Works of applied art are not fully protected by copyright or design, two types of intellectual property that have distinct standards for protection.
One of the key distinctions is that whereas a design must be registered in order to be protected under Copyright, a work does not need to be registered to be protected under Copyright. The intellectual work (artistic or literary), which is the result of creative activity that arises from the human intellect and is externalised to the world, is protected by copyright.
Design protection covers the look of an object as a whole or in part as a result of its features, including its lines, contours, colours, shapes, patterns, textures, and/or materials, as well as its ornamentation.
The IP Offices do not evaluate these requirements to grant the protection, which will only be evaluated in case of invalidity proceedings after granting the designs, despite novelty and individual character being requirements for the protection of designs in both Chinese and European Union legislation.
A work may even be a basis for the invalidity of a Community design that has been registered infringing this copyrighted work because of the overlap of these IP rights that a particular work or product may obtain.
This issue is governed by Article 25(1)(f) of Community Design Regulation (EC) No. 6/2002, and the request for a declaration of invalidity of a Community design must meet the criteria listed below:
• The applicant must be the owner of the previous work covered by a copyright;
• Proof that the applicant is the owner of the earlier copyrighted work, which was used or revealed under the applicant's name prior to the filing date or the priority date of the Community design (see article 28(1)(b)(iii) of the Community Design Implementing Regulation);
• A representation of the work that is copyrighted and information identifying it;
• The provisions of the national legislation that the applicant claims safeguards the copyrighted work, including, if necessary, court judgments and/or scholarly literature;
• Proof that the applicant is the owner of the earlier copyrighted work, which was used or revealed under the applicant's name prior to the filing date or the priority date of the Community design (see article 28(1)(b)(iii) of the Community Design Implementing Regulation);
• A representation of the work that is copyrighted and information identifying it;
• The provisions of the national legislation that the applicant claims safeguards the copyrighted work, including, if necessary, court judgments and/or scholarly literature;
• Information describing the national law's provisions for which the applicant is requesting application, including, where required, court judgments and/or scholarly works;
• Information demonstrating that the applicant satisfies the requirements set forth by that law in order to prevent the use of the Community design due to an earlier copyright or to invalidate the Community design.
Considering all of these factors, the Invalidity Division of the European Union Intellectual Property Office (EUIPO) will determine if the applicant for a declaration of invalidity is the owner of the copyright invoked and whether any unauthorised use of a work protected by a member state's copyright law, as interpreted by that member state's courts, has taken place. The Invalidity Division must declare the Community design invalid if both conditions are confirmed.
When ownership of the Community Design is disputed, especially when the invalidity applicant's main contention is that the Community Design was created by the invalidity applicant or by an employee of the company, the application for a declaration of invalidity of a Community Design based on copyright infringement does not apply.
It should be noted that Article 14(2) CDR states that, unless otherwise agreed or specified under national law, the employer shall own the right to the Community design where a design is created by an employee while performing his or her duties or after receiving instructions from his or her employer.
In this regard, the EUIPO lacks jurisdiction to decide which of the parties is the legitimate owner of the disputed Community design because national courts have that authority.
A design patent in China may also be revoked for violating someone else's copyright because Article 23 of the Chinese Patent Law states that a patented design must not conflict with any legal rights that third parties may have already acquired before the filing date. The Chinese Copyright Act defines copyright as a legal right. It is important to keep in mind that the Chinese system is working to align rights with those of other countries and legal systems, including those of the European Union, the United States of America, Japan, South Korea, and international treaties.
Regarding the overlap between copyright and design rights, it should be noted that, according to the legal precedent of the European Union, a product's aesthetic effect does not, by itself, allow one to determine whether it is an intellectual creation that reflects the author's freedom of choice and personality and, therefore, satisfies the originality/creativity requirement of copyright.
Prior to a few years ago, Chinese law required that works that were disputed to be at least as creative as the subject matter for which an alternative protection instrument existed, such as design protection, in order to set them apart from the subject matter protected by these alternative instruments (for example, patent design).
It is now clearer that anything that requires intellectual labour can be protected without having to meet certain standards of artistry thanks to the third amendment to the Copyright Act, which was passed in 2020. This modification changed Article 3 to state that any "intellectual achievement" can now be protected as work, which is a much broader term than the previous "creation." This considerably broader definition makes it possible to classify a greater variety of works as "protected works" and makes it more difficult for alleged infringers to dispute the work's existence, which in some ways restricts access to culture and artistic expression.
This decision reaffirmed that a folding bicycle falls under the copyright protection if its shape is "at least in part necessary to achieve a technical result, where that product is an original work resulting from intellectual creation, in that, through that shape, its author expresses his creative ability in an original manner by making free and creative choices in such a way that that shape reflects his personality, which is for the national court to verify, keeping in mind all the relevant aspects of the main proceedings.
In this sense, an object that satisfies the requirement of originality may profit from the protection provided by copyright, even if its realisation has been influenced by technical considerations, provided that this influence hasn't prevented the author from reflecting his personality in that object by making free and inventive decisions.
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