"There was a story ... in the London Evening Standard about the Americans building an exact replica of the London 2012 Olympic BMX track in California to help with their practice. It set me thinking….

Aside from issues of sporting ethics and the universal Olympic values, this story raises an interesting question for IP lawyers. On the presumption that the design of these BMX tracks requires considerable skill and expertise (and the website here suggests it does), they will be the subject of copyright and, in Europe at least, unregistered design protection. If the design has only been made public within the past year, the design could also still be registered (again in Europe, at least). The Americans seem ready to admit they copied the design, right down to the last hump -- thanks to the computer wizardry employed. Since that has been done in Chula Vista, it would be an issue of Californian or Federal US law. Arguably the process of creating the computerised 3D scan of the track in the UK gives rise to an infringing act here. Since this is the only Olympic event to which I managed to get tickets for my family, I will now be watching with renewed professional interest, i.e. just how good was the American copy? I wonder if Mitt Romney has any views he'd like to share on this".

"Roland raises an interesting question which I have previously pondered with respect to the protection of golf courses (where there is big money in their design, as well as many courses which copy “signature holes”). 

"Many golf courses ... are beautifully crafted works ..."

Can you say that a BMX Track or a golf course falls within the definition of “design” – which means the appearance of a “product” – which means “any industrial or handicraft item”? If not, there is no Community design protection. Copyright will subsist in the design drawings, but section 51 [of the Copyright, Designs and Patents Act 1988 in the UK] will prevent enforcement of that copyright if the design drawing of the track/course amounts to a record of a design for anything other than an artistic work or a typeface if “an article is made to the design”. So if the track/course is an article, the copyright is unenforceable unless it is a work of artistic craftsmanship or a work of architecture. We know that “article” has been given a wide definition – e.g. the human eye was held to be an article in Ocular Sciences v Aspect Vision Care [1997] RPC 298. To be a work of architecture, it has to be a “fixed structure” – something more akin to a building than a track or grass and sand combination. Many golf courses, however, are beautifully crafted works, so works of artistic craftsmanship could be the way to go. All this means that we need a test case – as a keen golfer, I’m sure we can come to a mutually satisfactory agreement with a golf course designer!"