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2015/12/12 16:44:37
Subject: An Intellectual property Thought Exercise
Until recently, copyright for industrial design was limited to twenty five years. In the Enterprise and Regulatory Reform Act of 2013 however, this was extended to the life of the artist plus 70 years.
This modification is only due to take effect as of April 2020 however. Until then, you are legally permitted to manufacture and sell copies of anything that is more than twenty five years out of date. Once we hit 2020, you are legally permitted to continue to sell these items, but not to manufacture them any longer.
The 1990-1995 period actually has a fair amount of neat stuff. There's a lot of BFG/Epic models, the Adeptus Arbites, some classic psykers, Stone Trolls, and so forth. It would be quite cool if someone seized on that brief time gap to cast up/sell a load of them. I reckon there'd be quite a thirst for resin arbites.
This message was edited 4 times. Last update was at 2015/12/12 16:46:51
2015/12/12 16:47:40
Subject: An Intellectual property Thought Exercise
I'm interested to see if anyone can point out a reason why this wouldn't be legal. It also ties into the whole recasting thing; namely, what if it's actually legal? Does that make a difference?
2015/12/12 20:37:18
Subject: An Intellectual property Thought Exercise
As with so many things in this area it will come down less to the law and more on how much you are prepared to spend enforcing any actual rights you have.
While the UK isn't as bad as the states with "do as I say, or I'll bankrupt you" a company could certainly make life uncomfortable for an individual if you appear on their radar.
Another certainty, if the law has changed, it won't be beneficial to the individual when facing a commercial interest.
2015/12/12 21:12:38
Subject: An Intellectual property Thought Exercise
I don't think you would be able to make a copy of an existing model but you could sculpt a new model with the appearance of the old one and sell castings of those.
They retain control of all of their trademarks (which cover everything they've manufactured) so, regardless of copyright, it's still not a legally acceptable thing.
2015/12/12 22:42:27
Subject: An Intellectual property Thought Exercise
Correct me if I'm wrong, but Games Workshop figures aren't 'trademarked'. A trademark is something along the lines of the McDonalds logo, or the name 'Astra Militarum'. Their sculptures aren't automatically gifted with 'trademark' protection, a trademark is something that needs to be very specifically applied for.
Having said that, I assume a trademarked name could not be used to sell a replica of a sculpt. So if GW have trademarked the name 'Adeptus Arbites', you couldn't sell it under that title. But beyond that, the standard intellectual property protection will be expired within a five year odd period in the future, and will not be considered to be renewed until the legislative change takes effect in April 2020. In which case, the sculpture falls under the same usage laws as any metal toy soldier made back in say, the 1910's. In other words, there is no protection of the sculpt whatsoever, it's public domain intellectual property.
The law as it stands very specifically states that any 'sculpt' used for mass/industrial production only has that twenty five year protection after all. To reiterate, any 'sculpt' that has been used in mass production for sale (like an Arbites figure) has all intellectual protection removed after the 25 year period, and replicas can be manufactured/copied freely with no intellectual property issues, because it is then in the public domain.
leopard wrote: As with so many things in this area it will come down less to the law and more on how much you are prepared to spend enforcing any actual rights you have.
While the UK isn't as bad as the states with "do as I say, or I'll bankrupt you" a company could certainly make life uncomfortable for an individual if you appear on their radar.
Another certainty, if the law has changed, it won't be beneficial to the individual when facing a commercial interest.
If I'm correct, and that is indeed the case, there wouldn't be any point in GW taking it to court, because what you are doing in making copies would not be illegal in any way, shape or form (at least until 2020, when the restrictions on manufacturing copies kick back in).
And you're correct, in that the law has changed to be more beneficial to companies. From 2020 onwards, intellectual property protection will be modified to the sculptor's death plus seventy years, meaning that GW's sculpts will be protected for literally over a century to come. But for that one extremely brief five year window from now until April 2020, any GW sculpts made in excess of 25 years ago will be considered to be in the public domain. And even after that time period has closed, any models manufactured in that five year window may be freely sold commercially with no issues. You just simply cannot manufacture more.
