China: Comments On Multi-Protection Of Works Of Applied Art

Last Updated: 20 March 2018
Article by Bai Wei and Zhang Bo
Most Popular Article in China, March 2018

As a kind of plastic art with practicality and artistry, the Works of Applied Art have both the characteristics of the literary and the industrial design. When the Works of Applied Art is connected with a specific manufacturer and has been used and promoted for a long time, it is more likely to be with the characteristics of identifying the source of goods and services, qualified as the package and decoration of famous commodities or services, which are protected by intellectual property rights.

There are great disputes over the over lapping protection of the intellectual property rights of Works of Applied Art, both in the or etical and practical circles.

Can the Works of Applied Art obtain overlapping protection, and what extent the protection can be obtained? In this regard, the author will focus on the overlapping protection of intellectual property rights of Works of Applied Art from the aspects of the existing law, the author's right of free disposition, freedom of imitation and interest balance.

Feasibility of multi-protection of intellectual property rights of Works of Applied Art

According to the second provision of the Patent Law (2010):"Design" means any new design of the shape, the pattern, or their combination, or the combination of the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application.

Therefore, if the Works of Applied Art is not contrary to the laws or social morality and is not detrimental to public interests, and can be duplicated through industrial or manual production, then it is the subject matter of the China's design patent.

The current Copyright Law of China (2010) has no provisions on the Works of Applied Art. According to the 6th article of Regulations on Implementation of the International Copyright Treaty : the period of protection for foreign Works of Applied Art is 25 years since it is completed.

At the same time, The State Copyright Administration's reply to Switzerland's commitment to the implementation of the TRIPS agreement points out that the Article 4 of Regulations of Implementation the Copyright Law of China provide the meaning of "art works" which refers to aesthetic plane or three-dimensional plastic art made up of lines, colors etc.,such as painting, calligraphy, sculpture, According to this regulation, the industrial design including the design of textiles is the subject matter of the Copyright Law of China if it meets the requirements of "Art works".

Therefore, according to the current judicial practice in China, the Works of Applied Art are generally protected as the works of art as stipulated in the Copyright Law.

When the Works of Applied Art is used a lot, and has been connected with the manufacturers, so that can be used to distinguish the source of goods and services, the protection then could be obtained according to China's "Anti Unfair Competition Law"

The current law has made provisions for protection separately by multiple intellectual property law, but there is no prohibition on cross protection or overlapping protection. Is there any feasibility for overlapping protection?

According to the principle of absence of legal prohibition means freedom in civil law, there is no legal obstacle for seeking overlapping protections according to various laws.

For example, there are judicial precedents reckon that although the design has applied for the protection of the design patent, it does not interfere with the protection of the copyright law at the same time or continues to be protected.

For example, the court reckon in Interlegoag and Tianjin Toys Co. Ltd. copyright infringement case that the works of Applied Art of Interlegoag although got protection by Chinese design patent does not necessary preclude the simultaneous or continue to have copyright right protection.

However, in the theoretical research and judicial practice, some scholars and judges consider that bringing those works of Applied Art that have lose patent protection into the protection scope of the copyright law will lead the public to be unclear whether the use of the patents that have entered the public domain will be investigated by the copyright owners, thereby damaging the public's trust interest.

The limit of overlapping protection of intellectual property of works of applied Art

There are no legislative barriers to the separate protection of the various departments of law of work of applied art based on the existing legislative analysis, In accordance with the principle of civil law of absence of legal prohibition means freedom, it seems that we should not interfere too much for choosing the right and how to exercise the rights of free disposition.

However, in judicial practice, there appear quite different results due to the intellectual property act as a private right but not complete, all the reason like the public free imitation and social public interests needed to be put into consideration to achieve the balance of interests.

According to the article fifty-ninth of "Patent Law", the scope of protection of the patent right for design shall be determined by the design of the product as shown in the drawings or photographs. In other words, the scope of protection of the design is the "same or similar design" on "the same or similar product". When a patent expire or invalid, the trust interest of the public is preferable to the interest of the patentee.

Of course, the protection of the public's trust interests should, in general, be limited to the scope of the original design patent. When  the works of applied Art is used in other products by others, which constitute infringement behavior of copy regulated by copyright law, For example, the copy from Stereo to plane (three-dimensional practical artwork printed on clothes for sale), copy from plane to stereo scopic, etc. (Making stereoscopic products based on the drawings).

As an exception, the protection of other types of intellectual property for the invalid is not absolutely impossible, the subjective intention of the patentee and the principle of balance of interests should be considered. The most typical example is a mistake that often made by the design patentee in China. Other than to file for a patent, they choose to public the design through social software like Weibo or WeChat at first instead, when the design is completed, In this situation, it's patent rights can easily be invalided by third parties using. However, Subjectively, the patentee has no intention to abandon the patent, it is obviously that the fault is caused by the lack of understanding of the patent law. Based on the fact that the awareness of intellectual property protection is generally not high in China, it is unfair to exclude other protection of practical art, which is also not conducive to encouraging the legislative purpose of innovation. Therefore, according to the principle of balance of interests, copyright protection should be given but in a moderate degree when considering of the compensations.

What is need to be aware of is that for the works of applied art that have lost their design patent, although the same or similar design in the same or similar production cannot be protected by Copyright Law, it does not mean that the public and related business are free to imitate under any circumstances, It is also necessary to exclude the circumstances stipulated in Article 6 of the Anti-Unfair Competition Law (2017). That is, when the practical art works has established a one-to-one correspondence or close relationship with the manufacturer in the relevant public through marketing and publicity, even if the design patent is invalid, the relevant public cannot imitate it.

If the practical art works has already obtained the right protection of the commercial logo of the famous commodity's special packaging and decoration, the protection of the rights means the protection of the public interest. That is to say, when the related market players infringing the rights, it will lead to the confusion of the commodity sources. Commercial identifier public interest is preferable to the trust interests of the public related to the patent product.

In summary, the works of applied art have the dual characteristics of industrial products and works of art. Therefore, compared with conventional art, the intellectual property protection of the works of applied art has its special features. Regarding whether or not works of applied art should be given protection for overlapping intellectual property rights, it should not adopt the clear boundary of black or white. Instead, they should be considered in light of all the actor including degree of difficulty for creation, the degree of social contribution, the will of the author, and the interests of the public.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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