WaterRower sends ripples across copyright and design community
The UK Intellectual Property Enterprise Court (IPEC) has handed down judgement in the long-awaited WaterRower copyright case having considered whether a functional design can attract copyright protection.
The WaterRower is a rowing machine designed by Mr John Duke that works through water resistance. Duke is a former rower, student of naval architecture, and designer and builder of boats. With a life-long interest in artistic design, Duke claimed that several of his rowing machine designs were each works of artistic craftsmanship under s.4(1)(c) Copyright Designs and Patents Act 1988 (CDPA). Judge Campbell-Forsyth, in a decision which balances the interpretation of UK and retained EU law, held that WaterRower's rowing machine design did not qualify for copyright protection as a work of artistic craftsmanship, despite being protected under EU law.
In the pre-Brexit decision of Cofemel, the European Court of Justice (CJEU) found that a 'work' of copyright must meet the following criteria:
- The existence of an original object.
- The object must be an expression of the author's own intellectual creation.
- The subject matter of the object must be expressed in a manner with sufficient precision and objectivity, i.e. no element of subjectivity, such as aesthetic value.
WaterRower copyright
Judge Campbell-Forsyth confirmed that the work reflected "the personality of its author, as an expression of his free and creative choices." The prototype, designed by Mr Duke, therefore satisfied the Cofemel test which meant that Waterrower copyright was protected under EU law. However, the minor iterations in future designs did not constitute original works and therefore did not attract UK copyright protection.
Tidman Comment
While the WaterRower copyright decision highlights the constraints of UK copyright law and the limited artistic works attracting copyright protection, it has arguably steadied the ship (or row boat) in terms of narrowing the scope of copyright protection in purely functional designs. Nevertheless, the judge's emphasis on Mr Duke's commercial motivation in creating the WaterRower, which appears to have ruled out any possibility that he could be considered an artist, is not entirely satisfactory. Accordingly, the outcome could be viewed as unwelcome news for successful designers who wish to protect their designs by way of copyright.
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Additional resources
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