Protection on Architecture Works in China Copyright Law

: the above is the Wangjing SOHO, and the bottom is the copied one in Chongqing.

Recently, Ms. Zhang Xin, the CEO of SOHO China claimed on Weibo the design of Wangjing SOHO of her company is copied by a community in Chongqing (note: the link is in Chinese), and this weibo is also forwarded by Mr. Pan Shiyi, the chairman of the board of SOHO and restated the plagiarism. Meanwhile, the official Weibo of SOHO also expressed its feeling of helpless and put up a question that could the copyright of architecture works be protected in China? To this question, in our view, the answer is definitely “YES”. And there are three main protection way to the appearance of architecture in China law system:

1. The patent of appearance design (for the patent protection on architecture works, please refer to our past post);

2. The works of architecture. In the existing Copyright Law, the works of architecture is listed as a protective object, and meanwhile in the Enforcement Regulations of Copyright Law, the works of architecture is defined as “the works of expression of architecture or structure with aesthetic significance.”

3. The works of drawings. The Copyright Law also protects the engineering and product design drawings and classifies them as the works of drawings.

Basing on such regulations, the post today will share you the existing legal protection system on architecture works in Copyright Law.

I. The relationship among the architecture works, architecture and architecture design drawings

1. the architecture works may be expressed in several forms

Although it’s regulated in the Enforcement Regulations of Copyright Law that the works of architecture is expressed in the form of architecture or structure, it shall be clearly definite that the architecture is not the sole expression of the works of architecture. As to the understanding on the aforesaid “is expressed in the form of architecture or structure”, it shall be interpreted as “it could be expressed in the form of architecture or structure”, otherwise no complete protection on works of architecture could be fulfilled. For instance, the architecture could be seen in a flat image in a photo or as the space model in a sculpture. Therefore, if the expression of architecture works is limited to the architecture or structure, then it would lead to a unfair consequence that no infringement would occur when copying the architecture in the picture or the sculpture. For this reason, the architecture itself is only one of the expressions of the architecture works for such works may have many expressions.

2. The design drawings of architecture appearance is also one of the expressions of architecture works

By the Copyright Law, the drawing of design could constitute the works of image in law. But for the design drawing of the architecture, the design could include two main parts in general: the drawing of appearance design and inner structure. After the construction of the architecture, the appearance of it is the same as that expressed in the drawings. In other words, the construction is only kind of imitation to the design in drawings and no new works would be produced thereafter. Therefore, the appearance in the design drawings of the architecture is actually kind of expression in flat plain of the architecture works, and that could also demonstrate the opinions advocated as above. For the inner design in the architecture drawings, it could not be seen after the construction; therefore it could only be the works of image.

II. The protection scope of the architecture works

Not like the literary works and music works, in addition to the aesthetic, the works of architecture is equipped with applicability. In order to realize the practical value of the architecture works, the structure of it will be limited, and such limitation will inevitably limit the appearance of the architecture. Therefore, the protective scope of the architecture works is not all the appearance of the architecture, but to first exclude the generic design and the design limited by the function with only the appearance of originality is remained. In the architecture copyright dispute between Techart Center and Porsche Center, for the similarity of the oblong work area’s connection with the exhibition hall and the dark horizontal strap decoration on the outer wall between the centers, the court held that the connection between the oblong work area and the exhibition hall is the necessary design of 4s stores, and the paint of outer wall is mainly depends on the construction material which is not original. Therefore, the court did not take the similarity as the infringement point. (for the details of the case, you may click here)

III. The relief measures to the infringement against the architecture works

By the Copyright Law, once the infringement could be established, the infringer shall take the liability of infringement ceasing, compensation and other liabilities. But not like other works, for the works of architecture is equipped with practical value and may demand a huge expense on the construction, and therefore when the infringing architecture is constructed or close to completion but no modification on the infringing part could be made, the pulling down of it may cause huge waste as well as the losses to the property owner and other right owners. Imagine if the lawsuit filed by Xu Huijiu against East Bookstall, a widely set up standard news stall in Shanghai, were judged by the court as infringement of the appearance and demanded the pulling down of the stalls, the direct consequence may be the a huge losses to the operator of the bookstall. (the plaintiff in the lawsuit was finally judged to lose the case, and you may click here to see the written judgment)

Therefore, to our view, for the infringement against the works of architecture, the court shall hold a prudent attitude to the judgment of liability taking and to balance the interests among the parties. Like in the above dispute between Techart Center and Porsche Center, the court judged the reconstruction by the infringing party but not the pulling down.

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Protection on Architecture Works in China Copyright Law