Research Report on

Intellectual Property Rights Related to the Creative Industry

Chapter 1 Creative Industry and its Development

The first part discussesthedefinitionandcontentofCreativeIndustry. CreativeIndustrymeansactivitieswhichoriginatefrompersonalcreativity, skillsandintelligence, andcancreatepotentialwealthandemploymentopportunitiesthroughtheexploitationandapplicationofintellectualproperties. InChina, itisgenerallyconsideredtocoverseveralindustries, atleastincludingmedia, art, industrialdesign, fashiondesign, architecturedesign, networkinformation, software, consultationservice, advertisementandexhibition, entertainment, etc. ItisarguedthatCreativeIndustryisabrandnewindustry, breakingthroughthetraditionclassificationofdifferentindustries. Itisaredefinitionofthetraditionalindustriesfromtheangleofindustryinputssuchascreativityandintelligence. CreativeIndustryisaperfectcombinationofcultureandscience. The second partfocusesontherapiddevelopmentofCreativeIndustry. ChineseCreativeIndustryfirstemergedin2002, and then developed rapidly. Now, withthepromotionofaseriesofpolicies, thescaleofChineseCreativeIndustryhaslargelyexpandedandgraduallybecomethepillarofeconomicdevelopmentinrecentyears. Meanwhile, moreimportancehasbeenattachedtotheimprovementofthequalityofCreativeIndustry. Theperfectionofvarioussupportingsystems, suchastheprotectionofintellectualproperties, hasensuredtheCreativeIndustryworksinagoodorder. TakeShanghaiasanexample. TheCulturalandCreativeIndustryinShanghaihasdevelopedinarapidandsteadymannerformanyyears. ThevalueaddedbytheIndustryin2013amountedto250billionRMB, witha10.1% growth, whichaccountedfor11.5% ofthetotalGDPofShanghai. Takingtherepresentativesoftwareindustryandonlinegameindustryasanexamples, theseindustrieshavedevelopedrapidlyandmaintainedhugepotentialforfurtherprogressandwilldefinitely play an even more important role in the prosperity of the Creative Industry in the future.

Chapter 2 Several Intellectual Properties Related to Creative Industry

Intellectual property protection is the key point of the development of creative industry, to transfer cultural and creative achievements to intellectual property rightsis conducive to the protection of the rights of the owner, and will bring the owner of the rights a huge economic interests ,besides ,it will encourage more creative workers to actively involved in the creative industry. Current China legal protection for creative industry mainly includes copyright, patent right, trademark right and trade secret aspects. But we should pay attention that the legal protection of creative industries in China is not perfect, creative industry product tort phenomenon is serious, coupled with the enterprise product awareness of intellectual property protection is insufficient, and Chinese current legislation is not able to fully protect the rights of owner. Therefore , for the prosperity and development of Chinese creative industries, intellectual property protection of creative industries should be the next focus that should be considered of legislation .

Chapter 3 Designs in Creative Industry

Creative industry starts from the designs, with the development of technology and society, great changes have taken place in the connotation of the product and industry. This paper lists the appearance design of relevant industries and creative industries, and discusses the legal system related andappearance design of creative industry. This chapter also compares on industrial design regimes of other countries or regions, introducing and comparing the regimes in the EU, Germany, the UK, Hong Kong, the US and Japan. Besides, a large amount of data has been collected and analyzed and some conclusions have been drawn as for the application and approval of industrial design according to available public data.The number has been increasing in recent years. Finally, we discuss the multiple protection of industrial design. Under specific circumstances, one design can be granted different kinds of rights other than patent for industrial design, including copyright, trademark, unique name, package or decoration of a famous commodity if it meets the requirement stipulated in the relevant statutes. The multiple protections can be attributed to the intangible and statutory nature of IP itself. This chapter begins from a comparison of the pros and cons of different rights from the perspective of the right holders, so as to find the best solution to protect a design, regarding the term, cost and effectiveness of protection. With respect to the public interest, the multiple protections may aggravate the adverse monopolistic effect and deprive the public of the access to those rights. Therefore, this chapter suggests that a statute specially covering the overlap of these rights be made which limits scope of these rights.

Chapter4DesignsofElectronicProducts (IncludingGUI)

GUI , Graphical User interface , was be protected by copyright in a long term .This strategy isn’t coincident with the characters of GUI ,so the effect of protection for GUI is not very well. Howeverthe things began to change in 2104.5.1. SIPO amends the <examination guidance >.to admit the GUI application for design patent .This thing which insiders had hope for years .But accord to the interviews for administrator of SIPO ,there were5000 applications about GUI .When we search the information from the proclaims in 2014.12.10 ,there were only 257 applications that had been authorized .This phenomenon illustrate that the insiders comprehend the requirement for the application .So in this chapter ,we will study and analyse these problems .

Chapter5DesignsinDerivativeProductsofAnimationIndustry

Sale of derivative products is the key section of profit-making in animation industry. Due to the variety of derivative products, manufacturers should adopt different intellectual property. Despite that animation industry in China is undergoing rapid development; infringement upon derivative products is also getting serious. This chapter summarizes the judicial decisions with respect to industrial design of derivative products since 2012 and analyzes their common legal problems. Trademark and copyright protection is available to derivative products as well as industrial design. Finally, this chapter introduces the intellectual property protection in animation industry of the US.

Chapter6SoftwarePatentsinCreativeIndustry

The software industry plays a very important role in the creative industries. In China, although software patents emerged relatively late, with the development of software technology, our patent examination system is in constant development and progress. This chapter starts from the patentability of the computer software program, firstly discussing the objects of software patent examination and specific practice of examination, and problems arising in the practice. Secondly, this chapter discusses the patent examination in other countries, mainly the United States and the EU's computer software legal protection, comparing the review of the standard evolution combined with some recent case studies. Finally, protection of intellectual property in the software program in a variety of modes, we selected copyright protection and patent protection of the most important protection, analysis and comparison of the advantages and disadvantages of both, to explore the differences between the two forms of the system and cross protection issues.

Chapter 7 Functional Claim of Software Patent

With the advance of the society and the innovation of technology, the software industry has been developed a lot. The application and authorization of software patent has been enjoying a significant increase in recent years. Accordingly, new problems in the area of software patent infringement litigation are increasing. Thus, academia and the practical circle have discussed about of the functional claim and the protective scope of such claims regarding software patent. In this chapter, the first part is a complete and technical analysis of the functional claim. Based on the concepts of software and the relevant concepts, the characteristics of the functional claim have been promoted a lot. The second part states the overall situation of China’s patent law, especially the functional claim regarding software patent. Moreover, these laws and regulations are used to analyze the permitted conditions, the relations with the specifications and the principles of translation. The third part focuses on the analysis of this case concerning the Nokia v. Huaqin patent infringement case. The fourth part focuses on the functional claim in US patent law, both from the legislation and the practice. In addition, the author introduces briefly the functional claim in EPO’s, Germany and Japanese.

Chapter 8 Technical Standards Related to Software Patents

The principle of FRAND in articles of ISO, IEC,ITU and ETSI can balance the right of patent owners and the application of standards, and is shown in the patent legislation and regulation and the antitrust laws of countries. The patentability of computer software is widely recognized by the laws of America、EU and China etc. Huawei v. Interdigital Group is an anti-monopoly case of which the judgement had been delivered by the People’s Senior Court of Guangdong Province and has a great meaning for the development of the innovative industry of high-and-new technology and international trade in China.