The image of Christine Keeler, the would-be model at the heart of the Profumo affair, sat astride a chair designed by Arne Jacobsen made the furniture almost as famous as the sitter. Given its starring role in a photo that has been imitated countless times, it’s perhaps fitting that the chair that maintained Ms Keeler’s modesty turned out to be a cheap copy of Jacobsen’s Model 3107.
Now a change in copyright law that could come into force as early as next month will mean much stronger legal protection for the rights-holders of popular designs — and an end to much of the cheap designer homeware favoured by consumers.
To bring Britain into line with European rules, industrially produced designs will be given the same copyright protection as that offered to artists and composers. Where companies have been able to sell replica goods providing that 25 years has passed from the date the item originally went on sale, the new rules will extend that period to 70 years from the death of the creator, potentially adding more than a century of additional protection to some designs.
Businesses that have thrived by legally selling low-cost copies of classics like Jacobsen’s Egg Chair and Arco lamp, or the DSW Chair by Charles Eames, will have to find a new business model or shut up shop. Those who had a legitimate replica operation will now be guilty of a criminal offence if they carry on trading as before, as designs whose rights lapsed decades ago move back into copyright.
Supporters of the change include Vitra, the Swiss-based multinational rights-holder that owns numerous classic designs, Sir Terence Conran and Sir James Dyson. However, there has been no shortage of opposition, not only to the strengthened rights but also to the considerable uncertainty affecting businesses about exactly when and how the rules will be enforced.
Advertisement
Initially, businesses and the owners of rights were informed that the date of implementation was April 2020. As many began making preparations accordingly, the government said that such a time frame was “proportionate” to allow “affected businesses to adjust to regulatory change”.
They got a nasty shock, therefore, when, in November, the government scrapped this guidance and warned that the law could be enforced as soon as this April.
Chris Diemer is a director at Voga, a London-based replica furniture maker that made copies of the Egg Chair, the DSW Chair and Jacobsen’s Artichoke lamp, and he argues that “it is exciting to recreate iconic mid-century designs at affordable prices. This way, more people can enjoy the craftsmanship of some of the world’s most famous designers.”
His company has accepted that it needs to adapt to the change in the law, but he is angry that it is still waiting to hear when the new regime will come into force. “It is creating a lot of uncertainty and unhappiness. One of the government’s main arguments for implementing a five-year transitional period was to protect UK businesses, jobs and tax income. The [new] proposed date of April by no means gives anyone enough time to adapt.”
The government says that a final decision on when the law, a repeal of Section 52 of the Copyright, Designs & Patents Act, comes into force will be made “soon”. A spokesman at its Intellectual Property Office said that businesses with contracts entered into before October 28, 2015, would have a further period of six months after the change in law to sell off their stock.
Advertisement
Nevertheless, James Sweeting, of Lewis Silkin, the law firm, believes that the change “will do disproportionate harm to replica manufacturers blindsided by how quickly the law has crept up on them. [Six months] is not a very long period to shift stock and many manufacturers may find themselves either staring down the barrel of a £50,000 fine, a custodial sentence, or in the red with a warehouse full of knock-offs they are unable to sell.”
Ivan Macquisten, who represents Expired Copyright Homeware Organisation, a campaign group for affected furniture businesses, argues that the new rules have consequences far beyond the makers of replica homeware. “The law is going to change whatever,” he said, “but bringing it forward to April 2016 is a killer for a lot of jobs, businesses and tax revenues.”
He believes that sectors as diverse as jewellery, carmaking, toys, advertisers, clothes manufacturers and publishers could be affected. In short, anyone who makes or sells products that are copies of, or even heavily influenced by, any design that will come back into right under the changes.
That includes any two-dimensional recreation of a three-dimensional design for the purpose of commercial exploitation, in an art or design book or on a poster, T-shirt or mug, for example, or in the libraries of picture agencies or periodical publishers.
“One leading museum estimates an £850,000 loss in the first year because of this. The change will also affect what it decides to add to its collection in future [based on what can be legally reproduced and sold in their shop].” Moreover, the new law “upgrades” protection on some products that were covered by more flexible “design rights”.
Advertisement
“Under design right, it was possible to reproduce an element of a product deemed to have ‘artistic’ merit if the overall appearance of the new design was different. Under the upgraded copyright, it remains an infringement to copy any part of the design in this way.”
The result will be a “chilling effect” on design and innovation. “Designers will have to be sure that anything they design does not breach the rights of an earlier design or risk criminal prosecution. If the big guys don’t like something, they will send a letter saying, ‘you are breaching our rights’. What are you going to do as a small company? You’ll stop making it.”
Jill Bainbridge, of Blake Morgan, a law firm, said: “I fear there will be a far greater risk of disputes given that designers often draw inspiration from earlier works and styles.”
Mr Macquisten admits that all that is left to fight for is enough time to prepare for the rules. “The law has changed. The repeal will be enforced. All the interested parties will have to adapt or die. What we are talking about here is a reasonable period of transition so that they can adapt, survive and be compliant.”
Quality, not quantity, is the key for supporters
Advertisement
Upgraded intellectual property rules for designers may have upset some furniture businesses, but plenty of people in the industry have welcomed the change (James Hurley writes).
Tony Ash, the managing director for Vitra, a design brand, believes that replica manufacturers are bad for consumers as well as designers. “A copyist, by their very nature, exists to make products as cheaply as possible. In essence, they are saying ‘let’s try and make this worse than the designer intended,’ ” he wrote in Dezeen, a design magazine.
Mark Owen, a partner at Taylor Wessing, the law firm, said: “Rather than the repeal being an unfair attack on business models, it can also be regarded as closing a loophole which afforded an unearned windfall at the expense of rights-owners. Unauthorised manufacturers of creative designs, such as furniture and jewellery, will have to consider carefully whether they need to stop their production or obtain licences.”
According to Mark Adams, managing director of Vitsoe, a furniture and shelving maker, warnings about the new rules causing business failures are overdone: “This is legislation that comes from the world of music. Copying a song and a piece of furniture are very different things. With copyright actions notoriously difficult to win when it comes to furniture, I don’t see this adversely affecting too many companies.”