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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.
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 timely.
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.
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, the protection period of the works of applied art is 25 years from the completion of the work. And, 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.
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.
In the aspect of protection object, 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 China 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.
Copyright Law doesn’t expressly stipulate the substantial requirements for the protectable objects. According to the Copyright Law, 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. 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.
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 inthe 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.
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
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.
