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

Copyright: subsistence

Is Version 1 of the Works a work of artistic craftsmanship in which UK copyright subsists?

Are each of the subsequent Versions of the Works original copyright works of artistic craftsmanship?

Copyright: infringement

Did the Defendant:

Reproduce a substantial part of each of the above Works in:

The Topiom Model 2?

Argument about the Prototype's status in the case

"The Claimant is the owner of UK copyright subsisting in the original artistic works embodied in the series of water resistance machines shown in Annex 1 (the "Works")."

The issues in dispute. These should clearly emerge from the statements of case. The parties must draw up a list of issues which the court will have to resolve at trial. It is not necessary to list every sub-issue that may arise and this should not be done. The parties will be permitted to argue at trial any point which is both covered by the pleadings and which the opposing side should reasonably contemplate as falling within one or more of the listed issues. The trial judge may refuse to hear argument at trial on a point which does not satisfy those criteria.

Assessment

Witnesses

The WaterRower rowing machines and their creation

MOMA (Museum of Modern Art) Design Store in New York City, USA where it describes Mr Duke's design process and resulting product as;

The Conran Shop described the WaterRower as:

Rowing In Style - New York Times 24 April 1989

"rrSensory (sic) simulation keeps an exerciser motivated and alleviates boredom, according to John Duke, inventor of the WaterRower. The only sound the cherrywood rowing machine makes, Duke said, is "the soothing rush of water keeping time with the natural rhythm of your stroke".

St Louis Post Dispatch – 5 November 1989

"'My main goal was to create a fitness product that is truly a pleasure to use and that gives people the motivation for sticking with their exercise program.' Duke says.".

Boston Phoenix – 26 January-1 February 1990 issue

"Inventor John Duke, a former member of the US Olympic Rowing Team, says that his machine, "a harmonious marriage of elegant and practical engineering," offers an alternative to "aesthetically unappealing metal exercisers."

Identifying the Works

The Prototype

Other modifications to the different WaterRower versions

Technical drawing of a Key Block

"Q. The top and bottom were parallel in the patent, correct?

Correct. But the other difference was the bottom deck were parallel in a horizontal plane but the vertical planes were not parallel, because the bottom deck was a V-shape, because the foot board was glued with epoxy directly to the bottom deck in what is called a finger joint. So that the end of the bottom deck was as wide as the top end of the foot board. It was by moving the key blocks back that I was able to narrow the … bottom deck because it no longer had the same connection to the foot board."

Does copyright subsist in the Works?

The Law

S.1 of the CDPA

original literary, dramatic, musical or artistic works,

sound recordings, films or broadcasts, and

Artistic works.

In this Part “artistic work” means—

a graphic work, photograph, sculpture or collage, irrespective of artistic quality,

a work of architecture being a building or a model for a building, or

a work of artistic craftsmanship."

Legislative background

"However, it seemed anomalous that many applications of artistic works in the industrial sphere should be denied copyright protection, where they quite obviously displayed artistic elements. If the painter of an indifferent landscape or portrait received copyright protection, why should not the artist-craftsman who designed and made ornate and aesthetically pleasing table or dinner service? In France, the view came increasingly to be held during the course of the nineteenth century that the makers of such objects were entitled to copyright protection under the Law of 1793, and likewise that artists did not lose the protection which they enjoyed in relation to their 'pure' works by reason of the fact that they turned these to an industrial use, for instance, by using them as designs for utilitarian objects. In other words, there occurred a total assimilation of all works of art, however they were manifested or applied, to full copyright protection. So far as the separate designs laws were concerned, these continue to exist, but the possibility of cumulative protection under these as well as the copyright law was accepted (the former, of course, was of far less duration). This development did not take place immediately. Indeed, it took nearly a century before French law fully recognised the doctrine that has become known as 'unity of art'. In the course of this development, French courts and legislators experimented with a range of different criteria that would serve to distinguish artistic works from subject matter which was industrial and 'non—artistic' in character. These included the method of reproduction of the work, the purpose behind its creation, the predominant purpose of the work, the status of the creator, and its artistic value. Each was found unsatisfactory, because exceptions could always be envisaged which made the criterion in question unworkable or uncertain. They depend too much on the making of subjective and often arbitrary judgements. For example, utilitarian purposes may exist equally with artistic purposes, or maybe mixed together in differing degrees. How are such matters to be ascertained and weighed against each other? On the other hand, work may be intended to have a purely utilitarian purpose but still have clear artistic value, and vice versa. Again, 'pure' artistic works may still be made by processes that are 'industrial', while manufacturers of commonplace articles may still be artists, and vice versa. It was against this background of uncertainty that French law moved towards the adoption of the doctrine of 'unity of art', which has been explained by one distinguished commentator as follows:

In adopting this view, the French were taking the most extreme position. Although its all embracing nature may be criticized, it is logical and avoids the manifold difficulties that arise when an attempt is made to fix a boundary beyond which works of industrial art will not be protected. This was the case in many other European countries, including Italy and Germany, where their respective laws sought to exclude the more 'industrial' kinds of work from protection. Even more reluctant to protect such works was the UK which maintained a far more rigid separation, and after 1911 denied copyright protection altogether in the case of an artistic work, which was 'industrially applied' (defined to mean the multiplication of more than fifty objects to which the work was applied). On the other hand, the UK law after that date did accord protection to three-dimensional objects which were entitled 'works of artistic craftsmanship'. The origins of this new subcategory of artistic work were to be found in the Arts and Crafts movement of the late nineteenth century and the influence of such figures as William Morris and John Ruskin. The scope of the protection conferred, however, was uncertain, and give rise to considerable judicial difficulty in determining the degree of artistic merit that was required for protection to be accorded to such works, particularly in light of the fact that, as regards other kinds of artistic work, British law expressly excluded any requirement of artistic merit. … In consequence, it is unsurprising that no reference to 'works of applied art' or 'works of decorative art' was to be found in the definition of 'literary and artistic work' adopted in article 4(1) of the Berne Act 1886."

"It shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected. …"

The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as … works of applied art …"

"2(7) Subject to the provisions of Article 7(4) of this Convention, it shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected. Works protected in the country of origin solely as designs and models shall be entitled in another country of the Union only to such special protection as is granted in that country to designs and models; however, if no such special protection is granted in that country, such works shall be protected as artistic works."

The Design Directive

Article 17 of EU Directive 98/71/EC (the “Design Directive”) made on 13 October 1998 (and implemented in the UK by the Registered Design Regulations 2001) states:

“A design protected by a design right registered in or in respect of a Member State in accordance with this Directive shall also be eligible for protection under the law of copyright of that State as from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State.” (underlining added)

The InfoSoc Directive

European Parliament and Council Directive 2001/29/EC made on 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (and implemented in the UK by the Copyright and Related Rights Regulations 2003, amending the CDPA) ("the InfoSoc Directive") states in its recitals and operative articles;

The Designs Regulation

Is the UK bound by EU legislation such that it no longer has discretion to apply Article 2(7) of the Berne Convention?

Liking's resulting submission is that, if that discretion exists, the application of relevant CJEU cases C-683/17 Cofemel – Sociedade de Vestuário SA v G-Star Raw CV ('Cofemel') and SI, Brompton Bicycle Ltd and another v Chedech/Get2Get ('Brompton')(Case C-833/18) [2020] E.C.D.R. 9 (referred to as 'Brompton' after the name of the foldable bicycle which was the subject of the case) would not be binding on Member States (or the UK).

In this context Liking refers to Flos SpA v Semeraro Casa e Famiglia SpA (C-168/09) at [39] and Funke Medien NRW GmbH v Federal Republic of Germany (C-469/17) at [57]-[58] to support its positions that the CJEU accepts: (1) Article 17 of the Designs Directive in respect of copyright protection for designs operates to permit this discretion, and (2) that the InfoSoc Directive aimed to safeguard a fair balance between rights owners and users of protected subject matter and that this balance was contained in the Directive – such that it only harmonises certain aspects of copyright law.

In Cofemel, the UK (and other Member States) made representations on this asserted legislative incoherence. The AG Opinion (AG Szpunar) in that case acknowledged the arguments on the timing of the noted EU legislation and the provisions on the relevant discretion:

However, the AG was not convinced by the Member States' representations. Dealing with the various points in turn and summarising the conclusion that the protection of applied art by copyright is harmonised under the InfoSoc Directive:

The AG advice is effectively that the InfoSoc Directive removes (even if by silence on the issue) a Member States ability to apply Article 2(7) of the Berne Convention. The wording of Article 2 – "For Authors, of their works", being broad enough to ensure full harmonisation of copyright protection and therefore removing the previous discretion under Article 2(7) of the Berne Convention. The AG advice to the CJEU is not binding. However, the CJEU in Cofemel (and Brompton and its earlier decisions in this line of authorities) interpreted the wording of the InfoSoc Directive to provide harmonised copyright protection for subject matter to be protected as works on the basis they are original, without any further limitation i.e. including works of applied art. Member States (and the UK) are therefore no longer able to apply the principle of national treatment via Article 9(1) TRIPS.

I do not therefore accept this court has the discretion to ignore the relevant CJEU cases, including Cofemel and Brompton in relation to its treatment of applied art under section 4(1)(c) CDPA. In any event, even if I had agreed with Liking's submissions on this issue, it is not for this court to go behind this CJEU case law (which Liking also appear to accept is binding on this court). It is therefore the interaction of this EU legislation and relevant CJEU cases and the UK legislation and case law that is material to my decision in this case. As a result, I will also need to consider the issue of conforming legislation when interpreting this EU legislation and case law in the context of the CDPA and UK case law.

The term "work of artistic craftsmanship" was first introduced in the 1911 Copyright Act, prior to the general use of gender neutral drafting. I have therefore used this expression as set out in the CDPA.

