DEFINING “ARCHITECTURAL WORKS” IN EAST ASIA: INTELLECTUAL PROPERTY PROTECTION FOR LOCAL AND TRANSNATIONAL ARCHITECTURAL WORKS

Min Son† | 1 Regent J. Glob. Just. & Pub. Pol. 319 (2015)

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Ah, to build, to build!
That is the noblest art of all the arts.
Painting and sculpture are but images,
Are merely shadows cast by outward things
On stone or canvas, having in themselves
No separate existence. Architecture,
Existing in itself, and not in seeming
A something it is not, surpasses them
As substance shadow . . . . ^[1]

 

Photoshop allows us to make collages of photographs and this is the essence of China’s architectural and urban production . . . . Design today becomes as easy as Photoshop, even on the scale of a city.^[2]

 

INTRODUCTION

 

As architectural practice becomes increasingly global and as more architects aspire to build internationally,^[3] the rise of copyright related lawsuits regarding architectural works are inevitable.^[4] In particular, such lawsuits may raise the question as to whether the approach that different countries take toward complying with international standards adequately protect architects’ copyrights.

For example, in less than ten years Iraqi British architect Zaha Hadid has built numerous works in more than forty-four countries,^[5] including China, Japan, and Korea.^[6] In March 2014, Hadid inaugurated the Dongdaemun Design Plaza in Seoul.^[7] She recently finished the Wangjing Soho complex in Beijing in September 2014,^[8] and is designing the New National Olympic Stadium in Tokyo.^[9]

In 2013, the Wangjing Soho building became the subject of a copyright controversy when an allegedly plagiarized design appeared on the other side of China, set to finish construction before the original one.^[10] Soon after international media reported the controversy, Zaha Hadid Architects reportedly initiated legal proceedings in China,^[11] arguing that the “pirates got hold of some digital files or renderings of the project.”^[12] Regarding the Wangjing Soho phenomenon and the potential lawsuit, a Chinese law expert worried that “at present, the Chinese provisions on architectural works are too vague . . . and there is a lack of detailed regulations on the content and symbolic meaning of architecture.”^[13]

While experts had predicted such a phenomenon a few years ago,^[14] the Wangjing Soho controversy clearly brought the architectural world’s attention to whether an architect would be rewarded with adequate copyright protection in a transnational architectural practice setting.^[15]

One of the most important issues transnational architectural practitioners face is confusion as to the scope of copyrightable architectural works in international settings because many countries take different approaches in defining such a scope. While the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention)^[16] and the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)^[17] call for a minimum standard for international copyright protection, these international agreements leave it to individual member countries to enact legislation to meet such standards.^[18] Thus, the approach different countries take toward complying with international treaties may result in varying scopes of protection for literary and artistic works, including works of architecture. In particular, an often overlooked but important outcome of the different approaches is the varying definition of “architectural works.”

For example, in some countries, architectural works include all types of buildings and structures,^[19] whereas in the United States, for example, protectable architectural works include only inhabitable buildings.^[20] In East Asian countries (i.e. Korea, China, and Japan), the definition of “architectural works” is absent in copyright law.^[21] For instance, China has only recently dealt with a case asking whether architectural works are “works” protected by China’s copyright law.^[22] On the other hand, it is interesting to note that Thailand, which is in the same Germanistic law family as Korea and Japan, adopts a very detailed definition of architectural works.^[23]

Moreover, an analysis of the language of the current copyright law of East Asian countries which all use Chinese characters and derivatives, may help explain the lack of detailed regulations on the content and symbolic meaning of architecture. As opposed to the language in European and American copyright laws, the language common in the law of East Asian countries emphasizes tangibility and exceptional creativity rather than originality.^[24] The apparent high standard set by such language may add to the confusion and misunderstanding as to what constitutes protectable architectural works in East Asia.

This note argues that the lack of a coherent definition of “architectural works” in East Asian countries impedes the fundamental goal of copyright protection to promote creativity and to protect artists’ rights. Also, the lack of a coherent definition may be contrary to international copyright protection standards such as the Berne Convention, since it may lead to inadequate protection of potentially qualifying architectural works.

