Chinese copyright law grants a a shorter term of protection to works of applied art than to other artistic works. It is therefore important to clearly distinguish works of applied art from artistic works. Certainly it is also important to distinguish between works of applied art and industrial design. The traditional way to distinguish is the separability criterion, which is adopted from the USA. After the works of applied art are to be protected by the Chinese copyright law, this criterion won’t be a suitable solution to be used at the same time for the two kinds of distinction mentioned above. The requirement of artistic quality, as in British law, or the level of creativity shall be considered in regards of copyright protection for works of applied art in order to exclude copyright protection for works without artistic quality or a certain level of creativity. As to technical drawings or models for a product, so called graphic works or model works in China, it is impossible to only grant them 25 years of protection which is allowed for works of by the Berne Convention; it is also not reasonable to say that three-dimensional copying of the technical drawing is not an infringement of the exclusive right of reproduction. The best way is to provide for an exception for industrial exploitation of graphic works and model works, like in the current British law, by granting only 25 years of protection against reproduction if the work has been industrially exploited.
Here are some suggestions to minimizing the overlapping of applied art and industrial design in China:
A. China should keep the policy of avoiding copyright protection for commercial industrial design, and a shorter term of copyright protection should be granted for works of applied art. It is not a good idea that Chinese courts shall try to protect industrial design (for example, the shape of JIAN-SHI fighter, the design character of furniture) under copyright law.
B. The protection term of registered industrial design shall be extend to 25 years, to be consistent with copyright protection of works of applied art.
C. In order to distinguish works of applied art and artistic works under Chinese copyright, the Chinese courts may continue to apply the traditional approach of using the separability criterion. Only works meeting the requirement of physical separation or conceptual separation can be protected as artistic works which may enjoy the longer term of copyright protection.
D. If a design is to be protected as a work of applied art, it shall meet the requirement of artistic quality, creativity or individuality. Industrial designs without artistic quality or individuality shall only be able to seek protection under the law of registered designs (patents).
E. Even if the copyright protection for a graphic or model work (illustrations of a scientific or technical nature) is not subject to the requirement of artistic quality, the exception regarding industrial exploitation can be used to shorten the term of copyright protection in China. This exception can also be applied to artistic works and works of applied art. Thus, even if the separability criterion or artistic quality requirement won’t work well in some cases, this exception will guarantee that such works will only enjoy 25 years protection when the design is protected by the copyright law.
