Changes to copyright law have big implications for publishers using artistic works. Bloomsbury’s Kathryn Earle answers some key questions about the consequences
What is the act?
The Copyright, Designs and Patents Act of 1988 sets the law for copyright in the UK and gives the creators of literary and artistic works rights over the use of their work. At issue now is the repeal of section 52 of the Act, which limited the length of copyright protection for industrially manufactured artistic works.
What has changed?
The law extending copyright on works of artistic craftsmanship to 70 years after their creators’ deaths was passed in 2013—and unfortunately many people in the publishing industry were, at the time, unaware of it. The focus was on protecting designers’ copyright around the production of replicas of artistic works rather than its impact on other industries, but the change in law also affects those that create and use 2D images of works, like publishers.
During 2014 the government consulted on the scope and length of the transitional arrangements, and concluded that five years was appropriate. The ‘Commencement Order’ to repeal section 52 was passed within the Enterprise and Regulatory Reform Act last March. Under the five-year transitional agreement, this provided that the repeal would come into force on 6 April 2020. Any copies of works of artistic craftsmanship made in the UK or imported into the UK before this date would not be considered to infringe copyright.
The transition was welcomed by publishers, as it meant stock that existed at the time of the repeal could be disposed of sensibly. It would also ensure that the costs associated with gaining the necessary additional rights clearance could be built into the planning of new publications. Publishers would have had time to review their frontlists and, for many, their extensive backlists. They could have managed the change in an orderly manner, by checking rights positions, liaising with coedition partners, managing reprints and depleting their stock over a sensible timeframe.
Why have the deadlines changed?
The compatibility of the transitional provisions with EU law was challenged by a judicial review. Consequently, in July 2015 the government announced the revocation of the Commencement Order and, in a striking reversal of its earlier position, concluded that instead of five years the transitional period would be six months, with a depletion period for existing stock also applying.
The IPG, the Publishers Association, many publishers and other stakeholders challenged this during the consultation. In response, the government returned with a nine-month transition—but because this is being dated from the start of the consultation in October, and because the response has taken more than three months, during which time stakeholders could not take action in the absence of clarity, we are actually worse off.
Which sectors of publishing are affected?
Illustrated book publishers in the areas of art and design are obviously likely to be most affected. However, any book with an image of a ‘work of artistic craftsmanship’ could be impacted—if it is used on a cover, for example. Permissions granted by third party agencies cannot be assumed to be safe either. This is because these agencies, however responsible, cleared rights to align with the law that was in effect at the time, and not the new one.
What constitutes a work of artistic craftsmanship?
There is no specific guidance, which is causing a great deal of uncertainty over the extent to which publishers will need permissions. The Intellectual Property Office’s unhelpful position is that it is a question to be decided by the courts on a case by case basis.
How can publishers decide if they need to take action?
If you use images of 3D objects in your books you may need to re-clear rights with their creators to comply with this law. For works under contract, you should ensure that any third party rights clearance for 2D representations of 3D objects includes the creator, if it is less than 70 years since his or her death.
To comply with this legislation, what should affected publishers do and by when?
The bottom line is that books published under a ‘contract’ (not clearly defined) entered into prior to 28 October 2015 will have a depletion period until 28 January 2017. Works contracted after 28 October 2015 must comply by 28 July 2016. The options before these deadlines are to approach rights holders and secure the required permissions, or pulp stock.
In the future, if a 2D reproduction is deemed to be a work of artistic craftsmanship, publishers will need to clear rights in the designed object as well as any photographic rights.
Is there any way publishers can claim exemption from the changes?
No, unless any exceptions under copyright law—like the exemptions for criticism and review—can be applied to their use of relevant images.The government’s full response to the consultation on transitional arrangements can be found here. Responses from stakeholders, including the IPG, can be found here. The Intellectual Property Office has published guidance for affected businesses, and also has general advice on copyright.Kathryn Earle is head of visual arts publishing and academic, USA at Bloomsbury.