An OARsome Outcome?

Is a functional item with eye appeal protectable under copyright or not? Does eye appeal even matter? These were the questions before the judge Mr David Stone in Waterrower v Liking.

It is important to understand at the outset that this was a decision on whether to strike out Waterrower's case - this requires a somewhat more difficult decision of whether the claim had "no prospects of success". Waterrower argued that Liking's product infringed the copyright in it as a work of artistic craftsmanship. Liking admitted copying Waterrower's product but said there was no copyright in it as it was not a work of artistic craftsmanship (a term which is not that well defined and which is under some challenge at the moment).

The Judge declined to strike the case out for two reasons:

1. The rower seemed, at first blush, to potentially be seen as "artistic" as it had "eye appeal" as well as function aspects;
2. It was arguable that following the "Brompton" case and the other jurisprudence of the European Courts that "eye appeal" is not in fact required.

The Judge was keen to clarify that his decision was NOT a decision that the rower DOES have eye appeal, or in fact that eye appeal is not required: a decision on strike out/ summary judgment simply requires him to conclude whether or not a case is arguable: in his view (and I must say, obviously) it is arguable.

Interestingly, along the way counsel for the defendant/applicant suggested that the hearing could be treated like a request for judgment on a preliminary issue, or that the Court could refer the issue of "eye appeal" to the European Court for a decision on the law. The Judge made it clear that both of these were incorrect: he could only deal with the application in front of him, and there was no power to refer.

COMMENTARY

The defendant's counsel was right in some ways: as copying had been admitted, the only issue at trial is subsistence of copyright. The question of whether there WAS eye appeal (and whether it is required) is the only matter on which there needs to be judgment. Frankly, the most effective way forward would be a request for a preliminary hearing on whether eye appeal is necessary - a purely legal question - and for that to be resolved. Whether the rower DOES have eye appeal is arguably an issue on which evidence is required (or may be suggested) and the first question logically is whether it's even a requirement.

My personal view is that the European position will be the norm. Once that is made clear, it will have significant impact. At present there is work being done to consult and amend the UK's design laws: a decision that copyright may apply to articles without the requirement of eye appeal will make copyright the key right and will resign unregistered designs to somewhat of an irrelevance potentially (not least because copyright has a significantly longer lifespan).