In October 1952 the Report of the Copyright Committee ("the Gregory Report") considered the interaction of artistic copyright and industrial designs. "With a view to minimising the overlap between artistic and industrial copyright caused by the widening extent of protection given to artistic copyright" the 1911 Copyright Act excluded protection of copyright for works capable of being registered as a design and mass production of that design. The Gregory Report also considered the definition of 'artistic works' in the context of 'works of artistic craftsmanship'. It did so in the context of the existing law where copyright protection was not available for works capable of being protected by industrial designs. Its focus was on "works of craftsmen working in many media (silversmiths, potters, woodworkers, hand-embroiderers and many others)" and that these works should attract copyright protection. Its conclusion at [260] was that it was not "practicable to draft a statutory definition equally applicable to each of the whole range of activities and of the varieties of materials used. Faced with these almost endless possibilities we feel that, as now, the decision in doubtful cases must be left to the Courts to decide on the facts before them, and we recommend that while the protection given to "works of artistic craftsmanship" should remain, the term should not be defined in the Act.".

The 1956 Copyright Act ("the 1956 Act") maintained the wording of the 1911 Copyright Act at section 3(1) protecting works of artistic craftsmanship:

The leading case on the meaning of section 4(1)(c) of the CDPA is the House of Lords case George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976] AC 64 ("Hensher"). Their Lordships consideration of the meaning of works of artistic craftsmanship in this case comes with an important caveat. The case was decided on the basis of a concession that the works in question were ones of craftsmanship – it was only the artistic element of the statutory phrase which was disputed.

In Response Clothing Limited v The Edinburgh Woollen Mill Limited [2020] EWHC 148 (IPEC) ("Response") His Honour Judge Hacon noted the difficulty in clearly identifying the ratio in Hensher as regards the meaning of a 'work of artistic craftsmanship'. He, in turn, referred to the decision in Lucasfilm Ltd v Ainsworth [2011] UKSC 39; [2012] 1 AC 208. In that case Lord Walker and Lord Collins (in combined judgments with which Lord Phillips and Lady Hale agreed) agreed with Mr Justice Mann's comments at first instance [29]:

Hensher concerned an item of prototype furniture. The House of Lords found unanimously that the furniture was not a work of artistic craftsmanship. The decision was in the context of the 1956 Copyright Act. The relevant wording of the CDPA has not altered since the 1956 Act.

The CDPA sections 4(1)(a) and (c) operate in the same manner as the equivalent 1956 Act sections 3(1) (a) and (c). In Hensher, Lord Reid explained, "…section 3(1)(a) makes explicit that the works to which it refers need have no artistic quality. … But section 3(1)(c) preserves the limitation that there must be "artistic" craftsmanship."

Parliament therefore intended a distinction between the tests for the protection of forms of copyright such as graphic works, photographs, literary, dramatic, musical, and for works of artistic craftsmanship. Works of artistic craftsmanship have the additional requirement that the work must have an artistic quality in its craftsmanship.

Lord Simon (p91C) recognised the nature of the concession in Hensher could tend to, "distort the argument by concentrating exclusively on the meaning of the word "artistic" in the statutory phrase.". His Lordship went on to explain that, "… "works of artistic craftsmanship" is a composite phrase which must be construed as a whole.". The issue for this decision is in part the application of meaning to a word (albeit within a composite statutory phrase) which "is not an easy word to construe or apply not only because it may have different shades of meaning but also because different people have different views about what is artistic." (Lord Reid p78B).

Their Lordships each provided a speech with reasoning relating to the interpretation of the statutory phrase. I set out below relevant excerpts from these speeches. I do so in some detail due to their relevance to the central issue in this case. Where possible, I have tried to extract a consensus of views and ratio in the context of the issues in this case.

Lord Morris (p81D) was of the view the statutory definition would not benefit from attempts by the judiciary to "formulate any kind of judicial definition of a word which needs no such aid" … "… I consider that in its place in the phrase "work of artistic craftsmanship" the word "artistic" will be well understood. As a word it can stand on and by its own strength. It needs no interpretation.". Viscount Dilhorne (p86H) agreed; "… proper interpretation of the words of the statute does not involve the formulation of any test or the application of any particular formula. Indeed, to lay down any such test or formula is to add to what is contained in the Act and I can see no justification for doing so." and that "The phrase "works of artistic craftsmanship" is made up of words in ordinary use in the English language. Unless the context otherwise requires, they must be given the ordinary and natural meaning.".

Lord Reid (p78E) continued, "… we must avoid philosophic or metaphysical argument about the nature of beauty, not only because there does not seem to be any consensus about this but also because those who are ignorant of philosophy are entitled to have opinions about what is artistic. I think that by common usage it is proper for a person to say that in his opinion a thing has an artistic character if he gets pleasure or satisfaction or it may be uplift from contemplating it. No doubt it is necessary to beware of those who get pleasure from looking at something which has cost them a great deal of money. But if unsophisticated people get pleasure from seeing something which they admire I do not see why we must say that it is not artistic because those who profess to be art experts think differently." and in discussing how to assess the virtue of an object being artistic Lord Morris (p82A) explained the potentially circular nature of deciding whether an object has the character or virtue of being artistic, "…some persons may take something from their idea as to what constitutes beauty or as to what satisfies their notions of taste or as to what yields pleasure or as to what makes an aesthetic appeal. If, however, there is a resort to these or other words which may themselves have their own satellites of meanings there must follow a return to the word "artistic" which is apt without expression to contain and convey its own meaning." and Viscount Dilhorne (p87B) "I am conscious ... of the need to avoid judicial assessment of artistic merits or quality…". I do not understand Viscount Dilhorne to be saying that the judicial assessment does not have to grapple with the question of whether a work has artistry in the craftsmanship as a quality of that work but rather that it is a determination of its presence rather than any qualitative or value based comment on that presence.

The view that the judicial assessment of works of artistic craftsmanship needs to avoid focusing on any qualitative assessment of the merits of the artistry is confirmed elsewhere in the speeches by their Lordships: (Lord Reid p78D) "… a court ought not to be called on to make an aesthetic judgment. Judges have to be experts in the use of the English language but they are not experts in art or aesthetics.", Lord Simon (p94G) "Not only is artistic merit irrelevant as a matter of statutory construction, evaluation of artistic merit is not a task for which judges have any training or general aptitude." and Viscount Dilhorne (p87B) "I am conscious … of the need to avoid judicial assessment of artistic merits or quality, but I do not think that any such assessment is involved in deciding whether a work is an artistic work.". The focus instead should be on the factors which assist a court in obtaining consistent findings on the issues in context in all but the most finely balanced cases; "…the court will endeavour not to be tied up to a particular metaphysics of art, partly because courts are not naturally fitted to weigh such matters, partly because Parliament can hardly have intended that the construction of its statutory phrase should turn on some recondite theory of aesthetics …" (Lord Simon p95A).

The Modern Law of Copyright (Fifth Edition) (generally referred to as Laddie, Prescott and Vitoria) picks up this point on p230:

Their Lordship's speeches in Hensher are more diverse in their views regarding the approches to be applied in the assessment of the statutory phrase.

Lord Simon emphasises that, "… the statutory phrase is not an "artistic work of craftsmanship," but a "work of artistic craftsmanship", and that this distinction accords with the social situation in which Parliament was providing a remedy." This social situation, the Arts and Crafts movement ideology and the legal background against which Parliament was legislating this section (in the 1956 Act) are set out comprehensively by Lord Simon at p88–91 with the objective that this historic context provides a landscape upon which to usefully assist when ascertaining the meaning of this statutory phrase. He concluded with the explanation that, "…"works of artistic craftsmanship" cannot be adequately construed without bearing in mind the aims and achievements of the Arts and Crafts movement, "craftsmanship" in the statutory phrase cannot be limited to handicraft; nor is the word "artistic" incompatible with machine production.".

Lord Reid (p78G) was of the view that, "It is I think of importance that the maker or designer of a thing should have intended that it should have an artistic appeal but I would not regard that as either necessary or conclusive. If any substantial section of the public genuinely admires and values a thing for its appearance and gets pleasure or satisfaction, whether emotional or intellectual, from looking at it, I would accept that it is artistic although many others may think it is it meaningless or common or vulgar." and that, "Many people- probably too many- buy things on eye appeal or because they are of a new or original design. But they would not claim therefore they thought that their purchase had artistic merit." (Lord Reid p79C). Therefore, works of artistic craftsmanship may often be aesthetically pleasing but such artistic expression in the craftsmanship and the aesthetic effect can come in different forms – it is not a popularity contest. For example, a craftsman's expression communicating a complex idea, emotion or view may have little or no traditional aesthetic value but could still benefit from protection as a work of artistic craftsmanship.

Lord Morris (p80H) followed this with his view that "…to qualify as a work of artistic craftsmanship a work must at least be a work of craftsmanship: but it must not only be that: it must have the added character of being artistic." and considered that (p81C) "… in this field personal judgment has to be formed: there are no absolute standards: there could be no scientific precision in measurement. Nor can there be unanimity in conclusion through a general consensus of opinion among those whose views command respect will surely be firm ground on which judgment in a court of law can be based. … If it is asked whether there is artistry if there is appeal to the eye I would say that something more is needed. … In deciding whether a work is one of artistic craftsmanship I consider that the work must be viewed and judged in a detached and objective way. The aim and purpose of its author may provide a pointer but the thing produced must itself be assessed without giving decisive weight to the author's scheme of things. Artistry may owe something to an inspiration not possessed by the most deft craftsman. But an effort to produce what is artistic may, if forced or conscious, for that very reason fail. Nor should undue emphasis be given to the priorities in the mind of a possible acquirer. … the object under consideration must be judged as a thing in itself. Does it have the character or virtue of being artistic?".

