Changes in UK Copyright Law May Affect Artists

Copyright statute during the reign of Anne, Queen of England, Scotland and Ireland from 1702-1707 and Queen of Great Britain and Ireland from 1707-1714.

Eileen Kinsella reports for artnet News on recent changes in British copyright law affecting artists, museums, art publishers, and curators. The new provisions of the Copyright, Designs and Patents Act 1988 (“CDPA”), which go into effect in 2020, affect copyright protection of mass-manufactured artistic works.  This class of works, which would include images of artworks printed in art books or on museum promotional goods, was previously treated differently in UK copyright law than artistic works which had not been copied by an industrial process.  The change extends a series of reforms in UK law in recent years as governments struggle with intellectual property in the context of the Internet.

Section 52 of the CDPA, titled “Effect of exploitation of design derived from artistic work,” previously limited copyright protection for industrially manufactured artistic works to a term of 25 years after its manufacture.  The new provisions repeal this term, extending the copyright term for such works to 70 years following the death of the author, the duration of copyright in artistic works generally.  The law will apply retroactively, so images that had been open for such use, those with expired rights (images created by artists 25 years ago) may again be protected if the artist is still alive or died less than 70 years ago. Any goods produced and sold with such images would constitute a violation of the CDPA unless a license were obtained, which, as Kinsella explains, could be prohibitively expensive.

The more troublesome issue is the penalty for such a violation. The 1988 version of the CDPA made physical copyright infringement a criminal offense punishable by a prison term; in 2002, the maximum prison term was extended to 10 years, and in 2010, the maximum fine for such offenses was increased to £50,000. In 2014, a new Intellectual Property Act extended the criminalization of copyright to registered designs (discussed in detail here and here).  In fact, these laws follows a long precedent in the UK of criminal sanctions for copyright infringement. World Trademark Review reported, “[c]riminal provisions have been in place for copyright infringement since 1864 and for trademark infringement since 1994,” Dids Macdonald, CEO of advocacy group Anti Copying In Design (ACID).

By reducing the copyright term of industrially manufactured artistic works, goods produced and sold with artistic images that infringe on the extended copyright may subject museums, galleries or art publishers to these criminal sanctions. Section 107 of the CDPA outlines the offences subject to the maximum penalty, which may also include an artist who attempts to sell an artwork which appropriates a copyrighted image (§107(1)(a)).  Such criminal liability may indeed cause the chilling effect the law usually attempts to avoid.

Tags: appropriation, art, Art Law, artlaw, Copyright, fair use, intellectual property, law, licensing, Property, Trademark