1. "Works of applied art" as defined under Chinese law

Under Chinese law, the term "works of applied art" originates from the Berne Convention for the Protection of Literary and Artistic Works (the "Berne Convention"), in which Article 2 and Article 7 state that all signatory countries should give at least a 25-year protection to works of applied art.(1) After China joined the Berne Convention, the State Council of the People's Republic of China promulgated the Provisions on the Implementation of the International Copyright Treaties in 1992 (the "1992 Provision"),(2) in which Article 6 provides that the term of protection for foreign works of applied art shall be 25 years, commencing from the creation of the works. Other than the 1992 Provision, the term "works of applied art" is not mentioned in any law or regulation, including the Copyright Law of the People's Republic of China (the "Copyright Law")(3)and its implementing regulations.

  1. Instances of protection ofworks of applied art in Chinese judicial practice

Although the concept "works of applied art" is not explicitly defined and legally regulated under Chinese law, courts across China generally uphold that works of applied art are entitled to legal protection as "works of fine art" under the Copyright Law, and the legal criteria for works of applied art to be recognized as "copyright works" under the Copyright Law are quite consistent. Furthermore, it is possible for works of applied art to be protected as a design patent under the Patent Law of the People's Republic of China (the "Patent Law")(4) or as a unique decoration of a well-known commodity under the Anti-Unfair Competition Law of the People's Republic of China (the "Anti-Unfair Competition Law").(5)

  1. Protection as "works of fine art" under the Copyright Law

On the issue of whether "works of applied art" could be taken as "works of fine art" and protected under the Copyright Law, Chinese courts in judicial practice generally have affirmed the existence of the right.Following are standards that have been upheld by the courts in recognizing "works of applied art":

  • Originality - including two basic requirements for "works of applied art" to be regarded and protected as copyrightable "works":Works of "independent creation" and works with "creativity";
  • Reproducibility - another basic requirement to be identified as copyrightable works;
  • With a relative high level of aesthetic value - the basic artistic requirement for works to be identified as "works of fine art";

The following is an analysis of recent typical cases on the standards listed above:

  1. OKBaby Ltd. vs. Cixi Jiabao Child Product Ltd. (Beijing No.2 Intermediate Court, No.12293, 2008)

The PlaintiffOKBaby Ltd., an Italian company, claimed that its Spidy Toilet Bowl (Pic.1) had been copied and it should be protected as "works of applied art". The court held that the product, uniquely merging the image of an animal and a child's toilet bowl was of aesthetic value, artistic, original and reproducible, which made it eligible to be protected as "works of fine art" under theCopyright Law. The court held that when comparing the products of both parties, other than some minor differences in specific parts, the two products are substantially similar-looking, and the court held that the Defendant had infringed Plaintiff's original copyrightable product. (Pic. 2 is the defendant's product)  

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  1. Blumberg Industries, Inc. vs. Zhongshan Juguang Lamp Ltd. (Beijing No.2 Intermediate Court, No.17315, 2006)

The Plaintiff Blumberg Industries, Inc., a U.S. company primarily engaged in lamp design and sales, claimed that the Defendant had infringed the copyright of its lamp "Avignon" (Pic.3). The court was of the opinion that the U.S. company's product could be protected under Copyright Law through the Berne Convention and upheld that the Plaintiff's lamp was a "work of fine art with practical function and is copyrightable". The court further held that as to the Defendant's copied lamp, despite the fact that minor variations in color and decorative flower pattern were made, the Defendant had still copied the Plaintiff's work and infringed the Plaintiff's copyright.  

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The Plaintiffs' products in the above two cases could be taken as typical examples of "works of applied art". With their inherent high levels of aesthetic value and artistic nature, these products have met the requirements for "works of fine art" to be protected under the Copyright Law.

As to whether or not to uphold infringement, as can be seen in the OKBaby Case, the court had adopted the "identical or similar" standard. As in comparing Pic.1 and Pic.2, the two products were not exactly the same, but of substantially similar. Therefore, the court upheld that infringement was established. Meanwhile, some courts, in deciding whether infringement was established, adopt a rather low standard of similarity, such as can be seen in the following cases.

