WaterRower v Liking: rowing machine is not a work of 'artistic craftmanship' so not protected by copyright in the UK

What's happened? 

• After 15 months of deliberation, the High Court (IPEC) has issued its decision in the WaterRower v Liking case, holding that the WaterRower rowing machine does not benefit from copyright protection in the UK as it is not a work of artistic craftsmanship.
• Under EU law, for a work to qualify for copyright protection, the only requirement is that it satisfies the originality test. To do so, the work must be the author's own intellectual creation. The threshold is relatively low and there is no requirement for the work to have aesthetic or other value. The EU test for originality still binds the UK. 
• The position is different under UK law as set out in the Copyright, Designs and Patents Act 1988 (CDPA). As well as being original, a work must fall within the closed list of types of work which qualify for copyright protection. The list includes artistic, literary, dramatic and musical works. An artistic work is defined in section 4(1) of the CDPA as (a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality, (b) a work of architecture being a building or a model for a building, or (c) a work of artistic craftsmanship.
• The WaterRower machine clearly does not fall within (a) or (b) above. The question was therefore whether it qualifies for copyright protection by being a work of artistic craftsmanship under (c) above. The Court held that, although the machine satisfies the EU test for originality, it is not a work of artistic craftsmanship within the meaning of this provision. It does not therefore benefit from copyright protection in the UK.
• While this is not the first time that the UK courts have recognised the tension between the EU and UK tests for copyright subsistence and enforcement, this is the first time that a court has found that such conflict cannot be reconciled. The conflict will have to be resolved by a higher court or parliament.
• The decision has particular implications for copyright protection for works of applied art - 3D objects that are both functional and aesthetic such as furniture, sports equipment, and household products. It will now be much harder for the designers of such products to show that copyright subsists in them in the UK. However, UK designers may still benefit from copyright protection for their works of applied art in the EU even if it is not available in the UK (in line with the recent Kwantum v Vitra ECJ ruling – more here). 

Want to know more? 

What was the case about?

WaterRower Ltd designs and retails water-resistance rowing machines branded as 'WaterRower' in the UK. It claimed that its machines are works of artistic craftsmanship, thus attracting copyright protection in the UK. WaterRower Ltd alleged that Liking Ltd infringed that copyright by copying a substantial part of the design of the WaterRower in its TOPIOM rowing machines. Liking Ltd defended the claim on the basis that the WaterRower machine is not a work of artistic craftsmanship and therefore not protected by copyright. 

The WaterRower machines 

 WaterRower machines are a high-end piece of exercise equipment designed to simulate the experience of rowing on water. They feature a water flywheel that provides resistance, creating a non-mechanical rowing feel. The sound and feel of the rushing water enhances the simulation, making the workout more immersive. 

Ample evidence was submitted by WaterRower Ltd to support the proposition that the WaterRower machines were 'stylish', 'a beautiful object' and an 'attractive piece of furniture'. This included articles from the Wall Street Journal and UK newspapers going back to 1995. It was noted in the decision that the WaterRower was recognised as an 'iconic design' by famous institutions like the Museum of Modern Art (MOMA) Design Store in New York, which has been displaying the WaterRower for 16 years, and that it is sold in the Conran Shop. 

Is EU legislation and case law still relevant to assessing copyright protection for 'works of artistic craftsmanship' in the UK?

The judge confirmed that the court must take into account relevant retained CJEU case law, including Cofemel and Brompton, in relation to copyright protection for works of applied art under section 4(1)(c) of the CDPA.

Does the WaterRower machine satisfy the originality test for copyright? 

The judge found that the prototype of the WaterRower was original within the meaning of the EU's InfoSoc Directive and Cofemel by being the designer's own intellectual creation. This means that it reflects the "personality of its author, as an expression of his free and creative choices". If a work satisfies this test, then it benefits from copyright protection under EU law. It was specifically recognised in Cofemel that there is no additional requirement that a work be aesthetic for copyright protection under EU law.

Does copyright subsist in the WaterRower as a work of artistic craftsmanship?

The judge noted the different requirements under sections 4(1)(a) and 4(1)(c) of the CDPA – the former specifically stating that protection is available irrespective of artistic quality and the latter specifically requiring 'artistic craftsmanship'. 

It confirmed that, for a work to be protectable under section 4(1)(c) of the CPDA as a work of artistic craftsmanship, it must exhibit both craftsmanship and artistry. Case law says that, for there to be artistry, the work must have "aesthetic appeal" (Bonz), "some artistic quality" (Bonz) and something beyond "eye appeal" (Hensher – House of Lords). 

The judge noted that, to apply Cofemel (no additional requirement for a work to be aesthetic) , the Court would need to treat the House of Lord's comments in Hensher around artistry and "eye appeal" as meaning the same as the EU test for originality (ie that the work reflects the "personality of its author, as an expression of his free and creative choices"). That could not be right. The judge therefore concluded that UK and EU law on this issue are irreconcilable. Following the EU position would go against the language of the CDPA and parliament's intention.

The court concluded that, while the prototype was original, created skilfully and had aesthetic appeal, it did not satisfy the artistic craftsmanship requirement in section 4(1)(c) – it was not the result of a mind with a desire "to produce something of beauty which would have an artistic justification for its own existence" and the designer was not an artist in the sense that they "used their creative ability to produce something which has aesthetic appeal". Rather, the evidence pointed to the WaterRower being a "commercial development…with a design of aspirational sensory impact", not a work of craftsmanship that was artistic. It was therefore not protected by copyright.

What does this mean for you?

• The outcome leaves an (expected) discrepancy between EU and UK copyright protection for works of applied art. The threshold for protection is much higher in the UK than in the EU. Those seeking to protect product shapes in the UK might consider registered design, patent or trade mark protection.
• However, even if a work of applied art does not meet the higher UK threshold for copyright protection, it might still be protected by copyright in the EU following the recent Kwantum v Vitra case. This provides that copyright subsists - and can be enforced - in works of applied art in the EU provided the work meets the EU's originality requirement (even if copyright does not subsist in the country of origin of the work).
• The WaterRower ruling also emphasises the importance of maintaining detailed records throughout the design process. The judge left open the possibility that a work of applied art might qualify as a work of 'artistic craftsmanship' under the CDPA but made it clear that there would need to be substantial evidence as to the artistic intentions of the designer to convince the court.