ELZABURU Blog - Industrial and Intellectual Property

Tag Archives: Copyright

Is a folding bicycle an intellectual work protected by copyright?

Bicicleta Brompton plegada

After the Judgement by the CJEU of 11 June 2020 in the Brompton Case (C 833/18) the answer, as the song goes, is blowing in the wind. This is not surprising.

Let us recall the case. Brompton is an English company that markets a folding bicycle, sold in its current form since 1987, which had been protected as a patent due to its particular technical features: the bicycle can have three different positions (a folded position, an unfolded position and a stand-by position) enabling the bicycle to stay balanced on the ground.

Bicicleta Brompton abierta Bicicleta Brompton plegada

Once the patent rights expired, Brompton brought an action against the company Get2Get, on grounds of copyright infringement, for marketing a bicycle whose appearance is visually very similar to that of the Brompton bicycle and which may fold into the three positions mentioned in the preceding paragraph.

The question is, therefore, whether an object that is constrained by its technical characteristics, to the point that it was protected as a patent, can constitute an intellectual work. The CJEU returns the matter to the national court but highlights some important points.

For the Court it is true that the shape of the cited bicycle is necessary to achieve a particular technical effect, namely, the ability of that bicycle to fold into three positions, one of these enabling it to stay balanced on the ground. However, the national court must ascertain whether, notwithstanding this circumstance, the bicycle constitutes an original work resulting from an intellectual creation.

In this respect, the judgment warns that this is not the case where the realisation of a subject matter has been dictated by technical considerations, rules or other constraints which have left no room for creative freedom or room so limited that the idea and its expression become indissociable. Where the shape of the product is solely dictated by its technical function, that product cannot be covered by copyright protection.

In order to verify this, the national court must determine whether, through that choice of the shape of the product, its author has expressed his creative ability in an original manner by making free and creative choices and has designed the product in such a way that it reflects his personality.

At this point, the Court adds that the existence of other possible shapes which allow the same technical result to be achieved is not decisive in assessing the factors which influenced the choice made by the creator. Likewise, the intention of the alleged infringer is irrelevant in such an assessment.

As regards the existence of an earlier, now expired, patent in the case in the main proceedings and the effectiveness of the shape in achieving the same technical result, these factors should be taken into account only in so far as they make it possible to reveal what was taken into consideration in choosing the shape of the product concerned.

The Court reaches the conclusion that Articles 2 to 5 of Directive 2001/29 must be interpreted as meaning that the copyright protection provided for therein applies to a product whose shape is, at least in part, necessary to obtain a technical result, where that product is an original work resulting from an intellectual creation, in that, through that shape, its author expresses his creative ability in an original manner by making free and creative choices in such a way that the shape reflects his personality, this being for the national court to verify, bearing in mind all the relevant aspects of the dispute in the main proceedings.

In summary, it seems clear that the limits setting the boundaries between intellectual work and other industrial property rights (patents, designs, trademarks) remain unclear to a certain extent and that, in practice, national courts continue to have a wide scope of discretion in spite of, or thanks to, the criteria, so precise yet so ambiguous, laid down by the CJEU.


Author: Antonio Castán

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European Union Public License: a great option for open source projects undertaken in the EU

European Union Public License: una gran opción para proyectos de código abierto desarrollados en la UE

The European Union Public Licence (“EUPL”) is an open source licence approved by the European Commission in 2007, which was specifically designed to adapt it to the legal framework of the European Union.

European Union Public License: una gran opción para proyectos de código abierto desarrollados en la UE  

Why was it needed?

Free/open source software licences originated in the United States. Thus, the common-law system has influenced the wording of the first open source licences and later licences. This has made the interpretation and application of the clauses of such licences within the framework of continental European copyright law problematic in some cases.

For example, one of the most significant differences between these two systems is that all rights of the owner of a work are transferable to third parties under US copyright law, whereas continental copyright law does not permit the transfer of the moral rights in the work, which are inalienable and inherent to the author.

The European Commission issued a study on open source licences for software developed by the Commission at the end of 2004, which highlighted that the existing licences at that point in time did not satisfy certain requirements for the European institutions. Specifically, the issues concerned a lack of specification of applicable legislation and jurisdiction, warranty and liability disclaimers, copyright terminology not adapted in line with European practice, and legal validity in different languages.

