A functional shape may be protected by copyright rules the CJEU

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The CJEU’s judgment in the recent case of Brompton Bicycle Ltd v Chedech / Get2Get was a reference from the Tribunal de l’Entreprise de Liège/Belgium, (Case C-833/1) and is the next string in a line of cases confirming the strength of copyright protection across the EU.

CJEU Decision

The CJEU held that copyright protection is in principle available to products whose shape is necessary to obtain a technical result provided the product is an original work i.e. the author expresses his creative ability through the shape in an original manner by making free and creative choices, such that the result reflects their personality. This ruling is in line with the Cofemel judgment in 2019 which confirmed that the only test which can be applied to the subsistence of copyright is originality. To read more, see our Law Now on the Cofemel judgment here.

What is originality?

Article 2 of the WIPO Copyright Treaty states that copyright protection does not extend to ideas but rather the expression of ideas which can be dictated by their technical function. Where the realisation of a subject matter has been exclusively dictated by technical factors, which has left no room for creative freedom, originality is not satisfied. However, if an idea has been dictated by technical considerations but there is space for the author to reflect their personality, it can be satisfied.

Additional factors

The Belgian court had also asked the CJEU to clarify whether EU Courts could also take into consideration other factors when assessing whether a shape which was necessary to achieve a technical result could be capable of copyright protection. For example, was the existence of other shapes that could achieve the same technical result a factor which would indicate that copyright protection should not be available. The CJEU held that the existence of other shapes was not a decisive factor, and the intention of the alleged infringer was also irrelevant.

The CJEU went on to explain that whilst the effectiveness of the shape in achieving the technical result and the existence of an earlier patented technology protecting that technical result should only be taken into account to the extent those factors make it possible to reveal the issues that were taken into account by the designer when he was choosing the shape of the product.

This judgment confirms that the only factor relevant to the subsistence of copyright protection is originality and that the pre-existence of other types of intellectual property rights protecting all or part of the same product shall not prevent a Court from also conferring parallel copyright protection on the same 3D product. Accordingly this decision builds on other recent case law in this area, further strengthening the scope of copyright protection afforded to 3D designs.

Article co-authored by Shirin Shah.