Kelly LEI 
Trainee attorney 
 
In recent years, we received many inquiries from clients regarding whether the design of industrial products which are well-designed could be protected as works of applied art based on the Chinese Copyright Law. The clients who raised these inquiries were mainly individuals or companies from the countries as France, Italy, the Northlands, Sweden, which are famous for art or have well developed market of applied art. Normally, the clients wish to protect their product design through Copyright Law, under the situation that they didn’t file design patent application in China before their products entering into Chinese market or their design right expired. Copyright protection and design protection are two different systems, and they are different in the aspects of protection object, level of protection, protection period, etc. The author will introduce the differences and similarities between the copyright protection and design protection in the following and make an analysis on the requirements of copyrightable design.
 
1. Relevant laws regarding copyright protection of works of applied art
 
The term “works of applied art” is a concept in the copyright field. As the name implies, works of applied art refer to the works which are having both practical and artistic value. According to Glossary of Terms of the Law of Copyright and Neighboring Rights edited by WIPO, works of applied art refer to the works of art which could be practically used, no matter it is a handwork product or industrial product. From the above definition “works of art which could be practically used”, “works of art” plays an essential role. It can be seen that copyright protection to works of applied art put more emphasis on artistry than practicality. 
 
In China, the legal basis of copyright protection to the works of applied art was originated from the Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred to as “Berne Convention”). Works of applied art was listed as one kind of literary and artistic works in Berne Convention. As a contracting party, China undertakes obligations of the convention. Article 6 of "Regulations for the Implementation of International Copyright Treaties", which was promulgated and implemented by the State Council of the P.R.C in 1992, stipulated that the protection period for the foreign works of applied art is 25 years from the completion of the work. Except for the above regulation, the Copyright Law of the P.R.C has no definition of works of applied art, and no stipulation of how to protect the copyright of works of applied art, scope and period of protection, etc. Thus, it is disputable how to protect the works of applied art in China. In legal practice, the Chinese courts usually protect works of applied art by invoking the relevant laws regarding works of art in the Copyright Law. 
 
2. Differences between the copyright protection and patent protection
 
An industrial product is possible to be protected in double way through copyright and design patent. But these two ways are substantially different in obtaining right, protection period, object of protection, elements of infringement, etc. 
  Protection object Means of obtaining the right Requirements   of enforcing the right Protection
period
Infringement determination
Copyright protection Only the part of aesthetics is protected, and the part of practicability is not protected.
 
Automatically generated  upon completion of the work Replicability, originality, relatively high aesthetic value 1. Life time of the author plus 50 years after his/her death for individual works is.
 
2. 50 years from the first publication date of the work for entity works is. If the work has not been published, the protection period is 50 years from the year, which the work was created.
Without authorization of the right owner, the act of reproducing  or distributing the work constitutes infringement.
Design patent protection The new design of a product's shape, pattern or the combination thereof, and the combination of the color and the shape or pattern of a product, which creates an aesthetic feeling and is fit for industrial application. A design application should be filed by the applicant and be granted for patent upon preliminary examination by SIPO. A design to be granted cannot be identical with or substantially similar to a prior design. 10 years from filing date After the design patent is granted, without permission of the patentee
, it will constitute infringement of design patent if the entity or individual manufactures, offers to sell, sells, or imports the patented product
 
From the above comparison, compared with design patent, copyright protection to the design of industrial products has unique advantages.  In the aspect of the means of obtaining rights and protection period, copyright is automatically generated from the date of completion of the work, and the right holder can obtain the right without filing a copyright registration. Besides, Regulations for the Implementation of International Copyright Treaties stipulates that the protection period of the works of applied art is 25 years from the completion of the work. However, as we mentioned above, in practice, the works of applied art, if they meet the requirements of works of art, will be protected as art works based on the Copyright Law in China. And the protection period to the property rights of the art works, such as the right of reproduction, the right of distribution, etc., is 50 years. Moreover, Copyright Law is higher in terms of legislation than Regulations for the Implementation of International Copyright Treaties which is an administrative regulation, for which Copyright Law shall govern when there is conflict between the two. Thus, in theory, 50 years of protection period may be claimed for the work of applied art. In the current judicial cases, there is seldom a clear explanation of the period of protection. But either 25 years or 50 years is much longer than the protection period of the design patent. Besides, design patent is granted only upon preliminary examination  in China. Even if being grant, it is possible to invalidate a design patent. While, there is no invalidation system to copyright. However, there are also some disadvantages protecting the design of the industrial product by copyright. In the aspect of determining copyright infringement, only the act of republication and distribution without authorization is considered as infringing act, while the act of selling, importing, etc., is not. Beside, in the aspect of protection object, as we mentioned above, as the work of applied art is protected by invoking the relevant provisions regarding the works of art in the Copyright Law, relatively high aesthetics is required. Although Patent Law of the P.R.C also stipulates that the design patent should have aesthetic feeling, there is no requirement regarding the degree of aesthetic feeling in the Patent Law, other relevant laws and legal practice. But "aesthetics" is a premise and a difficult point for whether the design of industrial products can be protected based on the copyright law, and it has a direct impact on whether the design of the products is protectable under Copyright Law. We will explain this point in details in the following. 
 
