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Copyright Law

Changes to UK Copyright Law

 

Stop Press – 6th April 2017.

Today both parts of the new copyright and design right laws take full effect in the UK (but not Ireland).

Irrespective of the original design date, any item that qualifies for "Artistic Craftsmanship" as deemed by a court of law, is now protected for 70 years from the DEATH of the originator. This applies to all products, in all markets, not just furniture.

If no court judgement has been awarded then the 25 year rule still applies!

Even now, today, as I update this blog, there is still no legal definition of "Artistic Craftsmanship" so we are now waiting for the first legal action in a UK court which would lead to establishing future precedents.

Until this first case is heard the only known list in existence of "possible" protected designs is the list provided by Scott Howard Furniture months ago on this blog and repeated further down this page.

In recent days, my government contacts have stressed to me that only products that can fulfil the BOTH the criteria of "Artistic" and then separately "Craftsmanship" will qualify for the new UK version of this law, they went on to say that as a result many European designs may not actually enjoy this new UK protection when our courts look at each design on case by case basis.

It is entirely possible that European manufacturers who believe they have protection in Europe might start litigation here in the UK, only to find their designs do not pass our UK court's interpretation of "Craftsmanship", so it will be interesting to see what transpires in the months to come.

Even more interesting is that any litigation would take at least two years, if not more, and by that time the two year changeover framework for Article 50 will have passed and the sovereignty of our UK courts will again prevail. And who knows how a UK judge, in a UK court, with UK sovereignty might act in the future.

One thing we do know is that currently no British designer has ever been given 70 year protection in Europe for any designs, so we now look forward to the days when a UK court protects UK businesses – because now they can!

Many thanks

SCOTT APPLETON
Managing Director
Scott Howard Office Furniture Ltd

Stop press - 3rd March 2017.

The UK Intellectual Property Office (IPO) has now issued a revised set of guidelines to assist affected manufacturers and retailers entitled ....

"Repeal of section 52 of the copyright, Designs and Patents Act 1988: Guidance for affected individuals, organisations and businesses"

The complete document is available to view on line by visiting the Intellectual Property Office web site.

These revised guidelines are an attempt to clarify some of the more confusing areas of the new UK legislation but the IPO are clear to point out – and I quote them directly - that "This guidance focuses on copyright law, is non statutory, and does not provide legal advice" so whilst it's content is long awaited and in part helpful, it cannot and must not be taken as authoritative.

These guidance notes clearly state on page five that "There is no statutory definition of a work of artistic craftsmanship" so here we are seven months into this new law being in place, and yet the IPO and the UK government still cannot advise us what an item of "artistic craftsmanship" actually is.

The guidance notes go on to say on page seven "The works most likely to be affected by the repeal of clause 52 CDPA are works of artistic craftsmanship. There is no statutory definition of a work of artistic craftsmanship. Without a formal definition, it is up to the UK courts to decide what would be classified as a work of artistic craftsmanship (protected by copyright law)".

It then goes on to say "As a first step in any infringement claim, the onus must be on the claimant to show that the work is one of artistic craftsmanship and therefore protected" ..... and yet these guidelines clearly stated there is no legal definition of artistic craftsmanship.

Are you still with me on this one ???? ..... How can you argue you have artistic craftsmanship in a design when there is no official or legal definition of artistic craftsmanship!

However, to its credit the guidelines do give us some helpful advice on page eight when it states .....

"The following criteria can be extrapolated from several UK cases. It is not enough for a work such as a piece of furniture to LOOK attractive to qualify as a work of artistic craftsmanship .................... two requirements combined in the same work: artistic quality and craftsmanship."

The new guidelines highlight FOUR court cases of specific facts.

  1. Burke & Margot Burke Ltd v Spicers Dress Design 1936 Ch 400 – In this particular case a lady's dress did not constitute a "work of artistic craftsmanship" within the definition of artistic work in section 35 (repealed) of the copyright Act of 1911.
  2. Henshaw (George) Ltd v Restawile Upholstery (Lancs) Ltd 1975 RPC 31, HL. – The Law Lords did not agree a test to determine works of artistic craftsmanship, but they did agree that the prototype of a new suite of furniture in this case was not such a work.
  3. Merlet & another v Mothercare plc 1986 RPC 115 – A baby cape was not considered a work of artistic craftsmanship as its purpose was to protect the child from the climate and therefore it was not a work of art.
  4. Vermaat & another v Boncrest Ltd 2001 All ER (D) 167 – A patchwork bedspread did not exhibit the necessary requirement of creativity so as to be a work of artistic craftsmanship.
  5. Lucasfilm Limited and others v Ainsworth and another 2012 1 AC 208 – The High Court did not consider the helmet of the Storm trooper in the Star Wars films to have the necessary "artistic" creation required of a sculpture.

The guidelines go further on page nine, under the heading "What is UNLIKELY to be a work of artistic craftsmanship?".....

Answering "Some copyright experts say that the more constrained the designer is by functional considerations the less likely the work is to be artistic craftsmanship"

"A work designed to be mass produced ............. can be a work of artistic craftsmanship although designing for mass production may cast doubt on whether it is truly one of artistic craftsmanship."

Then the guidelines move onto some more commonly asked questions and on page fourteen the guidelines are certainly most helpful.

Q/ "Can we just make a number of changes to the work so we can sell a modified version?".

A/ "There is no hard and fast rule to say how many changes make a modification to an artistic work acceptable. Under copyright law you must not take a "substantial part" of the work if you wish to avoid infringing copyright. A substantial part is not defined in copyright law, but has been interpreted by the courts to mean a qualitatively significant part of a work, even where this is not a large part of the work. Not all 3D design objects would be protected by copyright, so it is possible to take inspiration from previous artistic designs, bearing in mind that design rights or trade marks must not be infringed."