This message was edited 9 times. Last update was at 2015/12/12 23:02:43
2015/12/13 00:43:17
Subject: An Intellectual property Thought Exercise
The models produced by Games Workshop are, indeed, both copyright and trademark Games Workshop (as it clearly states on their website and on all of their packaging.)
Your reading of the situation is entirely incorrect (sadly, because there are some wonderful models from that time that i would certainly be happy to buy at a reasonable price.)
2015/12/13 01:07:14
Subject: An Intellectual property Thought Exercise
joseph_curwen wrote: The models produced by Games Workshop are, indeed, both copyright and trademark Games Workshop (as it clearly states on their website and on all of their packaging.
And GW doesn't go around making dubious legal claims all willy-nilly!
joseph_curwen wrote: The models produced by Games Workshop are, indeed, both copyright and trademark Games Workshop (as it clearly states on their website and on all of their packaging.)
Your reading of the situation is entirely incorrect (sadly, because there are some wonderful models from that time that i would certainly be happy to buy at a reasonable price.)
I hate to break it to you, but what Games Workshop determines to be law is not, in actual fact, law. Their website disclaimer has been an example of hilarity to many members of the legal profession who have posted on Dakka to date. Their handling of the Chapterhouse case, in which their legal team had no idea what the hell they were doing has demonstrated beyond any doubt that what they think are their rights are clearly not.
As you can see if we run a search for the word 'Warhammer', we get several hits. If we run a search for 'Adeptus Arbites' however, we get nothing. A trademark isn't related to a physical sculpture generally speaking. Here's the IPO's guidelines towards what a trademark must be:-
Your trade mark must be unique. It can include:
words
sounds
logos
colours
a combination of any of these
Your trade mark can’t:
be offensive, eg contain swear words or pornographic images
describe the goods or services it will relate to, eg the word ‘cotton’ can’t be a trade mark for a cotton textile company
be misleading, eg use the word ‘organic’ for goods that aren’t organic
be a 3-dimensional shape associated with your trade mark, eg use the shape of an egg for eggs
be too common and non-distinctive, eg be a simple statement like ‘we lead the way’
look too similar to state symbols like flags or hallmarks, based on World Intellectual Property Organization guidelines
So. Having established, beyond a doubt, that an old Adeptus Arbites model is not 'trademarked' (because you don't generally trademark products in that way, that's not what a trademark is), the remaining intellectual protection for an industrially produced model (as opposed to a work of art, which these do not qualify as by virtue of being mass produced commercially, see the Lucasarts stormtrooper helmet case for precedent), intellectual copyright protection is good for twenty five years. Come April 2020, that will be extended to the creator's life plus 70 years, but to reiterate one last time, there is a five year gap between then and now in which it would appear to be legal to reproduce and sell Games Workshop miniatures that are a minimum of twenty five years old. It is also expressly permitted by the Government for you to be able to continue to sell those products after that time, but you may not manufacture them.
Having said that, I'd still suggest anyone interested sit down with a lawyer first. But as things stand, the way the laws are constructed, it would appear to be legal.
EDIT:- I just ran a search. These are the words that are actually currently trademarked by GW.
CITADEL
GAMES WORKSHOP
ELDAR
WARMASTER
WARMASTERS
ARMAGEDDON
SPACE MARINE
They have a large number of dead and expired trademarks as well, but what do you know? Adeptus Arbites isn't one of them.
This message was edited 3 times. Last update was at 2015/12/13 01:56:55
2015/12/13 02:08:41
Subject: An Intellectual property Thought Exercise
mechanicalhorizon wrote: What do you think are the odds that the April 2020 deadline will be changed in some way or removed altogether?
Extremely unlikely. David Cameron and co. aren't modifying the law to please Games Workshop. This is modified legislation, that made it through both the House of Commons and Lords. It will happen, but there's little need for the government to revisit it. The reason it's been worded the way it has been (with a seven year deadline and permission to commercially deal in products made before that expires) is because certain intellectual properties that have been public domain for anything up to fifty years will now be reverting to private ownership again. That means many businesses and products will find they are dealing in properties they have no right to use any more. It makes no sense on any level to criminalise such people, so they're being given time to adjust their business models and intellectual properties appropriately.
