The Intellectual Property Enterprise Court (a section of the High Court) recently issued their judgement in WaterRower v Liking. The court, with Mr David Stone sitting as a judge, was tasked with ruling on a dispute surrounding a rowing machine used in gym training. In reaching a conclusion, the court was forced to consider a fundamental and long-established conflict between UK and EU copyright law for the first time.
In the UK, s.1(1) Copyright, Designs and Patents Act 1988 (CDPA 1988) specifies eight types of work in which copyright may subsist. Namely, these are literary, dramatic, musical, and artistic works, sound recordings, broadcasts, films, and typographical arrangements. As such, for copyright to subsist in a piece, it must fit into one of those eight categories.
The EU case law takes a different approach, developed in a string of cases beginning with Levola Hengelo. These cases confirm that a copyright work is anything which is the author’s own intellectual creation, and is the expression of that creation, so long as it is identifiable with sufficient precision and objectivity. The CJEU has therefore confirmed that its member states must allow copyright to subsist in anything that meets those criteria; applying any further requirement is unacceptable. During the UK’s membership of the EU, the UK was technically obliged to follow this approach. Even post-Brexit, s.6(3) EU (Withdrawal) Act 2018 continues to make these cases binding.
The UK never, though, adopted the EU ‘open list’ approach, instead insisting that if something cannot fit into one of the eight UK categories of work, copyright cannot subsist in it. Courts had cleverly avoided discussing this incompatibility – until WaterRower.
At question here was whether the rowing machine received copyright protection as an artistic work – specifically, a work of artistic craftsmanship, outlined in s.4(1)(c) CDPA 1988. To be a work of artistic craftsmanship, the work must be ‘artistic’, defined in Hensher v Restawile to mean that it has some artistic merit; but Mr David Stone noted, for the first time ever, that this requirement was incompatible with assimilated EU law. The EU cases confirm continually that a work only needs to be the author’s own intellectual creation, the expression of that creation, and identifiable with sufficient precision and objectivity, making any surplus requirement – like the requirement of artistic merit – unacceptable. The judge said, then, that the rowing machine may well receive copyright protection under EU law (that the UK remains bound to follow), but not under autochthonous UK copyright laws.
This decision is highly significant. First, the UK-EU incompatibility issue is of great legal contention, and consequently may result in a series of appeals until the Supreme Court can clarify the point under s.6(4)(a) EU (Withdrawal) Act 2018. Second, the case represents a key event in the post-Brexit UK-EU legal order, as it confirmed that the primacy of assimilated EU law may not be being respected. Third, it opens up the possibility of further acknowledgement of UK-EU asymmetries in copyright law. For example, is the requirement of fitting into one of the eight CDPA 1988 categories unacceptable? Must the UK finally adopt the open EU test for a copyright work? Fourth, the UK must accept or legislate around the policy implications of a world in which some works are protected by copyright law on the continent, but not in the UK, a system which may disincentivise EU creators from putting their works on the UK market. Fifth, it remains unclear how this ruling impacts the parallel law of designs.
References and Further Reading
WaterRower v Liking [2024] EWHC 2806.
Case C-310/17 Levola Hengelo v Smilde Foods [2019] ECDR 2.
Case C-683/17 Cofemel - Sociedade de Vestuario SA v G-Star Raw CV [2020] ECDR 9.
Johnathan Griffiths, ‘Infopaq, BSA and the ‘Europeanisation’ of United Kingdom copyright law’ (2011) 16 Media & Arts LR 59.
Case C-227/23 Kwantum Nederland and Kwantum België v Vitra Collections [2024] ECLI:EU:C:2024:914.
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