Q/ "How does this work for furniture design if we can't be inspired by existing works?."

A/ "The change in law does NOT stop designers taking inspiration from previous works. The intent of the law is to stop slavish copies of existing artistic works. In other words, producing identical copies and substantially copying other artistic works" – "Designers are usually able to base any new designs on the theme or ideas which underpin another work. As long as they do not copy a substantial part of another artistic work" – Not all 3D design objects would be protected by copyright so it is possible to take inspiration from previous artistic design, bearing in mind that design right or trademarks must not be infringed either."

So there you have it, designers can take inspiration for their next design from an existing artistic work as long as they do not slavishly copy the item or substantially copy the item, however there is no legal definition of the term "substantially copy" so litigation is certainly likely where rights holders and designers disagree about the term "substantial".

We are very grateful to the team at the IPO in London for attempting to clarify some of the more complicated points covered in the revised guidelines and especially the four legal cases as quoted which at the very least give some pointers as to how the UK courts might view some cases in the future.

One year ago the UK copyright law was clear and precise – 25 years for every design in all market places irrespective of aesthetic appeal – and all manufactures and retailers knew exactly where they stood - sadly today we have a new law where everything is far from clear and is open to different interpretation of the rules depending on how deep your pockets are and already we are seeing European companies milking the confusion for all it is worth (literally).

In July 2016 immediately after passing the repeal Baroness Neville-Rolfe moved from the IPO to new responsibilities in government at the Treasury (ironically for EU exit financial services amongst other things), so I can't help but reflect that since this change of UK law commenced in May 2012 not a single member of the government that has been directly involved in this repeal still remains in position as it comes to its conclusion, although Vince Cable MP and Baroness Neville-Rolfe amongst others, might have moved on, it is those of us that remain in the furniture industry that now have to pick up the pieces and sort this mess out.

It is with a heavy heart that I now feel that UK consumers who wish to purchase affordable iconic designs are now in a far worse position than ever before as a direct result of these changes.

Many thanks

SCOTT APPLETON
Managing Director
Scott Howard

Stop Press – 27th January 2017.

So, the day has arrived. At the end of trading today, certain post-1957 iconic reproductions can no longer be sold legally here in the UK.

Scott Howard wants to lead the way, acting with honesty and integrity at this difficult time, so certain designs are being de-listed on the Scott Howard UK web site today and are no longer available for sale.

There is, of course, a split introduction of the new law, where some designs will cease on the 6th April. And yet ironically, these are the items where we have already run out of stock, so we will be de-listing these tonight as well.

For clarity, we have put a transparency statement on the pages relating to products affected.

We recognise the situation is far from clear, so if you require more information, please feel free to call us on 0207 724 1130.

___________________________________________________________

Stop Press – 16th January 2017.

There are now just 12 days to go before the industry has to stop selling "certain" reproductions of iconic classics.

Readers of this blog will know there is considerable confusion over which products are affected and when they become banned here in the UK because there is no comprehensive official list of which designs currently hold artistic status in the EU.

Last year Scott Howard Furniture wrote to several European "rights holders" to try to ascertain which products might be affected and it is now widely believed that the list on our web site is the only list in existence.

I am thankful to lawyers representing Vitra, Cassina, and Fritz Hansen who responded to our request for information and I have already detailed their replies previously.

A few days ago I called around leading members in the UK furniture industry as well as the Intellectual Property Office and we believe that the list presented here is still the only list available for UK retailers to refer to as this law comes into effect.

There may be additional products that enjoy protection but until their rights holders make contact with us and produce legal proof of their claim we can only go by the three responses received so far.

So for clarity we can say that UK sales of reproductions of the following iconic furniture, designed after 1957, must cease on the 28th of January 2017.

Gerrit Thomas Chair 1964
Charles Eames Aluminium Group chair 1959
Charles Eames Soft Pad Group chair 1969
Verner Panton Cone chair 1958
Verner Panton Heart chair 1959
Verner Panton S chair 1960
George Nelson Marshmellow sofa 1959
Arne Jacobsen Egg chair 1958
Arne Jacobsen Swan chair 1958
Arne Jacobsen Drop chair 1958
Arne Jacobsen Series 8 chair 1968

Sales of reproductions of pre-1957 iconic designs must cease on April 6th, so in 63 days time I will update this blog again, to list any further products we find that will be affected by that deadline date.

Scott R. Appleton
Managing Director
Scott Howard Office Furniture Ltd

Stop Press - Update 29th November 2016.

Today the government gave their decision on the Pre 1957 rule.

Any iconic designs that have received "artistic craftsmanship" status in the EU that were either, previously registered for Design Right, (or could have been registered for design right) before 1957 will also have 70 year protection conferred on them - however - the final date UK retailers can legally sell these items is different from products designed after 1957.

Reproductions of Pre 1957 "Artistic Craftmanship" designs only become illegal on the 6th of April 2017.

This is different from Post 1957 artistic reproductions which become illegal from 28th January 2017.

The UK government has confirmed to us that it remains 100% legal to import and sell Pre 1957 designs right up to the 6th of April 2017 date.

To make it easy to understand which designs are affected and more importantly when, designs highlighted in red below are protected from January 2017, whilst those in black are only protected from April 2017.

These rules only apply to sales in the UK, as sales of reproductions of iconic design remain unaffected in Southern Ireland.

Stop Press – Update 14th November 2016.

On the 14th November 2016 a meeting was held in central London between the Scott Howard team and lawyers representing Vitra, Cassina, and Fritz Hansen. Sadly there was no representation from Knoll.

We have now received a document from them advising us which Vitra, Cassina and Fritz Hansen designs they feel they can demonstrate artistic judgments in other EU states, and in their view enjoy 70 year protection following the repeal of clause 52.