  1. Chaozhou Ge Lan Te Clothes Ltd. vs. Haichang Ltd. (Jiangxi High Court, No.19, 2007)

The court of second instance held that the Defendant's work was different from traditional chinaware and from those unique characteristic of previous chinaware. It was uniquely original, therefore, it satisfied the constituting elements needed for "works" under the Copyright Law and within the scope of "works of fine art". Although the Defendant "did not totally copy the original work and did make substantial alterations, it was an unsubstantial alteration founded on the original expression and not deviating from the original expression, and as to the public, it makes no substantial difference between the two. Also, the Plaintiff did not produce adequate evidence proving that the Plaintiff's chinaware series product was a work of an independently created product.Therefore, it should be held that the Defendant's series of chinaware have infringed upon the Plaintiff's chinaware products." (See Pic.4 and Pic.5, Defendant's product is on top while Plaintiff's is on the bottom in both pictures)

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Finally, the below two cases illustrate situations in which, due to lack of artistic attributes or features, works may not be protected as "works of fine art" under the Copyright Law :

  1. Ai Lu Mu International Inc. vs. Huizhou Xin Li Da Electronic Tools Ltd. (Guangzhou High Court, No.45, 2006)

The court held that a work of applied art is not expressly protected under the Copyright Law, except when it has attained a high enough level of artistic creativity to be a "work of fine art".This reflects a view that "works of applied art" which contain low artistic elements or lack artistic attributes will be excluded from the protection of the Copyright law. The model ELMM-1000 plastic cutter of which the Appellant requested protection is a component of a general appearance and with emphasis on its practical function. It lacks aesthetic value and generally does not induce people to feel a meaning it expresses or appreciate value for its appearance alone.So, this plastic cutter is of a more practical nature and does not reach the required aesthetic meaning and value of appreciation. Therefore, it was not regarded as "a work of applied art" to be protected under the Copyright Law and the Berne Convention. (Pic.6 is the Plaintiff's product; Pic.7 is the Defendant's product)  

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  1. Inter Ikea Systems B.V. vs. Taizhou Zhongtian Plastic Ltd. (Shanghai No.2 Intermediate Court, No.187, 2008)

The Plaintiff, Inter Ikea Systems B.V., sued the Defendant for the alleged infringement upon the copyright of their children's furniture. The point of contention was on whether Plaintiff's child furniture (Pic.8 and Pic.9) could be regarded as "works of applied art". The court held: "The artistic attributes of "works of applied art" have to satisfy the minimum requirement of ‘works of fine art' in order to be protected by the Copyright Law. The theme of the design of Plaintiff's children's chair and children's stool in this case is mainly demonstrated in the lines of the overall figure. By observing it as a whole, it is not distinct from an ordinary children's chair and children's stool in external appearance, and it belongs to a rather simple design of a children's chair and children's stool. As regarding artistic attributes, it has not satisfied the minimum requirement for ‘works of fine art' and therefore it does not belong to ‘works of applied art' within the scope of ‘works of fine art' and can not to be protected by the Copyright Law."

As to the issue of sameness and similarities, the court held that "although there are differences in the back and surface of the chair, the figure of the legs of the chairs are basically identical, and both chairs on the whole are constituted similarly." (Pic.10 and Pic.11 are the Defendant's products)  

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In the above two cases, products of both Plaintiffs were not accepted as "works of applied art" by the courts. The plastic cutter could be taken as having no artistic value whatsoever, and while the children's furniture does have some artistic value, but the court was of opinion that it did not reach the minimum requirement of artistic value for it to be protected by the Copyright Law. In spite of this, in other specific cases, the court has adopted a comparatively low requirement for artistic value in "works of applied art", such as in the Lego Case below.

