Last Thursday, 11 june 2020, the Court of Justice adopted a new decision in the “Brompton Bycicle” case in relation with one of the elemental and most relevant questions in copyright: when does copyright arises?
The Court already had the chance to answer this question in relation to set of words (“Infopaq”, sport events calendars (“Football Dataco”), photographs (“Painer”), clothes (“Cofemel”), and even the smell of cheese (“Levola Hengelo”). Now it is the time of folding bikes.
In the decision the Court sustains that "the copyright protection applies to a product whose shape is, at least in part, necessary to obtain a technical result, where that product is an original work resulting from intellectual creation, in that, through that shape, its author expresses his creative ability in an original manner by making free and creative choices in such a way that that shape reflects his personality”.
The reasoning recalls that a work is original when it reflects the personality of its author, as it is the expression of his free and creative choices.
This requirement is not met where the realisation of a subject matter has been dictated by technical considerations, rules or other constraints which have left no room for creative freedom. A different interpretation would amount to making it possible to monopolise ideas, to the detriment, in particular, of technical progress and industrial development. Where the expression of those components is dictated by their technical function, the different methods of implementing an idea are so limited that the idea and the expression become indissociable.
However, where such technical considerations only partially influence the shape of the folding bike leaving enough space to the free creativity of the author, access to copyright protection is authorised. In this respect, the Court understands that national authorities should take into account the existence of an earlier, now expired, patent in the case in the main proceedings and the effectiveness of the shape in achieving the same technical result. However, in order to assess whether the folding bicycle at issue in the main proceedings is an original creation and is thus protected by copyright, it is for the referring court to take account of all the relevant aspects of the present case, as they existed when that subject matter was designed, irrespective of the factors external to and subsequent to the creation of the product.