Protection of works of applied art in China

2012/5/10By Fiona Gu, Associate, Rouse China,[Copyright]

In China, the protection of works of applied art has been proved challenging for the Courts. Although such works are not the subject of specific protection, many will potentially fall within the scope of both the Copyright Law and the Patent Law. Both legislation and judicial practice are contributing to the development and clarification of the protection that is available.
 
Protection as copyright works
 
Although there is no reference to ‘works of applied art’ in either the Copyright Law or the Patent Law of China, the Berne Convention for the Protection of Literary and Artistic Works (the Convention), to which the People’s Republic of China is a member country, provides that ‘literary and artistic works’ includes works of applied art. China is, therefore, obliged to protect works of applied art.
 
 
There is, however, no obligation for member countries to provide copyright protection where the work receives only design protection in the country of origin. Article 2 (7) provides:
 
…….Works protected in the country of origin solely as designs and models shall be entitled in another country of the Union only to such special protection as is granted in that country to designs and models; however, if no such special protection is granted in that country, such works shall be protected as artistic works.
 
The ‘special protection’ that China provides to designs and models is provided only by the Patents Law e.g. there is no protection available for unregistered designs. Because Article 5(2) of the Convention provides that protection shall not be subject to any formality, China may be obliged to afford copyright protection also in this situation.
 
Although China may be obliged to protect works of applied art as copyright works, this obligation has not been clearly translated into laws in China.  The State Council, however, in 1992, promulgated Regulations for the Implementation of International Copyright Treaties, which made provision for the protection of works of applied art, to reconcile the Convention and domestic judicial practice
 
Article 2 of the Regulations reads:
 
The protection of foreign works shall be governed by the Copyright Law of the People's Republic of China, the PRC Copyright Law Implementing Rules, the Regulations on the Protection of Computer Software and these Regulations.
 
Article 6 provides:
 
    The term of protection of foreign works of applied art shall be 25 years from the completion of such works.
 
The preceding paragraph shall not apply to works of fine art (including designs of animated cartoon imaged) used on industrial products.
 
 The Courts have been relying on these Regulations to justify the protection of works of applied art under copyright legislation. For example, in (2002) Beijing Higher Court Final Instance No. 279, the Court held:
 
    ……
According to Berne Convention and the Regulations for the Implementation of International Copyright Treaties enacted by the Chinese government  on September 25, 1992, works of applied art created by the citizens of member countries are protected under the laws of China for a period of 25 years from the date of creation.
……
 
Definition of Works of Applied Art
 
Although there is an obligation to provide copyright protection to works of applied art, neither the Copyright Law nor the Convention defines such works.
 
On the basis of Article 6 of the Regulations for the Implementation of International Copyright Treaties, a work of applied art should be regarded as a separate type of work from a work of fine art. However, this has not been fully embraced by the Courts. In (1999) Beijing No.2 Intermediate Court IP First Instance No. 145, the Judge said: 
 
    ……
To the general public, what matters is the intrinsic utilitarian function of clothes. But, in costumes that reflect a heightened form of expression, the functional aspect is diluted and the artistic aspect greatly intensified. Although these costumes have diverged from the conventional function of clothes, they can still be referred to as ‘clothes’. Even though the artistic value may overshadow the utilitarian value, they should be recognized as works of applied art.
……
Works of applied art is not listed as a type of work in the Copyright Law of China, but when defining works of fine art, the Implementation Regulation of Copyright Law of China does not exhaust the types of works that qualify as fine art……In addition to pure artistic works, works of fine art can include works of applied art.   
……
 
The Court held that the costume under consideration was a work of fine art that also constituted a work of applied art.
 
This reasoning is echoed in the Judgment (2006) Guangdong Higher Court Civil III Final Instance No. 45 pertaining to the design of a tape cutter. The Court emphasizes the fact that a work of applied art must also qualify as a work of fine art.   
 
……
The plaintiff is a registered company in a member country of the Berne Convention. According to Article 2, 3 of Regulations for the Implementation of International Copyright Treaties, Copyright Law and Implementing Regulations of the Copyright Law should apply to protect works created by foreigners. According to the classification in the before-mentioned Law and Regulation, works of applied art should qualify as works of fine art. There are no specific clauses in the Copyright Law of China governing how the works of applied art should be protected. So, only when a work of applied art meets the artistic and creative requirements for works of fine art, can it be protected under the Copyright Law as a work of fine art.
……
 
As in this case, Courts generally tend to evaluate works of applied art in relation to the requirements for works of fine art. In Implementing Regulations of the Copyright Law, the definition of ‘work of fine art’ is ‘two- or three-dimensional plastic art works created in lines, colours or other medium which, when being viewed, impart aesthetic effects, such as paintings, works of calligraphy, sculptures, etc’. Under this definition, works of fine art must ‘impart aesthetic effects’. In judicial practice, the Court translates this into an ‘artistic’ requirement.
 
