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7/27/2019 12. DocCentre-Copyright-Wang Qian_Copyright Promotes Development-En
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East China University of Political Science and Law
Prof. WANG Qian
Copyright Promotes the Development of
Innovation Industry——from the perspective of China Copyright law’s protection for useful
articles
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The copyright of this PPT is reserved
by the author Wang Qian
Conditions under which Works of Applied Art are Protected by
Copyright Law
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Conditions under which Useful
Articles are protected• The concept of works of applied art: Articles
with both utilitarian function and the aestheticvalues
• “Berne Convention” allows member states tochoose 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?
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Art. 25.2 of TRIPS:Each Member shall ensure that requirements for securing
protection for textile designs, in particular in regard to anycost, 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 designlaw or through copyright law.
NCAC’s “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.
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Conditions
under
whichworks of
applied art
(industry
designs) are
protected
under
CopyrightLaw
The utilitarian function and the aesthetic
values can be separated.
The design must be originalin the sense of Copyright Law
Be regarded as art by the public
(requirements on the aesthetic are higher)
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I. The utilitarian function and the aesthetic
values can be separated.
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Utilitarian function has no
copyright
• Any function, processes, systems, operating
methods, or technology programs whichare 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?
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• Works of drawing:“include engineering designs
and product designs created for the purpose of constructions and productions …”
• Why are engineering designs and product designsworks?
– It has nothing to do with the design plan or the technical utilitarian
function of the engineering and products for which the designs arecreated.
– Designs, composing of points, lines, surfaces and other geometric
shapes, include rigorous, accurate, concise, harmony and symmetry beauty of science.
Utilitarian function has no
copyright
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DBDEL v. Motorola (Shanghai NO.2Intermediate Court, 2006): Copying engineeringdesigns and product designs in the sense of
Copyright Law only refers to reproduce thedesigns 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.
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How to judge whether utilitarian function
and the aesthetic values can be separated?
• Rule: The protection is only for theaesthetic 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.
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Artistic form
Practical part
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Protection scope for works of
applied art
– Separable in concept:• If the change of the art part of the works of appliedart affects the realization of its utilitarian function,the utilitarian function and the aesthetic values are
not separable.—— It is not protectable underCopyright Law.
• If the change of the art part of the works of appliedart does not affect the realization of its utilitarian
function, the utilitarian function and the aestheticvalues are separable.—— It is protectable underCopyright Law. The existence of double protectionfrom design patent and copyright is allowed.
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Will the function as the container of perfume be affected
if the bottles are not made in the shape of body?
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Will the function as baby
toilet be affected if they are
not made in the shape of
cartoon?
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These
patterns
can be
works.
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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.
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II. The design with aesthetic values
must be original
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Conditions under which Useful
Articles are protected
• Requirement for originality: created by and from
the author himself – Circumstance 1: Author’s own independent creation
from scratch. Even if there is coincidence with other
similar works, it may also constitute a work.
– Circumstance 2:creation based on preexisting works:
• Compared to the preexisting work, the new work must
have “distinguishable variation”, and the variationmust 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.
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III. The creation must
beyond certain level
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IKEA v. Taizhou Zhongtian Plastic Cor. (Shanghai NO.2
Intermediate Court, 2009):According to the regulation of CopyrightLaw, 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 protectableunder 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 notvery 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.
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Swiss Interlige v. Tianjin Kego Toy Corp.( Beijing High Court, 2002):Art requires
that the article has a certain degree of artisticcreation, which should be at least enough to
make the general public to regard it as works
of art.”
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• Reason 1: we provide patent for designs of works of applied art. However the patent protection is much
weaker than copyright protection. If useful articleswith little art aesthetic values were protected bycopyright, the design patent system would be in vain.
• Reason 2: if the minimum art aesthetic values werenot 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 “individualintellectual creation” was needed for works of
applied art than pure works of art.))
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Barcelona Court of First Trial, 2004
Rejection of protection, Alicante
Court of First Trial, 2000
Madrid Business Court, 2007
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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 usefularticles to be protectable.
• Copyright Law are not forbidden to protect
useful articles with low aesthetic values.However, clearly defined legitimate is needed.
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The copyright of this PPT is reserved
by the author Wang Qian
Thank You!E-mail: