In June 2016, Jaguar Land Rover sued carmaker Jiangling Motors in a Chinese court for allegedly copying the design for its Evoque SUV. Despite a previous ruling invalidating its design patent, Jaguar continued to press its copyright infringement claim under the applied art works protection provision. Many doubt Jaguar can win because of the uncertainties and complications surrounding Chinese laws on applied art works, as well as their application.
This article will lay out the laws surrounding the issue of copyright protection in relation to works of applied art and discuss various court rulings. It'll also address the proposed amendments to the Copyright Law, which extends copyright protection to works of applied art.
Lack of legislative clarity
Since what constitutes "works of applied art" has not been defined in any Chinese laws, it's been challenging for Chinese courts to rule on the copyrightability of these works.
In fact, the term "works of applied art" comes from the Berne Convention for the Protection of Literary and Artistic Works, to which China is a signatory. Importantly, under Article 2(1) of the Berne Convention, the protection of works and rights includes every production in the literary, scientific and artistic domain, whatever the mode or form of its expression.
However, China's obligation to protect works of applied art has not been clearly translated into laws. The State Council passed Regulations for the Implementation of International Copyright Treaties (the 1992 Copyright Regulations), which made provisions for the protection of foreign works of applied art, in line with the Berne Convention. Specifically, Article 6 of the 1992 Copyright Regulations provides "[t]he term of protection of foreign works of applied art shall be 25 years from the completion of such works [which] shall not apply to works of fine art (including designs of animated cartoon images) used on industrial products." It's clear that a work of applied art is in a separate category of works from a work of fine art.
However, for applied art works created by the Chinese citizens, laws are totally silent. Article 1 of the Copyright Law of the People's Republic of China states that the law is enacted for the purpose of protecting the copyright of authors in their literary, artistic and scientific works, and the rights and interests related to copyright. Article 3(4) lists works of fine arts as subject matter for protection, but not works of applied art. Reluctantly, Chinese courts have resorted to blurring the difference between works of applied art and works of fine art, using Article 3(4) to protect domestic applied art works, with various interpretations.
Judicial rulings: treating applied art works as fine art works
The courts have tended to treat works of applied art as works of fine art under the Copyright Law. A work of fine art has been defined in the Implementing Regulations of the Copyright Law ("the Implementing Regulations"), Article 4(8), as "two- or three-dimensional art works created in lines, colors 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, which has been translated by the courts into an artistic requirement.
In deciding whether works of applied art can be taken to be works of fine art and protected under the Copyright Law, courts usually require works to meet the requirements of (i) originality, which involves independent creation and creativity, (ii) reproducibility, and (iii) a certain level of artistic or aesthetic value.
In OKBaby v Cixi Jiabao Child Product, the court found a child potty with animal images on it to be a work of fine art, and so protected under the Copyright Law, as the toilet potty was of aesthetic value, artistic and original. In Blumberg Industries v Zhongshan Juguang Lamp, the court granted copyright protection to the plaintiff's lamp, as the lamp was designed with a decorative flower pattern, and thus qualified as a work of fine art. In Chaozhou Gelante Clothes v Haichang, the court considered the plaintiff's chinaware products fine art, as the products were different from traditional chinaware, and so was original. In Inter Ikea Systems v Taizhou Zhongtian Plastic, though, the court held that a piece of Ikea's children's furniture was not sufficiently artistic, and so did not constitute a work of fine art.
The rationale of the courts was revealed in the case of Ailumu International v Huizhou Xinlida Electronic Tools, where the judge stated that, "[Since] [t]here are no specific clauses in the Copyright Law of China governing how the works of applied art should be protected…when a work of applied art meets the artistic and creative requirements for works of fine art, it can be protected under the Copyright Law as a work of fine art."
The Tang Yun Cloakroom Furniture case
Sometimes, a court might even decide to extend protection under the Copyright Law to works of applied art outright. Recently, Wang Xiaobing (one of the authors) successfully protected his client's, Tang Yun Cloakroom Furniture's, furniture design as an applied art work, with the court granting it protection under the Copyright Law.
Representing the plaintiff, Wang argued in favor of recognition of applied art works. He asserted that, as long as they meet the requirements of originality, reproducibility and a certain level of an artistic or aesthetic value, works of applied art (such as furniture) should be entitled to copyright protection under a different category from works of fine art. The court agreed, despite the lack of any precedent.
Referring to Article 2 of the Implementing Regulations, the court decided in the plaintiff's favor, stating that "Tang Yun Cloakroom Furniture (below, left), with an overall design of wood color lines, metal parts, Chinese-style symmetrical arrangements, and combined Chinese and Western elements, offers a certain aesthetic significance to satisfy the requirement of originality. Further, it is available in industrial production and has the characteristics of reproducibility and practicality, and therefore constitutes a work of applied art and shall enjoy the protection under the Copyright Law." Finding the defendant's product (below, right) substantially similar, the court held the defendant guilty of copyright infringement and granted the plaintiff Rmb300,000 in damages.
Very pleased with the court's ruling, we note that the court relied upon Article 2 of the Implementing Regulations, which defines the term "works" as intellectual creations with originality in the literary, artistic or scientific domain insofar as they can be reproduced in a tangible form. Accordingly, without a reference to works of fine art, the court used a different line of reasoning to justify protection for works of applied art, something in line with the spirit of the Copyright Law and the Berne Convention.
Draft amendments to the Copyright Law – extending protection to applied art works
The Copyright Law has been substantively revised twice, in 2001 and 2010. In June 2014, the Office of Legislative Affairs of the State Council of the People's Republic of China released a "finalized" series of draft amendments to the Copyright Law.
In this draft, applied art works are given copyright protection under Article 5(9). This protection however would only extend to toys, furniture, jewelry, and other two- or three-dimensional works of art that possess both functional and aesthetic aspects. It would still be up to the discretion of the courts whether to extend this protection to other forms of products possessing both functional and aesthetic aspects, like the Evoque SUV in the Jaguar Land Rover case.
|Wang Xiaobing is a partner at Lung Tin in Shanghai, where he focuses on litigation. He has extensive experience in IP litigation before People’s courts nationwide. He has represented clients in cases that have been ranked among the top 10 Shanghai IP Court cases (2015), and the top 10 Supreme People’s Court IP cases (2015).|
|Xu Qinghong is a partner at Lung Tin. She has particular expertise in analyzing patent validity and infringement issues and regularly advises clients on intellectual property infringement litigation, infringement liability, protection of proprietary information and due diligence.|
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