Pictured: Andrew McDonald and Rebecca McConnachie

The dispute

On 11 November 2024, the Intellectual Property Enterprise Court (IPEC) of the English High Court handed down a highly anticipated judgment in the case of WaterRower Limited v Liking Limited. The product in question is the WaterRower rowing machine, which incorporates a water container to simulate the sensation of rowing on water. The machine is made predominantly of wood and its creator claimed to having focused keenly on the aesthetic appeal of the product, as well as it’s practical function, in the design process. The intention was that the WaterRower would not just be a piece of gym equipment, it would be an attractive addition to someone’s living room. WaterRower raised an action against Liking, arguing they had copied a substantial part of their design and, unusually, claimed copyright infringement, on the basis that the WaterRower was a work of “artistic craftsmanship” in terms of s.4(1)(c) of the Copyright, Designs and Patents Act 1988 (CDPA). Part of Liking’s challenge was to question whether the WaterRower could truly be considered a work of ‘artistic craftsmanship’.

The judgment

The length of the judgment is testament to the inherent complexity of the question: what makes a work of craftsmanship ‘artistic’ and, as a result, worthy of the extensive protection which the law of copyright bestows?

The court was quick to establish that its job was not to express any question of taste or personal opinion as to what works of craftsmanship could be considered ‘artistic’. However, it did wrestle with its requirements to read the CDPA in such a way as it would align with EU law which still applies in the UK post-Brexit. In this case, the law in question was the EU Information Society Directive and its application in the Cofemel decision from the Court of Justice of the European Union (CJEU). In Cofemel, the requirements for copyright protection are that the work is original in the sense that it is the author’s “own intellectual creation”. The IPEC found that this definition could not be reconciled with the ordinary meaning of s.4(1)(c) CDPA. The requirement that works of craftsmanship have some element of “artistry”, the court said, went beyond “intellectual creation”, which does not involve any consideration of aesthetics.

In determining whether WaterRower satisfied this ordinary meaning of the term “artistic craftmanship”, the court looked to the UK case of Hensher v Restawile. The judge found that the WaterRower 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”, something which in Hensher was established as indicative of the necessary element of artistry. By contrast, the WaterRower was described as “a commercial development with the purpose of achieving the claimant’s business goals”. The judge did not consider that the creator had set out with the intention of making something ‘artistic’.

Comment

The IPEC has notionally rejected the possibility of harmonising the concept of “artistic craftsmanship” under the CDPA with the more expansive EU protection of works which are the creators “own intellectual creation”. As such, the decision is almost certain to rock the boat in terms of which subject matter can be afforded copyright protection in the UK. This is unlikely to be the end of the story, it could well be a significant step towards disharmony between UK and EU copyright law

As for the question of what works of craftsmanship can be considered sufficiently “artistic” to be worthy of copyright protection, the judgement appears to favour evidence as to the intention of the creator. An analogy used by Liking’s counsel was to compare a pile of bricks in the Turbine Room of the Tate Modern, in which copyright would certainly subsist, versus a pile of bricks on a construction site, in which it clearly would not. This seems in line with the approach taken by the court.

Finally, it is also worth noting that while the UK entity of WaterRower bringing the action had not sought to protect the design as a Registered Design, it appeared that a related Swiss company appeared to have registered similar designs in the UK. UK Registered Designs can protect the appearance of all or part of certain products, including “the lines, contours, colours, shape, texture or materials of the product or its ornamentation” and can last up to 25 years (as compared to the much longer protection offered by copyright). This protection is likely to fill any perceived gap that arises from the judgement, at least for a period of time.

Andrew McDonald is an associate and Rebecca McConnachie is a trainee at Burness Paull