http://ipkitten.blogspot.com/2020/07/the-cjeu-brompton-bicycle-case-uk-view.html
Kat friend Hugo Cox offers Kat readers a UK perspective on the recent decision by the CJEU in the Brompton Bicycle case.
As reported by IPKat, here, the CJEU delivered a judgment concerning the Brompton bicycle on 11 June 2020. This judgment has the potential to turn the world of design on its head because of the way the Court was prepared to grant copyright protection to product designs and, with it, the long term of intellectual property protection provided under copyright law. Specifically, the CJEU stated that copyright protects products whose shape is, at least in part, necessary to obtain a technical result, provided the design is original. It is interesting to consider how this decision could play out under UK copyright law.
Under the UK’s Copyright, Designs and Patents Act 1988, a functional product currently only enjoys copyright protection if it is a ‘work of artistic craftsmanship’. This is a rather quaint, limited and ill-defined category of products. They are articles that have been made by a person who is both a craftsman and an artist. Courts have rarely conferred copyright under this category; examples from Commonwealth courts include certain hand-knitted woolen sweaters, pottery and dinnerware. On the face of it, therefore, other designs that have to date only been entitled to the protection of design rights (or not even that) should enjoy the far longer protection of copyright law.
There is an argument that the UK would not need to implement this decision during the remaining period when CJEU judgments are still binding under the UK-EU Withdrawal Agreement. EU design legislation states the extent to which, and the conditions under which, copyright protection is conferred on designs is to be determined by each Member State (Directive 98/71/EC, Article 17 and Regulation (EC) No 6/2002, Article 96). However, recitals in this legislation explain that ‘in the absence of harmonisation of copyright law’, Member States are free to establish the extent of, and conditions for, copyright protection.
It may, therefore, be that there is a legitimate argument that the discretion of a Member State to set out its own national copyright rules for products is only available to the extent that EU copyright law (including the rulings of the CJEU) have not been harmonised. In the Brompton Bicycle judgment, the CJEU has stepped in to prescribe some of the extent of, and conditions for, copyright protection of product designs. If this has not reduced the scope of discretion available to Member States with respect to the scope and conditions of copyright protection for products, the ruling would be no more than an opinion that does not bind the referring court– an astonishing outcome indeed.
Product designers or manufacturers in the UK who wish to take advantage of the Brompton Bicycle judgment, so as to gain the benefit of a longer term of protection for their designs, would need to bring about amendment of UK copyright law. To achieve this, they would likely need to convince the UK government either that such a measure is legally necessary and/or resort to appropriate legal action to achieve the desired result.
Despite the imminence of Brexit, there is still time, so product designers and manufacturers would do well to assess their options, based on sound legal advice, and take action accordingly.
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