Is a fabric a work of artistic craftsmanship — and therefore, would it qualify for copyright protection? And how does EU copyright law influence the decisions of UK Courts? Both these issues were examined in a recent case, which has interesting implications for clothing manufacturers and IP professionals...
Response Clothing Ltd v Edinburgh Woollen Mill Ltd — a background
The Intellectual Property Enterprise Court (IPEC) recently issued a decision in a claim for copyright infringement brought by Response Clothing Ltd (Response) — a clothing manufacturer — against Edinburgh Woollen Mill Ltd (EWM) — a high street retailer.
Between 2009 and 2012, Response supplied EWM with a range of ladieswear made of a jacquard fabric to a design referred to as the 'wave arrangement'. In 2012, Response attempted to raise the price of its garments, which EWM rejected. EWM proceeded to invite other clothing manufacturers outside the UK to supply clothing to this design and provided a sample of the jacquard fabric. A number of suppliers agreed to manufacture garments to this design, which were sold through EWM’s stores.
The eligibility question
The question here was whether the jacquard fabric was eligible for copyright protection.
The UK has a list of protectable copyright subject matters contained in the Copyright Designs and Patents Act 1988 (CDPA). Under this regime, less conventional (but nevertheless original) works have been found to be ineligible for copyright protection.
Is a fabric a graphic work?
The judge, HHJ Hacon, reviewed the definition of “graphic work” in the CDPA:
“s4(2) In this Part –
'graphic work' includes –
(a) any painting, drawing, diagram, map, chart or plan, and
(b) any engraving, etching, lithograph, woodcut or similar work;"
While willing to accept that the list isn’t exhaustive, the definition equally isn’t endlessly flexible. HHJ Hacon found that a drawing is a graphic work, but in this case the fabric had been created using a machine, so it fell outside the definition above.
Is a fabric a work of artistic craftsmanship?
There is no statutory definition of what amounts to a work of artistic craftsmanship in the CDPA, so HHJ Hacon turned to the decisions in a number of previous cases to try to find the test for defining the term. The judge found the position to be unclear as, on the one hand, there were a series of first instance decisions* which would allow him to conclude that a fabric is a work of artistic craftsmanship — on the other, there was a decision of the House of Lords** which would find that it isn’t.
Enter EU law
To resolve this dilemma, HHJ Hacon turned to the EU law on copyright, which harmonised certain aspects of copyright law throughout the EU. Article 2 of the Copyright Directive*** states:
Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:
(a) for authors, of their works;"
Therefore, under harmonised EU law, copyright protection is afforded to authors of works. The CJEU provided a definition of “work” in Case C-310/17 Levola Hengelo BV v Smilde Foods BV in which it held that there are two cumulative conditions:
1. The subject matter concerned must be original in the sense that it’s the author's own intellectual creation.
2. Only something which is the expression of the author's own intellectual creation may be classified as a work.
This definition was further refined in Case C-683/17 Cofemel-Sociedade de Vesturário SA v G-Star Raw CV by stating that national law couldn’t impose a requirement of aesthetic or artistic value. The judge took the view that, subject to him being satisfied that the fabric was original (which he was) in that its design was its author's own intellectual creation, design is a ‘work’ within the meaning of Article 2 of the Copyright Directive and no sufficiently similar design existed before it was created, it must have been the expression of the author's free and creative choices.
In interpreting the term ‘artistic craftsmanship’ in accordance with EU law, HHJ Hacon was satisfied that Response’s jacquard fabric qualified as a work of artistic craftsmanship — and therefore its design was entitled to copyright protection. He also found that the fabric had aesthetic appeal so didn’t have to go as far as the decision in Cofomel to test whether an article with no aesthetic or artistic value would still qualify for copyright protection.
The legal implications
This case raises a number of interesting legal issues around the interpretation of EU law and the decision in Cofomel in the UK. This decision was taken before the UK’s departure from the EU, but unless the UK government chooses to legislate to change the law of copyright, Cofomel will continue to be binding on the UK courts post-Brexit. Only time will tell if the practice of the UK courts eventually diverges. HHJ Hacon appeared uncomfortable with the idea that a work with no aesthetic or artistic value could qualify for copyright protection.
From a commercial perspective, the mechanism for reaching the decision is less important. The decision itself seems correct, as clearly EWM had taken the work of Response and arranged for it to be copied. It seems clear that in a case such as this, the Court will endeavour to reach the right result for the injured party.
This decision will be welcomed by clothing manufacturers, as the court has recognised that copyright can exist in a fabric design — even one created by a machine and that isn’t derived from a graphic work. For retailers, this decision is a further reminder that arranging for existing products to be copied by another supplier creates an identifiable infringement risk.
*In Bonz Group (Pty) Ltd v Cooke  3 N.Z.L.R. 216 the New Zealand High Court had to consider 'artistic craftsmanship' in the context of woollen sweaters. The judge concluded that:
'… [F]or a work to be regarded as one of artistic craftsmanship it must be possible fairly to say that the author was both a craftsman and an artist. A craftsman is a person who makes something in a skilful way and takes justified pride in their workmanship. An artist is a person with creative ability who produces something which has aesthetic appeal.'
**George Hensher Ltd v Restawhile Upholstery (Lancs) Ltd  AC 64
***Directive 2001/29/EC of 22 May 2001