In other words, Games Workshop doesn't even register on the spectrum of this legislation. I daresay they're extremely in favour, as it extends their protection to over a century from now, but it has the irksome (for them) loophole generated within the UK over the next five years. But then again, those products were going to become public domain anyway if the law hadn't changed, and more besides, so I doubt they're too worried. A handful of vintage OOP models most likely doesn't register too highly on their sales interests compared to century long intellectual copyright protection.
This message was edited 2 times. Last update was at 2015/12/13 02:25:02
2015/12/13 02:29:51
Subject: An Intellectual property Thought Exercise
solkan wrote: So what exactly happened to that Dakka Dakka policy about recasting, anyway?
We aren't discussing recasting.
What Ketara originally asked was about recasting, but it is with regards to UK law which is more permissive in allowing legal reproductions of obsolete industrial designs. The nature of GW's miniatures make them a product of industrial design, meaning at some point their legal protection in the UK will lapse.
2015/12/13 08:11:38
Subject: An Intellectual property Thought Exercise
There is a difference between legal recasting and illegal recasting.
DakkaDakka does not permit the promotion of illegal recasting.
Automatically Appended Next Post: There is a difference between legal recasting and illegal recasting.
DakkaDakka does not permit the promotion of illegal recasting.
The point of this thread, as aka_mythos says above, is that there will be a window of opportunity in the UK to legally recast a lot of GW's early figures due to changes of the law.
This message was edited 1 time. Last update was at 2015/12/13 08:12:50
If I'm correct (and I've yet to hear anything to point me against that conclusion), these CSM sculpts below are already legal to recast in the UK if you can find them.
Spoiler:
These ones however, aren't free for another year or so:_
Spoiler:
This message was edited 3 times. Last update was at 2015/12/13 12:32:22
2015/12/13 18:34:15
Subject: An Intellectual property Thought Exercise
My understanding maybe a bit limited as I've mostly only heard this as footnotes in the distinctions from US law... Notionally it's important to understand where this bit of UK law comes from... during the industrial era lots of companies were churning out new machines... As newer and better manufacturers forced out of business early makers, the machines being made by those early makers began breaking down and it was considered prudent and necessary to allow the legal reproduction of obsolete parts; more so because colonial holdings couldn't afford work stoppages to wait for a whole new machine. US law has a similar but much weaker and more focused allowance under law.
Under UK IP law there seems a much greater protection of works created wholely as unique pieces and a bit less for works created to facilitate mass production that's where this fits in.
2015/12/13 20:06:04
Subject: An Intellectual property Thought Exercise
Those CSM above! (gawd I loved those dreads back in the day).
Relating to these are GW's symbols for the Chaos powers trademarked? Forgive my stupidity but can something with a protected device on it such as the Khorne abstract skull (IF its protected) still be sold by a third party?
If it were Apple say and not GW and the 'apple' device featured on the models could they still be sold as is?
What about the tabs? If someone made recasts commercially available and included the original tab which often includes 'GAMESWORKSHOP' and Copyright symbols. I assuem thsi ruling couldn't be used as protection against claims of false representation? (You would have to pretty dopey to do this anyway IMO)
This message was edited 1 time. Last update was at 2015/12/13 20:06:59
2015/12/13 21:20:27
Subject: Re:An Intellectual property Thought Exercise
A company can use a trademark that they haven't registered
As far as I know that's because trademarks are technically for the benefit of the consumer so they know they are getting the genuine article and not a knock off. Of course companies try to use their trademarks to bully other companies.
It's the difference between: "This is a Games Workshop Space Marine" and "this is compatible with Space Marines but not an official Games Workshop product". The first is an exclusive right of the trademark owner (and any licensees) but the second is something anybody could use. I tihnk a good chunk of the Chapterhouse case about this small but important difference (and GW's overreaching attitude towards their perceived rights)?