Therefore, notwithstanding the large number of open source licences available (more than 300), the European Commission could not find any licence that was suitably adapted to the developments it wanted to carry out and it opted to create the EUPL. The first version was published in 2007, and in 2009 the Open Source Initiative (OSI) certified it as an “open source” licence, having deemed it in compliance with its principles.

The latest version of the EUPL, version 1.2, was updated by means of the Commission’s Implementing Decision (EU) 2017/863 of 18 May 2017, which may be accessed via the following link.

Access the full document on open source licenses.


Author: Agustín Alguacil

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Why is it important whether a work is in the public domain?

A new calendar year normally brings with it reports in the press on the authors and creators whose rights will pass into the public domain in the year in question. This year, for example, it will be the turn of Antonio Machado. But what does it mean, exactly, when a work passes into the public domain?

Qué significa exactamente que una obra pase a ser de dominio público

Intellectual property rights are unique and while, as proprietary rights, they give absolute control over the protected creation (as would be the case with proprietary rights in real estate, for example), they are limited in terms of duration. Once the corresponding time period has lapsed, the right ceases to have full effect and the formerly protected creation may be used by anyone without the need to request a license.

Thus, the relevant legislation seeks, through this mechanism, to strike a balance between the creator being able to take advantage of the benefits of his work and permitting indefinite access to the work by society as a whole from a specific moment in time, as an expression of its own culture.

Pursuant to the Spanish legislation currently in force, exploitation rights in a work subsist for 70 years after the author’s death and that period is calculated from 1 January of the year following the author’s actual death or declared death.

If there are several authors, said period is calculated from the actual death or declared death of the last surviving co-author.

However, there have been earlier laws in Spain in this area which established other, longer protection periods. Thus, lawmakers established a longer term of protection for authors deceased prior to 7 December 1987. In that case, the term of protection is 80 years rather than 70.

It is also important to consider that the right to intellectual property is a national right and, therefore, each country has the freedom to establish its own criteria in this area.

Thus, there are countries, such as Mexico, which have a longer term of protection than that applicable in Spain, and other countries, such as Canada, which have a shorter term of protection. Moreover, as is the case in Spain, the term of protection can change over time.

There are even special cases, such as the rights in the play “Peter Pan” by James Barrie in the United Kingdom, which were extended in perpetuity by the Queen, after the author bequeathed them to a children’s hospital following his death.

In short, as we can see, the passing of creations into the public domain can give rise to a range of interesting situations with regard to personal enjoyment of creations and even regarding commercial use. Nevertheless, it is very important not to lose sight of the territorial nature of intellectual property rights and the implications thereof, which can lead to a work being in the public domain in one territory but not in another, in the latter case calling for the appropriate license to be sought.

Author: Mabel Klimt

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Film award ceremonies and festivals: much more than winning an award


In the United States the Golden Globes award ceremony was held recently, and on 9 February the Oscars ceremony, organised by the Academy of Motion Picture Arts and Sciences, will take place in Los Angeles. Also coming up in February are the award ceremonies for British cinema, the BAFTA awards, and French cinema, the César awards.

Spain is no exception to this “awards season”. In mid-January the José Mª Forqué awards, organised by EGEDA, celebrated their 25th edition. They are followed by the Feroz awards and, of course, by the Goya awards ceremony organised by Spain’s Academy of Cinematographic Arts and Sciences, which will take place on 25 January.




With such a deluge of awards, doubts inevitably arise as to their importance. The reality is that, essentially, there is no “awards season”, and these activities, including awards, festivals, ceremonies and film markets, take place practically throughout the year for the different facets and specialities of the industry.

This concentration of award ceremonies in the opening months of the year is due principally to the fact that these events are promotional tools for the films that are about to be released or for recent releases. It serves as a means of attracting or focusing the attention of audiences, in a world full of distractions. In some cases, a prominent nomination or award can even provide a second commercial opportunity for a film (or perhaps even a new opportunity for smaller projects that have passed through cinemas with little commercial success).

