12. doccentre-copyright-wang qian_copyright promotes development-en

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



The copyright of this PPT is reserved

by the author Wang Qian

Conditions under which Works of Applied Art are Protected by

Copyright Law



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?



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.



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)



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 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?



• 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



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.



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.



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 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.



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: 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.



III. The creation must

beyond certain level



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.



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.”



• 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.)）



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 usefularticles to be protectable.

• Copyright Law are not forbidden to protect

useful articles with low aesthetic values.However, clearly defined legitimate is needed.



The copyright of this PPT is reserved

by the author Wang Qian

Thank You！E-mail：

[email protected]

12. doccentre-copyright-wang qian_copyright promotes development-en

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