Thursday, 30 October 2014

Designs, copyright and UK law reform post-Flos

A perplexed 1709 Blog-reader has written to us with the following request for clarification. If any reader(s) would like to respond by posting their comments below, our reader would be hugely gratified, though possibly no less perplexed.  The request runs as follows:
I understand that the CJEU’s decision in Case C-168/09 Flos is about pre-1989 designs that have copyright protection because they were protected according to the law of an EU member state at the relevant time. In response, the UK Government is proposing to repeal section 52 of the Copyright, Designs and Patents Act 1988 (CDPA) which restricts copyright protection for some artistic works that have been industrially exploited to 25 years (instead of 70 years post mortem auctoris).

The repeal of section 52 applies (I believe) to pre-1989 designs that were the subject of Flos, but I am sure that it applies to post-1989 designs that have copyright protection, such as being works of artistic craftsmanship.

As noted in a recent IPKat post, ACID’s consultation on the topic focuses on the effects on pre-1989 designs only, which is consistent with Flos but ignores the totality of the effect of the repeal of section 52; Peter Smith’s comments on that post on the other hand referred mainly to works of artistic craftsmanship, which is all very well post-1989, but seems irrelevant to Flos-derived reason for the repeal of section 52.
(1) The repeal of section 52 seems to be much wider in ambit than is required to address the mischief identified in Flos – why is this? and has there been any consultation about the appropriateness of the repeal of section 52 as a means to achieve the UK’s obligations under Flos?

(2) Does the effect of the repeal have the same effect, or a different effect, vis-à-vis designs pre- and post- CDPA 1988?

(3) Is there anything else I have missed?
Do let us know what you think!

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