The matter at hand

Brompton markets a folding bicycle with the particular feature of three different positions: a folded position, an unfolded position and a stand-by position enabling the bicycle to stay balanced on the ground. The Brompton bicycle is sold in its current form since 1987 and was protected by a patent which has now expired. On the other hand, Get2Get markets the Chedech bicycle which is visually very similar to the Brompton bicycle and can also be folded in the same three positions.

Brompton brought an action before the referring court, the tribunal de l’entreprise de Liège (Companies Court, Liège, Belgium) seeking a ruling that Chedech bicycles infringe Brompton’s copyright. In its defence, Get2Get contends that the appearance of the Chedech bicycle is dictated by the technical solution sought, which is to ensure that the bicycle can fold into three different positions.

The referring court asks, in essence, whether Articles 2 to 5 of Directive 2001/29 must be interpreted as meaning that the copyright protection provided for therein applies to a product whose shape is, at least in part, necessary to obtain a technical result.

The judgment of the ECJ

Upon considering the referred questions, the ECJ first reiterates its earlier findings in inter alia case C-683/17 (Cofemel), on the requirements of the auther’s own intellectual creation and the expression of that creation (paragraphs 22 to 25). It then concludes that “a subject matter satisfying the condition of originality may be eligible for copyright protection, even if its realisation has been dictated by technical considerations, provided that its being so dictated has not prevented the author from reflecting his personality in that subject matter, as an expression of free and creative choices” (paragraph 26).

However, the ECJ notes that “the criterion of originality in copyright law cannot be met by the components of a subject matter which are differentiated only by their technical function.” Having regard to the fact that ideas as such cannot be copyright protected, it finds that “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” (all paragraph 27).

Upon addressing the subject matter in the matter pending before the referring court, the ECJ considers that, “whether the product concerned falls within the scope of copyright protection, it is for the referring court to determine whether, through that choice of the shape of the product, its author has expressed his creative ability in an original manner by making free and creative choices and has designed the product in such a way that it reflects his personality” (paragraph 34).

In that context, the ECJ notes that ‘’in so far as only the originality of the product concerned needs to be assessed, even though the existence of other possible shapes which can achieve the same technical result makes it possible to establish that there is a possibility of choice, it is not decisive in assessing the factors which influenced the choice made by the creator’’ (paragraph 35).

The existence of a previous patent and the effectiveness of the appearance to achieve the same technical result should be taken into account “only in so far as those factors make it possible to reveal what was taken into consideration in choosing the shape of the product concerned” (paragraph 36).