Asia IP & TMT: Quarterly Review - 2015 Q3

Author:Ms Gabriela Kennedy, Rosita Li, Benjamin P.K. Choi, Xiaoyan Zhang, Karen H.F. Lee and Nicola Kung
Profession:Mayer Brown JSM

Keywords: China, copyright, Hong Kong, trademark, Data Privacy, fine print, online payment,


China's Cloud Gate and Copyright Protection

By Rosita Li, Partner, Mayer Brown JSM, Hong Kong Maggie Lee, Legal Assistant, Mayer Brown JSM, Hong Kong

A sculpture in Karamy, Xinjiang, China has recently caught much media attention because of its striking similarities with the famous bean-shaped sculpture in Chicago, "Cloud Gate".

Cloud Gate has been a landmark of the Chicago landscape since it was installed outside the Art Institute of Chicago and Millennium Park in 2006. With a polished silvery exterior, Cloud Gate is famous for its reflection of Chicago's skyline. A unique structure, Cloud Gate has an arc underneath large enough for visitors to walk through. In "contrast", the sculpture in China is supposed to mimic an oil bubble and is a reference to an oil well in Karamy. The Chinese installation also has a mirror-like surface and passages that lead to the under-belly of the "oil bubble".

When Anish Kapoor, the author of Cloud Gate, learned about the sculpture in China, he said: "It seems that in China today it is permissible to steal the creativity of others, I feel I must take this to the highest level and pursue those responsible in the courts."1

How is copyright in a sculpture like Cloud Gate protected internationally? How can an author pursue a claim in China?

International Copyright Protection - How does it work?

The first thing to note is that there is no right known as "international copyright", meaning there is no uniform set of laws that governs copyright in a work around the world. Copyright law is "territorial" in nature, meaning that the copyright protection afforded to a work in a certain jurisdiction depends on the national laws of the jurisdiction in which the author seeks protection, and the various copyright international conventions to which the respective country may or may not be signatory.

In Hong Kong, copyright subsists in certain types of works, including artistic works such as sculptures and paintings. It is not necessary to register copyright in Hong Kong in order to obtain protection under the Copyright Ordinance (Cap. 582). As an artistic work, copyright automatically subsists in a sculpture at the time of creation.

Through the application of international copyright conventions, a sculpture created in Hong Kong also enjoys protection in most countries around the world. The most significant international treaty that governs international protection of copyright is The Berne Convention for Protection of Literary and Artistic Works ("the Berne Convention"). Some of its key features are:

National treatment - Works originating in one contracting state must be given the same protection in each other contracting state as the latter grants protection to the works of its own nationals; and "Automatic" protection - No formalities are required to be complied with in the other contracting states. At present, there are 168 contracting states to the Berne Convention. As China (extending to Hong Kong) is a signatory to the Berne Convention, copyright works created in Hong Kong and in all other contracting states of the Berne Convention are also automatically protected in China, according to China's copyright law.

China 's Copyright Law

Under China's copyright law, copyright subsists in works of fine art and architecture, including a sculpture.2 Any person who copies another's work commits an act of copyright infringement and should bear civil liability.3 Any person who reproduces a work without the author's permission (the "Infringing Act") is also civilly liable.4 Furthermore, if the Infringing Act is considered to harm the public interest, the state and local copyright administration departments have the power to order the infringer to cease the Infringing Act, confiscate his illegal gains, confiscate and destroy the reproductions of the work, and impose a fine on the infringer.5

Should an author wish to pursue a copyright claim in China, he would need to collect evidence of infringement and will have a choice of pursing his claim by way of an administrative action or a...

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