NAVIGATING UK AND EU LAW ON COPYRIGHT

20 Jan 2025

Published in: Member News

UNDERSTANDING RECENT DECISIONS ON ORIGINALITY AND ARTISTIC CRAFTSMANSHIP

Protecting your design is vital. But what can you do when your patent or design rights expire? Can you use copyright law to protect your design? Does UK law trump EU law? Martin Noble, intellectual property expert at Freeths, explains what the recent THJ Systems Ltd and WaterRower decisions mean.

Defining copyright originality using the EU test – THJ Systems Ltd

Late in 2023, Freeths won a copyright infringement case for THJ Systems showing that copying the graphic user interface (GUI) of their software would infringe copyright. The judge applied the EU test of author's own intellectual creation and found that the software creator had made choices in terms of what to include and where, and in the visual appearance of the GUI. He found that the degree of visual creativity which went into the risk and price charts produced by the software was low but, nevertheless, the design was still original enough under the EU test to attract copyright protection.

Applying the EU originality test to a rowing machine – WaterRower

In November 2024, a judge at the Intellectual Property Enterprise Court (IPEC), found that the WaterRower rowing machine design was original under the elevated EU law test of originality. Any design rights covering the WaterRower machine had expired, and the company had claimed that it was protected by copyright as an artistic work. The issue left was whether artistic merit should play a part in the court’s determination over copyright protection?

Artistic merit - WaterRower

In November 2024 the High Court decided that, whilst protection under EU law did not require there to be any artistic merit, under the UK Copyright, Designs and Patents Act (CDPA), the WaterRower rowing machine was not protected by copyright as a work of artistic craftsmanship.

The WaterRower decision is an attempt to define the scope of artistic craftsmanship in the UK. Some people have said that the decision leant too much towards commercial intention – that WaterRower was a commercial development with the business goal of creating a commercially successful rowing machine rather than creating something with eye appeal in an artistic sense. There was support from others for the craftsmanship involved in creating a hand finished wooden product that was markedly different from the rowing machine designs that had existed previously. Although the High Court decided here that the WaterRower design was not a work of artistic craftsmanship, in 2020, IPEC decided that a fabric design by Response Clothing could qualify as a work of artistic craftmanship and therefore be entitled for copyright protection.

The future

The WaterRower case may well be the subject of an appeal, hence why the judge covered off so many of the ‘what if I'm wrong?’ points. The case is eminently appealable, simply because there is a massive clash between the UK position and the EU position. Effectively we have a decision that says, under EU law, WaterRower is original and its author’s own intellectual creation. In another case that deals with this tension between the CDPA and EU law, AGA will be visiting the Court of Appeal in 2025. AGA is appealing against the decision that the instrument panel on its cooker is not an artistic work and so not protected under copyright.

Will the UK position continue to be misaligned with the EU legal position? Or will the UK law be changed to align with the EU? Watch this space.

ABOUT FREETHS

Freeths is a top 50 commercial law firm. Relied on by private and public sector clients including Aldi, Mercedes-Benz UK, Tarmac, Experian, and Lloyds Bank.

Freeths was recently awarded B Corporation (B Corp) certification, demonstrating its dedication to complying with high standards of environmental and social impact and governance.

Freeths launched the landmark High Court victory for 555 sub-postmaster clients against the Post Office, which exposed Britain's largest miscarriage of justice. The firm now advises on the subsequent GLO and Horizon Convictions Redress compensation schemes.

Milestone achievements:

• Winner of Law Firm of the Year at the Legal Business Awards 2024

• Commended for Law Firm of the Year at The Lawyer Awards 2024

• Recognised in The Legal 500 Green Guide 2024

• Listed in The Times Best Law Firms, 2024

• Ranked in the top tiers of Legal 500 and Chambers legal guides

• Ranked 44 in The Lawyer’s Top 100 UK law firms

• ‘Diversity Champion’ for Stonewall – a charity supporting LGBTQ+ rights

Submitted by Lauren from Freeths LLP
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