Was Repealing Section 52 of the UK Copyright Act a Mistake - Essay Example

Was repealing section 52 of the UK copyright act a mistake? Grade (May 14th, Was repealing section 52 of the UK copyright act a mistake? Repealing section 52 of the UK copyright Act was not mistake. This is because, repealing of this section was meant to enable the owners of the artistic designs that are applied for mass production to enjoy the benefits of their created work for long. This objective is line with the provisions of Article 5 of Directive 93/98/EEC1, which provides that the need for the protection laid down by the Berne Convention was to provide protection of the author and the first two generations of his descendants. The establishment of the copyright protection is meant to ensure that the owners and creators of both literary and artistic work should benefit from their work for a reasonable duration of time, while also ensuring that their generations also reaps the benefits of the innovation and creation of the work. The provisions of Article 2 of Berne Convention for the Protection of Literary and Artistic Works2, states that the creators of artistic and literary work shall enjoy the rights of protection of their created work in the countries member state to union, other than in the country of origin where the artistic and literary copyright protection has been registered. In this respect, the convention provided for the uniform applicability of the right to enjoy the protection of the literary and artistic work that has been created throughout the European Union, without any disparity as regards the exact country for which the copyright has been registered. Further, Article 7(4) of the Berne Convention for the Protection of Literary and Artistic Works3 provides that unless there is special protection of any artistic or literary work in the country of origin, the work shall be protected as artistic work within the European Union. Therefore, the need to ensure consistency in the protection of the artistic and literary works from being used without the authorization of the owner throughout the European Union is essential. Thus, repealing section 52 of the UK copyright Act was not a mistake but a necessary measure to enhance the benefits obtainable from artistic design protection both by the owners of the artistic designs and the whole society. There are two major reasons why repealing section 52 of the UK copyright act was not a mistake: First, repealing of section 52 of the UK copyright Act seeks to harmonize the copyright benefit enjoyment for the UK artistic design used in mass production, to match with the provisions of the European Union artistic and literary copyright protection. Section 52 of Copyright, Designs and Patents Act 19884 provides that the copyright protection for artistic designs applied for mass production should be limited to 25 years from the first date that the artistic design was first commercialized. This is contrary to the provision of the EU copyright laws, which provides for a more extended duration for the owners of the artistic design to enjoy the benefits of their artistic and literary work. According to section 11 of the Directive 93/98/EEC5, the protection of the terms of copyright should be harmonized at 70 years after the artistic design work has been made available to the public or 70 years after the death of the creator of the literary work. This provision of the directive sought to ensure that the legal environment for copyright protection in the whole of the European Union was harmonious. Additionally, the provision of this directive sought to ensure that the conditions of the internal market of the member states to the European Union were equally conducive as those of the entire European Union market. This is necessary to ensure that all the countries within the European Union enjoy similar competitive advantage, without one internal market condition jeopardizing the interest of the other countries. Therefore, to achieve this change, the UK government introduced section 74 of Enterprise and Regulatory Reform Act 2013 (ERR)6, which sought to extend the period for enjoying the benefits of the artistic and literary work from a duration of 25 years previously provided, to a duration of 70 years. Repealing of section 52 of Copyright, Designs and Patents Act 1988 is essential to ensure that there is free trade between the member states of the EU. The provisions of section 2 of the Directive 93/98/EEC7provide that the difference between the national laws of the EU member states creates a hindrance of competitiveness in the EU market. This is because, the disparity in the terms of governing the copyright protection within the member countries is liable for impending the free movement of goods and services, thus distorting the competitiveness of the market. This need also saw the issuance of Directive 2011/77/EU8, to give the performers of music an extended duration of enjoying their work for 70 years, similar to that of the authors of literary work. The effect of this directive was also to ensure that the performers would reap the benefit of their work for an extended period, and also throughout their lifetime. The legislation of section 52 of Copyright, Designs and Patents Act 1988 was established in line with the provision of Article 10 of the WIPO Copyright Treaty9, which provided that the member countries of the EU can make exceptions to the requirement for the protection of the copyright rights of the owners of artistic and literary work, subject to the special circumstances of the nation. Thus, the UK limited the duration of enjoyment of the benefits for the artistic work applied in industrial production to duration of 25years. Article 10(2) of the WIPO Copyright Treaty10 has provided that making the exceptions to the rules of the copyright protection provided under the Berne Convention should only be done where such exceptions do not seem to prejudice the legitimate interests of the authors of literary work, or creators of the artistic designs. Therefore, repealing section 52 of Copyright, Designs and Patents Act 1988 is essential to meet this provision of the WIPO treaty, which seeks to ensure that the legitimate interests of the owners of the copyright will be taken care of. This is because, while the UK provided for only 25 years of enjoyment of the benefits of artistic designs that have been commercialized, it put the interest of the creators of the artistic designs in the UK into jeopardy, because the benefits of their work would be enjoyed by others after only 25 years, while the benefit of the creators of such artistic designs in the rest of the member states to the EU would be enjoyed for 70 years. Further, Article 18 WIPO Copyright Treaty11, which covers the obligations of the state party under the treaty, provides that the state parties are obliged to implement the provisions of the Berne Convention, and to assume all the obligations in the convention provisions. The major objective of the Berne Convention for the Protection of Literary and Artistic Works was to provide avenues for the protection of the interests of the owners of artistic and literary work to enjoy the benefit of their work for an extended duration. Therefore, section 52 of Copyright, Designs and Patents Act 1988 went contrary to this objective, through reducing the period of copyright protection for the artistic design applied in mass production to 25 years. Therefore, repealing this section ensures that the major objective of Berne Convention would be met in the UK, thus bringing the internal market conditions in the UK to the same level of competitiveness and harmony as the rest of the EU member states internal markets. Finally, repealing section 52 of Copyright, Designs and Patents Act 1988 was not mistake, because it seeks to align with the recent requirements of the European Court of Justice (ECJ) for all the member states of the EU to protect the original copyrights for an extended period of 70 years, without limiting the duration to a lesser time limit, regardless of the nature of the copyright. The ECJ, under the case Flos SpA v Semeraro Casa e Famiglia SpA [2011] (C-168/09)12, has provided that the member states of the EU should extend the period of protection of all the artistic designs applied towards industrial and mass production to 70 years. According to this ruling, the failure to provide for an extended period of 70 years for the artistic designs applied in mass production jeopardizes the legitimate interests of the creators of such artistic work, to enjoy equal benefits with other copyright benefits such as literary work. Therefore, the provisions of Directive 98/71/EC of the European Parliament13 should be interpreted to mean that all copyright protection should cover duration of 70 years, without any distinction as to the nature of the copyright. Thus, repealing of section 52 of the UK copyright Act is essential to fulfill this new requirement by the European Court of Justice. Bibliography Article 5 of Directive 93/98/EEC Article 2 of Berne Convention for the Protection of Literary and Artistic Works Article 7(4) of the Berne Convention for the Protection of Literary and Artistic Works Section 52 of Copyright, Designs and Patents Act 1988 of the European Parliament Section 11 of the Directive 93/98/EEC of the European Parliament Section 74 of Enterprise and Regulatory Reform Act 2013 (ERR) Section 2 of the Directive 93/98/EEC of the European Parliament Directive 2011/77/EU of the European Parliament Article 10 of the WIPO Copyright Treaty Article 10(2) of the WIPO Copyright Treaty Article 18 WIPO Copyright Treaty Flos SpA v Semeraro Casa e Famiglia SpA [2011] (C-168/09) Directive 98/71/EC of the European Parliament Read More