The products are as follows but it should be noted that designs highlighted in Red are designed after 1957 as the cut off dates are different.

Le Corbusier LC2 sofa 1928
Le Corbusier LC1 le basculant chair 1928
Le Corbusier LC4 chaise 1928
Le Corbusier LC7 chair 1927

Gerrit Thomas chair 1964
Gerrit Thomas Zig Zag chair 1934

Charles and Ray Eames LCW and DCW chair 1945
Charles and Ray Eames Plastic Group chair 1950
Charles and Ray Eames Wire Chair 1951
Charles and Ray Eames Lounge Chair 1956
Charles and Ray Eames Aluminium Group chair 1959
Charles and Ray Eames Soft Pad chair 1969

Verner Panton Cone chair 1958
Verner Panton Heart chair 1959
Verner Panton S chair 1960

Isamu Noguchi coffee table 1944

George Nelson Marshmallow sofa 1959
George Nelson Coconut chair 1955

Arne Jacobsen Egg chair 1958
Arne Jacobsen Swan chair 1958

Arne Jacobsen 3107 Butterfly chair 1952
Arne Jacobsen 3100 Ant chair 1955
Arne Jacobsen Drop chair 1958
Arne Jacobsen Series 8 chair 1968

I would stress that our lawyers have not completed their due diligence checks on the verifiability of these claims yet, but as the meeting was entirely amicable and open we are happy to take the information provided to us as a good starting point, offered in good faith, and without conditions.

The government is still deliberating on the 1957 rule which will affect the cut-off date for some of the designs listed above but we understand a final decision should be announced within the next few weeks.

Scott Howard Office Furniture Ltd's position is that we will stop selling reproductions of listed items here in the UK in accordance with the UK government's guidance on cut-off dates etc, and that in the future our product offer will be focused primarily on original products which whilst similar in style to the old favorites will not be copies or reproductions of any of the designs listed above.

Whilst trust can only be built over time, I am pleased to say that finally Vitra, Cassina and Fritz Hansen have talked openly about which of their products they feel hold 70 year protection in the EU, and a huge amount of progress was made, by all sides, at the meeting yesterday.

Yours sincerely

Scott R. Appleton
Managing Director
Scott Howard Office Furniture Ltd

Stop press 1st of November 2016.

Three months have passed since the changes to copyright law came into effect in July 2016, and at the time of writing this update, I have still not received any communication from the Swiss lawyers representing Vitra, Cassina, Knoll and Fritz Hansen informing me which of their many products actually enjoy artistic status in any other EU states, and, far more importantly, which designs do not have this status conferred on them, as these would remain available to the UK consumer.

Being fair to both sides, I believe in time we would expect this to be resolved amicably as it is clearly in all parties' interests to be seen to be forthcoming with this vital information to assist the smooth passage of the new legislation. I might even go further and say it could seriously work against any party if they were seen to be withholding information that advises or assists changeover in taking place.

Indeed I do not know of any UK Judge or Court that would look kindly on any party if they withheld information, if the intent was solely to create confusion amongst competitors during a time of law change.

Moving on to the other matter of the 1957 rule relating to design right, again we have heard nothing on this point from the IPO or Government at this time, so until a decision is made, it remains legal to sell reproductions of any products that either "did have design right" or "could have been registered for design right" prior to 1957. These can still be sold legally here in the UK at this time.

The Government is currently holding a technical consultation and review of this important point, but until their decision is made and implemented, it remains legal for products fulfilling these two criteria to be legally sold here in the UK.

As most iconic designs were launched before 1957 there is a high likelihood that a significant number of these designs fall outside the new copyright law at this time, but we stress that this is under review.

As soon as we have more information we will update this page for the benefit of all parties on all sides of the debate.

Yours faithfully

SCOTT APPLETON
Managing Director
Scott Howard

The new law July 28th 2016.

Stop Press 28th July 2016

Today is the day that products deemed as "artistic craftsmanship" obtain 70 year protection here in the UK.

However, I can report that there is still no list or reference document which states which products have this status conferred on them by any UK or EU court, or, more importantly, which products do not.

If you have been following this blog, you will know that I have previously written to the UK government and the IPO asking for assistance on this very important point and they have confirmed there is no such list.

I think most people in the industry now know that because of this lack of information I personally wrote to Vitra, Cassina, Knoll and Fritz Hansen on everyone's behalf, asking for this information to be released so that I could pass it to the UK furniture industry so that we can all prepare for change, but sadly, as of today, they have not supplied any information on this matter.

SO TODAY - ON THE DAY THE REPEAL GOES LIVE - WE AND EVERY OTHER UK FURNITURE RETAILER KNOW ABSOLUTELY NOTHING ABOUT WHICH PRODUCTS ARE AFFECTED!

However there has been a development:- We have been informed by the IPO that if a product WAS registered for "design right" (not copyright) before 1957 or COULD HAVE BEEN registered for "design right" before 1957 then these products are NOT covered by the copyright changes and the 70 year rule DOES NOT APPLY to them!

We have asked our legal team to establish which iconic furniture designs either were registered or could have been registered for design right before 1957 and we are now waiting for them to report back on this point.

Vitra Ag have been lobbying the UK government hard to also amend design right law here in the UK (in addition to copyright) so that they can receive protection for the Lounge chair and Ottoman designed in 1956 as this previously had design right (not copyright) – so IF PROVEN the Lounge chair is NOT currently covered by the 70 year rule!

On the 21st of July 2016 the UK government released yet another technical consultation for our views on changing design right but they then go on to state clearly their position is that they will amend design right as requested by Vitra Ag in line with current EU legislation.