In this context, Lord Morris (p82B), in line with Lord Reid's view, emphasises the importance of contextual evidence in the assessment, "Though it is a matter of individual opinion whether a work is or is not artistic there are many people who have special capabilities and qualifications for forming an opinion and whose testimony will command respect.".

Lord Simon (p94H) also noted that relevant evidence could come from experts; "… whether the subject matter is or is not a work of artistic craftsmanship is a matter of evidence and the most cogent evidence is likely to be from those who are either themselves acknowledged artist-craftsmen or concerned with the training of artist-craftsman- in other words expert evidence.". In evaluating the evidence Lord Simon explained (p95B); "It is probably enough that common experience tells us that artists have vocationally an aim and impact which differ from those of the ordinary run of humankind. Given the craftsmanship, it is the presence of such aim and impact- which will determine that the work is one of artistic craftsmanship.". Lord Simon explained that 'eye appeal' was not determinative, " … the intention of the designer to produce an article which appealed to the eye of the beholder; I have already ventured to indicate why this is an inadequate criterion of art or the artistic.". I do not take that as meaning it is not relevant, rather that, on its own, aesthetics are unlikely to be enough.

Viscount Dilhorne (p85H, p86D) was of the view that, "An "artistic work" is no more and no less than a work of art. Every work of art is an artistic work and vice versa. How does one distinguish between what is a work of art and what is not? … mere originality in design does not make a thing an artistic work of art, I do not think that whether or not a work is to be regarded as artistic depends on whether or not the primary inducement for its acquisition or retention is its functional character. … A work which is one of artistic craftsmanship does not, I think, lose that character on account of its functional qualities. … I do not think it is right to say that every work which has eye appeal is necessarily a work of art, though some may be.". His Lordship also identified (at p87C) that expert evidence and contextual views of a relevant section of the public may assist, but not that "…it suffices to show that some section of the public considers the work to be artistic, though that fact will be one for the judge to take into account….".

The repeated phrase from Hensher quoted to me in this case is the need for more than "eye appeal" (Lord Morris, Lord Simon and Viscount Dilhorne ). This can be regarded in the same way as the statement by Lord Reid, that beautiful aesthetics may be assessed objectively as being present but eye appeal is "an inadequate criterion of art". That is not to say utility in design could not have "more than eye appeal". A driving characteristic of the Arts and Crafts movement was that "Artistic form should … be an emanation of regard for materials on the one hand and for function on the other." (Lord Simon p93C). Lord Simon concluded that " … the whole antithesis between utility and beauty, between function and art, is a false one – especially in the context of the Arts and Crafts movement." (p93B).

Lord Simon also provided some useful examples (p91-92) of crafts which craftsman may describe as artistic craftsmanship, some not. Regarding woodworkers, which has some relevance in this case, "In these intermediate- or rather, straddling- classes come, too, the woodworkers, ranging from carpenters to cabinet- makers: some of their work would be generally accepted as artistic craftsmanship, most not.".

Lord Kilbrandon (p96G, p97E) viewed artistic works of craftsmanship as works of art and focused on the intention of the author rather than the views of any section of the public on the work itself: "In my opinion, the first essential of a work of art (which I think an artistic work must be) if it is to be distinguished from a work of craftsmanship- a distinction which parliament insists- is that it shall have come into existence as the product of an author who is consciously concerned to produce a work of art. The work either is or is not a work of art before anyone except the author has seen it; it does not depend for its artistic character, whether favourable or unfavourable, of other people who may make value judgments about it. It must be possible to deduce conscious purpose of artistic creation from the work itself or from the circumstances of its creation, but this act arises only when the question whether it is a work of art becomes one for discussion or a decision by others than the author. Merit is another matter altogether. It's been said that the courts will be reluctant to make aesthetic appreciations, and that is right, not because so to do would be difficult for a judge or unseemly, but because it is a decision which in this context, is not required. … The conscious intention of the craftsman will be the primary test of whether his product is artistic or not; the fact that many of us like looking at a piece of honest work, especially in the traditional trades, is not enough to make it work a work of art. … You will get no assistance, until you have exercised that judicial function, by asking the opinion of an expert; if he says "I regard that object as artistic," the next question which must be asked in order to make his answer intelligible is "What do you mean by artistic?" That question is incompetent, because the answer would be irrelevant. Since the word is a word of common speech it requires and permits of, no interpretation by experts. It is for the judge to determine whether the object falls within the scope of the common meaning of the word."

Regarding an objective of commercial success for an object in question Lord Kilbrandon (p98A) focused on the process taking place, "… in that factory as those draughtsman worked on their job. No one thought he was assisting at the delivery of a work of art. … During all his hours and weeks of hard work which the witnesses describe there was no suggestion that there was present to their mind any desire to produce something of beauty which would have an artistic justification for its own existence. The objective was equally honourable but fundamentally different one of producing a commercially successful chair, whether its creators thought that it had intrinsic beauty or that it had not."

Lord Simon (p91D) in recognising the issue created by the concession in this case went on to consider the identification of a craftsman in this context: "A work of a craftsmanship, even though it cannot be confined to handicraft, at least presupposes special training, skill and knowledge for its production. … " Craftsmanship,", particularly when considered in its historical context, implies a manifestation of pride in sound workmanship- a rejection of the shoddy, the meretricious, the facile. But the craftsmanship- not the work itself- must, in addition, be artistic." … (p94E) "It is therefore misleading to ask, first, is this a work produced by a craftsman, and secondly, is it a work of art? It is more pertinent to ask, is this the work of one who was in this respect an artist-craftsman?". The statutory phrase does not break down into discrete questions - is this the work of a craftsman and is it art.

The parties also addressed me on a considerable number of other relevant cases. These included in the context of the findings in Hensher: Response, Bonz Group (Pty) Ltd v Cooke [1994] 3 NZLR 216 ("Bonz"), Vermaat (t/a Cotton Productions) v Boncrest Ltd (No.1) [2001] FSR 5, ("Vermaat"), Burge v Swarbrick [2007] HCA 17 (High Ct of Aus) ("Burge") and Lucasfilm Ltd v Ainsworth [2008] ECDR 17 ("Lucasfilm").

In Lucasfilm Mann J applied Hensher in considering the meaning of artistic craftsmanship - a case about Stormtrooper helmets and armour. In doing so, the Judge referred to the Bonz case of the New Zealand High Court (a case about woollen sweaters). In that case, Tipping J considered Hensher and other relevant authorities. Tipping J confirmed the relevant provision in the New Zealand statute was identical to the one we are concerned with in this case.

At [131] Mann J noted Tipping J's summary of his view on the interpretation of artistic craftsmanship:

In coming to this conclusion Tipping J considered (p224 l3-5 Bonz) the product, viewed objectively, would have a bearing on the question of whether it was a work of artistic craftsmanship. Tipping J was not making "… the Court an arbiter in comparative terms of the merits of an allegedly artistic product. It simply recognises that for a work to be one of artistic craftsmanship it must … have some artistic quality.". Tipping J therefore follows Hensher in recognising that the work of an artist craftsman must have "some artistic quality".

Mann J also endorsed the view of Tipping J that a work of artistic craftsmanship can be created by combining the "artistry of the designer and the craftsmanship of the knitters" where there is an appropriate nexus between two people - working together with one conceiving the design and others working (as the designer intended) from those designs.

Vermaat (t/a Cotton Productions) v Boncrest Ltd (No.1) [2001] FSR 5 was also referred to by Mann J. This case dealt with bedspread designs. The Judge, Evans-Lombe J, approved Tipping J's analysis and found that it may be "… the making of the samples by the Indian seamstress was a work of craftsmanship, I do not find that the result was sufficiently artistic … The result of the second claimant's designs may be pleasing to the eye but do not seem to me to exhibit the necessary requirement of creativity.".

Mann J [134] found in Lucasfilm that the production of the articles by Mr Ainsworth was an act of craftsmanship; "… he produces high quality products and has a justifiable pride in his work. He is not a slavish copier, or a jobbing tradesman. The production of the helmets and armour required the activity of a craftsman to realise the vision of the creators of the film in this respect.", but the articles were not works of artistic craftsmanship. The Judge considered the intention of the craftsman as being relevant: "Their purpose was not to appeal to the aesthetic at all. It was to give a particular impression in a film. … It was no part of their purpose that it should in any way appeal as a piece of art; or that it should be admired for any aspect of its appearance as such …".

In the context of the assessment of a work of artistic craftsmanship Mann J proposed a further consideration (albeit one specifically noted not to be a general test) was to review the products of the Arts and Crafts movement as exemplars. In doing that, he found at [134], considering the products objectively, that the helmet and armour "… share nothing of the conceptual purpose of such products. A work of artistic craftsmanship does not have to be something of which William Morris would have been proud, but it is a not wholly irrelevant test in a case like the present to consider whether he would recognise it as having anything at all with what his movement was seeking to do. … Unlike a work of artistic craftsmanship, they were not intended to sustain close scrutiny.". This is similar to Lord Simon's position in Hensher that ""works of artistic craftsmanship" cannot be adequately construed without bearing in mind the aims and achievements of the Arts and Crafts movement" (p91B). However, just because William Morris "would have been proud" of a work does not mean it is protectable as a work of artistic craftsmanship, just as, for example, not all Shaker styled furniture would necessarily be protected.

The other main authority focused on by the parties in the interpretation of the relevant approach in the post-Hensher line of cases is Burge (referenced by the Supreme Court in Lucasfilm [2011] UKSC 39). This case dealt with the subsistence of copyright in a "plug" from which the mould of a yacht hull could be derived. The Judges of Australia's highest court applied the Copyright Act 1968 (Cth) as amended by the Copyright Amendment Act 1989 (Cth) considering the statutory phrase "a work of artistic craftsmanship". In that context, the legislative purpose [50] "…was the encouragement of "real artistic effort" in industrial design." was argued by Liking to skew the underlying analysis.

