Protections to the Drawing

Drawing is a form of visual art that makes use of points, lines, planes and all kinds of geometrical figures, which is aimed to demonstrate the specific technical solutions. Therefore, in view of the form and essence of the drawing, the designer or other right holder shall have different menthods to protect the drawing.

Firstly, from the view of the form of the drawing, it can be protected as a copyright when it meets the requirements of “Copyright Law”. “Copyright Law” Article 3 has listed the forms of “works”, and drawings of engineering designs and product designs are listed in sub-article (7). (Note: “(7) drawings of engineering designs and product designs” are different from “(4) works of the fine arts and architecture”, which means that these drawings are the works in scientific field other than in art field. The protection scope and requirements of both categories are different.)

However, not all of the “drawings of engineering designs and product designs ” can be protected by “Copyright Law”. According to “Regulation on the Implementation of the Copyright Law “, Article 2, the “works” stipulated under “Copyright Law” shall be original creations that are reproducible. The combination of points, lines, planes and all kinds of geometrical figures is the original intellectual creation of the designer, which can be deemed as originality. Please be noted that the originality here has no relationship with a technical solution. If the drawing demonstrates the existing technology, which cannot be protected as a patent by the “Patent Law”, it can be protected as a works by “Copyright Law”.

The reproducible is a relevant complicated element in identifying whether the drawing can be protected by “Copyright Law”. “Copyright Law”(1991 version) , Article 52, paragraph 2, stipulated that the term “reproduction” as used in this Law shall not cover the construction or the manufacture of industrial products on the basis of drawings of engineering designs and product designs, and descriptions thereof. However, “Copyright Law” (2001 revised) has deleted this paragraph. In judicial practice, there is a controversy on whether the 3D copy, which means cover the construction or the manufacture of industrial products on the basis of drawings of engineering designs and product designs, and descriptions thereof, shall be deemed as the infringement of copyright. From our point of view, for the legislative intent, “works” under “Copyright Law” does not require utility, when a drawing is used to convert a product, its main characteristic has been changed from originality and reproducible to utility, it is the result of the implementation of technical solution. Then it is more reasonable to protect this result by patent or trade secrets hereinafter. Actually, some judgments after the “Copyright Law” (2001 revised) has been taken into force have proved this. For example, in DBTEL’s Lawsuit Vs. Motorola 2002, the court stated that, the term “reproduction” as used in “Copyright Law” shall mean the print, copy, photo of such drawings, and shall not cover the construction or the manufacture of industrial products on the basis of drawings of engineering designs and product designs, and descriptions thereof.

Secondly, from the view of the essence of the drawings, it is obviously that it has to demonstrate the specific technical solutions, so when such technical solutions meet the requirements of laws and regulations, it can be protected as a patent or trade secret.
Specifically, when the technical solutions have attained novelty, creativity and practicality as required by “Patent Law”, the designers or other right holders can apply for a patent. Where the technical solutions demonstrated by the drawings have been implemented by others, the designers or other right holders can claim for patent infringement.

In addition, for some business concern or other reasons, if the designers or other right holders did not apply for a patent, the drawings have attained the requirements of trade secrets, and the designers or other right holders have applied reasonable measures to maintain confidential as required by “Anti-Unfair Competition Law” and other relevant regulations. Where the drawings have been implemented by others, the designers or other right holders can claim for trade secret infringement.

To sum up, in order to protect the intellectual property appropriately, it would be better for the designers or other right holders to analyze whether their drawings shall be deemed as the objects to be protected by “Copyright Law”, “Patent Law” or laws related to trade secret accordingly, and apply reasonable protection measures.