A sculpture in Karamy, Xinjiang, China has recently caught a lot
of media attention because of its striking resemblance with a
famous bean-shaped sculpture in Chicago, known as "Cloud
Gate" (or colloquially as "the Bean"). The Cloud
Gate has been a major feature of Chicago's landscape since its
installation in 2006. While the Cloud Gate is shaped like a bean,
the Chinese installation is supposed to resemble an oil bubble.
Both sculptures have a mirror-like surface and passages that lead
to the under-belly of each sculpture. When Anish Kapoor,
the sculptor of the Cloud Gate, learned about the sculpture in
China, he said: "It seems that in China today it is permissible to
steal the creativity of others, I feel I must take this to the
highest level and pursue those responsible in the courts."
This statement begs the question of the extent to which copyright
protection is afforded to foreign creative works in China.
First of all, it has to be noted that there is no uniform set of
laws governing copyright protection all over the world. Thus,
copyright law is "territorial" in nature. The most
significant international treaty governing international protection
of copyright is the so-called Berne Convention, to which both China
and Hong Kong are signatory parties. However, the level of
protection afforded to a work in a certain jurisdiction ultimately
depends on its national laws. According to Chinese copyright law,
copyright can subsist in works of fine art and architecture,
including sculptures (Art. 3 of the Chinese Copyright Act and
Art. 4 of the regulation for its implementation). Any person
who copies another's work commits an act of copyright
infringement and should bear civil liability (Art. 47 of the
Chinese Copyright Act).
Despite there being some level of protection, foreign authors
still often face difficulties when enforcing copyright in China for
the following reasons: (1) there are differences between Chinese
copyright law and foreign copyright laws, (2) enforcement agencies
in China may often be (over-) protective of local companies and
individuals, (3) political institutions in China might have vested
interests in certain industry sectors and their interests may
collide with the interests of foreign investors, (4) there is
limited manpower and resources dedicated to enforcement in China,
especially in smaller and lower tier cities. As a result, many
foreign authors and innovators have been put off from enforcing
their IP rights in China.
In recent years, the Chinese government has made tremendous
efforts to address intellectual property rights problems and
improve enforcement efficiency, for example, by establishing
specialized IP courts. It is hoped that China will continue to
increase the transparency and certainty of enforcement actions, so
that intellectual property right owners will not hesitate to
enforce their rights and China will become a more IP- and
innovation-friendly country for both authors and innovators
domestically and internationally.
This article was authored by
Rosita Li and Maggie Lee
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