In coming to their conclusion that the relevant works were not ones of artistic craftsmanship the court referred extensively to Hensher and the UK legislative background. The relevance of different forms of evidence in that exercise was considered at [63]: "The answer to the question whether the Plug is a "work of artistic craftsmanship" cannot be controlled by evidence from Mr Swarbrick of his aspirations or intentions when designing and constructing the Plug. His evidence was admissible. But the operation of the statute does not turn upon the presence or absence of evidence of that nature from the author of the work in question. The matter, like many others calling for care and discrimination, is one for the objective determination by the court, assisted by admissible evidence and not unduly weighted down by the supposed terrors for judicial assessment of matters involving aesthetics."

The court determined [73] that:"… taken as a whole and considered objectively, the evidence, at best, shows that matters of visual and aesthetic appeal were but one of a range of considerations in the design of the Plug. Matters of visual and aesthetic appeal necessarily were subordinated to achievement of the purely functional aspects required for a successfully marketed "sports boat" …"

The thread the court identified as running through Lord Simon's speech in Hensher is the significance of functional constraints. Recognising the importance of avoiding any attempt at an "exhaustive and fully predictive identification of what can and cannot amount to a "work of artistic craftsmanship" the Judges confirmed the assessment [83] did not "… turn on assessing the beauty or aesthetic appeal of work or on assessing any harmony between visual appeal and its utility. The determination turns on assessing the extent to which the particular work's artistic expression, in its form, is unconstrained by functional considerations. … The more substantial the requirements in a design brief to satisfy utilitarian considerations … the less the scope for that encouragement of real or substantial artistic effort.".

However, an article designed for mass production or created via a machine is not a determinative factor on whether copyright would subsist (Hensher, Lord Simon p91B). HHJ Hacon in Response, following Tipping J in Bonz, confirmed a craftsman in this context does not need to make the object with their own hands. There is a spectrum within which – in HHJ Hacon's example - a potter could be a putative craftsman: "at one end a pot is made only using the hands of the potter, then using a foot-driven wheel, then using an electric wheel, through various further stages of development leading finally to a process at the other end of the spectrum which, although controlled and directed by the potter, is carried out by a high-technology machine so the potter does not touch the clay or the pot until finished and fully decorated.". In any spectrum, such as the one referenced by HHJ Hacon, there will come a point where, in context, the distancing of the craftsman and their creativity from the creation of the object is such that they are no longer creating a work that would be considered as utilising craftsmanship. The relevance of a machine in the manufacture and shaping of an object is a factor to be considered in the context of whether the creative actions were those of an artist craftsman.

Finally, on these core authorities, the decision of HHJ Hacon in Response considered whether copyright subsisted in a wave arrangement design woven into fabric. In that case, the Judge considered a number of the authorities referred to above, including Lucasfilm, Bonz and Hensher. In summarising the inconsistencies in Hensher the Judge considered the wave fabric would not have been assessed a work of artistic craftsmanship under any of the differing analyses in Hensher. However, on the basis of that lack of a unifying binding principle of law in Hensher, the Judge adopted the summary of a work of artistic craftsmanship in Bonz and arrived at the conclusion the Wave Fabric satisfied the requirements of s.4(1)(c) CDPA.

The Judge also considered the impact of EU law on his decision and concluded that there were potentially significant issues of conformity with the UK law: "Complete conformity with art.2, [Art.2 of Directive 2001/29/EC of 22 May 2001] in particular as interpreted by the CJEU in Cofemel, would exclude any requirement that the Wave Fabric has aesthetic appeal and thus would be inconsistent with the definition of work of artistic craftsmanship in Bonz Group.".

The English and other linked authorities referred to in this case exemplify the differences taken in approaches to determining what is a work of artistic craftsmanship, including the relevance of the author's intention and expert evidence. As a result, the parties focused on different factors in the evidence as being the material ones to be considered and the appropriateness of others being allowed as part of the consideration.

The leading copyright texts take differing views in approaching this issue:

One analogy presented to exemplify the relevance of context in this approach was Liking's counsel's description comparing two identical 'piles of bricks' – one presented in the Turbine Hall of the Tate Modern Gallery and the other on a construction site. The point being to draw out the contextual relevance of the evidence. A craftsman's intention to create a work of artistic craftsmanship could well, depending on the context, be relevant in the assessment, although it is unlikely to be determinative. For example, a craftsman, acknowledged for their artistry in crafting works, may have decided to make a commercially valuable artistic work product for mass production using AI software to come up with a relevant design and a 3-D printer to make it. Alternatively, a craftsman with the best of intentions to create a hand-made work of artistic craftsmanship may fall short of fulfilling the statutory requirements. When considering recollections of an author's intention it will usually be important to bear in mind how much time has elapsed since the creation of the article and the assistance of relevant contemporaneous documents.

These differing and overlapping approaches again demonstrate the difficulty in attempting to further define how the court should approach the evidence and assessment of the statutory phrase.

I am not aware of any discernible binding precedent in the case law considered which would exclude me from construing s.4(1)(c) CDPA to allow an assessment of that provision to include consideration of all the relevant evidence in performing this multi-factorial analysis. Therefore, for example, the evidence from experts, views of relevant parts of the public and the intentions of the author may all be relevant. I accept the arguments that such evidence will likely involve elements of subjective personal opinion. For example, expert evidence is to some extent simply derivative, addressing the same questions the court needs to avoid addressing directly. However, the court is familiar with the evaluation of such evidence, considering it as a whole and considering it as part of its objective assessment. This nature of some of the evidence is not a reason to proscribe certain classes of evidence.

His HHJ Hacon noted in Response that the differing views in the speeches in Hensher make it difficult to identify binding principles of law. However, with some hesitation, it is worth trying to draw together some of these threads (although not necessarily unanimous and non-exhaustive in nature) from Hensher and the other authorities to assist with the approach to the relevant statutory question.

At the CMC in this case Deputy High Court Judge David Stone considered a strike out/summary judgment claim in this action. His decision, WATERROWER (UK) Ltd v Liking Ltd (t/a TOPIOM) [2022] EWHC 2084 (IPEC) addresses some of the issues relevant to this case, albeit from the perspective of an interim hearing. I have considered his helpful comments in the context of this decision.

In addition to being bound by the House of Lords in Hensher, this court is bound by the retained EU case law, including relevant CJEU decisions which interpret the InfoSoc Directive as implemented by the CDPA in the UK. Liking argue the CJEU's decision in Cofemel does not require any consideration of aesthetic visual effect and therefore of artistic merit, while Hensher requires more than eye appeal (more than visual appeal, that it must be artistic). Its position is there is a conflict of the laws of the UK and EU in the application of such protection.

Cofemel was a case about the protection of various clothing designs by copyright. It follows a line of case law of the CJEU on copyright protection under Art. 2(a) of the InfoSoc Directive. Referring to the earlier CJEU decisions of Infopaq International (C-5/08) [2009] E.C.D.R 16, and Levola Hengelo BV v Smilde Foods BV (C-310/17) [2019] E.C.D.R. 2, the court confirmed [21] the concept of "work" is "… clear from the Court's settled case-law, an autonomous concept of EU law which must be interpreted and applied uniformly, requiring two cumulative conditions to be satisfied. First, that concept entails that there exist an original subject matter, in the sense of being the author's own intellectual creation. Second, classification as a work is reserved to the elements that are the expression of such creation…".

The court went on at [30] to explain in the context of the first condition that for subject matter to be capable of being original "… it is both necessary and sufficient that the subject matter reflects the personality of its author, as an expression of his free and creative choices …". Subject matter with these characteristics qualifies as a work and therefore attracts copyright protection in accordance with the InfoSoc Directive.

If the realisation of that subject matter has been dictated by technical considerations, rules or other constraints, which have left no room for creative freedom, that subject matter cannot be regarded as possessing the originality required for it to constitute a work. The issue of technical constraints is considered in more detail by the CJEU in Brompton.

The court also confirmed at [32] the Levola Hengelo (C-310/17) decision that, regarding the second condition, giving guidance on the visual appearance of a potential work the CJEU explained an "…aesthetic effect that may be produced by a design is the product of an intrinsically subjective sensation of beauty experienced by each individual who may look at that design. Consequently, that subjective effect does not, in itself, permit a subject matter to be characterised as existing and identifiable with sufficient precision and objectivity…", as a work protected by copyright. Aesthetic considerations can play a part in creative activity but such an aesthetic effect [54] "… does not, in itself, make it possible to determine whether that design constitutes an intellectual creation reflecting the freedom of choice and personality of its author…". Liking argue this (see [50]-[54]) means that in considering Cofemel, the test for what is original and the interpretation of intellectual creation must have something more than aesthetic baked into it and that as a result this puts "reins on the "necessary and sufficient category"…" set out in [30]-[31] in order to be consistent with the protection of designs and the protection associated with copyright being cumulative "only in certain situations". If it is right that some form of 'higher' threshold than mere aesthetic effect is required then the test may be closer to that in Hensher and the related authorities. Assessing how to gauge what is or is not original is a matter that will develop over time. However, there is adequate guidance in Cofemel itself and English authorities applying the test to decide whether a work is original. The analysis by Liking regarding this issue, and particularly on the suggested influence of the protection of designs on the interpretation of whether an article is an author's intellectual creation, lacks definition, and does not change the underlying questions to be addressed in this case in identifying whether the Works are original in the context of the InfoSoc Directive. The question is, however, considered more generally below in the context of conformity with UK law.

