On 11 June 2020, the European Court of Justice (“ECJ”) published a historic ruling on copyright protection in case C-833/18 (Brompton Bicycle Ltd v. Chedech / Get2Get), finding that a shape dictated by the technical function of the relevant product can be protected by copyright, if it is also original; that is, if its author still had a margin of free and creative choice that allowed him to reflect his personality in the work.

The ruling is particularly important because, like the Cofemel ruling we mentioned here in this blog, it directs national legislators and courts towards broader copyright protection than that traditionally granted to industrial products. In Italy, among other things, these decisions make the requirement of “artistic value”, posed by art. 2 no. 10 Italian Copyright Law for the protection of industrial design products, clashing with the EU law.  Artistic value, in fact, is currently required by Italian law for industrial design products in addition to originality (or “creative character”) which is sufficient for the other types of works; in very simple terms, according to this rule, an original but mediocre  book is protected by copyright, however, an original but mediocre design product is not. For some time, most operators in the sector have noted the injustice of this approach, and the rulings of the CJEU in question seem to want to finally remedy it.

The case from which the decision commented upon here originates concerns the Brompton folding bicycle: their manufacturer commenced copyright infringement proceedings against a competitor who marketed very similar bicycles. The latter defended itself by claiming that the shape of the product was dictated solely by its technical function, that is, allowing the bike to assume three different positions (unfolded, folded and intermediate), and therefore could not be protected under copyright law; which would also have been demonstrated by the fact that, in the past, the Brompton bicycle was protected by a patent (now expired).

In the decision in question, the Court, in line with the Cofemel judgment, recalls that, in order to be protected by copyright, an object must (only) be “original”, that is, “reflect the personality of its author, as an expression of his free and creative choices“. This does not occur when the shape of the object has been dictated exclusively by technical considerations and constraints that have left no margin for creative freedom; it occurs instead when, even in the presence of technical considerations and constraints, the author has still been able to freely make his creative choices in determining the shape of the product.

In the present case, the Court recognises that the shape of the bicycle in question appears necessary to obtain a particular technical result, namely the suitability of that bicycle to assume three different positions. However, the Court continues, it is for the referring court to examine whether, despite this circumstance, this bicycle constitutes an original work resulting from an intellectual creation by its author and is therefore protected under copyright law. In this respect, the European judges point out, the fact that the bicycle was previously protected by a patent is not relevant.