2015/12/13 23:30:08
Subject: Re:An Intellectual property Thought Exercise
A company can try and enforce an untrademarked trademark I do believe, but in order to do so they have to go up before a Judge and justify precisely why they haven't trademarked it already, and demonstrate beyond reasonable doubt that their trademark is of such staggering popularity/commonness that your average working joe automatically identifies it with them and a product of theirs.
Naturally, that's quite a high bar, and it's set in place (as mentioned above) to protect the consumer, so a new company cannot make a trademark remarkably similar to another companies and deceive buyers that way. Say, an apple logo with a slightly more rounded apple or something.
The tabs you'd have to remove. You couldn't have stuff branded with another companies logo or name, that would indeed breach trademark. With regards to the Chaos symbols, they're not trademarked as far as I'm aware. Games Workshop ran into trouble with that sort of thing in the US IIRC, where they were saying CHS stuff looked 'Eldar-y' but couldn't actually point to what it was technically infringing. Checking on the IPO website, they currently have trademarked the following two images, and that's it.
Spoiler:
One flaw behind trying to trademark certain images is that they don't actually belong to them/didn't originate with them (see Michael Moorcock's claim to the eight point star). Believe it or not, they haven't actually even trademarked the double headed aquila (although I suspect alternative protection might apply to that specific version of it as a piece of art).
This message was edited 2 times. Last update was at 2015/12/13 23:31:53
2015/12/13 23:34:03
Subject: An Intellectual property Thought Exercise
I'm pretty sure that the IP would be protected under international copyright laws and treaties, specifically TRIPS, and I can't imagine the UK not being a signatory.
TRIPS was signed in the mid 90's, and requires a minimum 50 year protection and that copyrights are automatic (ie no registration is required).
EDIT -- just checked. Sculptures would be covered under the Copyright, Designs, and Patents Act 1988 that came into force on August 1, 1989. It's good for 70 years after the death of the author, or 70 years from the date it becomes public if the author is anonymous.
Other works (such as sculpture, architecture, etc.) will typically vary in copyright term, depending whether the author of the work is anonymous. If the author is unknown, the copyright period ends 70 years after the making of the work; or, if during that period the work is communicated to the public, 70 years after that date. If the author of the work is identifiable, copyright in the work expires 70 years after the death of the author.
Talys wrote: I'm pretty sure that the IP would be protected under international copyright laws and treaties, specifically TRIPS, and I can't imagine the UK not being a signatory.
TRIPS was signed in the mid 90's, and requires a minimum 50 year protection and that copyrights are automatic (ie no registration is required).
I just took a poke around TRIPS, and discovered it doesn't apply here. Or rather, it quite simply isn't breached. My initial description of the issue would appear to be inaccurate.
The actual relevant piece of the Copyright, Designs, and Patents Act 1988 that applies to GW figures which is being redacted in 2020 reads as follows:-
s.52
Effect of exploitation of design derived from artistic work.
(1)This section applies where an artistic work has been exploited, by or with the licence of the copyright owner, by—
(a)making by an industrial process articles falling to be treated for the purposes of this Part as copies of the work, and
(b)marketing such articles, in the United Kingdom or elsewhere.
2)After the end of the period of 25 years from the end of the calendar year in which such articles are first marketed, the work may be copied by making articles of any description, or doing anything for the purpose of making articles of any description, and anything may be done in relation to articles so made, without infringing copyright in the work.
In other words, you are correct, and you are incorrect. Under TRIPS, it is probable the copyright has been extended to fifty years. But under the legislation as things stand, you are still allowed to sell copies/reproduce copies after a twenty five year period without infringing on the copyright. Meaning we're left with our little five year gap still.
As a part of the Enterprise and Regulatory Reform Act 2013, the UK Government announced the repeal of section 52 of the Copyright, Designs and Patents Act (CDPA). It has now announced the transitional provisions through which the change in law will come into effect.