The court in Cofemel therefore interpreted 'works' within the meaning of the InfoSoc Directive as "… precluding national legislation from conferring protection, under copyright to designs such as the clothing designs at issue in the main proceedings, on the ground that, over and above their practical purpose, they generate a specific, aesthetically significant visual effect.". This harmonised test makes no distinction about the nature of any 'work' beyond its being original. This statement and the test in Cofemel resembles the approach of the continental European 'unity of art' principle described in the noted Ricketson & Ginsberg article. Aesthetically significant visual effects can therefore be a factor in considering originality in the context of a work but is neither required nor sufficient. The InfoSoc Directive does not require a work within the meaning of the InfoSoc Directive to have any aesthetic effect.

Brompton followed Cofemel (and Response). This case focused on the freedom of choice of the author for a work where there are constraints on the design necessary to obtain a technical result.

Cofemel explained that where a shape is dictated by technical considerations [31] "… which left no room for creative freedom …" the subject matter would not possess the requisite originality. Brompton picked this up at [26] and confirmed that "… even if [the article's] realisation has been dictated by technical considerations, provided that its being so dictated has not prevented the author from reflecting his personality in that subject matter, as an expression of free and creative choices.". However, where the shape of a product is "solely" dictated by its technical function, that product cannot attract copyright protection. Applying this to the situation where there is a related patent, the CJEU determined such a patent is only relevant to the extent "… the effectiveness of the shape in achieving the same technical result … should be taken into account only in so far as those factors make it possible to reveal what was taken into consideration in choosing the shape of the product concerned.".

Marleasing SA v La Comercial Internacional de Alimentacion SA (C-106/89) ECLI:EU:C:1990:395 [1990] ECR I-4135 ("Marleasing") set out the principle by which domestic legislation (here amended domestic legislation implementing the InfoSoc Directive) must be construed "as far as possible in conformity with, and to achieve the result intended by, the directive" (summarised by Arnold J (as he was then) in SAS Institute Inc v World Programming Ltd [2010] EWHC 1829 (Ch) at [163]. In that case the Judge provided further related guidance in considering how to interpret a European directive: "... [a directive] falls to be interpreted according to principles of interpretation of European Union legislation developed by the Court of Justice of the European Union." and at [166-168] what is sometimes referred to as the teleological approach to interpretation in the light of the purpose of the legislation, referring to relevant contextual materials and (so far as possible) consistent with relevant international law. Liking's Counsel pointed out that "as far as possible" does not allow a Judge to distort the meaning of the domestic legislation. The meaning should "…go with the grain of the legislation being construed…" (Duke v GEC Reliance limited [1988] AC 618 (p639-640); Webb v EMO Air Cargo (UK) ltd (No.1) [1992] 4 All ER 929 (p939-940); [2001] UKHL 9, Vodafone 2 v HM Revenue & Customs [2009] EWCA Civ 446 [38] and [70].

Liking does not believe it is possible to reconcile the CJEU's decision in Cofemel with the House of Lords decision in Hensher. WaterRower Ltd acknowledge the difficulty and endorses the approach taken by HHJ Hacon in Response.

In Response, HHJ Hacon decided the Wave Fabric was original, in that its design was its author's own intellectual creation, and therefore a work within Art. 2 of the InfoSoc Directive. The Judge considered the conformity of this position with the CDPA. HHJ Hacon approached this difficult issue by first applying the EU law to assess if the Wave Fabric was original [59], "in that its design was its author's own intellectual creation, that design is a work within the meaning of art.2 of Directive 2001/29." He assessed the author had exercised their free and creative choices in devising the design and that, "in principle the design is entitled to copyright protection if Directive 2001/29 is applied.".

Therefore, what needed to be resolved [63] was "… whether it is possible to interpret s.4(1)(c) of the 1988 Act in conformity with art.2 of Directive 2001/29 such that the Wave Fabric qualifies as a work of artistic craftsmanship and thereby its design becomes entitled to copyright protection.". The Judge found there was conformity "up to a point". The reason being that Art.2 of the InfoSoc Directive as interpreted by Cofemel, "…would exclude any requirement that the Wave Fabric has aesthetic appeal…" and therefore would be inconsistent with the "definition of work of artistic craftsmanship stated in Bonz Group.".

The Judge then applied at [64] the summary definition of work of artistic craftsmanship from Bonz, with "clarifications which I believe to be consistent with the definition: (i) it is possible for an author to make a work of artistic craftsmanship using a machine, (ii) aesthetic appeal can be of a nature which causes the work to appeal to potential customers and (iii) a work is not precluded from being a work of artistic craftsmanship solely because multiple copies of it are subsequently made and marketed. No binding English authority has been drawn to my attention which prevents me from construing s.4(1)(c) in that way. Accordingly, the Wave Fabric is a work of artistic craftsmanship.".

Therefore, the Wave Fabric was assessed as being original and a work entitled to copyright protection where the InfoSoc Directive is applied. On the facts in Response, the Judge also found that the Wave Fabric was additionally a work of artistic craftsmanship under the UK law as set out by the Judge.

WaterRower Ltd's claim is restricted to the Works being protected by copyright as works of artistic craftsmanship pursuant to s.4(1)(c) CDPA. As in Response, if the Works in issue are not works of artistic craftsmanship, then the articles are not protected by copyright under the CDPA. In arriving at my decisions in this case I have been required to consider the impact of the InfoSoc Directive, including its noted purpose to provide a harmonised legal framework for copyright. Although the Issues before this court do not require me directly to decide whether the InfoSoc Directive has the effect of removing any 'gaps' there may be in UK copyright protection under the CDPA for works within the meaning of the InfoSoc Directive, such a decision is necessary to reach a conclusion on the Issues.

My finding (set out below) is that the Prototype was Mr Duke's own intellectual creation and an original work within the meaning of the InfoSoc Directive. However, unlike in Response, the Prototype is not entitled to copyright protection under s.4(1)(c) CDPA on the application of Hensher and the line of related authorities considered in this case. It is therefore necessary to address the situation that HHJ Hacon identified in Response as the inconsistency between the EU and UK positions.

In Bonz [131], as applied by HHJ Hacon, the Judge determined that an artist craftsman "… produces something which has aesthetic appeal.". As noted at [118] in this judgment Tipping J in Bonz also confirmed that the subject matter must have "some artistic quality". Hensher arguably goes further and requires something beyond "eye appeal" for there to be artistry in the craftsmanship of a work, "the craftsmanship- not the work itself- must, in addition, be artistic." [Lord Simon], "In my opinion, the first essential of a work of art (which I think an artistic work must be)…" [Lord Kilbrandon], to be a work of artistic craftsmanship" it must have the added character of being artistic." [Lord Morris]. Lord Reid made the point by addressing the plain words of the statute referring to sections 3(1) and (c) under the 1956 Act pointing out the fundamental difference - "…section 3(1)(a) makes explicit that the works to which it refers need have no artistic quality. … But section 3(1) (c) preserves the limitation that there must be "artistic" craftsmanship.".

In principle, Cofemel and the InfoSoc Directive's meaning of a work could subsume the requirements of s.4(1)(c) CDPA within its scope. In that situation, the requirements of the statutory phrases in s.1 / s.4 CDPA including "artistic craftsmanship" and "artistic quality" would need to have the same meaning – whether considering the situation where such artistic quality was required or where it was irrespective of that artistic quality. The only requirement being the work is original in that it was the author's intellectual creation. Therefore, it is necessary to either merge or diverge from the statutory demarcation between the different requirements of artistic quality in s.4(1)(a) and s.4.(1)(c) of the CDPA.

To achieve the harmonised position in Cofemel, the comments in Hensher regarding artistry and the need for more than "eye appeal" would need to be interpreted as equating to a work, which is not dictated by technical constraints, reflecting "the personality of its author, as an expression of his free and creative choices".

These tests have significant similarities and can be influenced by the standard applied to originality. However, in my view, it is not possible to reconcile these two positions. My reasoning on this issue includes: the interpretation of Cofemel, including the lack of any requirement of any aesthetic effect; the explanations in the line of English and linked authorities, including Bonz of the specific requirements for a work to satisfy s.4(1)(c) CDPA as compared to other works in s.1 CDPA; the relevance of the underlying ethos of the Arts and Crafts movement as explained by Mann J in Lucasfilm in the approach to considering s.4(1)(c), and the plain language of Parliament stating a different statutory test for works protected by copyright under s.4(1)(c) as compared to s.4(1)(a). To do otherwise would require the wording in s.4(1)(c) CDPA to have no meaning. The requirements of originality which harmonise copyright protection and the requirements under s.1 and s.4 of the CDPA (excluding s.4(1)(c)) do not stretch to the requirement of artistry in craftsmanship; to do so would go against the grain of the wording of the CDPA and distort the intention of Parliament.

In the circumstances, s.4(1)(c) CDPA cannot be reconciled with the InfoSoc Directive. HHJ Hacon foreshadowed this with his comment in Response that any UK law requirement that an original work, as construed under the InfoSoc Directive, must have "aesthetic appeal" would be inconsistent with the CJEU interpretation of that Directive.

It is therefore necessary to consider how to address the issues in this case. That is, how to construe s.4(1)(c) of the CDPA. Hensher and the line of authorities relied on in UK cases could simply be applied directly (a form of sui generis test) or, although s.4(1)(c) cannot be construed to conform with the InfoSoc Directive, it could still be applied along with Hensher and the UK and related authorities.

