Copyright Promotes the Development of Innovation Industry

from the perspective of China Copyright laws protection for useful articles

East China University of Political Science and Law Prof. WANG Qian

Conditions under which Works of Applied Art are Protected by Copyright Law

The copyright of this PPT is reserved by the author Wang Qian

Conditions under which Useful Articles are protected

The concept of works of applied art: Articles with both utilitarian function and the aesthetic values Berne Convention allows member states to choose the protection mode for works of applied art. Member States could either protect them under special legislation or under copyright law. Does China Copyright Law protect works of applied art?

Art. 25.2 of TRIPS

Each Member shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. Members shall be free to meet this obligation through industrial design law or through copyright law.

NCACs REPLY to Swiss Embassy's inquiry: Industry designs, including textile designs are protected by Copyright Law as long as they meet the requirements for works of fine art. That is to say, the requirements of Art. 25.2 of TRIPS are reflected by China Copyright Law.

Conditions under which works of applied art (industry designs) are protected under Copyright Law

The utilitarian function and the aesthetic values can be separated.

The design must be original in the sense of Copyright Law

Be regarded as art by the public (requirements on the aesthetic are higher)

I. The utilitarian function and the aesthetic values can be separated.

Utilitarian function has no copyright

Any function, processes, systems, operating methods, or technology programs which are utilitary are not subject to copyright laws.
Somebody invented a new engine and wrote a technology paper, detailed describing the new engine. Some other people made, used and sold the new engine after reading the paper. Is it copyright infringement?

Utilitarian function has no copyright

Works of drawinginclude engineering designs and product designs created for the purpose of constructions and productions Why are engineering designs and product designs works?
It has nothing to do with the design plan or the technical utilitarian function of the engineering and products for which the designs are created. Designs, composing of points, lines, surfaces and other geometric shapes, include rigorous, accurate, concise, harmony and symmetry beauty of science.

DBDEL v. Motorola

DBDEL v. Motorola (Shanghai NO.2 Intermediate Court, 2006): Copying engineering designs and product designs in the sense of Copyright Law only refers to reproduce the designs in the way of printing, copying and photographing, rather than constructing or making the products according to engineering designs and product designs. Therefore, the act of Motorola, the Defendant, which was to produce printed circuit board, was producing the industry products, rather than copying engineering designs and product designs in the sense of Copyright Law.

How to judge whether utilitarian function and the aesthetic values can be separated? Rule: The protection is only for the aesthetic values, not for any utilitarian function; protection is only available when the utilitarian function and aesthetic values can be separated.
Physically separable: Art part and practical part can be split.

Artistic form

Practical part

Protection scope for works of applied art

Separable in concept:
If the change of the art part of the works of applied art affects the realization of its utilitarian function, the utilitarian function and the aesthetic values are not separable. It is not protectable under Copyright Law. If the change of the art part of the works of applied art does not affect the realization of its utilitarian function, the utilitarian function and the aesthetic values are separable. It is protectable under Copyright Law. The existence of double protection from design patent and copyright is allowed.

Will the function as the container of perfume be affected if the bottles are not made in the shape of body?

Will the function as baby toilet be affected if they are not made in the shape of cartoon?

These patterns can be works.

If the aerodynamic shape is chanced, the resistance and stability of the care will be affected. The utilitarian function and the aesthetic values can not be separated.

II. The design with aesthetic values must be original

Conditions under which Useful Articles are protected

Requirement for originality: created by and from the author himself
Circumstance 1: Authors own independent creation from scratch. Even if there is coincidence with other similar works, it may also constitute a work.

Circumstance 2creation based on preexisting works Compared to the preexisting work, the new work must have distinguishable variation, and the variation must be more than mere trivial. The author is asked to add something new. Mere Change of the physical carrier of the work will not create a new work.

III. The creation must beyond certain level

IKEA v. Taizhou Zhongtian Plastic Cor. (Shanghai NO.2 Intermediate Court, 2009):According to the regulation of Copyright Law, works of applied art is protected by Copyright Law as they are works of fine art. therefore, the artistic aspect of works of applied art have to reach the minimum requirement for art to be protectable under Copyright Law. we found that the design characteristics of the Mammut child chairs and stools in question are reflected by the lines of the design. However, the chairs and stools in question are not very different from other normal chairs and stools as a whole. They are relatively simple designs and do not meet the minimum requirement for art in the artistic aspect to be works of applied art, which is a kind of works of fine art. Therefore, they are not protectable under Copyright Law.

Swiss Interlige v. Tianjin Kego Toy Corp. ( Beijing High Court, 2002):Art requires that the article has a certain degree of artistic creation, which should be at least enough to make the general public to regard it as works of art.

 Reason 1: we provide patent for designs of works of applied art. However the patent protection is much weaker than copyright protection. If useful articles with little art aesthetic values were protected by copyright, the design patent system would be in vain. Reason 2: if the minimum art aesthetic values were not required, all useful articles whose utilitarian function and shape are separable would be protectable under copyright law, which would apparently beyond the category of works of fine art". (German Court decided in the the Cathedral of Cologne model case that more individual intellectual creation was needed for works of applied art than pure works of art.)

Barcelona Court of First Trial, 2004 Rejection of protection, Alicante Court of First Trial, 2000

Madrid Business Court, 2007

Conclusion
The existing Copyright Law only provides protection for useful articles which constitute works of fine art. This leads to the high requirement of aesthetic values for useful articles to be protectable. Copyright Law are not forbidden to protect useful articles with low aesthetic values. However, clearly defined legitimate is needed.

Thank You
E-mail wangqian75@126.com

The copyright of this PPT is reserved by the author Wang Qian