Brompton Goes Off-Track: ECJ opinion on intellectual property rights cumulation

April 5, 2020

2 min read

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What's going on here?

Manuel Campos, one of the European Court of Justice’s Advocate Generals, has offered a fresh perspective on copyright protection in an opinion. He opined that copyright protection does not apply to designs where the shape of the designs is “exclusively dictated” by their technical function.

What does this mean?

In Brompton Bicycle v Chedech, the British bicycle company is claiming breach of copyright by Get2Get, a Korean maker of folding bicycles, regarding their bike’s iconic design. In this case, the patent protection for the bike’s folding mechanism has expired and the company is now claiming copyright protection, which will confer on it protection for up to 70 years from the author’s death. 

Prior to a landmark ruling in the ECJ, an Advocate General will give an opinion setting out the various options the judges will have in deciding the case. AG Campos in this case said that designs whose shape is dictated by technical considerations that leave no room for creative freedom are not eligible for copyright protection.

What's the big picture effect?

The main issue addressed in this opinion is the cumulation of rights. AG Campos’ opinion serves as a warning for those seeking to rely on copyright protection after the expiry of their patent or design rights. A careful balance needs to be struck between protecting the rights of authors and incentivising other creatives. Campos’ opinion suggests that if a copyright is allotted after the expiry of a patent then this delicate balance will be upset. 

The notion of rights cumulation is permissible under EU law, but previous cases have clarified and reduced the principle. This opinion is of particular importance because it adopts a functional interpretation as in the Cofemel case. In Cofemel, the CJEU made it clear that EU Member States should not prevent copyright from applying to functional designs just for the lack of aesthetics or artistic skill, as this would be too subjective. Instead, the objective test of “originality” was to be applied to determine the issue. This means that rather than being dictated by the function that the product is designed to perform, the focus would be on originality in the sense of the author’s own free and creative choices. The opinion in Brompton departs from Cofomel by introducing a mental element, suggesting the court analyse what the author intended when they created the work. The case could have significant precedent value on this point.

While the issues of cumulation of rights as well as the functional interpretation issue have been tackled previously in EU case law, the issue of intention might prove to be problematic. The AG considered that while external recognition should not be a relevant consideration here, subjective internal elements might be. 

Was this a suggestion to shift away from the objective criteria of “originality” for copyright subsistence? The CJEU’s decision is awaited on this controversial point.

Report written by Maya Sajeev

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