Architectural design works are not a random list of practical functions of the building, nor are they creations without intelligence. They are works that incorporate the designer's ideas and concepts, and have originality and aesthetic value. This article will use the relevant principles of conceptual law to comprehensively sort out the intellectual property rights in architectural design works, and through comparative analysis, explore the best way to protect architectural design works.

Looking at the current status of legal protection in the field of architectural design, there are very few relevant laws, case decisions, and theoretical research. It is still the weakest link in intellectual property rights. Article 3 of my country's "Copyright Law" clearly confirms the copyright of architectural works, but the "Trademark Law" and "Patent Law" do not clearly stipulate this. In view of the clear protection method of architectural design works is a prerequisite for protecting rights, there is It is necessary to conduct an in-depth analysis of the rights content of architectural design works. At the same time, the country is currently vigorously promoting innovation. Improving the legal protection of architectural design works is an important guarantee for stimulating innovation and should attract the attention of society and scholars.

1. Architectural design works from the perspective of copyright

Architectural design works under copyright must not only be functional, but must also have a certain degree of original aesthetic value through human labor. . Professor Liu Chuntian pointed out that "Although my country's current copyright law lists engineering design drawings and product design drawings as objects of protection, the scope of protection is limited to the 'drawings' and does not extend to the projects and products themselves." This shows that my country's judicial practice protects the architecture of buildings. The work is a completed building. The international practice is quite different from that in our country. The Berne Convention revised in 1971 clearly stated in Article 2 that "architectural design drawings, sketches and modeling works also belong to architectural works." When Professor Wang Qian talked about the right of reproduction in copyright, he also pointed out that the act of constructing architectural works according to construction drawings is the act of copying copyright. That is to say, on the basis that both the drawings and the building are original, there are two copyrights on the architectural design drawings: one is the copyright of the drawings themselves; the second is the copyright of the building to which the design drawings point.

Some scholars believe that although industrial design drawings and models and even buildings and physical products have different final performances, there is obviously a one-to-one isomorphic relationship between them. This relationship Drawings, models and objects can be converted into each other and express each other. They are all the intellectual creations of industrial designers and should of course be equally protected. However, the above conclusion is based on the substitution of concepts. In mathematical logic, because A=B, B=C, so A=C, this is a universally recognized theorem, but it is not necessarily the case in legal logic. established. Indeed, buildings and architectural design drawings are two original expressions of the same thoughts and emotions of the author. They form a one-to-one correspondence, but they can never be equated because copyright protects completed works rather than ideas, thoughts and The work is separate. When expressed in the form of drawings, the copyright protection can only stop at the drawings because the architectural work has not yet been completed.

Although the architectural design drawings may eventually become actual architectural works, it is only possible. We cannot guarantee that the architectural works built according to the architectural design drawings will be completely consistent with the works drawn on the drawings. , affected by actual conditions, we cannot guarantee that the works on the architectural drawings will be realized in practice, because it is very common to modify the design drawings in practice. Secondly, if the architectural design drawings are confused with the building itself, it will easily lead to the unreasonable attachment of rights other than the rights of the drawings, because the expression of the architectural design drawings is relatively abstract after all, and different people have different understandings, which makes the understanding of architecture The review of the copyright of design drawings has become a matter of opinion. This is a great risk to the protection of the rights of the authors of architectural design drawings, and it is not necessary to review the originality and aesthetic value of a design drawing in two aspects. Confusing, which itself is difficult to achieve.

In addition, from the perspective of public interests, if the author only creates architectural design drawings and publishes them, but never actually uses the drawings for construction, and we still protect them, this will form a monopoly and restrict the competition of others. , no one uses legitimate interests, which is a waste of resources and a harm to the entire society.

2. Architectural design works from the perspective of trademark law

In 2001, my country’s Trademark Law stipulated that three-dimensional marks can be used as visible signs of trademarks, so in architectural design works Is it possible to achieve this? As a mark of goods or services, an important function of a trademark is identification. If an architectural design work can be distinguished from other architectural design works and is distinctive, it can apply to become a trademark. As early as 1937, the Sixth Circuit Court in the case of White Tower System, Inc. v. White Castle System of Eating Houses Corp. pointed out that the defendant used a White Castle model in the same geographical area to match the The plaintiff's "free riding" and using the goodwill of others' trademarks to obtain benefits is an infringement of trademark rights.

Many buildings in the United States have been registered as trademarks, such as McDonald's Building, Citigroup Building, Rockefeller Plaza, Empire State Building, etc. However, they are all registered as service trademarks, and architectural design works are regarded as commodity trademarks. Is registration possible? The latest "Trademark Examination and Trial Standards" released in 2017 stipulates that the examination of the distinctiveness of three-dimensional trademarks includes the three-dimensional shape of the product itself. The "trough-shaped" chocolate produced by the French company Cadbury is the first example of a three-dimensional trademark based on the three-dimensional shape of the product itself. The Chinese court also ruled to grant a three-dimensional trademark to a lighter owned by Zippo Company (see Figure 1). In the case of Emerson Electric Company's "Clover" three-dimensional trademark, the Beijing Higher People's Court stated that "the trademark completely overlaps with the goods. Although in principle it does not have distinctive features that can be registered as a trademark, unless it can be proven that the three-dimensional mark has made consumers aware of it through use." The user can identify the supplier of the goods through it."

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