Opinion of the European Copyright Society in Relation to the Pending Reference Before the Cjeu in Brompton Bicycle v Chedech / Get2Get, C-833/18

Abstract

The European Copyright Society (ECS) was founded in January 2012 with the aim of creating a platform for critical and independent scholarly thinking on European Copyright Law. Its members are renowned scholars and academics from various countries of the European Union, seeking to promote their views of the overall public interest. The Society is not funded, nor has been instructed, by any particular stakeholders. This ECS opinion concerns a case pending before the Court of Justice of the European Union (CJEU) relating to the copyright protection of the shape of a utilitarian article (known as the “Brompton” bicycle). The question in essence is whether the exclusion from design protection adopted by the CJEU in Doceram applies also in connection with copyright protection. The questions for preliminary ruling are as follows: – Must EU law, in particular Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, which determines, inter alia, the various exclusive rights conferred on copyright holders, in Articles 2 to 5 thereof, be interpreted as excluding from copyright protection works whose shape is necessary to achieve a technical result? – In order to assess whether a shape is necessary to achieve a technical result, must account be taken of the following criteria: • The existence of other possible shapes which allow the same technical result to be achieved? • The effectiveness of the shape in achieving that result? • The intention of the alleged infringer to achieve that result? • The existence of an earlier, now expired, patent on the process for achieving the technical result sought? The ECS recommends that the AG and CJEU do not adopt either the multiplicity of shapes nor the causality approach (Doceram) but, instead, apply its well-established case law on the copyright principles of idea/expression dichotomy, merger doctrine, the non-protection of functionalities and the originality requirement to reject the copyright protection of the Brompton bicycle.