8 July 2021
So many rights – Section 52 of the Copyright, Designs and Patents Act 1988 (CDPA) and its impact on cultural heritage organisations
By Naomi Korn, Managing Director
The Intellectual Property Office has recently launched a call for views on the repeal of Section 52 of the Copyright, Designs and Patents Act 1988 (CDPA). As a statutory requirement of the legislation, the IPO would like to hear your views on whether and to what extent this regulation has achieved its original objectives. This blog post outlines what Section 52 of the CDPA is and its impact cultural heritage organisations. This blog is based on a post originally published on the CILIP website, August 2016 written by Naomi Korn, Managing Director at Naomi Korn Associates and Yvonne Morris, Policy Officer at CILIP.
On 28th July 2016 the repeal of Section 52 of the Copyright, Designs and Patents Act 1988 (CDPA) came into force. The transition period ended on 28 January 2017.
What is Section 52?
Before the law was changed in 2016, Section 52 of the CDPA contained an exception limiting copyright protection for certain artistic works when they had been industrially manufactured. This meant that when more than 50 copies of these artistic works were made, the period of their protection was limited to 25 years, compared to other artistic works which are protected by copyright for the lifetime of the creator plus 70 years. The repeal of the exception brought works of artistic craftsmanship into line with other artistic works:
“Works in which copyright has expired under s.52 will assume the new term of life of the creator plus 70 years. For example, if an industrially manufactured work was created in 2000, copyright protection would have expired in 2025 under s.52. Now, copyright protection will expire 70 years after the death of the creator. If the creator died in 2010, copyright will expire in 2080” (IPKat blog post, 29th April 2016)
Which artistic works are affected?
The works most affected are “works of artistic craftsmanship”, a category of artistic works which first appeared in the Copyright Act of 1911. Prior to this copyright protection was only given to fine art, reflecting the general understanding of the nature of art until the Arts and Crafts Movement, led by William Morris, began making items of applied and decorative art [Colston, C., 1999. Principles of Intellectual Property Law. London: Cavendish Publishing, p183]
There is no statutory definition of a “work of artistic craftsmanship”, however, precedents set in case law have established a set of criteria that must be satisfied for an item to be categorised as a “work of artistic craftsmanship”. Guidance from DACS (which can be found here) says that, in general terms, these criteria are:
- A conscious intention to produce a work of art
- A real artistic or aesthetic quality
- A sufficient degree of craftsmanship and artistry (existing simultaneously)
Examples may include the Faberge Egg and the textile works of William Morris.
2D images of works of artistic craftmanship are found in, for example, books, magazines and journals, and some cultural heritage collections include 3D artistic works.
What does this mean for cultural heritage organisations?
This is a complex area of law, made even more so by the lack of a statutory definition of a work of artistic craftsmanship. Despite this, our advice to those working or volunteering in cultural heritage organisations, is quite simple – Just remember these three things:
- Copyright lasts for lifetime plus 70 years for most works now
- Unless you are clear that an exception applies or you already have permission, make sure that rights are cleared.
- There can be more than one layer of copyright and other rights in any one item – so you need to consider all of them.
Here are some examples of what has and has not changed as a result of the repeal of S.52:
- Using images for online and print based activities and resources and other uses outlined within the terms of a Creative Commons Licences or other licence – no change.
- Using images of works of artistic craftsmanship under the copyright exceptions – deem duration of copyright to be lifetime plus 70 years, instead of 25 years. If the image is still in copyright, there is no change to what the copyright exceptions enable.
For example, the education exceptions allowing general fair dealing for teaching apply to all types of works and any form of copying as long as it is not for a commercial purpose and it is illustrating a point.
- Including images of works of artistic craftsmanship in online publications and other uses not covered by 1-3 above – deem duration of copyright to be lifetime plus 70 years, instead of 25 years.
- Making a copy of a work of artistic craftsmanship for a user, or user self-copying under the non-commercial research and private study exceptions – deem duration of copyright to be lifetime plus 70 years, instead of 25 years. If the image is still in copyright, there is no change to what the research and private study exceptions allow.
For further information about what copyright exceptions allow, refer to Heritage Digital’s Heritage Organisations and Exceptions to Copyright guide, click here to view.
- Displaying a work of artistic craftsmanship – if the work being displayed is the original and not a copy, then there will not be any copyright or design rights issues.
More detailed guidance for individuals, organisations and businesses affected by these changes has been published by the IPO, click here to view.
To share your views on whether Section 52 of the CDPA has achieved its original objectives click here. The consultation closes at 5pm on 31 August 2021.
© Naomi Korn Associates, 2021. Some Rights Reserved.
Disclaimer: The contents of this blog post are based on the assessment of Naomi Korn Associates Ltd at the time in which the resource was created (July 2021). The contents should not be considered legal advice. If such legal advice is required, the opinion of a suitably qualified legal professional should be sought.