This document and its declaration were published one month AFTER the country declared it does not want the EU to control our laws! – In my view a decision to change design right to satisfy foreign manufacturing would be a crass abuse of power!

Sadly because of how they ignored the mass of public opinion against the 9 month commencement order and then because they pushed through the start date just 26 days before the EU referendum, all the main players on our side of the table now feel we can no longer trust the independence of the IPO or the BIS in this matter.

I have absolutely no doubt whatsoever that the decision on the design right rule has already been made behind closed doors and this new consultation process is a white wash and merely an attempt to make it look as if the public are being consulted.

We understand that all consultation responses will need to be submitted by September 2016 and that any change to design right will then need to go through the full Parliamentary scrutiny procedures, so let's hope that our design right law which has worked effectively since 1907 is not changed just to satisfy the commercial desires of one company wishing to protect one chair that they didn't even design themselves.

It is ironic that Herman Miller in the USA only enjoyed 25 years protection for their original 1956 Lounge chair and Ottoman designed in America and yet a licensee in Switzerland is now claiming 70 years protection AFTER the designers death here in the UK.

So Herman Miller received 25 years protection for their hard work and financial commitment to designing and manufacturing the product in America and yet the UK are now giving Vitra Ag of Switzerland a total of 93 years of protection to copy the Herman Miller product (albeit under license).

Charles Eames died in 1979 + 70 years = protection until 2049. - Even I will be dead by then!

So, does the UK government really have the stomach for another long parliamentary process just to satisfy the desires of one manufacturer especially as, this time, they can't threaten use of Judicial Reviews in the EU courts.

Teresa May stated clearly in July that Brexit meant Brexit so let's see if foreign interests can push her government and the BIS secretary around this time!

Yours faithfully
SCOTT APPLETON
Managing Director



What the hell is going on?

STOP PRESS - Position as at 24th June 2016.

INDEPENDENCE DAY

Union Jack

In the last few hours, the people of the United Kingdom voted to end Europe's domination of our laws and our culture by faceless unelected bureaucrats in Brussels.

Over the last four years Vitra Ag based in Switzerland have sought to change UK copyright law for their own financial benefit and last year when our government was forced to change our laws but wanted to give UK businesses five years to adapt to the changes Vitra Ag destroyed that desire by threatening a Judicial Review in Brussels that our government's decision was not in line with EU law.

Well yesterday the people of the UK stuck two fingers up to rule from Brussels.

We don't want your laws, we don't want your controls, and in future we will decide our own destiny!

I now hope that from here onwards, any products from any designers, irrespective of gender, creed, colour, age, nationality, or fame or fortune will all be treated EQUALLY in the UK without hierarchy, elitism, or commercial bias.

Now it is time for the Business Secretary Savid Javid and the Under Secretary Baroness Neville-Rolfe to support the furniture industry here as there can be no doubt that our citizens have clearly told them by a huge majority that we do not want EU laws.

If our politicians do not take heed of our desires then we can always vote them out too!

Our Veto of Clause 52 worked perfectly well for DECADES and we were the envy of the world for fairness in copyright law and now as we are no longer controlled by Brussels the recent threats made by Vitra Ag count for nothing. The playground bully is no longer protected by teacher so we can now stand up and fight for our UK industries by throwing this stupid action out.

In our meetings, our politicians have openly talked about how their hands were tied by EU restrictions and that they could not act as they wished … well now they are not tied, so they can fight back for all UK industries.

They can start by making all products designed before 1957 exempt from the repeal of clause 52 – IT'S AN EASY DECISION - before 1957, every designer knew their designs could only receive a maximum of 25 year design right protection worldwide and it is crass stupidity to change this protection period long after those designers have died, in some cases decades after they have died.

We do not need to give any companies (foreign or domestic) any extra legal protection long after the designers themselves have died just to fill companies' bank accounts.

25 YEAR PROTECTION – exactly like worldwide Pattern Protection is sufficient in any industry for any product, mass produced or otherwise.

Many thanks

SCOTT APPLETON
Managing Director
Scott Howard Group

STOP PRESS - 2nd June 2016.

In late May 2016 the UK government finally decided on a start or commencement date for the new UK copyright law of the 28th of July 2016, and since then we have been inundated with telephone calls from customers expressing concern on how the industry will be adapting to the new rules.

So let's be clear … this new law does NOT apply to all reproductions … all companies can still reproduce furniture, and the most commonly quoted example of this is that of the iconic Chesterfield Sofa which is reproduced by hundreds of companies throughout the world, but because the design is over 70 years old and does not enjoy "Artistic craftsmanship status", it can still be reproduced or copied by anyone and sold in the UK and the EU completely unaffected by these new rules.

Chesterfield Sofa

In fact there are thousands of furniture designs where "artistic craftsmanship" status does not apply - and that is the crux of the problem – no one knows exactly which designs qualify, and which do not.

In 2015, whilst the changes were progressing through Parliament, I personally wrote to the Under Secretary of State Baroness Neville-Rolfe asking her to clarify which designs would hold this new status and which would not, or failing that, asking her to write to the main EU rights holders in her capacity as Under Secretary of State for Business asking for clarification on which of their designs already hold this status in any other EU state.

The Baroness declined saying this was "a matter for the UK courts in due course" so here we are in June 2016 with just one month to go and retailers in the UK still have absolutely no information on which iconic furniture designs might be banned and which might not.

If our government was not willing to ask the question clearly, someone needed to step forward and write to the big four rights holders in Europe (Vitra, Knoll, Cassina and Fritz Hansen) asking the question, and with no one else offering, I did. Well someone had to!

Scott Appleton at the House of Lords

To date, I have written to them on six occasions - I wrote to the UK directors of the big four suppliers and their lawyers based in Switzerland (yes, Switzerland – not even in the EU) and I clearly asked them to clarify which of their designs already held this artistic status.

