduced the term of copyright for industrially manufactured artistic works to 25 years.

In 2011, a judgment was made by the Court of Justice of the European Union (CJEU) in relation to copyright for design works. The government concluded that section 52 CDPA should be repealed to provide equal protection for all types of artistic work. This repeal was included in the Enterprise and Regulatory Reform Act 2013. The main copyright works affected were works of artistic craftsmanship. The primary types of work believed to be in scope were furniture, jewellery, ceramics, lighting and other homewares. This would be both the 3D manufacture and retail and the 2D representation in publishing.

A related change was later identified to allow artistic works made prior to 1957 to have copyright protection, whatever their design status. This allows works to have both design protection and copyright protection. Finally, the government removed a compulsory licensing requirement in revived copyright works. This meant that rights holders had appropriate control over how their works could be licensed.

The government consulted on the transitional arrangements to put in place which were intended to help affected sectors adjust to the repeal. The Enterprise and Regulatory Reform Act 2013 (Commencement No. 10 and Saving Provisions) Order 2016 came into force on 28 July 2016. Industrially manufactured works now had the full term of copyright protection. Any retailers, manufacturers or other users would need to obtain licences to copy affected works or rely on a copyright exception. The order also provided a depletion period for sectors to sell existing stock of copies lawfully, ending on 28 January 2017. After this date, affected copies would no longer be lawful and should be destroyed. The relevant documents can be found on the Transitional arrangements for the repeal of section 52 CDPA consultation.

The Copyright (Amendment) Regulations 2016 came into force on 6 April 2017. They amended Schedule 1 CDPA to allow works made before 1957 to attract copyright protection, whatever their separate design status. They also removed a compulsory licensing provision for works with revived copyright from the Duration of Copyright and Rights in Performances Regulations 1995 (1995 Regulations). Existing compulsory licences which had agreed a royalty or remuneration with the rights holder could continue. The relevant documents can be found in the Changes to Schedule 1 CDPA and duration of Copyright Regulations consultation.

The impact assessment (PDF,228 KB) was published alongside each set of regulations. It was not possible to fully monetise the expected costs and benefits due to a lack of available data. However, the costs of the changes were expected to impact licensing costs for users and affect income for rights holders for all affected works. For businesses in these areas, there would be costs of adjusting, mitigated by the transitional arrangements.

Post-implementation review of the repeal of section 52 of the Copyright, Designs and Patents Act 1988 and associated amendments

The purpose of this questionnaire is to seek written evidence to inform our review of the Regulations. The questions below are intended to help structure responses. We would strongly encourage interested stakeholders to submit any additional evidence they feel is relevant to this review. This includes relevant evidence that may not correspond to any particular question. When detailing costs and benefits, please clarify if these are annual, for the duration that the policy has been in place or some other time period. We remind you of the criteria for good evidence (PDF,320 KB) which we aim to use in copyright policy making: evidence should be clear, verifiable and peer-reviewed.

We would strongly encourage written evidence from all interested parties. Please send any such evidence to Section52CDPA@ipo.gov.uk. You may also submit questions or requests for meetings to this address.

The IPO will review the information submitted to provide evidence for the post-implementation review of the repeal of section 52 Copyright, Designs and Patents Act 1988 and associated amendments.

Confidentiality & Data Protection

Information provided in response to this consultation, including personal information, may be subject to publication or release to other parties or to disclosure. This is in accordance with the access to information regimes. These regimes are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 1998 (DPA) and the Environmental Information Regulations 2004.

If you want information, including personal data that you provide to us, to be treated as confidential, the following is important to note: under FOIA, there is a statutory code of practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence.

In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of information we will take full account of your explanation. However, we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, in itself, be binding on the department.

Questions

The remainder of this document sets out questions about the legislative changes. If you have answers to these questions - or any more general evidence on the impact of the changes - we encourage you to submit these.

General Questions about repeal of section 52 CDPA, amendment of Schedule 1 CDPA and amendment of 1995 Regulations

In your view, to what extent have these changes achieved their original objectives to protect all artistic works equally?

Do you think that the changes remain appropriate? Could the same objectives be met through other, more efficient, means?

Now that the UK has left the EU, do you believe the changes remain relevant and necessary?

Overall, do you consider that the changes have benefitted your business, organisation or your members? Please provide details.

Have the Regulations led to any consequences that you did not anticipate? Please provide details.

Questions for right holders – owners, assignees, licensees

Have the changes led to increases in revenue as a result of increased licensing? If so, how does this compare with any increases to revenue that you may have anticipated?

Have the amendments changed the extent to which you need to monitor and enforce your rights?

What was your original estimate of benefits (financial or otherwise) when the changes came into force? How does this compare with the actual benefits you accrued?

Have the changes made any difference to your ability to protect your rights? Please provide details and supporting evidence.

Questions for copyright users – retailers and manufacturers; publishers; photographers and interior designers; educational institutions and museums

Were you able to use the depletion period for works affected by the repeal of section 52 CDPA? Did you have costs relating to any stock left over at the end of the depletion period? Please provide details and any supporting evidence.

If you could no longer obtain a compulsory licence, were you able to negotiate a licence with the rights holder?

Did you change your business model as a result of the changes? For example, did you change the range of models you wished to reproduce or retail?

What was your original estimate of the annual licensing costs to continue using affected works when the changes came into force? How does this compare to the actual costs you incurred?

What other costs, if any, have you incurred as a result of the changes (e.g. legal advice, time for clearing rights)?

If you have experienced higher costs, have you been able to absorb these? If so, how have you done so (e.g. any impacts on your supply chain/cost to customers)?

What benefits, if any, have you accrued as a result of the changes?