This has become such an important part of the economic process connected with the production, promotion and exploitation of audiovisual projects, that the Institute of Cinematography and Audiovisual Arts (ICAA), subsidiary to Spain’s Ministry of Culture and various Autonomous Communities of Spain, has specific lines of funding in relation to support for both festival attendees and organisers.

Moreover, it is common for such events and, principally, film festivals (Berlin, Cannes, Toronto, San Sebastian), to be accompanied by parallel activities relating to the industry’s development, such as conventions or working sessions. These activities tend to have frenetic agendas, in order to secure sales, seek funding, participate in debates on future legal texts and in meetings of associations from the industry, hold meetings with the authorities, or simply take the opportunity to establish cooperation networks that may lead to future projects.

Thus, despite the aura of glamour that surrounds any film award or competition, it is important to be aware that behind that aura, and beyond the excitement at receiving an award, there is a thriving industry which in Spain generated ticket sales in excess of 500 million euros last year.


Author: Mabel Klimt

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Fashion Law. Protection of fashion through copyright (IV)

ELZABURU has had the pleasure of working together with the publisher Thomson-Reuters Aranzadi on Fashion Law, a pioneering work in Spain on the subject of fashion law, which was presented on 16 April.

In these short weekly summaries, the professionals at ELZABURU who participated in the work offer us a brief outline of their contributions:

Protection of fashion through copyright

We cannot resist including in this summary the quote from Balenciaga mentioned at the beginning of the chapter. The Basque couturier remarked that a couturier must be an architect for design, a sculptor for shape, a painter for colour, a musician for harmony, and a philosopher for temperance.

This desire to promote fashion design to the category of work of art also extends to the legal front, in efforts to extend copyright protection to a variety of creations, mostly textile creations, whose natural source of protection is something quite different.

This is not surprising, given that the protection offered by copyright is in many respects more beneficial than that offered by industrial designs, for example. The most obvious advantage is the duration of copyright protection (70 years post mortem auctoris), but there is also the absence of any formal requirements for obtaining protection and the series of moral rights to which the author is entitled.

However, it is not quite so easy. A creation, whatever the artistic field, must possess a specific degree of originality and creativity in order to obtain copyright protection. It is thus a question of determining what constitutes an original creation that is eligible for this type of protection.

This is the most controversial issue in the area of copyright law. There is no definition in either the Copyright Act or the Industrial Design Act that might serve as a basis for determining which creations are covered by copyright and which ones call for other means of protection, such as designs or unfair competition law.

However, based on the most recent case law, it appears to be a question of degree rather than concept. That case law also focuses on the different purposes that designs and copyright are intended to serve, which would imply that the choice of one means of protection or the other would be determined to a certain degree by the extent to which the design is intended for industrial use and the intellectual works are intended to serve an ornamental, decorative or merely aesthetic purpose.

The task of the legal practitioner in this field is therefore to pinpoint the boundary between the originality required of a design (Article 5 of the Industrial Design Act refers to novelty and individual character) and that required for it to qualify as an artistic work.

The reality is that prêt-à-porter fashion is intended for mass production and consumption and therefore the natural source of protection would be that offered by an industrial design, which has a much shorter term of protection and is aimed at fostering, among other things, the smooth functioning of the market and of production and marketing of consumer goods.

Therefore, few creations in the world of fashion can be considered especially creative and afford their creators the privileged status of author of an artistic work. But who would dare to say that Yves Saint Laurent’s famous dress evoking Mondrian’s “Composition with Red Blue and Yellow” is not a work of art?


Author: Patricia Mariscal 

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Blog entries in the series Fashion Law:

1.Trademark protection in the fashion sector (23.04.2018)

2.Design protection in the fashion sector (30.04.2018)

3.Patent protection in the fashion sector (07.05.2018)

4.Protection of fashion through copyright (21.05.2018)

5. Image rights in the fashion sector (28.05.2018)

6.Fashion Law. Data Fashion (04.06.2018)

7.Counterfeiting in the fashion sector (11.06.2018)

8.Exhaustion of rights in the fashion sector (18.06.2018)

9.Corporate reputation in the fashion sector (25.06.2018)

10. Protection of the commercial imagen of a fashion brand (04.07.2018)

11. Websites, Apps & Social Networks (13.07.2018)

12. Valuation of intangible assets (17.07.2018)

13. Licensing (06.09.2018)



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