WaterRower (UK) Ltd v Liking Ltd [2024] EWHC 2806 (IPEC)
In this highly anticipated decision, the Intellectual Property Enterprise Court (IPEC) of England and Wales, considered what qualifies as a "work of artistic craftsmanship" under s.(4)(1)(c) of the Copyright, Designs and Patents Act 1988 (CDPA) and whether designs with functional purposes are eligible for copyright protection under UK law. In doing so the UK court has articulated in very clear terms the significant degree of separation that exists between the test mandated by UK statute and the EU’s approach to copyright subsistence. This has significant consequences particularly for the protection of functional items, with the UK taking a much more restrictive approach to that of the CJEU in Cofemel.
The claimant, WaterRower, claimed that several of its high-end water resistance rowing machine designs were each works of artistic craftsmanship within s.4(1)(c) of the CDPA and that the defendant, Liking Limited’s (trading as TOPIOM) rowing machine infringed this copyright. However, on November 11, Judge Campbell-Forsyth, held that WaterRower’s rowing machine, which blends function and style, did not qualify for copyright protection as a “work of artistic craftsmanship”, under UK copyright law. Interestingly, given the alleged infringements occurred prior to the (Brexit-related) Retained EU Law Act 2023, the judge found that the UK criteria for works of artistic craftsmanship were irreconcilable with the EU test for copyright subsistence and in contravention of the Infosoc Directive.
What is a “work of artistic craftsmanship”?
In contrast to the European approach, the UK permits copyright protection for specified categories of work. The UK has also been much more restrictive in its protection of industrial designs, which have been considered eligible for protection as unregistered or registered designs (providing a shorter period of protection) rather than copyright, with the exception of “works of artistic craftsmanship”. Defining what a “work of artistic craftsmanship” actually is has caused the UK courts no end of head scratching. From the leading House of Lords decision in Hensher (concerning furniture) and also Lucasfilm (storm trooper helmets), the court has found this type of work extremely difficult to define, to the extent that the judge in this case found it necessary to draw upon 11 ‘threads’ from the earlier caselaw in order to try to make his assessment.
The court’s decision
Despite plenty of evidence that the claimant’s product was widely recognised as having strong aesthetic appeal, the court concluded that the WaterRower is not a work of artistic craftsmanship, and therefore not entitled to copyright protection. Although the creator of the WaterRower could have been considered a ‘craftsman’, it was held (applying Hensher and Bonz) that he had not intended to create a work of art - a creation which has “an artistic justification for its own existence”. In effect he was deemed a craftsman, but not an ‘artistic craftsman’ and therefore failed an aspect of the test.
Broader implications from WaterRower v Liking
This case illustrates the difficulty in assessing whether an industrial item is a “work of artistic craftsmanship” and therefore benefits from UK copyright protection. It seems unlikely that the UK courts will provide a revised test anytime soon. However, a key takeaway from this decision is that a work of artistic craftsmanship needs more than just “craftsmanship” and recognition of its aesthetic appeal or merit; it must also be considered a work of art. The creator’s intention is among the important factors. That said, we strongly expect WaterRower to appeal the findings in this respect, so watch this space!
The ruling also illustrates the very clear differences between the UK and EU approaches to copyright subsistence, and that it is more challenging for designers of 3D items to rely on copyright protection in England and Wales, compared to seeking such protection in the EU, where the bar for copyright to subsist is lower. Therefore, it is advisable for UK designers to file design registrations for their 3D creations to obtain some protection.
Related expertise
You may be interested in...
Legal Update
UK court clarifies copyright protection for "works of artistic craftsmanship"
Press Release
IP: Predictions for 2025
Legal Update
CJEU confirms that copyright law is the same for all claimants
On-Demand
Copyright issues with AI webinar
Press Release
Browne Jacobson’s intellectual property lawyers ranked experts in World Trademark Review guide 2023
Published Article
Bruce Willis AI and the problem with deepfakes
A deepfake of Bruce Willis is advertising Russian mobile phones. Many great artistic and metaphysical questions are raised by this performance. However, this article is going to look at the intellectual property law implications, from a UK perspective.
Legal Update
DSA approved: Targeted Advertising Rules explained
Legal Update
Digital Markets Act and Data Platforms - FRANDs for life?
The Digital Markets Act (the “DMA”) joins the dots between competition law and data protection law and actively targets data-driven platforms. It is also a comprehensive regulation to take note of, with familiar GDPR-style fines tied to turnover.
Legal Update
When embedding audio-visual content in web pages is copyright infringement
If you publish website content then you need to be careful before embedding third party images. The rights of a copyright owner are infringed if their work is communicated to the public without their permission.
Press Release
Browne Jacobson’s half year deals activity exceeds £500m
Browne Jacobson’s Manchester office has seen the value of deals which its corporate, banking and real estate teams have advised on exceed an aggregate of £500m in the first half of its financial year, a major milestone for the firm which has grown its transactions offering considerably over the same period.
On-Demand
How to commercialise your IP: licensing, spin outs and JVs
Our expert panel, comprised of IP and corporate law specialists, will be discussing IP commercialisation strategies, their benefits and pitfalls, drawing on experience across the private, public and higher education sectors.
Press Release
Browne Jacobson scores victory for Wolverhampton Wanderers over badge copyright claim
Browne Jacobson is delighted to have assisted Wolverhampton Wanders Football Club to successfully defend a copyright infringement claim made against it which relates to the club’s iconic wolf head design. The club has used this design as an element of its badge since 1979.
Press Release
Browne Jacobson's trade mark team recognised in latest WTR 1000 rankings
Legal Update
Are you compliant with AIM Rule 26?
From 28 September 2018, all AIM companies are required to adopt a recognised corporate governance code such as the UK Corporate Governance Code or the QCA Corporate Governance Code and comply with that corporate governance code on a 'comply or explain' basis.
Legal Update
Action for breach of the AIM Rules
As well as adapting to changes to governance requirements, recent disciplinary action by the London Stock Exchange highlights the importance of regular discussion with Nominated Advisers to mitigate the risk of inadvertent breach of the AIM Rules.