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Bike mechanics or an expression of a free and creative choice?

Posted on 29 June 2020

The Court of Justice of the EU (CJEU) has ruled that copyright protection may be available to products whose design is, in part, necessary to obtain a technical result: such as potentially the design of the iconic Brompton folding bicycle, sold in its current form since 1987. However, to be able to rely upon copyright, the creators of such works must demonstrate that those technical considerations did not prevent them from reflecting their personality in the work, as an expression of their free and creative choices. The Belgian court, which referred questions to the CJEU, must now assess this in relation to the Brompton bicycle.

The CJEU's decision, which follows its Cofemel decision last year, potentially bolsters the range of IP protection available for functional designs, with the duration of copyright protection being for the life of the creator plus 70 years. 

Significantly, the Brompton bicycle had been protected by a patent which had expired.  However, the CJEU said that the prior patent protection did not mean that the bicycle could not also attract copyright protection. Other products and designs, which may have had the benefit of a time-limited patent and design protection but has since expired, could now also seek further protection under copyright in appropriate cases.  


Copyright protects the form of expression of ideas. Its primary purpose is to reward authors for the creation of original works. Copyright protection has certain advantages over other IP rights; it does not need to be registered and provides protection for the creator's lifetime plus 70 years.

Brompton had obtained patent protection for its folding mechanism but this had expired. Get2Get, a Korean bike manufacturer, launched a visually very similar folding bike on the market in Belgium, and Brompton brought a claim for copyright infringement.

The Belgian court referred a number of questions to the CJEU as to whether copyright could protect the bicycle where its design was, in part, necessary to obtain a technical result. Get2Get argued that the design of its bicycle was a result of the technical challenge involved in producing a folding bike. The method of folding the bike therefore dictated its design – it argued the designer has no creative freedom to decide the resulting shape of the bike. Get2Get also argued the Brompton design therefore did not benefit from copyright protection because the shape was not original.


The CJEU decided that copyright protection, in principle, could extend to shapes that are partly dictated by technical considerations provided that this "has not prevented the author from reflecting his personality in that subject matter, as an expression of free and creative choices." Where, however, the realisation of the subject matter is solely dictated by technical considerations, rules or other constraints which leave no or little room for creative freedom, such that the idea and its expression have become indissociable, copyright protection will not be available.

Brompton pointed to the number of folding bikes on the market using different shapes to its model as evidence that its design was an expression of a free and creative choice. Whilst this was relevant, the CJEU said it was not a deciding factor in demonstrating originality. Further, in contrast to the Advocate General, the CJEU said that the alleged infringer's intention was irrelevant. Earlier patent protection for the bicycle and the effectiveness of the shape in achieving the technical result were relevant only insofar as they would reveal what was taken into consideration when choosing the shape of the product.

Accordingly, it will be for the Belgian court to consider the relevant aspects of the case, as at the date the bike was designed, irrespective of external or subsequent factors.

Impact of the decision

The judgment does not depart from established CJEU case law that prevents copyright protection extending to works where its technical function solely dictates its design. The subject matter (in this case, the design of the bike) must still satisfy the condition of originality.

A work is original where it reflects the personality of its author, demonstrating their free and creative choices. In practice, this test may still be difficult to meet where designs are constrained by technical function, but this will need to be assessed on a case by case basis.

It will be interesting to see how the Belgian court applies the CJEU's ruling. For designers, the decision, alongside Cofemel, is encouraging.  However, it also presents issues for those launching new designs as it broadens the potential scope of the earlier rights that need to be cleared, and raises policy questions over cumulation of IP rights and the need to balance protecting innovation with market competition.

We will likely continue to see an increase in assertion of copyright protection in relation to functional designs. However, certain UK copyright laws, in particular, may have to be revised given the inherent inconsistency with the CJEU approach (though it is open to debate as to how this issue will be dealt with post-Brexit).

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