  1. Lego Inc. vs, Guangdong Xiao Bailong Toy Ltd. (Beijing No.1 Intermediate Court, No.16676, 2010)

The court held, in deciding whether Plaintiff's toy bricks (Pic.12) constitute a work of fine art, "the key lies in whether or not such an expression was independently created by the Plaintiff, and also has reached the basic level of intellectual creativity as required by the Copyright Law. To this, the court held, in light of the fact the defendant failed to adduce evidence to prove the pre-existence of such an identical or substantially similar expression of intellectual work, therefore, by the evidence on hand, it is reasonable to assume that such expression is an independent creation by the Plaintiff and not the result of copying another's intellectual creation.Furthermore, the Lego toy brick product is an abstraction of art and carries a certain artistic beauty which has reached the basic level of intellectual creativity, therefore, the toy bricks carried an expression which has satisfied the independent creativity as required for being a piece of work." As to the "basic level of intellectual creativity", the court explained: "The basic level of intellectual creativity is not to require the intellectual achievement to reach a comparatively higher level of artistic or scientific level of aesthetic value, it only requires the intellectual creation as expressed in the work not to be too low and negligible."

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It can be seen from the above cases that the issue whether "works of applied art" could be protected as "works of fine art" under theCopyright Law, Chinese courts on the whole take an affirmative stance, and the standards adopted by the courts to confirm "works of applied" are generally consistent.As for the issue whether or not an infringement has taken place, the courts in general have adopted the "identical or similar" standard. In general, to confirm an infringement has taken place, it requires a high level of similarity. That said, individual courts can take a lax position in the standard for confirming "similarity".

As well, some courts set a comparatively low requirement for the artistic attribute of "works of fine art", such as in the Lego toy bricks case, where the court was of the opinion that it would be sufficient when the intellectual creation in the work is "not too low and negligible."

It is worth noting that, in Article 3 of the Copyright Law amendment (second draft, published on July 6, 2012), "works of applied art" was added to the list of copyrightable "works" and also defined as "works which carry both practical uses and aesthetic meanings". This legislative change reflects the mainstream view of judicial practice, and it is expected that the protection of "works of applied art" will be more explicit after the implementation of the amended Copyright Law.

  1. Protection as a design patent under Patent Law

Under Article 2 of the Implementation Regulations for thePatent Law of the People's Republic of China (the"Implementing Regulations")(6), an "appearance design" is defined as "a new design made out of shape, pattern and a combination of both, and also a combination of color, shape and pattern, with rich aesthetic feel and suitable for industrial application." Article 23 of the Patent Law states "any design for which a patent right is granted shall not be attributable to any existing design; no entity or individual shall have filed an application with the patent administrations under the State Council, with respect to any such design before the date of application nor recorded any such design on patent-related documents officially published and announced after the date of the application. Any design for which a patent right is granted shall be distinctively different from existing designs and any combination of existing designs." From the above stipulations, we can come to the conclusion that the requirements for granting a design patent are "novelty" and with "obvious distinctiveness". As long as the "works of applied art" have not been published before the date of filing, it is highly likely that a design patent will be granted without much difficulty.

In the Lego Case, it was held the plastic cutter was not protected by the Copyright Law, but in regard to the requirement for appearance-design under the Patent Law, the design of its component configuration carries special attributes.Presumably, if the product had obtained a design patent, and the Plaintiff had sued the Defendant for infringing the design patent, the possibility for winning the case would be very high since the appearance of Defendant's product is basically identical.

As observed from current cases, if a "work of applied art" has obtained authorization as a design patent, not only it can get a10-year strong protection under the Patent Law, but it can be protected by the Copyright Law after the 10-year design patent expires.