The court is under a strong duty of interpretation in considering the conformity of UK law in the light of the InfoSoc Directive. In this context, despite my conclusion that the provisions cannot be reconciled, there is still relevance in the application of the InfoSoc Directive in the assessment of s.4(1)(c) CDPA. As HHJ Hacon explained in Response when considering the Wave Fabric, "If it was not original, copyright does not subsist anyway and the meaning of 'artistic craftsmanship' is academic." . Therefore, in the application of s.4(1)(c) CDPA there should first be a consideration of whether the relevant work is original in the meaning of the InfoSoc Directive, that the " subject matter reflects the personality of its author, as an expression of his free and creative choices". I therefore now first consider each of the Works in the context of the EU law and noted ECJ decisions, including Cofemel and Brompton. This partial conformity would provide the assessment of originality of a work in accordance with the meaning of the InfoSoc Directive as a form of gateway. Only where a work is original is it necessary to then consider the application of the statutory phrase in s.4(1)(c) CDPA in the context of Hensher and the line of English and related authorities noted. I now apply this analysis of the law to the facts of the case. In doing so, I am conscious of the need to carefully assess all the evidence, including the circumstances of the creation and expression of the Works and their development, to allow the totality of the matter to be considered objectively.

Although the evidence shows there were a number of early partially completed prototypes, I have accepted the evidence that the Prototype is the first relevant completed article.

A rowing machine used by a human will to some extent require a shape that allows for the biomechanical movement of the human body to operate the machine. The precise ergonomics of the interaction of the human with the rowing machine is what can dictate the shape or part of it – for example the need for a rolling seat in a system where the human pulls on the handle and the line connected to the handle and thereby transfers forces to the footplate to allow the body to transfer energy from the leg movement. Mr Duke accepts these aspects of the WaterRower were 'copied' from the design of a scull.

The Prototype is technically restricted in certain aspects of its design to allow for the rowing machine to function mechanically. In other words, those aspects of its shape help achieve the technical result and were taken into account in choosing the shape of the product.

In this context I also considered the impact Mr Duke's US patent on these technical design choices, the Prototype shape and any remaining freedom of expression. Liking argued the US Patent teaches technical requirements that show how Mr Duke arrived at the shape and features of the Prototype i.e. in order to help him come up with the solution to the technical problem presented in the US Patent. There was no expert evidence on the US Patent (and in this case such evidence would have been unlikely to assist). To the extent the evidence on what the US Patent taught went to any relevant issues it deals primarily with how the water in the sealed container (tank) is turned around by the paddle/blade to simulate in-water rowing. This does present some restrictions on how that invention may be adopted, but even those are not entirely without flexibility. The US Patent also describes other aspects of a rowing machine. As noted, the diagrams in the Patent Application are those representing the Prototype. The argument goes that the other aspects shown in the US Patent demonstrate the elements needed to design the WaterRower rowing machine. For example, the sliding seat and the footrest - you cannot use the tank to simulate in-water rowing unless you have the seat, wheels on the seat, rails to move along and footrest to push against that allow you to simulate rowing. I do not agree that the teaching of a particular shape in the US Patent dictated the form of the claimed shape in the Prototype. For example, it did not explain the need for any required materials and how these should be constructed. The technical constraints dictated by the US Patent mainly relate to the sealed tank and the motion of the rotating paddle/blade.

Regarding the other technical constraints on the shape of the Prototype based on its functional requirements, Liking's counsel complained WaterRower Ltd have not set out precisely what intellectual creation in the shape of the Prototype is being claimed to attract copyright (and the other iterations). If, for example, it was just the seat, then the argument on functional restrictions is clearly more relevant. WaterRower Ltd's position is that copyright subsists in the intellectual creation of the overall shape of the Prototype. I agree that, in the circumstances, trying to break down the assessment into component elements making up the Prototype would be an impermissible dissection of parts of the claimed overall expression.

The evidence supports the position that Mr Duke is the sole author of the Prototype. Liking does not dispute this position. Mr Duke is open about his inspiration in creating the Prototype, including the 'beautiful' sculling boats and the end goal of developing a rowing machine that is 'better' than the noted Concept II Model A. Mr Duke did not copy the design for the Prototype. Any discussion that he copied the design from, for example, the overall shape of wooden shell sculls was necessarily a matter of interpretation not laborious replication.

Mr Duke has provided extensive evidence of the reasons he made the various creative and functional choices in his design of the Prototype back in 1987. These reasons included the experience Mr Duke was trying to re-create, like the sound and feel of rowing. These subjective experiences are not protectable. It is only the expression of the layout of the design that is relevant. His objectives in that expression are largely supported by the evidence from both parties, that the Prototype (or the genus of the WaterRower - as the articles discussing the various WaterRower's are dealing with a variety of models) is accepted by both consumers of the WaterRower, specialist and general news publications and design focused retail as being aesthetically pleasing. Also, Liking "doesn't deny that the WaterRower looks nice.".

In creating the Prototype, Mr Duke made choices in the layout of the Upper Deck and Lower Deck, the (relatively narrow) width of the Main Rails, the materials used (wood), the shape and finish of those materials (hand sanding/rounded edges/oiling), the carefully thought through relationships of the angles, spacings and joins relating the various component parts of the shape - including the Upper and Lower Decks to create "a repeating motif of parallel structural elements in different planes and scales".

Some of these choices made in creating the Prototype were functional constraints needed for the end use. There are a number of alternate ways the Prototype rowing machine could have been designed; each would have been subject to the noted functional constraints. The shape of the Prototype is primarily influenced by its requirement to operate as a rowing machine but its shape is not "solely" dictated by its technical function. There is room for Mr Duke to reflect his personality in the subject matter combining these striking visual elements as an expression of his free and creative choices. Mr Duke's Prototype is therefore original in that the design is his own intellectual creation as a work within the meaning of the InfoSoc Directive.

Although Liking accept that separate IP rights can be cumulative they make a policy point that in assessing any subsistence of copyright in this context the impact on the carefully calibrated levels of protection between IP rights should be considered. In this case, no design right was registered by WaterRower Ltd, although another company in its group, WaterRower Swiss GmbH did register a design in the UK which looks like a version of the WaterRower. The appropriate assessment for assessing the originality of a work is explained in Cofemel and Brompton. There is nothing in Liking's arguments that impacts this position.

The various modifications to the different Works claimed from Series 1 to Series 4 (Versions 1-8) are set out in Annex 2 to this judgment. WaterRower Ltd claim that each of these iterative Works from Series 1 to 4 reproduce the intellectual creation of the Prototype. Separately, it is claimed the combination of changes in each of these separate Versions 1-8 attracts its own copyright protection. I have therefore considered the evidence in relation to each of these iterations and set out below some of the salient features.

In Mr King's view the WaterRower "hasn't really altered that much Series 1 Version 1 and Series 4 Versions 8. Of the changes which were made, the main visible changes (i.e. not the internal parts or electronics or gears) were actually made between Series 1 Version 1 and the Series 2 (Versions 2, 3 and 4). … I do not regard the overall visual design of the Series 2 machines and what is now sold (Series 4 Version 8) as having changed very much).".

Mr Duke's evidence largely concurs: "The distinctions between the 'boat show' prototype and present WaterRowers were largely the manufacturability changes described …" and that some of the changes actually moved away from that aesthetic – such as the move from the stitching of the seat that "you would find in the seats of a fine sports car" to an artificial leather design "but I understood the change was necessary for manufacturability".

Other than the changes resulting from the movement of the Key Blocks which I deal with below, the iterative adaptations of the different versions of the Works appear designed to improve manufacturability, efficient assembly and supply issues. The details of these are best understood from the table related tabulated diagram in Annex 2, and also the explanation set out above under the section "Identifying the Works/Other modifications to the different WaterRower versions" [52]-[64]. I accept some of these changes could have been expressed in other, equally workmanlike, practical alternative designs. For example, even with the fine tolerances required in the product, the width of the seat wheels can be altered, the radius of the water tank corner can be increased from 1 inch to 2 inches and the material and fixings of the heal rests can be changed. However, these changes are all firmly in the camp of functional constraints or practical alternatives. Taken as a whole, the set of changes for each iterative version are technically constrained and mundane in nature, arising from the workmanlike, practical decisions behind the development of these adaptations. They do not reflect the personality of its author as an expression of their free and creative choices.

I accept the design choices for the Prototype and the design choices and changes arising out of the movement of the Key Blocks in Series 2 were solely down to Mr Duke. However, there were other contributors to the various iterative changes in the Works set out in Annex 2 including; Ralph Beckman, Henry Sharpe, Alex Caccia, and Peter King. On the basis of my conclusion that each of the Works in Series 1 to 4 / Versions 1 to 8 are not original works as set out in Cofemel and Brompton and in accordance with the InfoSoc Directive, it is not necessary to go on and consider any impact of the situation where there were multiple authors of some of the noted changes. If my decision had included these further adaptations in these models as being original, on the evidence it appears there would have been sufficient nexus between these other contributors.

The movement of the Key Blocks in Series 2 was an alternate practical solution to the positioning of the feet for the rower from above the Main Rails to between the Main Rails. The explanation from Mr Duke is that this change resulted in the creation of the memorable shape of a WaterRower "because that is what established the repeating motif of the parallel structural elements". However, as set out earlier in this judgment, the resultant change of the vertically parallel planes of the Top and Bottom Decks was present in Series 1. WaterRower Ltd only claims the iterative changes to the Series 2 model where the Key Blocks were moved to the new position. The assessment here excludes those elements claimed in the shapes from the earlier versions. Where the resulting changes improved the feeling of the user of being in a scull rowing on water, these changes are subjective, are not expressed in the article and cannot therefore be protected. A consequence of moving "the Key Blocks system was the new bolted on Footboard had to extend further up, all the way to the Top Deck, so this required a new shape for the Footboard.". Although not determinative, the 'consequential' and 'required' technically constraining nature of these noted changes reduces the ability of the author to reflect his personality in that subject matter.

