BREAKING: CJEU rules that a functional shape may be protected by copyright in so far as it is original

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A Brompton Bicycle bike (top) and
its alleged counterfeit (bottom) in the
background national proceedings

Since its seminal ruling Infopaq nearly 11 years ago [Kat-celebration here], the Court of Justice of the European Union (CJEU) has been contributing fundamentally to both shaping and placing the building blocks of copyright protection in the EU. 

Through a string of decisions (the most important being Infopaq, BSA, FAPL, Painer, Football Dataco, SAS, Levola Hengelo, and Cofemel), the Court has answered the most basic and relevant question: 

When does copyright protection arise?

Today, the CJEU has issued yet another ruling contributing to this very debate.

It did so in the context of a referral from Belgium - Brompton Bicycle, C-833/18 - concerning copyright protection of functional shapes (in the background proceedings, it is the shape of Brompton Bicycle's folding bike) [see here for an explanation of the background to the case].

This referral prompted the Court to: 

• reflect on the implications of Cofemel, a decision which - in my view - was not surprising at all in light of preceding case law (what was surprising, instead, was the surprise of some commentators 😀) [for some early applications in the UK and Italy, see - respectively - here and here]
• clarify further how the assessment of originality is to be conducted.

A few months ago, Advocate General Campos Sánchez-Bordona offered yet another thought-provoking Opinion [but see some criticisms here; note that the Opinion is not yet available in English], in which he reflected on the above, as well as the evergreen topic of IPR cumulation.

Today's decision

In its 39-paragraph ruling, the CJEU held that copyright protection is in principle available to products whose shape is, at least in part, necessary to obtain a technical result, insofar as "that 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".

In achieving this result, the Court reviewed earlier case law and, in line with the Cofemel holding, it confirmed that - for copyright protection to arise - it is "both necessary and sufficient" that the subject matter at hand is original, in the sense that it is its author's own intellectual creation that results from their free and creative choices and reflects their personality.

As the CJEU had held in earlier case law, originality is not fulfilled where the realization of a subject matter has been exclusively dictated by technical considerations, rules or other constraints which have left no room for creative freedom. Indeed:

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.

This also follows from the consideration that copyright extends to the expression of ideas, not ideas per se:

the criterion of originality cannot be met by the components of a subject matter which are differentiated only by their technical function. It follows in particular from Article 2 of the WIPO Copyright Treaty that copyright protection does not extend to ideas. Protecting ideas by copyright would amount to making it possible to monopolise ideas, to the detriment, in particular, of technical progress and industrial development (see, to that effect, judgment of 2 May 2012, SAS Institute, C‑406/10, EU:C:2012:259, paragraphs 33 and 40). Where the expression of those components is dictated by their technical function, the different methods of implementing an idea are so limited that the idea and the expression become indissociable (see, to that effect, judgment of 22 December 2010, Bezpečnostní softwarová asociace, C‑393/09, EU:C:2010:816, paragraphs 48 and 49).

As regards the shape of the folding bike at issue in the background proceedings, the CJEU noted that it is for the referring court to determine both whether that product is a 'work' and whether such shape is exclusively dictated by technical considerations, rules or other constraints, which have left no room for creative freedom.

Other criteria?

The referring court had also asked the CJEU to clarify whether, in order to assess whether a shape is necessary to achieve a technical result, account is to be taken of the following criteria:

1. The existence of other possible shapes which allow the same technical result to be achieved
2. The effectiveness of the shape in achieving that result
3. The intention of the alleged infringer to achieve that result
4. The existence of an earlier, now expired, patent on the process for achieving the technical result sought

The CJEU held that 1. is "not decisive" and 3. is "irrelevant". 

Disclaimer: not a Brompton bike

Turning to 2. and 4., the Court held that "they 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."

Importantly:

In any event, it must be noted that, in order to assess whether the folding bicycle at issue in the main proceedings is an original creation and is thus protected by copyright, it is for the referring court to take account of all the relevant aspects of the present case, as they existed when that subject matter was designed, irrespective of the factors external to and subsequent to the creation of the product.

Comment

The decision appears in line with earlier case law of the CJEU and builds nicely upon the most recent ruling in this field, this being Cofemel.

The most significant aspects, in my view, are the following.

First, the CJEU rejected the proposal of the Advocate General to take into account, not the intention of the infringer, but rather the intention of the author. As I discussed here, following this approach would have been both an odd departure from earlier CJEU case law and truly undesirable.

Secondly, in line with Cofemel and - in the trade mark field - the recent Gömböc judgment [see here and here] - the decision adopts an 'open-minded' approach to IPR cumulation. In the latter case, the Court recalled that each IPR has its own subsistence requirements and the analysis required to determine eligibility for a certain type of right is different from that under other rights. In today's Brompton Bicycle ruling, the Court pointed out that, to determine copyright subsistence, account is only to be taken of the relevant requirements under this right, "as they existed when that subject matter was designed, irrespective of the factors external to and subsequent to the creation of the product", including earlier protection under other IPRs.

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