As architectural practice becomes increasingly global, adoption of a more coherent definition for the term “architectural works,” that takes cultural perspectives into account, becomes essential. The result will lead to better compliance with obligations under international treaties as well as further appreciation for transnational architectural practice and intellectual property law in general.

Part II of this note, therefore, examines the Berne Convention and TRIPS Agreement and the challenges of complying with them. Part III surveys how different countries approach the definition of “architectural works” and identifies potential limits and benefits of each approach. Finally, Part IV explores the reasons behind the narrow protection of architectural works in East Asian countries and considers possible suggestions for expanding intellectual property protection for architectural works.

 

THE BERNE CONVENTION AND TRIPS AGREEMENT

 

A. Obligations Under the Berne Convention and TRIPS Agreement

As the potential for copyright related lawsuits regarding international architectural practice increases, it is important to examine the international agreements that set the minimum protection standards, as well as the challenges of complying with those standards, in particular, the various approaches to defining the term “architectural works.”

The Berne Convention is the most relevant legal instrument for copyright protection when it comes to architecture as it specifically mentions protection of architectural works.^[25] It was adopted in 1886 to honor the rights of all authors who are nationals of the 168 contracting countries^[26] that are party to the convention.^[27] According to Article 2(1) of the Berne Convention, protected “literary and artistic works” include “works of . . . architecture . . . and three-dimensional works relative to . . . architecture.”^[28] However, the Berne Convention does not further define what types of structures constitute “works of architecture.”

Another relevant international agreement in discussing copyright protection for architectural works is the WTO’s TRIPS Agreement. With regard to protection of intellectual property works, the TRIPS Agreement simply says “[m]embers shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto.”^[29] Hence, although the TRIPS Agreement expressly incorporates the Berne Convention as to architectural copyright protection, similar to the Berne Convention, it does not further define what constitutes an “architectural work.”^[30] Nevertheless, the TRIPS agreement is important because it provides member countries with the Dispute Settlement Body (DSB) of the WTO, a forum for resolving intellectual property disputes.^[31]

 