The functional constraints in the adaptations in the Series 2 Model, including the movement of the Key Blocks, limited the creative decision making available to Mr Duke. It did leave some elements of choice and design for Mr Duke. For example, due to the new position, the footboard went from 'v-shaped' to having parallel edges. However, in part this was dictated by the location of the footboard being partly between the parallel Main Rails. Overall, the remaining freedom of the author to express his creative choices was modest. Taking all of these points into account, overall these changes do not reflect the personality of its author, as an expression of his free and creative choices and are not original within the meaning set out in Cofemel and Brompton and the InfoSoc Directive.

On the basis of my assessment that only the Prototype is an original work within the meaning of the InfoSoc Directive, I need to consider whether it would also qualify as a work of artistic craftsmanship. As the other Works are not original there is no need to consider whether they would qualify as works of artistic craftsmanship but, in the context of the developing nature of this area of law, I have briefly also set out my assessment on their positions.

Mr Duke's evidence evokes an idyllic impression of a graceful wooden scull being rowed. He compares the feeling of the slightly unstable, narrow scull shell, the noise of the rushing water and the graceful movements of the rower in sync with the boat with the feeling he wanted a user of the Prototype, and later model WaterRower's, to experience. I have no doubt that Mr Duke has a history and connection with this type of rowing or that he decided to develop a better rowing machine and that he did this mainly by hand, on his own, as the creator of the Prototype.

Mr Duke does not have a particular background in any trade associated with craftsmanship. His evidence demonstrated significant effort and skill in the creation of the early development of Prototype. This included the choice of materials, the wooden frame, the nature of the joints, the shapes chosen for the different parts of the Prototype frame and the hand finish – for example sanding edges to create a "smooth and blended" corner. In the circumstances, this demonstrates "a manifestation of pride in sound workmanship- a rejection of the shoddy, the meretricious, the facile.".

Liking correctly point out the design of the WaterRower products, including the Prototype, have considerable technical functional constraints in the choice of shape - such as the rolling seat, the need for some form of footboard for the human user to exert force against and the distances involved in the dimensions of the device to fit with the biomechanics of a human using the machine. However, there remains considerable room for Mr Duke to make choices in the design. For example, the narrow proximity of the Main Rails and the choice of a repeating horizontal and vertical parallel motif in different planes and scales. I also accept that the Prototype was created in a careful manner to preserve and enhance the beauty of the natural wood used in the design.

The evidence supports the argument - including from the articles in general newspapers and commercial journals - that a significant section of the public found the WaterRower design aesthetically pleasing. The presence of the WaterRower models in commercial design store's – including MOMA – indicates the high regard for the quality of the design.

However, in my view, these useful contemporaneous documents do not give the impression the subject matter was the result of a mind with a desire "to produce something of beauty which would have an artistic justification for its own existence" (Hensher Lord Kilbrandon p98C) or "was an artist in that he used their creative ability to produce something which has aesthetic appeal." (Bonz). The early video interview of Mr Duke on the "Inventor - News Network" supports the view that WaterRower was a commercial development, chosen from a number of rowing machine ideas, as the design most likely to achieve Mr Duke's business goals of creating a commercially successful rowing machine with a design of aspirational sensory impact. I do not accept Mr Duke's evidence that his intention (there could of course have been more than one intention) was to create a work that went further, one where the craftsmanship in its creation was artistic.

The carefully hand-crafted, visually striking Prototype appears to have achieved Mr Duke's goals of creating a rowing machine with a sensory and visual experience that was different to other rowing machines at that time. These, along with the other factors that have been discussed are relevant, but none are determinative in this assessment.

I have not been addressed on any binding ratio in Hensher or other English authority that prevents me from assessing all these factors in my assessment when construing the statutory phrase.

In the circumstances, construing the statutory phrase, given its "ordinary and natural meaning" as a composite question, and considering the multi-factorial nature of the evidence, I have decided the Prototype is not a work of artistic craftsmanship within the meaning of s.4(1)(c) CDPA.

The cited authority relied upon in Response and other authorities noted was Bonz. In the circumstances, with due respect for the noted line of authorities, I have also considered in the alternative whether the Prototype would satisfy the Bonz summary of what constitutes a work of artistic craftsmanship.

With some noted clarifications (each of which I have dealt with in this judgment) HHJ Hacon adopted Tipping J's summary of what constitutes a work of artistic craftsmanship. As set out in Response at [36] it is necessary to consider if Mr Duke was both: "(a) a craftsman in that he made the Prototype in a skilful way, taking justified pride in his workmanship and (b) was an artist in that he used their creative ability to produce something which has aesthetic appeal.". In Hensher Lord Morris explained, "… proper interpretation of the words of the statute does not involve the formulation of any test or the application of any particular formula. Indeed, to lay down any such test or formula is to add to what is contained in the Act and I can see no justification for doing that for doing so.". The challenges which come with approaching s.4(1)(c) CDPA do not improve by deriving a further framework for that approach. In the Bonz Test craftsmanship and artistry are stated as separate requirements, albeit as conjunctive requirements. The rephrased test requires the artist to "produce something which has aesthetic appeal". In this context I understand that such aesthetic appeal is not to be limited to "eye appeal". Although formulated differently in the context of the facts in Hensher, Lord Simon indicated, "It is therefore misleading to ask, first, is this a work produced by a craftsman, and secondly, is it a work of art? It is more pertinent to ask, is this the work of one who was in this respect an artist-craftsman?".

Mr Duke can be considered a craftsman in the context of his creation of the Prototype for the reasons explained. I have found that Mr Duke used his skills to create the Prototype and that it has aesthetic appeal. However, Tipping J explained, in coming to his summary view, that "for a work to be one of artistic craftsmanship it must, in my judgment, have some artistic quality.". I have determined that in his creation of the Prototype, Mr Duke did not have the character of an artist craftsman. I accept the arguments are somewhat circular. This reflects the difficulty in formulating any additional test beyond the application of the statutory phrase. Therefore, in my view, the work would also not have been one of artistic craftsmanship following Bonz.

I was addressed on other authorities, including Burge, but, although useful context, in my view these do not take the approach any further forwards. The correct approach is to address the evidence with an objective assessment and apply the statutory wording, as set out above.

On the basis the Works claimed by WaterRower Ltd, other than the Prototype, were not original, there should be no need to separately consider whether they are works of artistic craftsmanship under s.4(1)(c) CDPA. As HHJ Hacon noted in Response, "if [the article] was not original, copyright does not subsist anyway and the meaning of 'artistic craftsmanship' is academic.". However, in the context of the issues in this case it is prudent to provide my views on the alternative, where I am not right on my primary view.

The evidence and analysis above at [173] supports Liking's position that the amendments made to the Works set out in Annex 2 to this judgment were undertaken for the purpose of improvements to manufacturing and the commerciality of the WaterRower products. For example, the change in number (from 3 to 4) of the Rail bumper feet and their spacings, the width of the Seat wheels or the Handle rest becoming injection moulded. These are just examples. It is important not to perform an over-meticulous dissection of the individual features rather than considering the overall changes for each claimed model. The nature of the changes are workmanlike, practical alternative adaptations. The purpose of the changes is also predominantly of a practical nature improving the manufacturability and commerciality of the WaterRower. Many of the changes are based on cost and efficiency. I accept Liking's position. The changes in each of the different models claimed as Works in Versions 1-8/Series 1-4 (and subject to the comments on the Key Blocks change below) are not works of artistic craftsmanship. This view would be the same whether assessed on an objective multi-factorial assessment construing the composite statutory phrase or on the basis of the Bonz Test.

The movement of the Key Blocks and the resulting changes to the expression of the Series 2 model allow for more creative freedom in the choices. However, for the same reasons discussed in [175] – [176], including the points noted in the evidence regarding the change in emphasis to manufacturing and construction efficiency and cost from the creation of the Prototype, the movement of the Key Block in Series 2 (and the other associated modifications noted in Annex 2) is not a work of artistic craftsmanship. My view is the same applying Bonz.

Therefore regarding Issues 1 & 2 - copyright subsistence - none of the Works are works of artistic craftsmanship.

WaterRower Ltd's claim to ownership in the copyright is based on a number of assignments set out in Annex 4 to the APOC and is unchallenged. WaterRower Ltd is the owner of any copyright subsisting in the Works (including the Prototype) in this case.

Although I have determined no copyright subsists in the Works as works of artistic craftsmanship, for the same reasons noted previously, I have provided some views on the issue of infringement. On the basis I did not accept any of the Works other than the Prototype was original I have restricted these comments to the issue of indirect infringement based on the Prototype.

Liking accept that the TOPIOM models 1 and 2 are copies of Series 4 Version 8 model of the WaterRower. This is subject to there being copyright subsisting. It also accepts the models have been sold and/or offered for sale in the United Kingdom.

As well as copying, the partial transcript of the CMC in this trial bundle indicates that Liking may accept infringement if the Series 4 WaterRower is a work of artistic craftsmanship and copyright subsists. However, the issue still appeared to be in dispute at trial. I have therefore made the following comments.

The changes made between the Prototype and the Series 4 Version 8 model are mainly detailed in Annex 2. There were also some referenced changes between the Prototype and the Boat Show Prototype, see [49] where Mr Duke confirms they were "largely the same". Over the different series there are a considerable in number of changes but they have a limited impact on the overall visual appearance. The most significant change is in Series 2 with the movement of the Key Blocks. The main visual changes of note are the lowering of the footplate with the movement of the Key Blocks and the introduction of the vertically parallel Top and Bottom Decks.