Repeal of section 52
By way of recap, the repeal of section 52 means the period of copyright protection for an artistic work, which has been industrially manufactured, will be extended from 25 years to the life of the artist plus 70 years. This will mean that duration of copyright protection for such industrially manufactured artistic works will be significantly extended so that it is the same as that afforded to other artistic works. Naturally, this is good news for designers. It will also harmonise protection in the UK for such industrially exploited works with protection given elsewhere in Europe.
Restoration of copyright protection
Another positive for designers is that the change has retrospective effect and industrially exploited designs whose copyright protection had expired under the 25 year rule will have copyright protection 'restored'. Naturally this has an impact on third parties who may have been acting in reliance on the expiry of such copyright. Therefore, to be fair to all stakeholders, transitional provisions are necessary, to allow such third parties to alter their business practices, including to allow sufficient time to sell off their existing stock.
Transitional provisions
Following a public consultation, the UK Government has announced that it will implement the following transitional provisions:
Repeal of section 52 of the CDPA will take effect on 06 April 2020.
Express provision has been made to ensure that following the repeal, parties that are currently trading in copies will have an indefinite period to sell off their stock, and may freely deal with copies made prior to the change of the law without this being an infringement.
Manufacture or importation of new unlicensed copies will however be unlawful as of 06 April 2020.
The UK Government also intends to issue a guidance note on the change to the law.
For more information regarding design and copyright protection in the UK and European Union, and how the D Young & Co team can assist you and your business with protecting, exploiting and enforcing your intellectual property rights, please do get in touch.
You'll note it specifies 'copyright protection' as opposed to 'copyright', hence my initial misreading (I assumed both went hand in hand), meaning that copyright does continue to apply under TRIPS most likely, it just doesn't really mean anything in terms of being able to enforce it/restrict use of it. All TRIPS insists upon, after reading it, is that the ownership of copyright is extended. It says nothing about anything else, and does not insist that it be commercially enforceable.
Great contribution though!
This message was edited 15 times. Last update was at 2015/12/14 00:14:23
2015/12/13 23:51:53
Subject: Re:An Intellectual property Thought Exercise
@Ketara - TRIPS notwithstanding, I think it's still covered under Copyright, Designs and Patents Act of 1988 though (which is either 70 years or author's death+70):
I'm also pretty sure that it's covered under the 1976 Copyright Act in the USA (which obviously has nothing to do with the UK, but it's relevant, because it's a big potential market).
Kilkrazy wrote: A company can use a trademark that they haven't registered, and it can be enforced in law. Or might not be, depending on circumstances.
It is just a lot easier to enforce a registered trademark, so registration is something any large company would do as a matter of course.
(If they weren't wholly unprofessional.)
An unregistered trademark may bear the mark, TM. A registered trademark may bear the mark, (R).
If you don't register a trademark, the onus is upon the trademark holder to prove when the trademark was created and that as of that time, it was unique. If you do register a trademark (and the registration is granted), the burden of proof is upon the party who wishes to challenge the trademark -- they need to prove that the trademark registration should never have been granted in the first place.
This message was edited 3 times. Last update was at 2015/12/13 23:57:36
2015/12/13 23:59:57
Subject: Re:An Intellectual property Thought Exercise
Talys wrote: @Ketara - TRIPS notwithstanding, I think it's still covered under Copyright, Designs and Patents Act of 1988 though (which is either 70 years or author's death+70):
I agree that's the right piece of legislation, but as I just pointed out, section 52 is the relevant section here? Which exempts it to twenty five years as items mass produced for sale? Unless you have some reason why section 52 should/does not apply to GW? If so, I'd be interested to hear it.
I'm also pretty sure that it's covered under the 1976 Copyright Act in the USA (which obviously has nothing to do with the UK, but it's relevant, because it's a big potential market).
It's entirely possible you still wouldn't be able to export them to the US, yes. This is all about UK law here, so when it comes to the relevant US laws, I've no idea how it would be applied. I would assume that US laws and international laws trump domestic UK ones if you're over in the states any day.
This message was edited 1 time. Last update was at 2015/12/14 00:09:12