In (1999) Beijing No.2 Intermediate Court IP First Instance No. 145, the judge says:
 
    Works of applied art are pieces of art with utilitarian functions. One important feature of this type of work is that is should be both useful and artistic. The functional and artistic features are integral and cannot be separated.
 
And in (2007) Guangxi Higher Court Civil III Final Instance No. 62, the Judge expresses the similar reasoning:
 
    Works of applied art are pieces of art with utilitarian functions. There are two aspects in works of applied arts, i.e. the ‘functional’ and ‘artistic’. The ‘functional’ aspect includes purpose, functions, which are mostly decided by the materials, structures and ingredients. If those factors should be protected by IP laws, they should be protected by Patent Law rather than Copyright Law. The ‘artistic’ aspect includes the shape, design, colour and decoration, or the aesthetic expression of the design of the work. ……The Copyright Law of China grants protection to works of applied art through its protection to the works of fine arts. The Copyright Law only protects the artistic aspects of works, but not the functional part. Only when the aesthetic aspects meet the requirements of ‘works’, can that works of applied art can be granted the protection of Copyright Law.
 
In contrast, in (2002) Beijing Higher Court Final Instance No. 279, in line with the legislation, the Judge does not refer to works of fine art when evaluating works of applied art.
 
    Works of applied art are the production of intelligence and creativity. That said, works of applied art should be functional, artistic, original and duplicable. Functional aspect requires the utilitarian value in the work, in addition to its recreational and collectable value. ‘Artistic aspect’ requires the work to be an artistic creation, and at least, the general public should view the work as a piece of art.
 
Despite differences in the method of evaluating and justifying protection for works of applied art, the judges unanimously require the work to be ‘artistic’, which is in line with the purpose of the Copyright Law and the Berne Convention. So far, there are no quantifiable measurements for the artistic value for works, but the Courts have given examples of what they deem falls short of artistic value.   
 
In (2005) Pudong Court, Civil III IP First Instance No. 53, the judge refused to recognise the work under consideration as a work of applied art.
 
    ……although the designs embody the aesthetic elements described by the plaintiff, there are also inevitably utilitarian features. The plaintiff admits in the statement that the aesthetic features and utilitarian features of the work in dispute are integral and inseparable. When designing the aesthetic features of the work, the designers had in mind utilitarian concerns. The aesthetic features are not independent of the utilitarian. Because they are not independent, the work is merely a utilitarian product, capable of protection only under industrial property laws. It is not a work of applied art, capable of protection under the Copyright Law.
 
Based on this judgment, a work will not qualify as a work of applied art merely because it is aesthetically pleasing. It seems that in order to qualify, there must be separable aesthetic features. For many products, this may create difficulties. It is likely that aesthetic features will often be found to be inseparable from functional features. Good design, in fact, is generally acknowledged to take account of both aesthetics and function.
 
Reconciliation with patent law
 
According to the Patent Law of China, “the term ‘design’ as used herein refers to any new design of the shape or pattern, or combination thereof, or the combination of colour, shape and pattern, of a product, which creates an aesthetic feeling and is fit for industrial application”. Patent Law protects designs for 10 years. Some products may qualify for protection under both the Patent Law and the Copyright Law. Are they entitled to protection under both laws? Although the number of relevant precedents is small, it seems that the answer may be ‘Yes’.
 
In (2002), the  Beijing Higher Court (case No.279), in response to the Defendant’s argument that there was no evidence that the laws of China are intended to grant dual protection under both Copyright Law and Patent Law to works of applied art, the Court held:
 
    The better interpretation is that there is no evidence showing that China prohibits dual protection under both the Patent Law and the Copyright Law to works of applied art. The design patent of INTERLEGO AG should not prevent it acquiring protection of Copyright Law simultaneously and successively.
 
On the basis of this case, it seems that the owner of a work of applied art should, at least during the term of the patent, have the right to take action under both Patent Law and Copyright Law. On expiry of the patent, the work will continue to be protected as a copyright work. There is, however, no legislation, and too few judgments, to provide definitive support for this conclusion.
 
Summary
 
Given China’s commitment under the Berne Convention, it is obliged to protect works of applied art. Recent legislation and judicial practice have been clarifying the nature and extent of both the available copyright protection, and the patent protection that may, in some situations, also be available.

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