[Guest post] Muddying the waters of copyright – a rapid reaction to today’s IPEC decision which sees the sinking of the WaterRower’s claims for copyright protection

This morning, after quite some time, the Intellectual Property Enterprise Court (IPEC) rendered its decision in the WaterRower case, concerning a claim of copyright protection and infringement in an iconic rowing machine [for background, see IPKat here]. The response? Find out below in this guest post by Katfriends Phil Sherrell, Louise Sargent, and Shiv Gupta (all Bird & Bird):

Muddying the waters of copyright – a rapid reaction to today’s IPEC decision which sees the sinking of the WaterRower’s claims for copyright protection

by Phil Sherrell, Louise Sargent, and Shiv Gupta

Should this rowing machine be protected by copyright in the same way as an iconic piece of art or music? That was the question which was resolved this morning in WaterRower v Liking 2024 EWHC 2806 (IPEC), the latest in a line of UK cases testing the outer limits of what can be protected by copyright.

The WaterRower is a rowing machine designed by Mr John Duke that works through water resistance. Duke is a former rower, student of naval architecture, and designer and builder of boats - with a life-long interest in artistic design and carpentry.

Artistic copyright, under s4(1)(c) Copyright, Design and Patents Act 1988, can apply to works of artistic craftsmanship. The question in the case was whether the WaterRower is a work of artistic craftsmanship, or a merely functional machine not deserving of copyright protection.

The Court heard evidence that Duke’s initial aim was to create a rowing machine that provides a “welcoming emotional connection” with its user and that it had been deliberately crafted like a fine piece of furniture, with much of it being made by hand. The design of the WaterRower even featured in publications including from the Museum of Modern Art (MoMA), Architectural Digest and GQ. Given recent decisions that have afforded copyright protection to a pair of jeans [IPKat here], a woven fabric pattern [IPKat here], and recognised that the Brompton bicycle [IPKat here] might be a copyright work, this evidence felt like a promising start for the Claimant.

But was it sufficient to give the WaterRower (which is ultimately ‘just’ a rowing machine) the same protection, through copyright, as a Beatles song or a Van Gogh painting?

Decision

An increasing number of UK decisions have pointed out the inherent tension between the CDPA’s ‘closed category’ approach to defining works in which copyright can subsist, and the CJEU’s open-textured interpretation of the InfoSoc Directive. According to cases such as Infopaq, Cofemel, Levola Hengelo and others, the Directive merely requires “two cumulative conditions to be satisfied. First, … that there exist an original subject matter, in the sense of being the author's own intellectual creation. Second, classification as a work is reserved to the elements that are the expression of such creation…".

The tension has been most apparent in UK cases where the work in question was said to be a work of artistic craftsmanship, qualification for which requires the satisfaction of elements which: (a) go well beyond the two conditions of EU law, and; (b) have been hard to define ever since the 1976 House of Lords decision in Hensher v Restawhile in which their Lordships provided 5 separate judgments, each propounding subtly different standards for what amounted to ‘artistic craftsmanship’.

Previous judges had found ways around this clear conflict between UK and EU law, but the judge in WaterRower could find no such route. This resulted in his stark conclusion that the WaterRower was not a work of artistic craftsmanship under UK law, but that under EU law it would be protected.

Kat with WaterRower:
to be observed or to be used?

Under the UK test, the court concluded that - despite wide-ranging high regard for both its aesthetic appeal and craftsmanship - the WaterRower did not meet the criteria for copyright protection. This was because the evidence failed to show that the design of the WaterRower was the result of a desire to produce something of beauty which would have “an artistic justification for its own existence”. Instead, the court found that the WaterRower was created as a result of commercial motivations – it was chosen by Duke as one of the ideas most likely to achieve his business goal of creating a rowing machine with a sensory aspect to its design.

So the judge held that whilst Duke could be considered a craftsman, and that the WaterRower does have aesthetic appeal, Duke did not sufficiently intend to “produce something of beauty which would have an artistic justification for its own existence”, and hence the work was insufficiently artistic to be protected under UK law.

Turning to the EU test, however, the judge found that EU copyright law (which still binds UK courts, albeit only in theory it would seem in this case) would afford the first WaterRower prototype copyright protection. Its shape was not solely dictated by its function and there was “room for Mr Duke to reflect his personality in the subject matter, combining these striking visual elements as an expression of his free and creative choices”.

The judge found that there was no way of fully reconciling the two tests in this case and therefore attempted a form of fusion, whereby he first applied the Infopaq originality standard (as a gateway to protection) and then applied the UK artistic craftsmanship test (even though he acknowledged that that test was not required as a matter of EU copyright law). The net effect is that the (narrower) UK test has prevailed.

Implications

This was a much-anticipated case for English designers, who were hoping for some clarity on the question of when copyright law will protect their works. Instead, they have been left in a rather uncertain state. The weight placed on Mr Duke’s commercial motivation in creating the WaterRower, which appears to have ruled out any possibility that he could (also) be considered an artist, is particularly troubling; good news for penniless artists but perhaps less so for successful designers.

The decision is complex and merits greater analysis, but a front-on collision of this kind between the EU copyright law and the UK’s artistic craftsmanship category has been on the cards for some time. Post-Brexit, there would appear to be a relatively limited number of routes for the uncertainty to be resolved:

• A Supreme Court decision overturning Hensher and coming to an interpretation of s4(1)(c) CDPA that is consistent with CJEU caselaw.
• A decision from the Court of Appeal or the Supreme Court to depart from EU law, reclaiming UK sovereignty over the definition of works of artistic craftsmanship.
• An appeal of the IPEC decision which leads to it being overturned on a narrower basis.
• Primary legislation to amend the CDPA to define more clearly what merits protection as a work of artistic craftsmanship or (more radically) to move to an open list approach.

Watch this space for further analysis.