Under the trend of "appearance level is justice", the trend of consumer entertainment is rising day by day, and product artistry is becoming more and more important, especially in the consumer goods industry such as fashion play, toys, jewelry, and furniture. With the improvement of China's current material and cultural living standards, people's desire for aesthetic pursuit is increasing, giving products artistry on the basis of the inherent practicality of products, and integrating the practical function of products with the artistry of products, not only to meet the needs of consumers for product practicality, but also to meet the needs of consumers for product artistry, becoming one of the important competitiveness at present. In China's broad intellectual property system, the legislative purposes, protection objects and legal systems of the Copyright Law, the Patent Law and the Anti-Unfair Competition Law are different, and they are usually distinct. For example, the object of copyright protection is the work, that is, the intellectual achievement with originality and can be expressed in a certain form in the fields of literature, art and science; The object of design patent protection is product design, that is, the whole or part of the product shape, pattern or its combination, as well as the combination of color and shape, pattern made of aesthetic and suitable for industrial applications of the new design. As far as applied art is concerned, it is artistic on one hand and practical on the other hand, and its intellectual property protection has different modes such as copyright law protection, design patent protection and anti-unfair competition law protection. Different protection modes will cause problems such as concurrence or conflict of rights. This paper discusses the copyright protection of applied works of art in judicial practice.

一、Background of copyright protection of applied artwork

The concept of "applied works of art" is derived from the Berne Convention for the Protection of Literary and Artistic Works, hereinafter referred to as the "Berne Convention". After the Brussels Conference in 1948, with the promotion of France as a design power, practical art works were included in the scope of works stipulated by the Berne Convention for the first time. Article 1 of the Berne Convention provides that the term literary and artistic works includes all achievements in the fields of literature, science and art, regardless of their form or mode of expression, including works of applied art; The period of protection of works of applied art shall be fixed by the laws of the Member States of the Union and shall not be less than twenty-five years counting from the completion of the work. Although the Berne Convention obliges member States to protect works of applied art, it does not require that copyright law be chosen as the mode of protection. At the same time, due to different factors such as economic development, rule of law, public awareness and so on, member states have different approaches to whether or not applied works of art should be protected by copyright law and how to protect applied works of art by copyright law. For example, the French Intellectual Property Code separately classifies works of applied art as "intellectual works within the meaning of this Code"; The Copyright Act (1956) of the United States stipulates that two requirements must be met to obtain copyright protection for applied artistic works: first, aesthetic characteristics and practical functions can be determined separately; Second, its separated aesthetic characteristics can exist independently.

In July 1992, China acceded to the Berne Convention. Article 6 of the Provisions for the Implementation of International Copyright Treaties issued by The State Council on September 25, 1992 stipulates that the term of protection of a foreign applied artistic work shall be 25 years from the completion of the work; The provisions of the preceding paragraph shall not apply to works of art (including animated image design) used in industrial products. It should be pointed out that the above provisions only apply to the protection of foreign applied works of art, and do not apply to domestic applied works of art. When the Copyright Law was amended for the third time, The Copyright Law of the People's Republic of China (Draft Revision), which was publicly solicited by the National Copyright Administration in March 2012 and July 2012, and the Copyright Law of the People's Republic of China (Draft Revision for examination and Approval), which was publicly solicited by the Legislative Affairs Office of The State Council in June 2014, both clearly listed "applied works of art" as a form of works. "Practical works of art refer to toys, furniture, jewelry and other practical functions and aesthetic significance of the plane or three-dimensional modeling works of art." However, the Copyright Law of the People's Republic of China (Draft Amendment) issued by the Standing Committee of the National People's Congress on April 30, 2020, and the Amendment to the Copyright Law of the People's Republic of China (Draft Second Reading) issued on August 17, 2020, deleted the relevant provisions on applied works of art. On November 11, 2020, the Copyright Law amended by the Standing Committee of the 13th National People's Congress for the third time did not explicitly list practical works of art as independent forms of works. With the development of consumer entertainment, copyright protection of applied works of art is becoming more and more important, resulting in more and more copyright disputes, so it is urgent to unify the judicial standards.

