Copyright (in Design) post-Brexit: Should section 52 CDPA 1988 be reinstated?

This response submitted to public consultation argues that section 52 of the UK Copyright, Designs and Patents Act should be reinstated, thereby limiting the term of copyright protection in industrially applied artistic works to 25 years. Particularly, Brexit calls for a reassessment of the objectives which the section 52 repeal sought to pursue – namely, a perceived need to ensure clarity and consistency with EU law –, as those objectives may no longer be aligned with the interests or priorities of the UK. This is considered by the response within the context of freedom of competition and innovation, with concerns being raised in relation to the (cumulative) protection of product design. Additionally, UK court decisions assimilating recent CJEU jurisprudence on copyright subsistence suggest an expansion of protectable subject matter affecting previously unregulated creative industries such as fashion, which may warrant further analysis of the potential benefits of section 52.