Copyright, Designs and Patents Act 1988

House of Lords written question – answered on 25th October 2012.

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Photo of Lord May of Oxford Lord May of Oxford Crossbench

To ask Her Majesty's Government whether the full repeal of Section 52 of the Copyright, Designs and Patents Act 1988, proposed in the Enterprise and Regulatory Reform Bill, is required by virtue of the decision of the European Court of Justice in Flos SpA v Semararo, and whether it is consistent with the freedom granted to member states by Article 17 of the directive on the legal protection of designs and Article 96(2) of the regulations on community designs to regulate the extent of protection of copyright for works of applied art and designs.

To ask Her Majesty's Government why, in the light of the freedom granted to member states by Article 17 of the directive on the legal protection of designs and Article 96(2) of the regulations on community designs, the impact assessment on the Enterprise and Regulatory Reform Bill considered only the options of repeal and no change, in relation to Section 52 of the Copyright, Designs and Patents Act 1988.

To ask Her Majesty's Government what assessment they have made of the impact of extending the term of protection offered by copyright in mass-produced designs from 25 years to life plus 70 years upon follow-on designers who draw upon the existing body of design.

To ask Her Majesty's Government why there has been no consultation on options for reform of Section 52 of the Copyright, Designs and Patents Act 1988, short of full repeal, with a view to ensuring that follow-on design is not impeded.

To ask Her Majesty's Government whether they have considered the impact of proposed extension of the term of protection offered by copyright in mass-produced designs from 25 years to life plus 70 years upon those who use images of designs that are more than 25 years old in education and publishing.

Photo of Lord Marland Lord Marland The Parliamentary Under-Secretary of State for Business, Innovation and Skills

Member states may have some discretion to decide upon the extent of protection of copyright for works of applied art. The impact assessment "Copyright Protection for Designs" did not consider options that would require the denial of copyright protection to such works.

Not all existing designs will qualify for copyright protection. Moreover, where a design does meet the requirements for copyright protection, the implications for any designers who draw upon such a work will depend on whether they copy a substantial part of the work. As in the case of similar copyright issues in other spheres, these are matters which the courts may ultimately have to determine. In relation to the impact for educational purposes, there are exceptions in the Copyright, Designs and Patents Act 1988 that allow educational establishments to copy works to a reasonable extent if it is necessary for the purpose of education or non-commercial research.

The repeal of Section 52 has been welcomed by designers as a whole. It will not preclude designers from being inspired or influenced by existing designs. The Government consider that it will encourage innovation in new designs and copyright works and discourage slavish imitations of existing works.

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