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.
Final Remarks
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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