On six occasions my emails have been ignored by the directors, but I did receive one email from their groups lawyer asking me to clarify which designs we were enquiring about, so I replied clearly stating the exact designs under consideration and yes, you've guessed it - we received no reply to that email either.

The rights holders will tell you they received no such requests, so to avoid any ambiguity or confusion I am openly publishing my most recent email below for the whole world to read. The addressee is their lawyer based in Switzerland acting jointly for all four factories.

You will notice in the copy list that this email was also circulated to the Under Secretary of State for Business, Baroness Neville-Rolfe, as well as the principle contacts at the Intellectual Property Office in London, as well as a further assortment of other interested parties.

I leave it to you to decide if my requests were fair and measured, and intended for the benefit of all parties concerned on both sides, and not just Scott Howard Office Furniture Ltd.

Latest email sent from Scott Howard Office Furniture

So where do we go from here

First we asked our own government for product clarification without success – then we asked the major European rights holders for clarification on six different occasions in writing without success.

So our position is simple - We accept that change is coming and new rules will apply shortly, however the example of the Chesterfield Sofa demonstrates that the new rules clearly do not apply to all iconic furniture designs so we require clarity.

We accept that some (but not all) of the many designs held by Vitra, Fritz Hansen, Cassina and Knoll may already hold "artistic" status in other European states but until we see proof from them that can be independently verified by our lawyers or our UK courts, we will assume that non have "artistic status".

Where proof is offered, and it can be verified, we are perfectly happy to cease importing any particular design in accordance with the new UK commencement order but we will not stop importing products just because of vicious threats from aggressive European competitors.

So our message to Vitra, Cassina, Knoll and Fritz Hansen is clear – SHOW US PROOF – and we will be happy to comply, but not before! The ball is in their court to provide information which can be circulated to all those businesses in many markets affected by recent events - not just us!

STOP PRESS - Position as at 1st June 2016

Well now we know - We have all been shafted!

I make no apologies for the language – That is exactly how I feel!

In 2012 we were advised that Clause 52 was being repealed because we had to harmonize our UK law in line with EU law in order that our children would be better protected in their artistic endeavors in the future.

At that time, Mr Vince Cable MP told UK manufacturers and retailers that we would all be given ample time to change our business models and we could sell our vast stocks without any time restrictions.

It wasn't long before the lobbyist pushing for these changes was found to be Vitra Ag of Switzerland who were using EU law to get longer protection for the Charles Eames Lounge chair (which was originally manufactured by Herman Miller Inc. in the USA), and protecting our children's artistic endeavors was a massive a red herring.

Baroness Neville-Rolfe the Under Secretary of State for Business

In recent times I had hoped that Baroness Neville-Rolfe the Under Secretary of State for Business might stand up to this foreign intervention in our UK laws when she gave UK companies five years up, to 2020, to change their businesses.

However in October 2015 she ordered a massive U-turn and amended the changeover period down to just nine months, ending in July 2016.

In my recent blog, I asked the Baroness to wait just one month for the country to decide if we wished to remain in the EU or not, before she signed the final commencement order.

What a fool I was, to think that a senior government minister might listen to one of the business leaders who had been to all the meetings and given four years of their lives to working on this change. All I asked was for her to wait just a few days to see how the UK public felt about the EU and its authority over our laws……… I was clearly wrong! …… On the 26th of May just 28 days before the referendum the Baroness pushed through these changes, by signing the commencement order.

So now we have the EU "artistic craftsmanship" law of 70 years, effective from 28th July 2016 and yet the whole of the rest of the world outside the EU remains at 25 years. The Baroness states that we are "Leading the way" but I would argue that the UK is now completely out of step with all the other major markets in the world and I should know as I already do business on four other continents without any of these crazy problems.

Let's be clear, this repeal was pushed through before the referendum, because the IPO did not want any complications if we chose to vote out in a few days time - so 98% of our UK customers' views have been completely ignored by the BIS and the IPO in favor of supporting the 2% of customers' wishes.

In the last public consultation, in October 2015, all the respondents' replies were published on the web and by far the vast majority of those respondents reported having serious issues with the new commencement period as wholly un-workable and yet the government still pushed it through.

This now means that "affordable" iconic designs have been deliberately placed far beyond the pockets of the vast majority of the UK buying public for at least 20-30 years and now interior designers and architects in the UK are hamstrung on what their clients can afford to buy for their new projects.

Affordable iconic designs died on the 26th MAY 2016

Vince Cable MP is no longer around to see the carnage he created and Baroness Neville-Rolfe will soon move on to other issues at the IPO and this repeal will soon be a distant memory for her – but you and I will have to live with the consequences for decades to come.

Scott Appleton at the House of Lords

I want to shout from the roof tops, loud and clear, that the governments "guidelines" issued in May 2016 for UK furniture retailers are UNFIT FOR PURPOSE, they give absolutely no guidance whatsoever as to which products qualify for this new "artistic craftsmanship" status and which do not, In fact the government official position is they will "let the UK courts decide" – which after four years of face to face meetings with me personally, and several public consultations,- what a cop out!

So I now take the unusual step of quoting the LAW SOCIETY'S own public consultation communiqué to the government word for word:-

 
In its December 2015 consultation submission, the Law Society stated: "We would like to reiterate our earlier call for guidance as to the meaning of "works of artistic craftsmanship", without which the law will remain in an uncertain state after this repeal is brought into effect."

So the UK Law Society is not clear, many specialist UK IP law firms are not clear, even the UK Government itself admits it is not clear. So remind me again, why is this repeal being hurried through! ……. Oh yes, because of Europe!

