Waterrower (UK) Ltd v Liking Ltd (T/A Topiom) [2024] EWHC 2806 (IPEC)
This was a copyright subsistence and infringement dispute relating to a series of developments of a water resistance rowing machine each of which were alleged to be works of artistic craftsmanship within s.4(1)(c) CDPA. The Defendant asserted that no copyright subsisted in the works, and counterclaimed for a declaration to that effect.
The case was heard in the IPEC by Mr Campbell Forsyth (sitting as a Deputy High Court Judge) in July 2023. Judgment was handed down in November 2024.
The judgment addresses the law on “works of artistic craftsmanship” under the CDPA, at European and International level. The Deputy Judge concluded that the UK court does not have a discretion to ignore relevant pre-Brexit CJEU cases relating to the treatment of applied art. He also recognised that there was a potential conflict between UK and CJEU authorities on the scope of works covered by those regimes, and tried to interpret the House of Lords decision in Hensher v Restawhile. The Deputy Judge concluded that under the CJEU line of authorities, the works were protectable as copyright works, but that they were not works of artistic craftsmanship under s. 4(1)(c) CDPA. The Deputy Judge also concluded that it was not possible to apply Marleasing to interpret the CDPA in accordance with the CJEU authorities, and proposed the following approach to assessing whether copyright subsists under s.4(1)(c) CDPA. Firstly, one needs to consider whether the relevant work is original within the meaning of the InfoSoc Directive. Secondly, if the work is original, one applies the terms of s.4(1)(c) interpreted in accordance with Hensher v Restawhile. The court focused on the judgment of Lord Kilbrandon, in the latter case, who proposed a requirement for the craftsman to have the desire “to produce something of beauty which would have an artistic justification for its own existence”.
The counterclaim was dismissed because the Defendant’s evidence did not demonstrate that a declaration would serve any useful purpose.
Jacqueline Reid appeared for the Claimant, instructed by Moore Commercial Law Limited.