WaterRower - IPEC fails to clarify UK copyright position

The recent case of WaterRower UK Limited v. Liking Limited provided the UK Intellectual Property Enterprise Court (IPEC) with an opportunity to clarify whether the wider form of copyright protection available under EU law should also extend to the UK post-Brexit.  Previous decisions on this topic have managed to avoid providing a conclusive answer to this issue.

Regrettably, the decision of the IPEC in the WaterRower case does not provide the clarity that had been hoped for.  

The IPEC recognised that it was impossible to fully reconcile EU copyright law under the InfoSoc Directive with UK law relating to works of artistic craftsmanship. The Court’s attempt to apply the doctrine of indirect effect to the InfoSoc Directive by interpreting the requirement of “original” in light of the Directive  (i.e. is the work original in the sense that the “subject matter reflects the personality of its author, as an expression of his free and creative choices”) is an interesting way of trying to reconcile UK and EU law, but is not wholly satisfactory and does not fully answer the question of whether the wider form of EU copyright should extend to the UK. Whilst the IPEC was not strictly speaking in a position to make such a decision, this case did provide an opportunity for the question to be fully addressed, rather than the result we are left with, namely that the product in question does enjoy copyright protection in the EU but not in the UK.

The Court’s consideration of whether the product in question enjoys copyright protection in the UK as a work of artistic craftsmanship is also unsatisfactory.  The Court's focus on whether the author had an intention to produce an object of beauty which would have an artistic justification for its own existence introduces a subjective element to the subsistence of copyright that is probably necessary to avoid the Court becoming the arbiter of what is and is not artistic; however, the failure to take into account other evidence of the artistic value of the product (e.g. its display in museums) appears to place too much focus on evidence of the author’s intentions, rather than on how the product is actually perceived by the relevant public.

We are therefore left with continued uncertainty as to the requirements for copyright to subsist in works of applied art, and the potential further divergence of UK copyright law from EU law, with certain products and designs potentially enjoying copyright protection in the EU but not in the UK.

In light of the lack of clarity around the subsistence of copyright in works of applied art in the UK, and the apparent willingness of the UK courts to apply a stricter test for subsistence of copyright than courts in the EU, protecting designs through design registration remains the most appropriate and effective means of securing protection for works of applied art in the UK.  In the meantime, it will be interesting to see if the IPEC decision in this case is appealed, thereby providing a further opportunity for this area of the law to be clarified.