The same evidence relating to the contemporaneous review articles and, for example, the placement of a WaterRower in the MOMA Design shop over the last 16 years is relevant to the Series 4 Version 8. The manufacturing and commercially motivated changes through the various models does not appear to have impacted on the views that the WaterRower remains aesthetically pleasing. The Series 4 Version 8 model has not become dictated by technical function in a way the Prototype was not. It effectively has the same overall shape and expression as the Prototype: the layout of the Upper Deck and Lower Deck, the (relatively narrow) width of the Main Rails, the materials used (wood), the look of the finish of those materials, the carefully thought through relationships of the angles, spacings and joins relating the various component parts of the shape - including the Upper and Lower Decks to create "a repeating motif of parallel structural elements in different planes and scales". The increased distance between the Main Rails does not detract from this overall image. Considering the overall shape of the entire work, the expression of the Series 4 Version 8 WaterRower model is original as a reproduction of intellectual creation of the Prototype. Annexes 4 and 5 to the APOC provide a detailed comparison between the WaterRower Series 4 Version 8 model and each of the TOPIOM models 1 and 2. The TOPIOM Models 1 and 2 and the WaterRower Series 4 Version 8 are virtually identical. There are some minor differences but there is no question they reproduce a substantial part of the Series 4 Version 8 model, retaining Mr Duke's intellectual creation of the Prototype.

As regards knowledge for indirect infringement, HHJ Hacon sets out the relevant law in Response at [89]-[93] and [102]. Liking appear to take the point that, as it did not appreciate the Works attracted copyright (for which, on my view, they were right), if copyright had subsisted, this would have been a defence even where they were aware of other relevant facts (including, as the disclosure and evidence of Mr Fu shows, assessing the other intellectual property rights in the WaterRower products – such as trade mark and patent rights). If it was taking that point, it would not succeed.

The evidence of Mr Fu and related disclosure establishes that Liking was "involved in the specification of the design and the packaging of the product" and was well aware of the WaterRower products in the context of the development and marketing of its TOPIOM models. In cross-examination it was confirmed that the disclosure documents recorded one of the manufacturers Liking worked with acknowledging it was adopting a counterfeit of the WaterRower – not via any independent creation. Mr Fu also accepted the product (the TOPIOM models) made by another manufacturer, chosen later, was different to the WaterRower counterfeit proposed by the other manufacturer but that it was "not a huge difference". Considering the evidence and the facts known to Liking, the similarity of the TOPIOM models 1 and 2 would have been obvious. Viewed objectively, Liking would have arrived at the belief the TOPIOM Models 1 and 2 were infringing copies (or a reasonable person would believe that dealing in the copies would be in breach of the copyright held by another party). In any event, if there was any question over this knowledge, it would have been dealt with by the letter before action from WaterRower Ltd on 29 November 2019.

On the basis of my decision that the Works do not attract copyright the answers to Issue 3 are not relevant. However, if I am wrong and the Prototype was a work of artistic craftsmanship the answers to Issue 3 are: (a) Yes, Series 4 Version 8 was copied, (b) Yes, a substantial part of the Prototype was reproduced in TOPIOM models 1 and 2, and (c) Yes, Liking had the relevant knowledge.

Liking has a counterclaim for a declaration of non-infringement on the basis that no copyright subsists in the Works. The requested declaration is in the form "That the WaterRower is not a work of artistic craftsmanship.". As explained, the parties' pleadings use different definitions for the Works in dispute. Here 'WaterRower' means the Works. On the basis of my assessment that the Prototype is part of the Works, it would be included in any declaration. My decision is that the Works are not works of artistic craftsmanship. I can therefore make the requested declaration.

The Senior Courts Act s.19 provides the court with the jurisdiction to make such a declaration. CPR Part 40.20 provides this Court with discretion on whether to grant a declaration, whether or not any other remedy is claimed. Nokia Corp v Interdigital Technology Corp [2006] EWHC 802 (Pat) sets out considerations a Court should take into account when deciding whether to grant such a negative declaration. The salient issue here is whether the declaration serves a useful purpose. Every case where there is a decision similar to the one in this case does not require a related declaration. There needs to be a purpose which is useful to help ensure the aims of justice.

The evidence of Mr Fu on this point is that the case brought by WaterRower Ltd has resulted in Liking reducing staff numbers due to "business relating to the Topiom Model 2 and new product development difficult and uncertain in the UK". On cross-examination Mr Fu could not "predict if the defendant wins the case, we can reach the sales like before.". Liking want a declaration for the purpose of certainty in the market place.

The decision in this case should bring some certainty to the situation. The explanation and detail in the evidence supporting the counterclaim and the asserted impact of the claim on market uncertainty is very limited. It does not, other than indirectly, give any insight into the likely market reaction to this case or the assistance any declaration may have on that uncertainty. In the circumstances, I do not accept the requested declaration would serve a useful purpose.

In relation to Issue 5 the requested declaration is refused and the counterclaim is dismissed.

Subsequent to the preparation of this judgment there have been two interposing decisions in quick succession which relate to aspects of this case. The parties have provided brief post-trial submissions.

This is a recent judgment of Ian Karet sitting as a Deputy High Court Judge in IPEC. The claims concerned infringement of copyright in works of artistic craftsmanship under s.4(1)(c) CDPA. The subject matter was high visibility equestrian products.

WaterRower Ltd note the Judge appears to have accepted Liking's submission that the position under CDPA and retained EU law was the same [47] "whether analysed under the cases on the CDPA alone or also considering the EU law approach". I am not sure this is correct. The statement referenced by the Judge is one of outcome – whichever test is applied the result is the same on the facts of this case. That is not necessarily the same as accepting the law under the CDPA and EU law is the same. WaterRower Ltd additionally criticises the application of retained EU law by the Judge, relies on the different facts and the lack of an explanation of any analysis of Hensher or if/how that case impacts on his assessment. The Judge explains at [49] that whether applying EU law or "An analysis under the older UK law" the result is the same. The decision explains the outcome applying s.4(1)(c) on the basis the work was "not the work of a craftsman". The Judge was addressed on Hensher. It is not clear if/how the Judge incorporated Hensher into his assessment.

Liking's position is that there is no new law in Equisafety and that the case reflects the difficulties in items being classed as works of artistic craftsmanship. This court is not bound by Equisafety but in any event I do not believe there is any ratio in it that impacts on the reasoning set out in this judgment.

Finally, WaterRower Ltd briefly addressed Liking's argument relying on the Defendant's position in Equisafety regarding Harper v National Coal Board [1974] QB 614: "In a case where the later court cannot discover the reasoning on which the majority of the House of Lords based their decision, the later court is free to adopt any reasoning so long that that supports the decision of the House." with the effect that "any work that would not have satisfied their Lordships in Hensher cannot now meet the statutory test.". WaterRower Ltd submits that the decision of the House of Lords in Hensher binds the lower court but not the reasoning, as it could not be discerned. I have noted the difficulties with the ratio in Hensher and my approach to the decision. These submissions and the ratio of Equisafety do not change that position.

On 24 October 2024 the CJEU gave judgment in Kwantum Nederland BV v Vitra Collections AG ("Kwantum"). The first point to consider is whether any CJEU judgment post implementation period ("IP") Completion Day on 31 December 2020 is binding on this court in this case (the Withdrawal Act introduced the concept of the IP after Brexit, and of IP Completion Day which would mark the end of that period). Lipton provides some guidance on this issue in the context of the Complete Code (that the EU Withdrawal Act is a complete code by which Parliament dealt comprehensively with the application in the United Kingdom of EU law following IP completion day). The Complete Code analysis being where a set of facts occur pre-Brexit (as here) which [59], "having regard to EU law which applied at that time, gives rise to a cause of action, the claimant's right to pursue that cause of action is brought forward as part and parcel of the bringing forward of the law itself…". Therefore section 6(1)(a) of the EU Withdrawal Act applies to this case and this court is not bound by Kwantum as a post IP Completion Day CJEU judgment. However section 6(2) of the EU Withdrawal Act provides that "a court or tribunal may have regard to anything done on or after IP completion day by the European Court, another EU entity or the EU so far as it is relevant to any matter before the court or tribunal.". In the context where this court can "have regard" to any relevant matters in Kwantum, Liking's position is that the decision simply underlines the divergence of the "closed categories of work set out in the CDPA and the Cofemel requirements". WaterRower Ltd's position is Kwantum is directly relevant in that it concludes that Articles 2(a) and 4(1) of the InfoSoc Directive apply to works of applied art and that the decision follows the applied art conclusions of Levola and Cofemel as to that test for the recognition of a work.

My conclusion above on this point at [88] is that prior to Kwantum, the EU legislative framework and ECJ case law removed the discretion of Member States under Article 2(7) of the Berne Convention and that the InfoSoc Directive and ECJ case law created a harmonisation of copyright providing for the conditions that works, including works of applied art relevant to s.4(1)(c) CDPA, are protected by copyright where they are original. Although the focus of Kwantum is on the second sentence of Article 2(7) of the Berne Convention (the material reciprocity clause) in my view the court confirms the full harmonisation of copyright under Articles 2(a) and 4(1) of the InfoSoc Directive and the consequential removal of a Member State's, including the UK, discretion under Article 2(7) of the Berne Convention. The Opinion of Advocate General Szpunar in Kwantum as approved by the judgment and in particular at [47], [75]-[80] and [89]-[90] of the judgment, confirms these points. Based on my earlier views it is not necessary to 'have regard' to the decisioning in Kwantum, but to the extent it is relevant, it supports my earlier assessment on this issue.

Addressing the Issues before this court;

Finally, in this legally complex case, I would like to thank the parties and their representatives for their assistance, in particular with additional submissions on the above noted recent cases. I also apologise to the parties for the delay in providing this judgment which has been due to various circumstances. I do not propose to allow such delay to occur again.

I direct that time for seeking permission to appeal shall not run until after the hearing on the form of Order (or the making of such Order if it is agreed).