  1. Wuxi Haiyi sculpting Ltd. vs. LI Jiashan (Jiangsu High Court, No.115, 2007)

The Plaintiff's diamond-shape seal handle (see Pic.13) obtained a design patent in 1998. After the design patent expired, the Plaintiff sued Defendant for infringement of its copyright in the diamond-shape design. According to Article 4, Item 8 of the Implementing Regulations, the Court of second instance held:

"As stipulated in Article 4 Item 8 of the Implementing Regulations, ‘works of fine art' includes works of painting, works of calligraphy, sculpture and the like - or three-dimensional works of art constituted by lines, color or other forms and which carry aesthetic meaning.Also, under Article 4 Item 8 of the Implementing Regulations, ‘works of fine art' includes not only ordinary works of art, but also ‘works of applied art'. A ‘work of applied art' should meet the requirements of originality and reproducibility. In addition, it should be a work of art, enjoying artistic attributes which come from its aesthetic meaning, and practical attributes which come from the value of its practical use.The diamond-shape seal handle in this case is an industrial product appearance-design, which could be put to mass production. Thus, its applicability and reproducibility are undoubtedly confirmed.Meanwhile, in the design of the seal handle, it has adopted a unique means of expression in the form of the diamond surface which gives people a feeling of clear crystal. The appreciation attributes and aesthetic value give it artistic attributes as required by a work of applied art. Therefore, the Plaintiff's diamond-shape seal handle was protected under the Copyright Law.  

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  1. Protection as a unique decoration of a well-known commodity under the Anti- Unfair Competition Law

Article 5(1) (b) of the Anti-Unfair Competition Law states that an act of those, without consent, making use of the unique name, package and decoration, or a similar name, package and decoration, of a well-known commodity, will constitute an act of unfair competition if the acts caused confusion with another well-known commodity and caused the purchaser to mistakenly take it as the well-known commodity.In short, should a "work of applied art" have satisfied the requirements for a "well-known commodity", and caused "confusion" among consumers, it may be protected for its "unique decoration".

  1. Chaozhou Ge Lan Te Clothes Ltd. vs. Haochang Ltd. (Jiangxi High Court, No.19, 2007)

In this case, the Plaintiff not only brought a claim for protection of copyright, but also sought protection under the Anti-Unfair Competition Law.The Court of first instance held that generally a ‘well-known commodity', should be identified based on the following elements:Familiarity of the disputed commodity to the relevant public, the timing, sales amount and percentage of market coverage of that commodity sold in the market, the extent of advertisement promotion, the scale of capital investment, the scope of geographical distribution, and authoritative awards received by the commodity, etc. The ‘unique decoration of a commodity' generally refers to the specific designs on the package of the commodity such as the additional words, patterns, colors and formatting. These design elements are added for identifying commodities and increasing aesthetic attributes. The Plaintiff's chinaware commodity shows an obvious difference in terms of decoration from the other relevant chinaware. The main elements which have drawn attention from the public and differentiated the Plaintiff's products from other chinaware are the figure, color, and style, which carry obvious characterized attributes. The decoration of this commodity has been used by the plaintiff in China for many years and has generated distinctiveness. The main attributes of the decoration were the pattern, color and style which constituted an obvious distinctiveness in differentiating the origin of commodity. The relevant public, when looking that type of commodity, will associate it with a specific producer, the plaintiff, and the commodity has achieved a "distinctive" attribute to differentiate itself from other same type of commodities.The pattern, color and style of Plaintiff's commodity have constituted an important label for the relevant public to identify the Plaintiff's product.Therefore, it should be upheld that the "Fa Lan Ci" chinaware, through use, has generated distinctiveness, and constituted the unique decoration of a well-known commodity.

The Court of second instance was of the opinion that:"[e]ven if the unique decoration was faked and there constituted unfair competition, it should be taken as a merger of law if the plaintiff also claimed copyright protection." Therefore, the Court did not deny "works applied art" could be protected as unique decoration.