二、Judicial practice of copyright protection of applied works of art

Article 3 of the Copyright Law stipulates that "works referred to in this Law refer to intellectual achievements in the fields of literature, art and science that are original and can be expressed in certain forms." Therefore, works protected by copyright law should have the characteristics of originality, reproducibility and intellectual achievement. Among them, the key feature of originality is that the work is independently completed by the author and differs from the existing work. The Copyright Law further clarifies that works include: (1) written works; (2) oral works; (3) works of music, drama, folk art, dance or acrobatics; (4) works of art and architecture; (5) photographic works; (6) audiovisual works; (7) engineering design drawings, product design drawings, maps, schematics and other graphic works and model works; (8) computer software; (9) Other intellectual achievements consistent with the characteristics of the work. The Supreme People's Court pointed out in the (2018) Supreme Court Minshen 4397 ZOOMER robot dog copyright dispute case: "Although applied fine arts are not clearly enumerated in the category of copyright works in our country's copyright law, the types of works generally have example and indicative significance. The types of works that are not clearly specified may belong to a type of works and may also belong to anonymous works that meet the constituent elements of works. The fact that the law does not expressly enumerate does not mean that there is no possibility of obtaining copyright protection. China's copyright law does not exclude the protection of applied works of art, and in addition, China's "Provisions on the implementation of international copyright treaties" article 6 clearly stipulates the protection of foreign applied works of art, so fine arts with practical functions, or applied works of art, should be protected by copyright law if they meet the conditions stipulated in China's copyright law on works. In the above case, the Supreme People's Court determined that ZOOMER robot dog constitutes a applied work of art specially stipulated as a work of fine art and is protected by China's copyright law. In April 2018, the Beijing Municipal High People's Court issued Article 2.6 of the Guidelines for the Trial of Copyright Infringement Cases of the Beijing Municipal High People's Court, which states: "The original artistic aesthetic part of a work of applied art may be protected by the copyright Law as a work of fine art; If the patent law, trademark law and anti-unfair competition law can provide protection, it does not affect the parties' claim to copyright protection for the original artistic aesthetic part of it." Therefore, although the copyright law does not explicitly stipulate applied works of art, applied works that meet the conditions of originality and other works can be protected by copyright law.

Since copyright law does not explicitly legislate for applied works of art, although applied works of art can be protected by copyright law in judicial practice, there are great differences in judicial practice. For example, plaintiffs have different claims in asking the court to protect works of applied art. Some claim that works of art are actually composed of works of art, but the specific type of works is not clear; Some argue that applied works of art constitute works of art. For another example, the courts have different ways of thinking. Some courts regard the works of applied art directly as an independent form of work, and both foreign works of applied art and Chinese works of applied art are protected by the Copyright Law. Some directly judge whether the product involved in the plaintiff's request for protection constitutes a work of art, regardless of whether the object claimed by the right holder is a work of art or a work of applied art; Some courts first judge whether the product involved in the plaintiff's request for protection constitutes a practical work of art, and if it constitutes a practical work of art, the art part of the practical work of art will be protected by referring to the provisions of China's fine art works.

The Supreme People's Court pointed out in the civil ruling of Supreme Court Minshen 4397 (2018) that the core issue of this case is whether the "Tang Yun cloakroom furniture" has artistic modeling or artistic patterns with a high degree of originality, and whether the practical function of the furniture can be separated from the artistic beauty. First of all, about the Zuo Shang Mingshe company whether to independently complete the "Tang Yun cloakroom furniture" problem. The design drawings, copyright registration certificates, product photos, sales contracts, publicity reports and other evidence submitted by Zuoshang Mingshe company to the court of first instance have formed a complete chain of evidence, enough to prove that the company has independently completed the "Tang Yun cloakroom furniture" in 2009. Secondly, the "Tang Yun cloakroom furniture" completed by Zuoshang Mingshe company is creative. From the perspective of plate pattern design, the plate pattern of "Tang Yun cloakroom furniture" of Zuoshang Mingshe Company is designed by itself, not using the grain of the wood itself, but extracting the color and elements of traditional Chinese furniture with abstract techniques to redesign, integrating traditional Chinese style with modern style. The choice of color, collocation, texture direction and depth change all reflect its unique artistic modeling or artistic pattern; In terms of accessory design, "Tang Yun cloakroom Furniture" uses pure handmade brass accessories, including front cabinet doors and drawer handles, and drawer sides are inlaid with brass horns, wavy bevelled edges and hollow designs. Whether to use the horn flower edging on the furniture, the pattern of the horn flower selection, the specific position of the edge, all reflect the selection, selection, design, layout and other creative labor of Zuoshang Mingshe company; From the perspective of Chinese furniture style, the right side of "Tang Yun cloakroom furniture" adopts a Chinese symmetrical design, giving people a harmonious aesthetic feeling. Therefore, "Tang Yun cloakroom furniture" has aesthetic significance and has the height of artistic creation of fine art works. Finally, the practical function of "Tang Yun cloakroom furniture" of Zuoshang Mingshe company can be separated from the aesthetic sense of art. The practical function of "Tang Yun cloakroom furniture" mainly lies in the internal storage space design of the cabinet, so that it has the functions of placing and displaying clothes, and the L-shaped corner design of the cabinet, so that it can match the specific home environment for use. The artistic beauty of the furniture is mainly reflected in the design of plate pattern lines, metal accessories, Chinese symmetry, etc., by adding modern elements on the basis of Chinese style, classical and modern aesthetic effects are produced. The change of "Tang Yun cloakroom furniture" plate pattern pattern, metal accessories matching, Chinese symmetry and other modeling design, its practical function as cloakroom furniture placement, display of clothing will not be affected. Therefore, the practical function and artistic beauty of "Tang Yun cloakroom furniture" can be separated and exist independently. In summary, the Supreme People's Court affirmed that the "Tang Yun cloakroom furniture" of Zuoshang Mingshe Company, as a three-dimensional plastic art work with both practical functions and aesthetic significance, belongs to the protection of the copyright law. As one of the 28th batch of guiding cases issued by the Supreme People's Court, this case qualifies the works involved as works of applied art, and determines the accused infringer's copyright infringement according to the general principle of copyright infringement judgment and legal provisions, providing important judgment guidance for the judicial practice of copyright infringement disputes of applied art works in China.

