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Does Technical Function Impede Copyright?


The question of whether appearance features of utilitarian objects with technical functions can benefit from copyright protection has become a debated issue in recent years, and it has also started to find a place in the decisions of the Court of Justice of the European Union (CJEU). In the decision of the CJEU, dated June 11, 2020, and numbered C-833/18, it was evaluated how appearance features of products with technical functions can benefit from copyright protection.

The dispute subject to the decision is based on the claim that appearance features of “Brompton Bicycles,” which have been produced and sold in the same form since 1987 by “Designer SI” and “Brompton Bicycle Limited Company,” and which can be adjusted to 3 different positions (folded, unfolded and stand-by) are copied in the production of “Chedech Bicycles,” produced by Get2Get, thus, infringing the copyright of the “Brompton Bicycle.”

Brompton Bicycle

Chedech Bicycle

The dispute was initiated at the local level before the Belgian Court, and it was discussed whether copyright protection must be provided in cases where appearance features are dictated by technical function, such as in the case of “Brompton Bicycles,” and what criteria the Court must use when conducting that assessment. At this point, the Referring Court decided to stay the proceedings, and referred the matter to the CJEU for a preliminary ruling.

The CJEU has made important findings for the sector in its decision, and framed the issue as whether the “Directive on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society,” numbered 2001/29/EC, should be applied in terms of products whose shapes are necessary to achieve a technical result, at least in part.

In summary, it was stated in the decision that copyright protection would not be granted to products whose appearance features are exclusively dictated by technical functions, but that copyright protection may be provided in the presence of the requirements concerning originality, and objective perception sought for a product to be regarded as “work” for products whose appearance features are at least, in part, technical functions. In evaluation of originality criteria, the CJEU stated that if a subject matter may be regarded as original, it is both necessary and sufficient that the subject matter reflects the personality of its creator, as an expression of his/her free and creative choices. In terms of the effect of the technical function on the evaluation of originality criteria, the CJEU has held that a creator’s original intellectual creation is capable of copyright protection, but that will not be the case where it is dictated by technical considerations, rules or constraints, which have left no room for creative freedom. According to the CJEU, regardless of the external and subsequent factors in the creation of the product, it should be evaluated whether the criteria of originality has been met by considering all conditions that existed at the time of the creation of the “work,” and a decision should be made, accordingly.

As a result, the CJEU has clarified that in terms of appearance, the features of products, such as bicycles for daily use, the technical function may not prevent copyright protection if the condition of originality is met.

Similarly, in Turkish Law, it is emphasized by the Supreme Court that it is necessary to examine whether the technical function dictates the whole or a part of the appearance of the product, whether the creativity is restricted due to the technical function, and whether the product as a whole preserves its originality. It is also stated that as long as the created intellectual product is original as a whole, the technical function will not eliminate its quality as a “work.”

On the other hand, in Turkish Law, it is not sufficient for a product to be original by itself, but these products must also be included in one of the main categories that are listed and limited by the “Law on Intellectual and Artistic Works.” In addition, the Law seeks the requirement that fine art works, including product designs, should have aesthetic value that is an additional criteria, which is not required for other types of works. When examining the aesthetic value requirement, the Supreme Court also applies the criteria of being unique, and accepts that products, which are created to appeal to the aesthetic sense beyond daily use, and as a result of an artistic activity, can benefit from copyright protection.

As a result, although it can be said that technical function, alone, will not prevent copyright protection under Turkish Law, product designs, as in the case that is subject to the cited decision, may need to have aesthetic value in addition to being original, in order to benefit from copyright protection.

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