Can the Eye be copied?

The construction and opening of the London Eye, the world’s biggest Ferris wheel, understandably attracted a great deal of publicity. However, the announcement that Prague may soon have its own, even larger wheel designed by Building Design Partnership will come as a blow to those responsible for bringing this imaginative and challenging project to life. With the prospect of super-wheels popping up around the world, one of the questions that may arise for the original design team is how such designs can be protected from copying.

The legal background

There are four main ways the designers of the London Eye can protect their work:

• Copyright This arises as soon as a qualifying work is created and recorded. There is no need for copyright to be registered in the UK. Works of architecture, including buildings, fixed structures, and parts of fixed structures, are considered “artistic works” and thus capable of being protected. Indeed, several different copyrights may come into existence in relation to the design and construction of one building. For example, copyright may subsist in the architect’s plans, as well as in the final construction itself, insofar as it is not an exact reproduction of the plans.

  To qualify for protection, the artistic work must be original in that it must be independently produced by the creator, not copied. Throughout the duration of the copyright – typically the creator’s lifetime plus 70 years – the owner, who will usually be the architect, will be entitled to prevent others from copying the work and dealing in copies of it.

• Registered designs Registered designs protect new design features of mass-produced articles that are aesthetically appealing and are delivered to customers in a finished state. In contrast to copyright, a registered design must be registered before it can afford protection, and lasts a maximum of 25 years.

  One of the limitations of registered designs in the field of architecture is that, while distinct parts of a structure or a prefabricated building may be protected, a building constructed on site from plans is not an “article” and not protectable.

• Design right (unregistered designs) Design right offers up to 15 years’ protection for designs of non-aesthetic industrial articles. Design right arises as soon as a qualifying design is recorded, and subsists in the non-commonplace aspects of the shape or configuration of an article, or part of an article. Copyright and design right are mutually exclusive rights. Accordingly, as a work of architecture qualifies for copyright protection, it will not also qualify for design right protection. However, building components may be protected by design right.

• Patents These provide registered monopoly protection for new and original inventions for up to 20 years. While rights under a patent may be used to protect an original and inventive construction method or building component, they cannot be used to protect artistic works or other aesthetic creations in themselves.

So, is the London Eye protected?

As Poma may also supply the capsules for Prague, a key question for any court will be who owns the copyright in them

As the London Eye team appears not to have applied for a registered design or patent, its principal form of protection is copyright. This means that the idea of building a Ferris wheel on this scale is not protected. However, if the design, or aspects of the design, was devised independently, the structure will attract copyright protection. Of course, those aspects of the design that are not original – those copied from previous Ferris wheels, for instance – will not.

In order to prove copyright infringement, the London Eye will need to show that it owns the copyright in its design and that BDP copied a substantial part of it.

It follows that if BDP can show that it came up with its design independently, there will be no infringement. Although BDP may have acknowledged that its wheel was “inspired” by the London Eye, this would not be sufficient to prove that the design had been copied.

If the London Eye team can prove that it owns the copyright in its designs and that there has been copying, the remaining key question is whether there has been copying in relation to a substantial part of it.

On the limited information available, this may be a challenging task for London Eye lawyers. It will depend on a careful comparison between the two structures and an analysis of the degree to which the BDP wheel reproduces aspects of the London Eye’s design, as opposed to the underlying idea behind the London Eye’s structure.

A second area where copyright may apply is the design of the wheel’s capsules. The owners of the copyright in the London Eye will, under normal circumstances, be the project architects. However, there appears to be a dispute as to who designed the London Eye’s capsules, with both the design team and the French manufacturer of the capsules, Poma, claiming responsibility.

As Poma may also supply the capsules for the Prague wheel, a key question for any court will be who owns the copyright in their design? If Poma does, the London Eye will not be able to prevent it from incorporating the design in the Prague wheel.

The answer may turn on the provisions of the contract between the London Eye and Poma. In the absence of specific contractual terms, copyright in original aspects of the capsule design created by Poma will belong to Poma and not the London Eye and the London Eye will not be able to assert copyright in those aspects of the design against BDP.

Alternatively, if the design of the capsules is a joint effort, copyright may be jointly owned by the London Eye and Poma, and the London Eye will be entitled to assert its copyright against BDP.