Furthermore, Vitra, Cassina, Knoll and Fritz Hansen have all failed to make any effort whatsoever to clarify matters despite six requests in writing to do so from Scott Howard Office Furniture in order to assist us to comply with the new law.

I now feel more strongly than ever that UK retailers have been totally screwed by just one foreign competitor, using existing EU laws, when that competitor is not even head quartered in the EU.

Business men and women in the UK should take note of what has happened to our market place this month, and vote out of Europe before other European big businesses control every product group, in every market, and eventually every industry.

UK Manufacturing gone, automotive industry gone, steel industry gone etc. etc.

We are giving our industries away, while our ministers sleep walk into a Federal Europe and we need to take back our country, our economy, our laws, and our sovereignty before others behind closed doors give them away completely.

Last week a concerned Labour minister stated that Labour party voters were out of touch with the party on Europe as the party wished to remain in the EU. - How arrogant does it get! - Did it not occur to him that maybe the party was out of touch with its grass roots membership instead?

As the commencement order is now signed this will probably be my last update for this law page - things need to move on - so please read our page entitled "You still have alternatives" to show you what is still legally available here.

You can express your disapproval to this stupid law by buying alternative products at affordable prices, and if you want to buy them from a UK based company so much the better.

Yours faithfully

Scott Appleton
Managing Director

 

STOP PRESS - The position as at 16th May 2016

Just a few days ago, I was informed by the IPO that a commencement order, giving the final date of the 28th July, is likely to be signed off within the next few days.

This means that our government will be making its final decision before the country has had an opportunity to vote on whether we should stay in the European Union, or not.

It was with great sadness that I discovered last week that at least five of our top UK furniture houses, who operate in this sector of the market, will be closing on, or before, the 28th July as a direct result of the repeal of Clause 52.

Scott Appleton, Managing Director

I am proud of the fact that some of these competitors have become my personal friends over the last four years and it is with great sadness that I hear that they are leaving the industry. Let us not forget that these companies operated 100% lawfully, were profitable, were UK based, and employed UK staff.

These companies also supported a raft of external contractors, that were also based in the UK, providing support services to suppliers and customers alike.

When I look back four years, to the promises Vince Cable MP made to us during those initial months, I can now reflect that not one of his promises have been kept as we go into these final days.

It is now time for Scott Howard to change and introduce a raft of new products, in competition to the products that we have been supplying for over forty years.

In the last few weeks, we have launched fifteen new products to the UK market and we hope to market these new products, not only here in the UK, but directly into Europe, as well as our other markets, in Russia, China, the Middle East, Africa and Australia.

If I have one last request of the BIS and our own government, it would be for them to wait just one month, to see if the people of the United Kingdom wish to remain in Europe or not, as any answer would surely have a direct bearing on how we perceive the judicial review that was threatened against our government in the autumn of last year.

Many thanks

Scott R. Appleton
Managing Director

STOP PRESS - The position as at 21st April 2016

Many of you who have been following this information page will know that we have all been awaiting imminent news from the UK Intellectual Property Office and the UK government on a final decision as to when the changes to UK copyright will come into force.

I can now advise you that yesterday the IPO issued a statement confirming that the start date for the new law will be the 28th of July 2016 and only relates to NEW imports of a select group of reproductions of iconic designs that are classed as being of "Artistic Craftsmanship".

However there is also an extension of six months for UK retailers to sell off any of their existing stocks if they are already in our UK warehouses. These stocks can be legitimately sold until the 28th January 2017.

So now we have firm dates, but it must be said that even after four years of meetings with the IPO, government officers and ministers of state, everyone still has absolutely no idea which iconic designs will hold this new status of "Artistic Craftsmanship" in July.

Yesterday the government issued its long awaited "Guildlines" and yet they do not give any clarity whatsoever as to which designs we can continue to sell and which will need to cease. Indeed they only say that this will be a matter for the courts to decide in due course.

barrister
Because of this lack of information, Scott Howard Office Furniture Ltd. decided to write directly to the four largest European factories Vitra, Fritz Hansen, Knoll and Cassina. On SIX occasions we asked them to declare which of their designs already hold this status in the EU so that we could prepare for change.

All four suppliers have resolutely refused to answer all our enquiries! So what are they trying to hide from us and why?

Unsurprisingly, there are many in our industry that find their silence bizarre and now believe these four factories probably don't have the protection they have been claiming for so long.

The Publishers Association logo
On many occasions, I have written to the government advising them of the severe consequences these changes will have in other 'non furniture' related industries here in the UK and sure enough, the publishing industries, television companies, and photographic industries, have now woken up to the threat and are now very vocal with the IPO complaining how severely these changes will affect them........ sadly, I believe they are too late! It appears that no one in authority wants to hear these concerns and put this bad law on ice.

It is a massive personal regret that after four hard years of working closely with the IPO and our government to get a better deal for UK industries, many of which are completely unrelated to furniture, I feel that the position here in the UK is now far worse than at any time in my 40 years of trading in interior design.

In the last few days I have had telephone discussions with many owners of good UK companies that are now in serious financial trouble and who expect their once very successful businesses to close within the next six months. I imagine Vitra would be delighted.

It is a terrible thing to watch competitors (who have become close friends) desperately trying to protect their businesses, their families, and their staff only to see them drowning from vicious attacks by a small group of European manufacturers imposing their will on our UK government.

Over four years, we have achieved nothing!

Flags outside the European Commission
I genuinely believe that our government's previous decision to give UK businesses 5 years to change their business models until 2020 was the right one, but Vitra from Switzerland certainly put paid to that idea with their threats of an EU judicial review which stopped our government's decision in it's tracks. If ever there was a case of the UK sovereignty being undermined by EU big business interests, this is it.

