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The interaction between copyright and patents

red bike

The bicycle case –Two preliminary questions submitted to the Court of Justice of the European Union by the Court (“ondernemingsrechtbank”/“tribunal d’entreprise”) of Liège regarding the interaction between copyright and patents

The facts underlying the case were as follows: A South Korean company was marketing a bicycle in Belgium that resembled a folding bicycle, designed by a British company. As the latter’s patent on the bicycle was already expired, the British company sued on the basis of copyright protection. The South Korean company, however, argued that the conditions for copyright protection were not met since the appearance of the bicycle was exclusively dictated by its technical function.

A work is considered to be the "own intellectual creation" of the author when he/she made creative choices in creating the work. This condition cannot be fulfilled when the appearance is determined by technical considerations, rules or other limitations since these are in conflict with the creative freedom of the author.

In Belgium, the theory of multiplicity of forms, according to which a form is not considered necessary to obtain a technical result if there is evidence that other possible forms are available which allow the same technical result, applies in copyright law. Unsure whether this doctrine is consistent with European Union (EU) law, the Court in Liège asked the Court of Justice of the European Union (ECJ) two preliminary questions regarding the interaction between copyright and patents (and/or other intellectual property rights).

The ECJ ruled –in line with its previous rulings on concurrence between Intellectual Property rights –that copyright protection is available for products whose form –or part(s) thereof –is necessary to obtain a technical result. However, in order to obtain copyright protection, the originality criterion must be met. The ECJ continued stating that if the form of the work (in this case the bicycle) is however exclusively determined by the technical function, there is no room for creative choices and therefore the originality criterion is not met.

Ultimately, it was up to the national court to take into account all the relevant elements of the case, as they existed at the time of conception of the bicycle.

In the end, the Court in Liège sided with the South Korean company and ruled that the various external features of the folding bicycle, considered both individually and as a whole, were not original since they were indeed determined exclusively by their technical function.

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