Miguel_Ortego
Intellectual Property Law

Originality is the key: even a functional and technical shape may be protected by copyright

In the Brompton v. Get2Get case, the Court of Justice of the European Union («CJEU») has held that copyright regulation (Directive 2001/29 mainly) applies to a product and its shape even if the latter is necessary to obtain the technical result provided the product is an «original work resulting from intellectual creation, in that, through that shape, its author expresses his creative ability in an original manner by making free and creative choices in such a way that that shape reflects his personality».

The judgement of the CJEU (Fifth Chamber), as of June 11th 2020, Brompton v. Get2Get (C-833/18|ECLI:EU:C:2020:461) goes beyond-and supersedes-the Opinión of the Advocate General who claimed that no copyright protection can be granted to objects «whose shape is dictated by their function if the appearance of a work of applied art is ‘exclusively dictated’ by its technical function, as a ‘decisive factor'» (§ 65º of he Opinion of AG Mr. Campos Sánchez-Bordona, as of February 6th 2020).

Brief backgroud to the dispute

The case, briefly, is about Mr. SI who in 1975 created a design for a folding bicycle named Brompton. Years later, he founded Brompton Ltd. seeking to sell the bike in collaboration with other businesses. Brompton Ltd. was the owner of a patent for the bicycle’s folding mechanism in three positions (its main feature) which felt into public domain twenty years latter. Mr. SI also claims he holds the economic rights arising from the copyright in the appearance of the Brompton bicycle.

Get2Get, a Korean company specialized in sports equipment, produces and markets a bicycle which also folds into three different positions (named «Chedech») which is quite similar to Brompton’s.

Brompton Ltd., understood that Get2Get had infringed their copyright in their bicycle and, thus, brought an action against that company before the the tribunal de l’enterprise de Liège. The defendant held that the appearance of the bicycle was dictated by the technical solution sought and that was the reason why Brompton Ltd. applied for a patent (that was granted) so the technical function constraints the appearance of the bike in a way that there is no room for fee creativity and therefore originality in the bicycle (as claimed by Mr. SI).

The concepts of «work» and «originality»

The CJEU recalls on the concept of «work» which is made by to conditions: (i) it entails an original subject matter which is the author’s own intellectual creation; and (ii) it requires the expression of that creation, which is met when there is a subject matter that is identifiable with sufficient precision and objectivity (§ 22º and 25º)

Regarding originality, it is needed that the work «reflects the personality of its author as an expression of his free and creative choices» (§ 23º), taking into account that when the work is result entirely of technical considerations that constraint the result in a way that there is no room for creative freedom, that subject matter cannot be regarded as possessing the originality required to be protected by copyright (§ 24º).

Well, the CJEU holds that «a subject matter satisfying the condition of originality may be eligible for copyright protection, even if its realisation has been dictated by technical considerations, provided that its being so dictated has not prevented the author from reflecting his personality in that subject matter, as an expression of free and creative choices». And that task falls to the referring court taking into account all the circumstances of the present case.

Imagen: Brompton

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