The Copyright, Designs and Patents Act 1988

Why was it introduced?

In the decades following the Second World War, globalisation and new technology caused a boom in industries such as the film, publishing, and the music industries, and businesses had a greater reach than ever before. With this surge in activity came an increased need for trademarks, copyrights and other intellectual property rights, and a demand for a unified approach across all nations.^[1] International bodies such as the World Intellectual Property Organisation were created, and treaties such as the Berne Convention gained greater prominence.^[2]

In addition, the growth of the digital era made it not only easier to create new intellectual property, but also to infringe it. The threat of piracy led to demands for greater protection of intellectual property than was possible under the previous law.^[3]

What was the aim of the Act?

One of the primary aims of the Copyright, Designs and Patents Act 1988 was to provide increased protection against piracy for authors of ‘new media’ artistic works such as films and sound recordings.

The Act also aimed to incentivise investment in designs by revolutionising the law of industrial design.^[4] The previous law of design rights had been seen as overly complex and contained anomalies where certain designs would be protected for far longer than others without any real justification for the discrepancy.^[5]

Finally, the Act allowed the UK to ratify the 1971 amendments to the Berne Convention, fulfilling the demand for a more globally unified system of intellectual property.^[6]

What main changes did it make to the law?

The Act repealed the vast majority of the previous legislation governing the area (the Copyright Act 1956). Cornish, Llewelyn and Aplin argue that the Act “restated the statutory law of copyright, on the whole in a plainer and more logical manner” than previous statute.^[7] For example, terms within it were generally better defined than they had been previously.^[8]

The first of the major changes to the law of copyright was the creation of a new ‘rental right’ for sound recordings, films, and computer software, allowing authors to control the lending of their works to the public.^[9] The second was the introduction of new criminal sanctions against those who make, import or distribute copyright infringing material.^[10] The third was to introduce prohibitions against making or distributing devices which circumvent copy protection measures.^[11]

The Act also was significant in that it conferred a new “quasi-copyright on performers”^[12], who had previously struggled to protect their work due to the requirement that a work be ‘fixed’ in a permanent form in order to acquire protection under copyright.^[13]

The Act created an entirely new species of ‘moral’ rights for the benefit of authors. These new rights were fourfold. The first two, the right to be identified as the author or director of a work, and the right to object to derogatory treatment, were required for accession to the Berne Convention.^[14] The third right was to object to false attribution, while the fourth was “labelled a right of privacy”.^[15]

In addition to increasing the rights of authors, the Act also had a great impact on the law of industrial designs. Previously, there had been an encroachment of copyright protection into the realm of industrial designs, which was significant given that the term of protection for copyright was far longer than that for registered designs.^[16] In order to counter this, the Copyright Act 1956 had reduced the copyright protection of “industrial designs with artistic appeal” to 15 years to match the term of the design protection.^[17]  Purely functional designs, however, retained the full copyright term of 50 years after the author’s death. This was seen as anomalous.^[18] The approach of the new Act is to “exclude functional designs from the scope of copyright protection completely”^[19] by providing that it does not infringe the copyright in a design drawing to make a three dimensional product to that design unless the end result is an artistic work, such as a sculpture.^[20]

In addition, the lacuna between design works which had not been registered (and so could not attract protection as a registered design) but fell outside of the scope of copyright was filled by creating a new unregistered design right, with a shorter term than its registered counterpart.^[21] The term of protection for registered designs was increased from 15 years to 25 years.^[22]

Finally, the Act created a new Patents County Court, with the aim of simplifying and lowering the expense of certain patent actions.^[23] This Court was later renamed the Intellectual Property Enterprise Court.^[24]

Key Sections

Part I of the Act deals with copyright protection, and is split into ten chapters. Chapter 1 establishes the rules for the subsistence, ownership and duration of copyright protection. Chapter II establishes what the rights of a copyright owner are in respect to their work, and consequently what acts infringe these rights. Chapter III establishes ‘permitted acts’; generally, in the form of defences against copyright infringement claims for various activities, such as copying for archival purposes.^[25] Chapter IV contains provisions on the new moral rights for authors and directors. Chapter V is primarily concerned with dealings with copyright, but also contains provisions on the non-assignability of moral rights and their transmission after death.^[26] Chapter VI covers remedies for infringement of copyright and moral rights. Chapter VII contains provisions for licensing of copyright, while Chapter VIII establishes the Copyright Tribunal and its powers. Chapter IX contains the qualification rules for copyright protection (by reference to the nationality of the author, country of first publication or place of transmission). Chapter X concludes with miscellaneous provisions.

Part II establishes the sui generis ‘performers right’, including moral rights with respect to such performances.

Part III introduces the new unregistered design right and the rules associated with it.

Part IV introduces modifications to the law of registered design rights.

Part V contains provisions regulating Patent and Trade Mark Agents, while Part VI establishes the Patents County Court and its jurisdiction.