Enterprise and Regulatory Reform Bill

 ERR 40

Submission from the Society of London Theatre and the Theatrical Management Association

Summary

1. This is a joint submission from the Society of London Theatre ("SOLT") and the Theatrical Management Association ("TMA") in respect of clause 55 of the Enterprise and Regulatory Reform Bill (the "Bill"), which proposes to repeal section 52 of the Copyright Designs & Patent Act 1988 (the "Act").

2. SOLT and TMA believe that, due to the operation of section 51 of the Act and the 2011 decision of the UK Supreme Court in Lucasfilm v Ainsworth, repealing section 52 alone is unlikely to achieve the intended improvement in the protection of designers and the creative industries, particularly in relation to theatre sets, props and costumes. SOLT and TMA ask the Committee to address this in the Bill.

Background

3. SOLT and TMA are the trade associations representing the interests of those engaged in the production and presentation of medium to large-scale dramatic and lyric theatre in Central London and elsewhere in the UK respectively.

4. SOLT provides services, such as advice on legal matters and industrial relations, campaign management and audience development programmes to its London based membership (numbering around 180 members and covering producers, theatre owners and managers) drawn from both commercial and subsidised theatre.

5. The TMA provides services, such as advice on legal matters and industrial relations, training courses, representation and a professional support network for the performing arts industry throughout the UK. Its membership is drawn from both subsidised and commercial theatre and include repertory and producing theatres, arts centres and touring venues, major national companies and independent producers, opera and dance companies and associated individuals and businesses. Its members number around 315.

6. Members of SOLT and/or TMA who are involved in the production of plays, musicals, ballet or opera include the following:

· the London commercial producers of a wide range of shows such as The Phantom of the Opera, Billy Elliot, Jersey Boys, Wicked, Shrek, Ghost, Les Misérables and Blood Brothers;

· the producers of national touring productions of such shows and similar works;

· the major subsidised theatrical organisations in London, including English National Opera, the Royal National Theatre, the Royal Opera House and the Royal Shakespeare Company;

· subsidised producing theatres all over the UK, for example, the Royal Exchange Theatre Manchester, the Sheffield Crucible and the Citizens Theatre Glasgow; and

· subsidised opera and ballet companies throughout the UK, such as Welsh National Opera and Birmingham Royal Ballet.

The Submission

7. The stated intention of the Government in repealing section 52 is to assist designers including "manufacturers and distributors of classic designer furniture or homewares such as lamps" and generally to "make the most of our creative industries" (Norman Lamb MP).

8. The skills for producing creative and imaginative set designs, prop designs and costume designs are an important part of the UK’s creative industries and such designs should be protected by copyright just as strongly as the work of designers of lamps and furniture. In the theatre world, sets, props and costumes are regarded as artistic works and the people who have created them as artists. However, we are concerned that repealing section 52 alone is unlikely to achieve the intended improvement in protection.

9. This is because section 51 of the Act will still deny copyright protection for any work not held to be artistic. The 2011 decision of the UK Supreme Court in Lucasfilm v Ainsworth, in applying section 51, suggests that sets, costumes and props are not artistic works because they have a function, in the sense that they are for use in a film or a play. This seems to be entirely wrong. It also suggests that one production can simply copy such works from another production without infringing the copyright in it. That must also be wrong.

10. The Supreme Court’s decision is of significance to the memberships of SOLT and TMA because it challenges the widely accepted notion throughout the theatre industry that these works may be protected by copyright. Many of the agreements which are standard in the creation of theatrical productions, such as with set designers, assume that there is copyright in the three-dimensional articles they design. If, as suggested by the Supreme Court, such materials are not artistic works and therefore not protected by copyright, this will be disruptive to the way the theatre world works and damaging to its finances. This would serve no useful purpose.

11. The matter is also important to our members because of the great dependency now placed by theatre productions on the sale of merchandise related to those productions. If such merchandise is not protected by copyright, then the value of it to our members will decline.

Conclusion

12. Unless further amendments are made to the Act, the repeal of section 52 risks doing nothing to solve the problems that it is intended to address. In our view it makes little sense to consider the repeal of section 52 without also considering the effect of section 51, which is the statutory provision which means that the works described above are not protectable by copyright. While there may be a way to achieve protection for such articles without repealing section 51 (such as by making an exception for such works from section 51 or by amending the definition of "works of artistic craftsmanship" to make it clear that it applies to such works), this needs to be addressed and this Bill is the opportunity to do so.

July 2012

Prepared 18th July 2012