China’s Copyright Law protects “works of literature, art, natural science, social science, engineering technology and the like which are expressed in the following forms: (1) written works; (2) oral works; (3) musical, dramatic, theatrical, choreographic and acrobatic artworks; (4) works of the fine arts and architecture; (5) pictorial and photographic works; (6) audiovisual works; (7) graphic works such as drawings of engineering designs, product designs, maps and sketches, etc.; (8) computer software; and (9) other intellectual achievements conforming to the characteristics of the works.” China’s copyright law protects the expression of ideas instead of ideas themselves, which is similar to U.S. copyright law.
The term of protection in China is the life of the author plus 50 years for individual authors or 50 years from the first publication of the work for legal entities, unless otherwise provided. The protection of moral rights, including the rights of publication, authorship, alteration, and integrity, is perpetual.
2D designs and texts on a product or packaging may be protected as written, pictorial, photographic, and graphic works, or even works of fine art, depending on the nature of the design elements. The situation is much more complex for product designs and 3D packaging. If the author is a foreign natural person or legal entity, the product design or 3D packaging may be protected as a foreign work of applied art under the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”) for 25 years in China.
For Chinese authors or foreign authors of product designs and 3D packaging that are no longer protected under the Berne Convention, Chinese courts need to find protection under works of fine art in judicial rulings because China’s Copyright Law is still ambiguous on this issue. In the guiding case* “Crosplus Home Furnishing (Shanghai) Co., Ltd. v. Beijing Zhongrong Hengsheng Wood Industry Co. and Nanjing Mengyang Furniture Sales Center,” issued in 2021, China’s Supreme People’s Court (“SPC”) confirmed that works of applied art could be protected as work of fine arts under China’s copyright law. The SPC ruled that, for works of applied art to be protected, the following must be met:
- the practical functionality and aesthetic value must be separable;
- the aesthetic value must meet the high standards of fine art; and
- copyright protection is limited to the aesthetic value only.
To be specific, the SPC found the “Tang Yun Cloakroom Furniture” (see the specimen of work below) of Crosplus Home Furnishing (Shanghai) Co., Ltd. to be original and of high aesthetic value because of the designed wood texture and patterns, handmade brass accessories, and overall Chinese-style symmetrical structure. According to the SPC, any changes to the wood textures and patterns, brass accessories, and overall structure would not affect the functionality of the furniture. Thus, the practical functionality and aesthetic value were indeed separable.
For comparison, U.S. copyright protection is also available for artistic works first appearing in the context of 3D products, as we discussed in this earlier post relating to a furniture design. The U.S. has a similar test to China for “separable and creative authorship,” but a much lower threshold of originality required for an artistic work to be eligible for protection than the “high aesthetic value” test used in China.
(Specimen of work in the copyright registration of Crosplus Home Furnishing (Shanghai) Co., Ltd.)
*SPC’s Guiding Cases are not binding precedents but “have guiding effect on adjudication and enforcement work in courts throughout the country,” according to the Provisions of the Supreme People’s Court Concerning Work on Case Guidance issued on November 26, 2010.
Like in the U.S., in China a copyright is automatically attached to a work upon its completion without registration. However, a copyright registration certificate serves as evidence of ownership, which is required for enforcement actions by administrative authorities. Copyright registrations can also be recorded at China customs to stop infringing goods from being exported overseas. Copyright applications can be filed with the Copyright Protection Centre of China (CPCC) or provincial copyright protection centers, and the registration certificates provide similar protection. The registration process is straightforward and requires minimum documentation and information because the copyright protection centers conduct a formality examination only.
In addition to copyright registration, Chinese courts accept electronic evidence obtained via blockchain technology to prove copyright ownership and facts of infringement. In a judicial interpretation entitled Opinions on Strengthening the Protection of Copyright and Copyright-Related Rights, issued in 2020, the SPC allowed parties to preserve, fix, and submit evidence by blockchain and digital timestamp. Because there is no evidence discovery process in China, this new rule can help alleviate the burden of proof from the shoulders of copyright owners.