So, I can only apologise to all our customers that we did not succeed in getting a better deal for UK businesses. We all tried very hard (and this includes the IPO and the Under secretary of State) so that buyers in the UK could continue to enjoy a wide choice of similar style products just like "supermarket own brand offers" which have been so successful, but sadly we appear to have failed and foreign lobbyists have won the day.

Amazingly, it is now the UK that is out of line with the rest of the world. You can still buy reproductions of any iconic designs in the USA, Canada, Russia, the Middle East, Africa, the Far East and Australia, indeed everywhere outside the EU, 100% legally. It also remains legal for you to own a reproduction here in the UK, so there is nothing wrong with you buying one abroad and bringing it home.

Scott Howard's customers in Hong Kong, Moscow and Dubai are all unaffected by this new law. So much for the world getting smaller.

British steel

On an unconnected note, before closing, I want to say that I know that the B.I.S. is burning the midnight oil trying to solve the UK steel crisis and their efforts have been thwarted by many EU rules along the way.

All I can say to the B.I.S team is that it is time to bring our British industries home!

Sorry what was the question? ..... Will I be voting in or out! ....... What do you think!

Many thanks

Scott R. Appleton
Managing Director


STOP PRESS - December 2015

Many of you who have been following this discussion page on the changes to UK copyright law will be aware that in 2012 Mr Vince Cable MP decided to harmonize UK and EU copyright law.

In essence the sale of reproduction furniture, jewelry, ceramics, clothing, photography and much more, which has been legal in the UK for decades is changing. The new EU law states that certain “artistic” designs will receive 70 year protection whereas non artistic designs will only have 25 year protection.

In March 2015 this became UK law and we now have a two tier system where if your design is viewed as artistic you get a longer protection than if it is not …. We believe this is elitist and fundamentally wrong on so many levels! …. but the EU law is now here and so we are now focused on the date this change will commence here in the UK.

Our government asked both original product suppliers and reproduction suppliers when this changeover should take place, and naturally there were two widely differing opinions, the retailers wanted 10 years to change their business models in order to launch alternative products, whereas the original suppliers from Europe only wanted the government to grant 6 months for the changeover.

After 3 years of debates and two public consultations the government decided to meet each side half way and agreed a 5 year changeover period ending on 6th April 2020

Within days of making their decision the UK government was advised that Vitra Ag in Switzerland was challenging this decision and requesting a Judicial Review in the EU court as to the legitimacy of the government’s decision within EU law. The court reference is CO/2222/2015. The claimants are Vitra Collections AG, Cassina SpA and Knoll Inc.

As a result of this legal challenge the UK government backed down from its original decision and is now supporting Vitra’s request for a 6 month changeover instead and as a result Vitra have “Stayed” their action.

Clearly jumping from a five year transition to a six month transition will have disastrous consequences for many UK business, not just within the furniture industry but many more industries as well.

It is public knowledge that Scott Howard’s opinion was that the five year decision was the right decision when considering both parties were so far apart from the start, and we publicly thanked the Under Secretary of State for making such a brave decision in July. However Vitra’s threat of litigation now makes the situation very messy again for all the parties concerned.

90 days ago everyone knew exactly how this was going to end and be settled and more importantly when, but now we are back into a third public consultation and many tens of thousands of pounds being spent by all sides to go through this process all over again.

By far the most complicated aspect of these changes is that no one knows for sure which of the thousands of furniture, jewelry items, glassware, ceramics, photography and film items etc will get the new 70 rule and which will not, and this will only be decided in UK courts, product by product, over the coming years.

I wish I was in a position to advise you all on which products fall into which categories but I can’t because after over 3 years of working on this every day I still don’t know myself and the IPO in London have confirmed to me that they don’t know either.

We have asked the four largest European design houses in writing several times if they have any existing EU judgments we can refer to but as yet we have not received a single reply from any of them so the UK government and UK retailers are completely in the dark as to which products may be affected and which may not.

Four years ago the UK law was very simple to follow – 25 years and one day and any product in any market could be reproduced legally irrespective of wether it was artistic or a “pup” but now we have the mother of all cock-ups to sort out.

I have nothing but respect for the efforts of the IPO officers and the Under Secretary of State to resolve this matter amicably during the last three years. At times their efforts have been herculean, and I believe somebody should say so – I have sat in many meetings with them to find a way to resolve this amicably so I am saying it now, they have worked incredibly hard on this!

On a personal level it would be nice to see Vitra accept that the transition period is simply that – a transition. They have already won their point about harmonizing EU law and they are going to receive a further 35 years protection on their most important products (bear in mind that patent protection only lasts 25 years in total), so surely waiting just 60 months for businesses to leave the market without mass redundancies or closures would pass very quickly and everyone could move on to other things.

This threat of litigation means our government needs to spend huge amounts of money conducting yet another expensive public consultation process and even then, neither side will be entirely satisfied.

Our government has far more important things to do than settle petty squabbles over furniture designs!

Yours sincerely

Scott R. Appleton
Managing Director

 

STOP PRESS - July 2015

After 3 years of consultations, meetings and discussions, the British Government granted UK industry 5 years to adjust to the changes to copyright law that EU legislation required.

British companies in all industries, not just furniture, had originally applied for a 10 year transition period, but European manufacturers had demanded a 6 month transition.

There was no perfect answer and after long deliberations the British Government met both parties half way by awarding a 5 year transition period. UK industry had to accept this, as it had been decided by our Parliament, but the decision was then challenged by European manufacturers by threats of a judicial review in the EU courts and as a result of those threats, the British Government was forced to cancel its commencement order.

For the record, we here at Scott Howard, believe that the Government's 5 year decision was the correct one, under the circumstances, even though this has a major bearing on the future direction of the company.

As a courtesy to those concerned, we reproduce the actual letter that the Government issued in July so that there is no ambiguity.

