WaterRower (UK) Limited v Liking Limited (t/a Topiom)

For copyright protection of applied art under the Copyright Designs and Patents Act 1988, originality under the InfoSoc Directive operates as a gateway. The work must reflect the author’s personality through free and creative choices and must not be solely dictated by technical considerations.

That gateway does not eliminate the additional statutory requirement that a work of artistic craftsmanship possess artistic craftsmanship. The assessment is objective and multifactorial. Relevant evidence may include the author’s intentions, expert evidence, public reaction, craftsmanship, artistic expression and functional constraints. Mass manufacture, commercial purpose and machine assistance are not conclusive. More than mere eye appeal is required.

WaterRower claimed copyright in a series of water-resistance rowing machines, including an original prototype and later iterations, alleging that Liking’s TOPIOM machines reproduced substantial parts of those works. Liking denied copyright subsistence and counterclaimed for a declaration that the machines were not works of artistic craftsmanship.

The court first held that the pleadings and pre-trial exchanges sufficiently included the prototype. It then considered the interaction between section 4(1)(c) of the Copyright Designs and Patents Act 1988, retained EU law, the InfoSoc Directive and CJEU authority on originality and applied art. The central issues were whether the prototype and later modifications were original works and works of artistic craftsmanship, and whether infringement followed.

1. Pleading issue. The prototype was included within the pleaded Works, or alternatively the issue of copyright subsistence in it had been sufficiently circumscribed by the pleadings, disclosure, requests for information, evidence and cross-examination. Liking suffered no material prejudice. The prototype was therefore properly considered.
2. Retained EU law. The court held that the relevant pre-IP Completion Day EU legislation and CJEU case law remained binding. The InfoSoc Directive harmonised copyright protection for original works, including applied art, and removed the United Kingdom’s former discretion under Article 2(7) of the Berne Convention.
3. Originality. Applying Cofemel and Brompton, a work is original where it reflects the author’s personality through free and creative choices. Technical considerations may be taken into account, but copyright is excluded where the form is solely dictated by technical function. The prototype satisfied this originality gateway. The later iterations did not: their changes were predominantly workmanlike, practical and technically constrained, and did not reflect free and creative choices.
4. Artistic craftsmanship. Section 4(1)(c) could not be reconciled completely with the InfoSoc Directive. The court therefore applied the InfoSoc originality test as a gateway, followed by the domestic statutory assessment informed by Hensher and related authorities. The phrase must be construed as a whole, without a rigid judicial formula. The court may consider all relevant evidence objectively. Craftsmanship must contain artistic expression which is not wholly constrained by function. More than eye appeal is required. The prototype was skilfully made and visually striking, but its creation was directed towards a commercially successful rowing machine rather than an artistic justification for its own existence. It was not a work of artistic craftsmanship.
5. Outcome. None of the Works, including the prototype and later iterations, qualified as works of artistic craftsmanship. The infringement issues were therefore immaterial, although the court stated that, if copyright had subsisted, the TOPIOM machines would have reproduced a substantial part of the prototype and Liking would have had the necessary knowledge. The claim was dismissed. The counterclaim for a declaration was also dismissed because the declaration would serve no useful purpose.

First-instance decision. The judgment records an earlier case-management decision concerning the pleaded issues, but no appeal or earlier merits judgment in the same dispute.