Bikes and copyright are for summer. CJEU judgment in the Brompton case

Summer is approaching and the CJEU has gifted us a new judgment on the scope of copyright, in this case on bicycles. Can the famous Brompton bike be protected by copyright? This is the question on which the Court of Justice of the European Union (CJEU) issued a preliminary ruling on June 11 (Case C-833/18, ECLI:EU:C:2020:461).

As we explained in this post on the Advocate General’s conclusions, Brompton and its founder sued Get2Get in Belgium, claiming it had infringed the copyrights on the Brompton bike. The respondent markets a bike, called Chedech, which is very similar in appearance to the renowned Brompton. Brompton’s bike had been protected by a patent, now expired.

Get2Get claims the bike’s appearance is dictated by the technical result pursued, that is, to be able to adopt three different positions: folded, unfolded, and a standby position balanced on the ground. Brompton maintains that, in reality, that result can also be achieved in other ways.

The Belgian court asks the CJEU whether works whose shape is necessary to achieve a certain technical result are excluded from copyright protection. It also asks about the criteria to determine whether the shape is effectively necessary for the intended technical result.

As in the Cofemel v GStarRaw 2019 judgment, which we reported on in this blog, the CJEU addresses the question from the perspective of the requirement of originality and the distinction between idea and expression.

On the one hand, the CJEU recalls that, if the technical or other considerations leave no room for creative freedom, the subject matter will not achieve sufficient originality to be protected as a work by copyright [para. 24]. The Court believes that, even if the realization of the subject matter has been dictated by technical considerations, the possibility cannot be ruled out of the author reflecting his personality in the subject matter through free and creative choices [para. 26], giving rise to an original creation. It seems clear that the CJEU envisages a relative or incomplete “determination”, since free decisions would otherwise be prohibited. Where there has been a true determination, in the sense that the shape is solely dictated by its technical function, it cannot be covered by copyright protection [para. 33].

The CJEU reiterates that protection is not granted to ideas but to their expression. When the expression “is dictated by their technical function, the different methods of implementing an idea are so limited that the idea and the expression become indissociable”, states the Court [para. 27], referring to the Bezpecnostní softwarová asociace judgment on a computer program interface. Although the CJEU, applying the language used in other judgments, raises this issue as a secondary requirement, for a work to exist there must be “a subject matter that is identifiable with sufficient precision and objectivity”, in this case it is merely another way of saying that the subject matter must be sufficiently original.

Should it be inferred that the subject matter is original if there are different possible ways of achieving the result? The CJEU believes that is not necessarily the case, as even in that case the author may not have expressed their original creative capacity reflecting their personality in the product [para. 34 and 35]. Moreover, the fact that there was a previous patent does not in itself determine an absence of originality.

In the last instance, naturally, originality must be assessed by the referring court, and so the bike’s race goes on, now on its return leg to the national court.

Author: Miquel Peguera