The Studies On Copyright Infringement Of Architectural Works

Article 3 of China's "Copyright Law" clearly stipulates that architectural works are legally protected works.Article 4,paragraph 9 of the "Implementation Regulations of the Copyright Law" defines architectural works as "aesthetically meaningful works in the form of buildings or structures ".However,such regulations limit the representation of architectural works to "buildings and structures",which has led to the failure of architectural design drawings and models to fall under the protection of architectural works.This also means that when infringing the architectural design drawings and models without permission,the exclusive rights holder cannot obtain the infringement protection of the architectural works.In addition,the law does not clarify the connotation of the original expression of architectural works,which leads to confusion in the judicial practice's determination of whether the protected content belongs to architectural works,and the premise of infringement determination is flawed.In the infringement determination of architectural works,the standard of "contact + substantial similarity" is still vague and needs further explanation.Therefore,there is still a need for further research on the infringement of architectural works.The first chapter of this article is to raise questions.Based on judicial practice and theoretical controversy,three major issues were raised: first,whether theapplication for protection of objects falls within the scope of protection of architectural works,in other words,whether the expression of architectural works should be limited to buildings and structures;second,whether the application for protection of objects conforms to originality of architectural works.The connotation of the originality of architectural works is not clear in Chinese law,and there exists differences in the originality standards in theory;In addition,in the identification of infringement of architectural works,the standard of "contact" and "substantial similarity" of architectural works are still controversial.And there are also differences in terms of the rational use of the building from three-dimensional to two-dimensional.The second chapter is the answer to whether the application for protection can fall into the protection scope of architectural works.The application for protection should first belong to the architectural work before the identification of infringement.To clarify the problem,the author first analyzed the provisions on the expression form of architectural works in international treaties and foreign legislation,concluding that there are cases of separate protection and unified protection of the three.Then,the author studied the essence of architectural design drawings and architectural models,finding that architectural design drawings have the dual attributes of architectural works and graphic works,while in terms of the architectural model,because its protected content is only the three-dimensional shape,it can only be classified as a three-dimensional work or an architectural work.Finally,the relationship between the building,the architectural design drawing,and the architectural model is analyzed.The author believes that the transformation of these three types constitutes reproduction rather than deduction.The third chapter studies the criteria for applying for protection to be original in the architectural works.The author first studied the "essence of the original expression of architectural works" in current law and foreign legislation,and believed that the essence of the originality of architectural works was "arrangement and combination of architectural design elements and space,and comprehensive form",and did not include pure building interiors.Space design.As for the degree oforiginality,the author argues that the originality of architectural works should be "lower standards" by analyzing the "aesthetic meaning" regulations and according to the creating space of architectural works.In addition,the originality expression of architectural works should exclude practical functions and customary expressions.The fourth chapter is the infringement determination of architectural works.The infringement determination of architectural works mainly includes the establishment of "contact" facts,and the content of the complaint is "substantially similar" to the object of protection.The author believes that the presumption of contact in judicial practice should not be conditional on publication,but should be based on a high degree of probabilities such as "evidential similarity of architectural design drawings";for the determination of substantial similarity,by comparing the "total concept and feel method" and "separation analysis method",the author believes that the overall look and feel should be based on separation and filtrationIn addition,the use of the building from three-dimensional to two-dimensional,constitutes fair use under certain circumstances and does not constitute infringement.The author analyzes section(10)of the rational application system,"Article 18 of Judicial Interpretation" and the provisions on the rational use of outdoor buildings in foreign legislation,believing that some judicial practices misunderstand "reuse",which should refer to the distribution,public distribution and other usage behavior of the building after it is copied.Regarding the standards of "reasonable scope and method",the author prefer "conflict substitution" standard rather than "commerciality" to be used as the exclusion criterion.