  1. Shantou City Chenhai District Huada Toy Ltd. vs. Pinhu Bei Si Da Children's Car Ltd. (Jiaxin Intermediate Court, No.7, 2008)

The PlaintiffShantou City Chenhai District Huada Toy Ltd., a battery-drive toy car maker and seller, sued the Defendant for infringing the unique decoration of their battery-drive toy car product HD-6410 (Pic.14).The Court held that the Model HD-6410 "phantom space car" produced by the Plaintiff Huada Company was a "well-known commodity". The Court also recognized that the "Red Phoenix Eye" front-lights, streamlined body, handle, shimmering color lighting and the tail-wing, looking as a whole, carried obvious unique attributes which differed from other products of the same type. These attributes were not adopted by other products of the same category and were only specially used by this model series. At the same time, they also had a decorative function, to beautify the external appearance of the battery-drive toy car. So, these attributes are ascribed to be the unique decoration of a well-known commodity.  

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As illustrated by the picture (Pic.14), the external appearance of this battery-drive toy car also has satisfied the required artistic attribute for "works of applied art", but the Plaintiff did not seek protection under the Copyright Law and instead sought protection under the Anti-unfair Competition Law.In the end, the Plaintiff successfully defended their interests.

  1. An evaluation and contrast of the three forms of protection listed above

A consolidated analysis of the above forms of protection for "works of applied art" denotes that each of them carries special characteristics:

  1. Protection through the Copyright Law --- The merit of this form lies in its automatic protection, as there is no need for registration or approval for the creation of copyright.At the same time, the period of protection is relatively long. Article 6 of the Regulation to Implement International Copyright Conventions(7) explicitly provided that the protection period for foreign "works of applied art" shall be 25 years commencing from the date of creation of the work, even though on the protection of domestic "works of applied art", it was not mentioned in any stipulation of law and regulation, nor in court cases. But in Article 28 of the Amendment Draft to theCopyright Law (the 2nd draft), it was provided that the protection period for works of applied art shall be 25 years and, for the property right within a copyright, 25 years after the date of first publication. Based on this, we may foresee that after the passing of the Second Draft Amendment, protection of foreign and domestic "works of applied art" in China will be made specific. The drawback of protection via copyright is that it requires a relatively high level of artistic attribute and the Courts must recognize the artistic attribute on a case-by-case manner, which rely heavily on the judges' discretion.
  2. Protection through the Patent Law --- The merit of this form lies in the simplicity in recognizing the protection scope under Article 59 of the Patent Law- " [t]he extent of protection for the patent right of a design shall be determined by the product incorporating the patented design as shown in the drawings or photographs in patent specifications". As such, judges could ascertain the scope of protection based simply on the approved patent document and without resort to additional discretion. Meanwhile, the volume of authorized design patents in China is very high, as design patents demand no proof of artistic attribute, and the patent application procedures are relatively simple. Therefore, it could be said that it is not too difficult for "works of applied art" to obtain patent authorization. In addition, a higher compensation could be won by going through this form. As to the drawbacks, the protection period for a design patent is only 10 years, and the patent owners have to pay a patent fee annually.
  3. Protection through the Anti-Unfair Competition Law --- It is comparatively harder to obtain protection through this form. According to Article 5(1) (b) of the Anti-Unfair Competition Law:

"[The act] of those, without consent, making use of the unique name, package and decoration, or by use of a similar name, package and decoration, of well-known commodity, and which caused confusion with other's well-known commodity and caused the purchaser to mistakenly take it as the well-commodity, will be an act of unfair competition."

To be protected under this form, the property owner must prove that the commodity is "well-known commodity" and prove confusion was in fact caused amongst the relevant public. Therefore this form would likely be a last resort after all other forms of remedy have been exhausted.

As more works of applied art are produced, it is foreseeable that infringement cases may also rise. For manufacturers in this category, the likely first step is to apply for a design patent before marketing their products to the world. In this way, manufacturers can obtain a relatively strong 10-year patent protection, after which they can continue to get protection through the Copyright Law. Meanwhile, with the aforementioned exclusive first 10-year patent, it would also be highly advantageous to get the recognition of a "well-known commodity" and a commodity with "unique decoration". Through the above measures, the manufacturer will be better positioned to gain protection under the Anti-unfair Competition Law.