3. Determination of protection object under Copyright Law 
 
Copyright Law doesn’t expressly stipulate the substantial requirements for the protectable objects. According to Article 2 of Regulation for the Implementation of the Copyright Law of the People's Republic of China, a protectable object should be reproducible and original. 
 
There is no provision regarding the standard of originality. Normally,the courts hold that originality should be judged based on the concrete facts and there is no uniform standard applicable to all the works. In fact, there are different requirements for different works in originality.
 
As for the works of applied art, usually practicality and artistry of the work is considered separately by the courts. The part of practicality will not be protected and the part of aesthetics will be protected invoking the relevant provisions regarding the works of art in the Copyright Law. Article 4(8) of Regulations for the Implementation of the Copyright Law stipulates that works of art are two- or three-dimensional works created in lines, colors or other medium which, when being viewed, impart esthetic effect, such as paintings, works of calligraphy, sculptures and works of architecture.
 
Thus, in the cases, a focus of whether the design of industrial products is protectable under Copyright Law is that whether the work of applied art involved in the case is original.
 
As for the object, which has both practicability and aesthetics, whether it can be protected as a work of art depends on the unique personality and creativity in the intellectual work put in by the author in aesthetics. The part of intellectual work which doesn’t relate to aesthetic has nothing to do with originality. Thus, whether the work is created independently and through their hard work is not a sufficient for an object to be protected based on Copyright Law.
 
Normally, courts will decide the originality by judging whether the work has sufficient aesthetic value. In the copyright infringement case of Lego company V. Guangdong Xiaobailong Cartoon Toys Industrial Co., Ltd. and Xidan Shopping Center Co., Ltd., the Supreme Court held that the involved toys were common designs in toy blocks and didn’t meet the requirement of originality. Thus, it could not be protected by the Copyright Law. While,  in the reproduction right infringement case of Yong Fu Co., Ltd., etc. V. Shanghai Duyi Trading Co., Ltd., in which the involved products are also toys, the court held the involved products are toys of cottages, wagons, elegant chapels or cottages with fairy tale features, which have complex structure, and they have certain degree of artistic beauty in terms of color combination,  design of space, which reached the basic level of intellectual creativity, and meet the requirements of originality of the works of applied art.
As mentioned above, at present, there are no express and clear provisions regarding originality and aesthetics under the Chinese laws. The following table shows the tendency of the courts regarding whether the works meet the requirements of the works of art through a summary of various and a number of cases in the past years. 






4. Suggestions 
 
Although copyright is automatically generated upon the completion of the work and filing copyright registration is not compulsory in China, according to the practical experience, filing copyright registration will bring great convenience in enforcement to the right holder.
 
Firstly, the Copyright Certificate could be used as a preliminary evidence of copyright ownership. Article 11(4) of Copyright Law stipulates that the citizen, legal entity or organization whose name is affixed to a work shall, without the contrary proof, be the author of the work. The copyright holder indicated in the Copyright Certificate will be deemed as the right holder of the work by the court and the right holder doesn’t need to provide other document(s) to prove ownership. Especially, as it is difficult for the overseas right holders  to collect evidence and the evidence generated overseas can be admitted by the Chinese court upon being conducted a series of complex procedures such us notarization and legalization, submitting a Copyright Certificate is a simple way to prove ownership. 
 
What is worthy of attention is that, if the copyright is registered long after the work is completed and the right holder could not provide other supporting evidence to prove the completion time of the work, usually the time of completion of the work indicated in the Copyright Certificate cannot be directly admitted as the time that the holder obtained copyright by the court. Thus, it is advisable to file  copyright registration as soon as possible when the work is completed. 
 
Secondly, when enforcing right by other ways, such us filing a complaint with Alibaba IP platform and Customs recordation, it is necessary to submit the Copyright Certificate as the proof of right. For example, Alibaba Group sent up an IP protection system for its six e-commerce platforms, including Taobao, Tmall China, Tmall Global, 1688.com (Alibaba China), Alibaba.com (Alibaba Global) and Aliexpress. When the copyright holder finds out product which is suspected of infringing the holder’s copyright on the above e-commerce platforms, the right holder may require the Alibaba IP platform to delete the infringing links by providing the Copyright Registration as the proof of right. 
 
Thirdly, when the right is enforced by sending a warning letter, the Copyright Certificate can also be a powerful weapon that could be used to frighten the infringers who produce and sell imitation products. As CPCC only conducts preliminary examination in copyright registration procedure, even if the aesthetic value of the design of industrial products is disputable, it could be registered and used as right certificate in practice if there is no contrary proof. When to send a warning letter to the suspected infringer, copyright certificate can be accompanied in the letter. This way helps urge the suspected infringer to stop imitation and infringement to a certain extent. 
 
To sum up, copyright and design patent both have certain limitations for the protection of design of industrial products. Although the protection period of copyright is longer, the design of many industrial products does not meet the artistic level required by the Copyright Law which became the biggest obstacle for the design of industrial products to obtain copyright protection based on copyright laws. Thus, design patent is still a better way to protect the design of industrial products. However, under the situation that the product's design cannot obtain the protection of design patent or the protection period of design patent has expired, copyright protection is a good supplementary protection measure. Besides, if the industrial product is popular in the market, its design with certain characteristics can play a role in differentiating the source of the product, Unfair Competition Law may be applied to protect the design of such product.