三、Conditions for copyright protection of applied artistic works

Article 3 of the Copyright Law stipulates: "For the purposes of the Copyright Law, works refer to intellectual achievements in the fields of literature, art and science that are original and can be expressed in certain forms." Therefore, a work protected by copyright law must also have the following general elements: (1) It must be an intellectual creation in the fields of literature, art and science; (2) It is original, independently completed and different from existing works; (3) Can be reproduced in tangible form. Therefore, if a work of applied art is protected by copyright, it must meet the above general elements of the work. As far as the originality of applied works of art is concerned, it should be judged from two aspects: (1) Whether there are differences between applied works of art and existing works of art in plane or three-dimensional shape; (2) Whether there is any difference between the planar or three-dimensional shape of a work of applied art and that of a similar work of applied art. If the applied art is not original, it is not the object of the protection of the copyright law and is not protected by the copyright law.

Article 4 (8) of the Regulations on the Implementation of the Copyright Law further stipulates: "Works of fine art refer to flat or three-dimensional plastic art works of aesthetic significance composed of lines, colors or other means such as painting, calligraphy and sculpture." A work of fine art protected by the Copyright Law of our country must not only satisfy the general constitutive elements of the work, but also meet the special constitutive elements of the work of fine art: (1) by painting, calligraphy, sculpture and other forms of lines, colors or other forms; (2) It has aesthetic significance and reaches a certain height of creation; (3) Works of plastic art that are planar or three-dimensional. In view of the fact that the copyright protection of applied works of art in our country is basically the reference to the works of fine arts in judicial practice, the applied works of art which pretend to be the works of fine arts protected by the copyright law also need to meet the special requirements in the creation height of the above works of fine arts at the same time. Although a work of applied art has a certain sense of beauty, the analysis according to the principle of the creation height of the work of art and strict examination is not enough to constitute a unique artistic expression, and does not reach the creation height of the work of art, it cannot be protected.

Copyright law protects the original expression of the author in the work, but does not protect the ideas reflected in the work itself. Practical works of art are both practical and artistic, and their practical functions belong to the category of thought and should not be protected by copyright law. What is protected as a practical work of art is only its artistry, that is, the artistic shape or artistic pattern with originality on the practical work of art, that is, the structure or form of the work of art. Therefore, practical works of art are protected by the copyright law, and should also meet the conditions that practicality and artistry can be separated from each other, that is, they can be separated from each other in concept, and changing the artistry in practical works of art will not lead to the substantial loss of the actual use function. If the utility and artistry of a applied work of art cannot be separated, it cannot be a work of art protected by copyright law.

Shenzhen City Zhisen Creative Life Products Co., Ltd. is the copyright owner of "Mini Beetle Bag" product design drawings; It is found that the defendant Guangzhou Nomi Brand Management Co., LTD. (hereinafter referred to as Nomi Company) sells the accused infringing products in physical stores, and believes that the accused infringing products are substantially similar to the works involved; The accused infringing products are produced by Nomi Company and sold by Nomi Company and Guangzhou Jiading Trading Co., LTD. The appeal was brought to court. Guangzhou Intellectual Property Court held in Judgment No. 4650 (2021) Yue 73 Min End: A backpack with both practical functions and a certain sense of beauty can be identified as a commonly referred to as a practical work of art. When its use function and artistic sense can be independent of each other, and the artistic design part reaches a certain level of creation, the three-dimensional shape with aesthetic sense can be protected as an artistic work by copyright law. The artistic beauty of the "Mini beetle bag" involved in the case mainly lies in the three car stitches on the front of the bag, and the shape design of the back of the beetle is bulging outwards. Meanwhile, the practical function of the backpack is reflected in the storage of items can be bulging outwards to achieve the purpose of expanding storage. The artistic beauty and practical function of the "mini beetle bag" can not be independent of each other, and its artistic beauty can not be separated from the practical function of expanding storage. Moreover, the shape design of the three car stitches on the front of the "Mini beetle bag" and the outward bulge similar to the back of the beetle does not meet the minimum creative requirements of works of art, which is not enough to make the public regard it as a work of art, so it does not belong to the category of practical works of art, does not constitute a work of art in the sense of copyright law, and is not protected by copyright law.