Copyright on a bicycle?

On 11 June 2020, the CJEU issued its long-awaited judgment in case C-833/18, also known as the Brompton Bicycle case.

Beyond the curiosity about the possibility of copyright protection for an everyday object as a bicycle, the peculiarity of this matter lies in the possibility of protecting by copyright products whose shape is necessary to obtain a technical result.  Thus the product would be considered an original work as an intellectual creation of its author.

The request for a preliminary ruling to the Court of Justice arises in connection with a proceeding in Belgium between Brompton Bicycle Ltd (‘Brompton’) and Chedech/Get2Get (‘Chedech’) concerning an action for infringement of copyright brought by Brompton against Chedech, as a result of commercialization by Chedech a bicycle with a visual appearance very similar to Brompton’s well-known bicycle. Despite the obvious aesthetic or visual similarities, Chedech claimed that the appearance of its bicycle was determined by its technical characteristics in order to allow three different positions, as was the case with Brompton’s bicycle. Chedech also argued that this technical peculiarity could only be protected by patent. Patent, which in this case had already expired.

The CJEU, appealing to its judgment of 12 September 2019, Cofemel case, (C-683/17) after determining that any work must have two elements, namely, (i) an original object, which constitutes an intellectual creation specific to its author, reflecting its personality and manifesting its free and creative choices and, (ii) the expression of that creation, so that the object is identifiable with sufficient precision and objectivity.

However, if the form or development of the object has been determined by technical considerations or functions, rules or other requirements which have left no room for the exercise of creative freedom, the CJEU understands that the object cannot be considered to have the originality necessary to constitute a work and thus benefit from the protection conferred by copyright. Conversely, even if its realization has been determined by technical considerations, provided that such determination has not prevented the author from reflecting his or her personality in that object by manifesting free and creative choices, the requirement for originality could be met, and copyright protection would apply.

Nevertheless, the CJEU concludes that it is for the national court to determine whether the object in question, in this case Brompton’s bicycle, constitutes an original work resulting from an intellectual creation, taking account of all the relevant aspects in the main proceeding.

This time in Spain we are playing with advantage, because in February 2010, the Commercial Court number 5 of Madrid, in a similar case to the one that gave rise to the request for a preliminary ruling the TJUE, determined that the Brompton bicycle was subject to copyright protection, as its shape and aesthetic design was not determined by technical issues.