After more than one year since trial, the long-awaited decision on whether a particular type of rowing machine is capable of copyright protection in England & Wales as a work of artistic craftsmanship came out earlier this week. The decision has been hotly awaited because there are relatively few cases that consider precisely what constitutes a work of artistic craftsmanship, and is thus of potential wide application.
Impact
The rowing machine in question was not a work of artistic craftsmanship, and therefore not capable of copyright protection.
The decision means that it will be harder for designers of 3D works, which are not sculptures, to rely on copyright as a form of protection in England & Wales, as opposed to seeking such protection in the EU, where the bar for copyright to subsist is lower.
Designers can of course continue to rely on design rights, whether registered or unregistered, which remain unaffected by this decision.
Background and decision
The decision considered the interplay between the legal tests for subsistence of copyright under EU law and under English law. Whilst the product met the requirement of originality under EU law, that was not determinative for copyright to subsist under English law. It mattered that the statutory test under English law also had to be met: section 4(1)(c) Copyright Designs & Patents Act 1988 as interpreted through a series of common law cases (including a New Zealand judgment). In summary, this requires the author of the work in question to be an “artist craftsman“, who produces “something which has aesthetic appeal” and such work “must have some artistic quality” and the author must have a desire “to produce something of beauty which would have an artistic justification for its own existence“.
Whilst the rowing machine in question had aesthetic appeal and its author was a craftsman, the judge held after reviewing the evidence that its author did not have the character of an “artist craftsman” (paragraph 188) nor was the rowing machine the result of a mind with a desire to produce something of beauty which would have an artistic justification for its own existence (paragraph 182). Thus the English law statutory test was not met.
Comment
This judgment is consistent with the English courts recognising the tension between EU law and English law with regards to what works are capable of attracting copyright. Importantly, this judgment does go further than previous judgments in its recognition that it is not possible for the English courts of first instance to reconcile EU law on subsistence of copyright (which has no requirement of any aesthetic effect for copyright to subsist in a work) with the requirements of the English law statutory test summarised above for copyright to subsist in a work of artistic craftsmanship. It therefore appears there is now judicial confirmation that Parliament would need to amend the legislation, to say otherwise.
Copyright would confer a generous term of protection of generally 70 years plus life of the designer. Whereas unregistered design rights generally only last up to a maximum of 10 years where the design is marketed/sold, and up to 25 years if a design is registered. Increasingly in recent years there have been attempts to secure copyright in 3D works that are not sculptures, partly because of the far more generous term of protection, and as a result of recent EU decisions. These attempts have rarely ever succeeded in the UK, so very few cases are litigated, as designers instead rely on their unregistered or registered rights in their 3D works.
Although much turned in this case on the facts (and the underlying claimant’s intent at the time of designing their rowing machine, which was to produce something commercially successful), the bar for copyright in England & Wales to subsist in a work of artistic craftsmanship appears to have been set higher, as the designer’s rationale for making a 3D work on the basis of it being commercially successful, rather than it purely being a work of beauty, appeared to have played a key factor in the judge’s decision.
It will be interesting to see whether the decision is appealed. Meanwhile, this judgment will be a useful tool for both legal practitioners and rightsholders on the thorny issue of whether copyright can subsist in something as a work of artistic craftsmanship under English law.
A link to the judgment (WaterRower v Liking [2024] EWHC 2806 (IPEC)) can be found here.
It has been a week of landmark intellectual property judgments, given the Supreme Court’s ruling in trade mark case Sky v Skykick. More detail on that decision, can be found in the article here.
