Court of Justice confirms copyright is available for products with a technical function

On 11 June 2020 the Court of Justice ruled on how to assess
copyright protection on technical products. The case  involves the
Brompton bicycle, a rather well known folding bike. It was referred by the
Belgian Court of Appeal of Liège to the Court of Justice. The Brompton was
formerly protected by a patent that meanwhile expired. Can Brompton still rely
on copyright for protection now the patent has expired?

The answer to the question
is yes: Brompton may still rely on copyright even if it formerly patented the
product, provided however the two conditions for copyright protection are met:
first an original subject matter which is the author’s own intellectual
creation and secondly the expression of that creation through the subject
matter. As regards the first condition of originality, it is necessary but
sufficient that the subject matter reflects the personality of its author, as
an expression of his free and creative choices. As regards the second
condition, the Court confirmed that copyright entails the existence of a
subject matter that is identifiable with sufficient precision and objectivity.

It follows that a subject
matter that satisfies these conditions may be eligible for copyright protection
even if its realization has been dictated by technical considerations provided
the author was not prevented from reflecting his personality in that subject
matter, as an expression of free and creative choices. But where the shape of
the product is solely dictated by its technical function that product cannot be
covered by copyright protection.

In that context, the
existence of other possible shapes which can achieve the same technical result
makes it only possible to establish that there is a possibility of choice. But
it is not decisive in assessing the factors which influenced the choice made by
the author. Likewise, the intention of the alleged infringer to achieve the
technical result is irrelevant in such an assessment.

It will be for the
referring Court of Appeal of Liège to assess whether the folding bicycle at
issue is an original creation and is thus protected by copyright. it is true that the shape of the Brompton bicycle appears necessary to
obtain a certain technical result, namely that the bicycle may be folded into
three positions, one of which allows it to be kept balanced on the ground but
in spite of that fact, it is for the court of Appeals of Liège to ascertain
whether that bicycle is an original work resulting from intellectual creation.

The Court of Liège is to
take into account all the relevant aspects as they existed when the folding
bicycle was designed, irrespective of the factors external to and subsequent to
the creation of the product. The existence of an expired patent and the
effectiveness of the shape in achieving the same technical result should be
taken into account only in so far as those factors make it possible to reveal
what was taken into consideration in choosing the shape of the product
concerned.

The ruling is in line with
a series of former decisions on the interpretation of copyright by the Court of
Justice[1] but still offers welcome guidance on the
possibility of copyright protection for technical products. It also confirms
once again that cumulation of different intellectual property rights
(copyright, design, patent and trademark) is possible provided the requirements
for each right are met. With a view to cumulation and the longest protection
possible, it seems advisable to make the analysis required for each right at
the earliest stage possible, even before filing for design and/or patent
protection.

30 October 2020