Copyright Law and the Extended Protection of Exploited Artistic Works

January 18, 2017

Before the commencement of Section 74 of the Enterprise and Regulatory Reform Act 2013 on 28 July 2016 the duration of copyright protection for artistic works was 70 years from the end of the calendar year in which the author died, or if the work was from an unknown author, copyright expired (a) at the end of the period of 70 years from the end of the calendar year in which the work was made, or (b) if during that period the work is made available to the public, at the end of the period of 70 years form the end of the calendar year in which it is first so made available. However, the duration of protection for industrially exploited artistic works was only 25 years.

The change in the law was introduced following the European Court of Justice’s decision in Flos SpA v Seneraro Casa E Famiglia SpA [C-168/09] [2011] to require member states to protect all original designs by copyright, without limitations, for example, reduction in duration.

Protection for industrially exploited artistic works has now been extended to the full copyright term which is the life of the artist plus 70 years (for those in which the author can be identified). It is important to note that this amendment not only extends to copyright of the works still actively protected by the 25 year limit, but also resurrects protection for those works whose copyright had expired under the original 25 year limitation.

Implications

Obviously for those involved in the creation of new works such as designers, artists, photographers, these reforms will allow them further protection and enable them to take enforcement proceedings to protect these new rights against those who would chose to ignore the law.

Those who will be most disadvantaged are the businesses who rely on the production of works, including books containing images, reference books, guide books, websites, billboards and magazines, who were exercising their rights to use the works which had expired under the 25 year limit.

The transitional period for adapting to the new law comes to an end on 28 January 2017. In which time businesses will be expected to review their use of material which they may have exploited after the expiration of copyright.

Your business may be required to renegotiate/negotiate licensing agreements, draw up new designs, commission new photographs and perhaps set up measures to monitor the businesses’ use of intellectual property from third parties.

The costs of making these changes could be very high, but the legal implications of not making these changes could be even higher.

Those who fail to take the necessary steps are leaving themselves open to accusations of intellectual property infringement and could face the very real risk of legal action.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.