This in from Julia Ruxton Picture Manager at Laurence King Publishing Ltd
Will – I’m afraid this only concerns your UK picture research audience but hope you will publish it anyway. I know BAPLA have been very active on this already so photographers are probably more aware than picture researchers.
I don’t know how many picture researchers are aware of this issue, but in 2013 the Government passed into law the repeal of Section 52 of the CDPA, thereby removing the distinction that meant that manufactured goods only benefited from copyright protection for 25 years instead of life + 70 years enjoyed by other forms of design and creative endeavour. Initially the purpose was to protect manufacturers from knock-off unlicensed copies of their products entering the UK and other European markets, but the draft legislation just said copies without specifying whether 2D or 3D copies. Before The Enterprise and Regulatory Reform Act 2013 (“ERRA”), went through, the House of Lords did propose an amendment that would have made this distinction, but it then went through with the amendment and we were promised that it would follow at a later date. Long story short, industry lobbied and not only did they quash the amendment, but there is now only going to be a 6-month “transition period” potentially starting last 28 October, until the repeal is enacted. This means that any book with a photo of a manufactured good, that someone deems to have artistic merit could potentially be infringing the law and all stocks will have to be “depleted” by October 2016 (the end of a further 6-month depletion period). This of course does not include manufactured goods that are less than 25 years old which would still be protected anyway. The Government is seeking our views and has issued a consultation paper which can be found at this link:
The trouble with this change is that it renders the fair use argument even more shaky, even though the Consultation Paper itself says that this may well be the protection that publishers need. The Publishers Association in collaboration with a handful of publishers has consulted and responded on this issue but we really need to get as many UK publishers to respond to the Consultation Paper as possible. If manufacturers can sway the law one way by lobbying, we need to push back. Of course, in the very short term, we picture researchers would have more work, dull and uncreative though it would be, obtaining licenses for every chair, lamp, table etc in an interiors book and every garment worn by a celeb or fashion model etc, but it would quickly mean that far fewer books were commissioned as they become financially unviable and the UK publishing industry would have a much poorer offering as a result as well as being at an unfair disadvantage with non-European competitors. We need to get all the publishers we work with to respond to the Consultation Paper. Responses have to be in by 4.30pm on 9 December.
In my personal opinion, the Enterprise and Regulatory Reform Act 2013 sets up a destructive area of uncertainty and risk for publishers and the benefit to manufacturers in a monetary value in copyright in such photos would be more than outweighed by the loss of publicity and critical acclaim. In purely financial terms they would also lose by having to pay staff to process requests for licenses. Companies won’t have staff to deal with requests and if they start charging high fees to cover staffing costs, their products will cease to be featured, which would be a far greater loss to them. Although a newspaper Style Column gives short-term publicity to sell an individual item, it is the considered opinions of respected authors, reflecting back over a period of time that actually builds a company’s reputation as designers. The net effect of including 2D copies in the repeal will be of no benefit to manufacturers and a great deal of uncertainty for publishers rendering the legislation both pointless and detrimental to UK business.
Two further links you may find useful are
https://www.farrer.co.uk/Global/Documents/Design%20Updates.pdf
This link seems to come up with gobbledegook at first but persist and the document will upload. It in turn refers to an open letter from the Faculty of Law at Cambridge University:
https://www.create.ac.uk/wp-content/uploads/2013/03/IP_Profs_to_Stevenson_and_Clement_Jones.pdf
We don’t have long to act.
Thanks
Julia