Sadly, three and a half years of deliberations have left the UK with a new EU copyright law that is full of grey areas, open to litigation, disputes and misunderstandings which was never the case when we had the original UK 25 year copyright law.

We now await the third public consultation.

Letter from Baroness Nevile-Rolfel - click here to download PDF version

Changes to UK Copyright Law - MARCH 2015

On March 10th 2015, Baroness Neville-Rolfe, the Under Secretary of State for Business, signed a commencement order for the new copyright laws for the UK.

We can now state categorically it is 100% legal to market, sell, purchase and own reproductions or copies of any classic furniture here in the UK until the end of this decade.

Baroness Neville-Rolfe, Under Secretary of State for Business

Under the new regulations, sales of copies and reproductions will remain legal until 6th April 2020. On that date, only reproductions of designs which have been judged "Artistic" in an EU court of law, will cease to be legal.

When these change come into force in 2020, we envisage that fewer than 15 "Artistic" furniture designs will be protected by these new rules. From that date, UK retailers will no longer be able to sell or market those items here in the UK until 70 years after the death of the designers.

All items which have not previously been awarded an "Artistic" status in an EU court of law will remain freely available before and after this date as they are not affected by this new law.

Visit to Parliament October 2014

Over the last three years, Scott Appleton, the managing director of Scott Howard Furniture in Europe and Asia, has held regular face to face meetings with representatives of the UK government, including Baroness Neville-Rolfe, the Under Secretary of State for Business, at the House of Lords, to discuss the implementation of this new law.

So, now we have a date for the changes to be implemented, but there is still terrible confusion in the market, because only products designated as "Artistic" in European courts prior to 1995 will automatically carry this new level of protection.

Working closely with our own UK government, Scott Appleton has been able to establish that there is no definitive or official list of holders of European "Artistic" judgments either here in the UK, or in Germany.

So how are UK retailers supposed to know which products are banned without being sued?

Thankfully, the UK government has agreed in writing that it will shortly issue a set of guidelines for UK retailers and manufacturers to refer to, on what might constitute an "Artistic" design in the UK from 2020.

Whilst we are all waiting for this official definition of "Artistic", we have been told by our government that we should continue business as normal until 2020.

Five European manufacturers are now rubbing their hands with glee, but it's unwelcome news for British designers, because not one single British design has ever received "Artistic" accreditation in any other European country.

Here are the main bullet points which summarise the current position:

  • For the avoidance of doubt: reproductions of furniture designs which are more than 25 years old, but which do not hold an "Artistic" judgment from a European court prior to 1995 will continue to be 100% legal for the foreseeable future.
  • Again for the avoidance of doubt: the government and the IPO have clearly confirmed in writing that it will remain 100% legal to own a reproduction now and in the future here in the UK.
  • The government has confirmed that UK retailers will be allowed to sell any UK stocks of "Artistic" reproductions they have even after April 2020 but only until those stocks have been exhausted the importing of new stocks will not be allowed after that date.
  • The government has confirmed that it will remain 100% legal to sell and market new or used reproductions of "Artistic" designs in the UK if those items entered the UK before the 6th April 2020.
  • The government has stated that the sale of "Pre-Used" artistic copies will remain 100% legal if the item entered the UK before April 2020. So the sale of used items continues unaffected.
  • The government has also confirmed that the supply of component parts for the "servicing, maintenance and repair of artistic reproductions remains unaffected by the repeal". So it will still be possible for customers to have their warranties honoured and for them to be able to purchase after-market components in order to maintain their furniture in good working order.

The only area where there is still some controversy and where we require clarity from the government is "Cross Border Selling", where UK retailers sell the items here in the UK and despatch them via couriers to other EU states.

Here at Scott Howard we require that our European customers must have a UK delivery address so that they can obtain legal title to their purchases here in the UK. After delivery, the products will legally belong to them according to UK law, and they may deal with as they wish.

Having said that, customers should be aware that some EU countries already operate a 6 month rule where the customer must have legally owned their reproductions for a minimum of six months before they can ship them home to their country.

There are also concerns in the industry that some iconic designs, such as Tulip tables and Florence Knoll sofas, use internationally recognized industry standard shapes or components so would not be expected to hold or receive "Artistic" status here in the UK whereas the Eames Lounge chair and Jacobsen Egg chair are so unique that these might have already been awarded "Artistic" status in Europe prior to 1995. It is impossible to be certain at this point, as there is no official list.

Clearly every product will need to be judged as "Artistic" or not in 2020 on their merits - table by table, desk by desk, sofa by sofa - until the IPO gives clear written guidelines on this point.

UK Law

Before closing this report we would like to point out that these new rules only apply to sales in the UK and the EU. Our reproductions of iconic pieces of furniture are still freely available to order directly from our Hong Kong, Moscow and Dubai outlets, as these regions are completely unaffected by these changes to UK law.

It is very sad state of affairs that we are a leading UK company, being restricted in our own country from selling items which we have marketed here in Europe for forty years and yet we can still sell these items throughout the whole of the rest of the world – and at a fraction of the price of our European competitors.

We manufacture to the same high standards as specified in the original designs, ship our furniture products 5,000 miles and sell them in a hugely competitive market at one quarter of the European competitors' prices. Our European competitors also have production facilities in China (often in the same region and cities), so it is clear that they could easily match our prices in fair competition. Instead, they are pushing our UK government to change our laws to suit their financial needs.

The Houses of Parliament, London
If you wish to support a UK company operating 100% legally within our UK law and not the foreign lobbyists who seek to push our government around, then we would be delighted to supply you with the highest quality, 100% legal reproductions, originally designed by some of the world’s finest men and women.

We will continue to update this report if and when new information is released.

Scott R. Appleton
Managing Director

 

 

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