WaterRower not protected by copyright | UK and EU copyright law not compatible

The long-awaited judgment in the WaterRower case was handed down yesterday.

The judgment has been eagerly awaited by both IP lawyers and the design world, as it relates to the boundaries of copyright law in the UK and what is required in order to secure copyright protection in items with some functional purpose.  It is also an area of copyright law in which there are clear inconsistencies between recent CJEU decisions and the approach which has historically been taken in the UK. 

Summary 

Ultimately, the court held in WaterRower that the wooden rowing machine designed by the claimants was not protected by copyright. In doing so, the judge applied the higher threshold required by the UK statute and the line of authorities which have considered s.4(1)(c), and held that the WaterRower did not meet the requirements for a ‘work of artistic craftsmanship’.   

Not surprisingly, the judge found UK and EU copyright law in this area to be incompatible with each other. That question will now have to be resolved by the superior courts.  We therefore still wait for a definitive answer as to what the legal standard is in the UK to qualify for copyright protection.

Although the judgment will be a disappointment to designers looking to rely on copyright protection, this particular judgment is certainly not the end of the story. That is because the judge is clear that UK and EU law is incompatible. That incompatibility will at some point need to be resolved by the higher courts or by Parliament. In addition, the case does not bar copyright protection for all functional items. There will be designs of other functional items which are more likely to meet the threshold for copyright protection than a wooden rowing machine, even if the higher test required by UK law and by the Deputy Judge in this case is the correct one.    

The judge’s findings in relation to the WaterRower

The claimant, WaterRower (UK) Limited, alleged that its WaterRower rowing machine is protected by copyright, either because it is a ‘work of artistic craftsmanship’ under s.4(1)(c) of the CDPA and/or because it is protected by copyright pursuant to principles of EU law.

Recent CJEU judgments make clear that, in the EU, works are protected by copyright provided they are original, and that member states cannot impose any requirement that the object has aesthetic appeal or is otherwise ‘artistic’.  In contrast, s.4(1)(c) of the CDPA protects works of “artistic craftsmanship”, and the leading House of Lords authority on that section makes clear that, to be protected as a work of artistic craftsmanship, the work must (among other things) have something more than eye appeal. 

In the WaterRower judgment, the Deputy Judge ultimately concludes that it is not possible to reconcile the two positions.  He finds that, to be protected by copyright in the UK a work must meet the requirements of the relevant category of copyright protected work – in this case the requirements for ‘works of artistic craftsmanship’ and the test set out in Hensher. 

The judge did not entirely disregard the EU position, but demotes it to a “form of gateway”… in the sense that “Only where a work is original is it necessary to then consider the application of the statutory phrase in s.4(1)(c) CDPA in the context of Hensher and the line of English and related authorities noted.”  

In relation to the WaterRower machine, he found that the prototype was an original work within the meaning of the InfoSoc Directive and EU law (because it was the author’s own intellectual creation).  However, he held that despite this it was not entitled to copyright protection, because it did not meet the meet the requirements under UK law as a work of artistic craftsmanship under s.4(1) CDPA.  The Deputy Judge preferred to focus on the ordinary meaning of the words in the statute, but it is clear that he was influenced in large part by the technical considerations faced when designing a rowing machine, and also the intention of the creator. In relation to intention, both Hensher and the New Zealand case of Bonz note that this can be a relevant factor.  Although the Deputy Judge recognised the WaterRower designer’s intention was to create a rowing machine which had an “aspirational sensory impact” he ultimately did not think there was any intention to “create a work that went further, one where the craftsmanship in its creation was artistic.” 

Next steps 

If WaterRower seeks permission to appeal then it seems almost inevitable that permission would be granted, given the uncertainty in this area of law and its fundamental importance to the boundaries of copyright law. 

Both IP lawyers and the design community would certainly be grateful for the clarity which a Court of Appeal or even a Supreme Court judgment would provide. 

We’ll be writing a more detailed analysis of the judgment and publishing it shortly.