(By Luo Yanjie) Pursuant to the Copyright Law, the works shall be original with primary aesthetics. From this point, most software interface can’t receive protection from the Copyright law, because most software interfaces are designated in a simple arrangement for the purpose of easy-to-use and thus are likely to be considered as lack of “distinctiveness”. The judgment in the following case set forth the theory.
Introduction to the Case:
Appellant (defendant at first instance): Shenzhen Tenda Technology Co., Ltd (the “Tenda”)
Respondent (plaintiff at first instance): Shenzhen TP-Link Technologies Co. Ltd (the “TP-Link Technologies”)
Defendant at first instance: Zhang Yabo
Court of first instance: Shenzhen Intermediate People’s Court No.: (2004)深中法民三初字第549号
Court of Second Instance: Guangdong Province Higher People’s Court No.: (2005)粤高法民三终字第92号
TP-Link Technologies, a professional routers reproduction company, claimed for its rights on user interface in terms of TL-R460 router’s made before July 18, 2003. TP-Link Technologies found out that Tenda’s three multi-functional routers, i.e., TEI6616, TEI6610 and TEI660, (the “disputed routers”) with high speed broadband, are similar with its TL-460 router’s user interface. After then, TP-Link Technologies brought Tenda and its manufacturer Zhang Yabo to the court, claiming for copyright infringement.
Shenzhen Intermediate People’s Court accepted the case and heard the following:
- TP-Link Technologies claimed that it shall have copyright for its software interface in terms of TL-R460 router.
- Tenda alleged that the contents of the disputed routers have used the widely-used software interface in the industry of routers, which have limited categories of forms of expression. However, Tenda was unable to prove that another’s software interface is identical with that of TP-Link Technologies’ TL-R460. Therefore, the court refused to adopt the allegation of Tenda.
For these reasons, the court determined that Tenda shall be considered to constitute copyright infringement and shall undertake liabilities of making compensation. Dissatisfied with the judgment, Tenda appealed to the Guangdong Province Higher People’s Court. The Guangdong Province Higher People’s Court heard the case and decided the following:
The selection, arrangement and composition of all the elements of TL-R460 router shall be in a simple arrangement, lack of significant differences of originality from a general router’s software interface. It is unlikely to conform to the requirement of originality pursuant to the Copyright Law and thus shall not be protected by the Copyright Law. Therefore, Guangdong Province Higher People’s Court supported all the appeals and refused the claims of Tenda.
- Shall software interface be considered the object under the protection of the Copyright Law?
Article 2 of the Implementing Regulations of the Copyright Law stipulates that, “for the purposes of the Copyright Law, “work(s)” shall refer to original intellectual creations in the literary, artistic and scientific domain, insofar as they are capable of being reproduced in a certain tangible form.” If being protected by the Copyright Law, the works shall be of originality. With regard to the originality, there are no requirements in laws and regulations. But according to judicial practices and legal theory, “originality” means that the works shall be of primary aesthetics and fundamental intellectual creations.
When compared with the two judgments, the difference focuses on whether software interface shall be conformed to the works in the Copyright Law. Concerning this, the two courts held different opinions. In the case, second instance determined that “the selection, arrangement and composition of all the elements of TL-R460 router shall be in a simple arrangement, lack of significant differences of originality from a general router’s software interface. It is unlikely to conform to the requirement of originality pursuant to the Copyright Law and thus shall not be protected by the Copyright Law.” When compared with the simple decision in the original judgment, we prefer to agree with the judgment backed by the second instance.
- The software interface will be protected by the Patent Law, but it still needs to be of primary aesthetics.
According to the 2010 version of Patent Examination Guideline, the graphical user interface is excluded from the design patent protection, particular Item 11, Article 7.4 stipulating “visible images of a device after the device keep normal power”. For example, visible images on watch-face of electronic watches, or visible images on telephones screen or software screen, etc., are clearly executed from any circumstances of granting a design patent.
However, according to the Draft Revision of the Patent Examination Guidelines (the “Draft Revision”) attempted to change the aforementioned article, i.e., display images of a device’s visual indicators that irrelevant to game interface and human-computer interaction (the “HCI”) or the achievement of device’s function, for example, electronic screen wallpapers, images of a device, or PageMaker that irrelevant to the HCI or the achievement of a device’s function in the process for on-off, are executed from any circumstances of granting a design patent.In other words, display images of a device’s visual indicators that relevant to game interface and human-computer interaction or the achievement of device’s function, can be granted a design patent. However, an advice shall be focused that, pursuant to the Patent Law, the term “design” refers to any new design pertaining to the shape, the pattern, or their combination, or the combination of color and shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application. Therefore, the software interface, if being under the protection of design, shall be of aesthetics.