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The government recently revoked the Commencement Order (Enterprise and Regulatory Reform Act 2013) which implemented the repeal of the Copyright, Designs and Patents Act 1988, s 52 (CDPA 1988). John Coldham, a director at Wragge Lawrence Graham & Co, takes a closer look at this development.
By way of background, what is the reasoning behind the repeal of CDPA 1988, s 52?
The repeal of CDPA 1988, s 52 was brought in by statute—by the Enterprise and Regulatory Reform Act 2013, s 74. The rationale for the repeal was that UK law was incompatible with the EU following the Court of Justice of the European Union’s decision in Flos v Semeraro: C-168/09  All ER (D) 208 (Jan). The purpose of the repeal was to align the period of copyright protection across all artistic works and to eradicate inconsistencies between the term of protection afforded by copyright in different member states. CDPA 1988, s 52 provides that artistic works which are exploited by an industrial process (that is, more than 50 articles being produced) have their copyright protection limited to a duration of 25 years (ie in line with the maximum available for registered designs). This period of protection is significantly less than the duration of protection afforded to other artistic works, which is the period of the author’s life, plus 70 years. The repeal is a success for designers of iconic products, who will have their proprietary rights extended, enabling them to prevent other manufacturers making lookalike products and selling them for a fraction of the price.
What did the commencement order say about the repeal of CDPA 1988, s 52?
Following a consultation in the Autumn of 2014, the government responded in February 2015. Given that
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