From the draft of the third version of the Copyright Law of China, a new form of works maybe included, i.e. works of applied art. A GUI could be included into the works of applied art from its nature. However, it still lacks clarification in terms of the creativity or height of artistic sense for a GUI to be subject to copyright protection as works of applied art.
Patent Law protection
Both the 2006 and 2010 edition of the Guidelines for Patent Examination (Guidelines) clearly specify, “the pattern shown when the product is electrified, such as the pattern on the electronic watch dial, the pattern on the screen of the mobile phone, software interface, and so on is ineligible for patent protection for design. Furthermore, the pattern should be fixed and be perceived by the visual sense instead of intermittent displays which show under specific conditions. These provisions mean that GUI could not be protected by the Chinese Patent Law at present.”
Tracing back the history of the Guidelines, a pattern shown when the product is electrified was ineligible for Patent Law protection for the first time when the Guidelines was revised in 2006. Prior to this, many GUIs had been granted for patents. Since 2006, it has been difficult for applicants to pass preliminary examinations when applying for design patent for a GUI. For example, the examiner sent a Notification to Make Rectification to the application of a GUI design of iPhone, claiming that it was not in accordance with Article 2.4 of the Patent Law, which provides that the carrier of a design must be a product. Though the applicant had stated plenty of reasons, the examiner rejected the applicant's claims on the ground of provisions of the Guidelines.
Of course, because there is no substantive examination, a few GUIs were still granted patents after 2006. For example, the GUI of a demand system (Shiyi X-DREAM Mojie D), whose application date was January 31st, 2008 with the application number of 200830110316.1, is still valid. Besides, the dynamic display screen of induction cooker whose application date is August 23rd, 2006 with the application number of 200630115793.8 has also been granted. As shown below:
200830110316.1
00630115793.8
200630115793.8
200630115793.8 As there is no substantive examination for design patent application, enterprises could certainly take advantage of this system to apply and acquire patents for GUIs. However, after the revision of the Patent Law in 2008, a patent protection evaluation system of design was established. Once the GUI patentee seeks administrative remedy or judicial remedy, the involved patent must undergo further examination. By then, due to the obstacles of current laws, even the GUI design could be granted patent, the protection cannot be enforced in practice.
Other countries and regions in the world, such as the United States, Japan, the European Union and South Korea, have included GUI in IP protection through legislations or amendments of laws. The United States Patent and Trademark Office (USPTO) issued Guidelines for Examination of Design Patent Application For Computer-Generated Icons, in 1996 they began to accept and grant design patents to GUIs embedded in screen displays, and in 2005 the USPTO extended the guidelines to accommodate animated GUIs In 1993, Japan Patent Office (JPO) issued Guidelines for Examination of LCD screen which stipulates that the displayed images which meet certain requirements could be granted. In 2002, JPO issued Examination LCD screen (partial designs corresponding edition), which stipulates that the provisions and requirements for partial designs are also applicable for images displayed on LCD screen. In 2006, interface design was included in the subject matter of design patent protection in Japanese Design Law. Then Design Examination Guidelines was issued in 2007. For South Korea, the Korean Intellectual Property Office (KIPO) revised the Examination Guideline for Design in 2003 to protect visual design which is consisted of GUI and icons. In 2001, EU issued “Council Regulation (EC) No. 6/2002 of 12th December 2001 on Community designs” (Council Regulation (EC) No. 6/2002) which provides legal supports to GUIs protection. There are provisions in the Euro Locarno concerning GUIs and icons. Furthermore, to the writers' knowledge, Canada, Brazil, Australia and some other countries began to protect GUIs and icons displayed on screen as design patents in 2004, 2005 and 2010 respectively. However, animated GUIs could not be granted in the above countries.
Strategies for GUI protection
After discussing the possibilities and difficulties of GUI protection, attention should be paid to how to protect GUIs better under current laws and regulations in China.
As an interface, a GUI is composed of interface elements including windows, desktops, icons and menus; especially icons which can reflect designers' independent creation as well as distinguish designers from one another. Therefore, when meeting certain requirements, GUI elements can be protected by the Copyright Law and the Trademark Law. A GUI designer can apply for a copyright. Creative GUI elements can be subjected to copyright registration as graphic works, or can apply for trademarks in related categories. For these GUI elements, which both meet protection requirements under the Chinese Copyright Law and the Trademark Law, applicants could apply for dual protection.
GUIs of electronic products which are in need of control from support software are not operated independently. The support software itself can be protected by the Copyright Law, and therefore enterprises should register copyrights for these support software to ensure better protection.
As for the GUI itself, it can be protected by the Copyright Law only as a work of fine art or a compilation work at present. As stated above, if protection is sought as a compilation work, the selections or arrangements should present creativity; while if one seeks protections under laws as a work of fine art, though there is not clear line at which this requirement is met, it should seek to present a certain level of creativity consistent with those levels or protection provided to other works under the law. Whether a GUI could be protected by the Copyright Law depends on individual circumstance.
(Translated by Emily Tan)
