This is essentially the question that the Liège Company Court asked the Court of Justice of the European Union (CJEU). As is customary in these cases, the Advocate General (AG) has given his preliminary opinion, and it is fair to say that Brompton will not be very happy.
After Brompton’s patent for the bike’s folding mechanism expired, Korean company Get2Get Chedech started selling similar folding bikes in Belgium. Brompton, feeling aggrieved by such actions, sued Get2Get for copyright infringement.
Get2Get maintains that the appearance of her bike is dictated by technical constraints and that she deliberately adopted the folding technique as it was the most functional method. It follows that copyright does not subsist in the shape of the bicycle. Brompton countered by saying that there are other folding bikes on the market that look different from his. The appearance of the Brompton bike demonstrates the existence of creative choices on their part and therefore originality for the purposes of copyright subsistence.
The Belgian court questioned whether copyright subsisted in forms “necessary to obtain a technical result” and therefore referred a series of questions to the CJEU.
General opinion of the lawyer
The first question considered by the GA concerned the notion of “work”, “originality” and the exclusion of copyright for forms which are dictated by technical functions.
The GA referred to the historic affair of Cofemel in which the CJEU clarified that a “work” was an autonomous concept of EU law which requires two cumulative conditions to be met. The first being the existence of an original object, that is to say of an object representing the author’s own intellectual creation. Secondly, this qualification of “work” is to be reserved for the elements which are the expression of this creation.
In Cofemel, the court held that the original subject must reflect the author’s personality as an expression of his free and creative choices. When the subject has been dictated by technical considerations which leave no room for creative freedom, this subject cannot be considered to possess the originality required to constitute a work. In addition, the elements that make up the protected object must be identified with sufficient precision and objectivity and cannot be based on subjective considerations such as aesthetic appeal.
The AG therefore deduced from the case law that works whose appearance is exclusively dictated by technical functions are not eligible for copyright protection. However, relying on the law of designs and trademarks, he considered that when a design has only a certain number of functional aspects, this does not necessarily deprive it of the protection of the right. author. Protection would only be refused if the functional elements of the work predominated over the artistic elements.
Forms, intentions and expired patent
The second question from the referring court centered on the applicability of other criteria to determine whether a shape is necessary to obtain a technical result. The GA was asked to consider the effects of the existence of other possible shapes making it possible to achieve the same technical result. Referring to the earlier case of DOCERAM, he recalled that the existence of alternative forms is not decisive in answering this question.
Then, the MA examined whether the intention of the alleged infringer to obtain a technical result was relevant. In principle, the intention is irrelevant. However, the AG was of the surprising opinion that the intention of the alleged infringer or perpetrator can be examined by the court, if it can determine whether a shape arises from a purely functional or aesthetic decision. Since the answer to this question will ultimately be based on objective rather than subjective considerations, I doubt that the CJEU will take much into account the GA’s comments on this point.
Finally, the GA considers the possible effect of an expired patent on the assessment of the need for the shape of the Brompton bicycle to obtain a technical result. He considers that this is indeed a relevant factor as it can be used to determine whether there were technical constraints which dictated the shape of the product. The fact that a patent has been granted suggests that there is a close relationship between the patented form and the desired result.
I think the CJEU will come to the same conclusion as the PG in this case. The creative freedom to design a folding bicycle is naturally limited by the technical constraints of allowing the bicycle to be used, folded and stored conveniently by its user. If the CJEU agrees, Brompton will almost certainly lose his case in Belgium and, barring other hurdles, Get2Get will be free to continue selling its own similar folding bikes. This case serves as a useful reminder of the constraints of copyright protection for functional objects.