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1. HENRY WADSWORTH LONGFELLOW , MICHAEL ANGELO, A DRAMATIC POEM 25 (Houghton, Mifflin and Co. 1884). ↩︎
2. Kevin Holden Platt, Zaha Hadid vs. the Pirates: Copycat Architects in China Take Aim at the Stars, SPIEGEL ONLINE (Dec. 28, 2012, 12:48 PM), http://www.spiegel.de/international/zeitgeist/pirated-copy-of-design-by-star-architect-hadid-being-built-in-china-a-874390.html (Dutch Architect Rem Koolhaas commenting on the rapid growth of Chinese cities that led to the appearance of Chinese “Photoshop designers” who “copy and paste” architectural design). ↩︎
3. See, e.g., Thomas Fridstein, Global Game Plan, DESIGN INTELLIGENCE (Oct. 10, 2012), http://www.di.net/ articles/global-game-plan; Vanessa Quirk, The Countries Where Demand for Architects Outstrips Supply, ARCH DAILY (Feb. 20, 2013), http://www.archdaily.com/333413/the-countries-where-demand-for-architects-outstrips-supply; Vanessa Quirk, The 9 Best Countries for Architects to Find Work, ARCH DAILY (Jun. 14, 2012), http://www.archdaily.com/243925/the-9-best-countries-for-architects-to-find-work. ↩︎
4. Roger B. Williams & C. Richard Meyer, Practicing in a Global Market, in THE ARCHITECT’S HANDBOOK OF PROFESSIONAL PRACTICE 153 (Joseph A. Demkin ed., 2011), available at http://www.aia.org/aiaucmp/groups/ ek_public/documents/pdf/aiab028658.pdf. ↩︎
5. Oliver Wainwright, Zaha Hadid Beyond Buildings: Architect Launches New Design Gallery, THE GUARDIAN (May 23, 2013, 6:03 AM), http://www.theguardian.com/artanddesign/architecture-design-blog/2013/may/23/zaha-hadid-design-gallery. ↩︎
6. ZAHA HADID ARCHITECTS, http://www.zaha-hadid.com/zha-world (last visited Feb. 5, 2015). ↩︎
7. Amy Frearson, Zaha Hadid’s Dongdaemun Design Plaza Opens in Seoul, DEZEEN MAGAZINE (Mar. 23, 2014), http://www.dezeen.com/2014/03/23/zaha-hadid-dongdaemun-design-plaza-seoul. ↩︎
8. Celia Mahon Heap, Zaha Hadid Opens Wangjing SOHO in Beijing, China, DESIGNBOOM (Sept. 21, 2014), http://www.designboom.com/architecture/zaha-hadid-wangjing-soho-beijing-09-20-2014. ↩︎
9. Andrea Chin, Zaha Hadid: New National Stadium of Japan Venue for Tokyo 2020 Olympics, DESIGNBOOM (Sept. 10, 2013), http://www.designboom.com/architecture/zaha-hadid-new-national-stadium-of-japan-venue-for-tokyo-2020-olympics. ↩︎
10. See Platt, supra note 2; see also Marcus Fairs, Zaha Hadid Building Pirated in China, DEZEEN MAGAZINE (Jan. 2, 2013, 9:41AM), http://www.dezeen.com/2013/01/02/zaha-hadid-building-pirated-in-china. ↩︎
11. See Sian Disson, Time Running Out for Zaha Hadid Project as ‘Pirates’ Replicate Design of Wangjing SOHO, WORLDARCHITECTURENEWS.COM (Jan. 7, 2013), http://www.worldarchitecturenews.com/index.php?fuseaction=wanappln.projectview&upload_id=21660; see also Xing Yihang, Copying Architecture, CRIENGLISH (Jan. 14, 2013), http://english.cri.cn/6909/2013/01/14/2724s743500.htm. ↩︎
12. Platt, supra note 2. ↩︎
13. Jessie Chen, Twin Buildings Appeared in Beijing and Chongqing, CHINA INTELLECTUAL PROPERTY MAGAZINE (Sept. 6, 2012), http://www.chinaipmagazine.com/en/journal-show.asp?id=859. ↩︎
14. Platt, supra note 2. Experts had predicted such phenomenon a few years before, when Chinese firms were found to be posing as British architecture firms Broadway Maylan and Aedas in pursuing project bids with false information; “If Aedas and Broadway Maylan, why not [higher design profiles] like . . . Zaha Hadid?” ↩︎
15. See Anna Winston, Five Things Every Architect Should Know About Copyright, BDONLINE (May 2, 2013), http://www.bdonline.co.uk/five-things-every-architect-should-know-about-copyright/5053987.article; see also Vanessa Quirk, The 10 Things You Must Know about Architectural Copyrights, ARCH DAILY (Feb. 6, 2013), http://www.archdaily.com/328870/the-10-things-you-must-know-about-architectural-copyrights; Kelly Chan, Parametric Panic: China’s Zaha Hadid Clone and the Limits of Digital Design, BLOUINARTINFO (Jan. 23, 2013), http://www.blouinartinfo.com/news/story/858379/parametric-panic-chinas-zaha-hadid-clone-and-the-lim its-of. ↩︎
16. Berne Convention for the Protection of Literary and Artistic Works, art. 2(1), Sept. 9, 1886, 828 U.N.T.S. 222 [hereinafter Berne Convention]. ↩︎
17. Agreement on Trade-Related Aspects of Intellectual Property Rights, art. 9(1), Apr. 15, 1994, 1869 U.N.T.S. 299, 33 I.L.M 1197 [hereinafter TRIPS]. ↩︎
18. Kimberly Y.W. Holst, A Case of Bad Credit?: The United States and the Protection of Moral Rights in Intellectual Property Law, 3 BUFF. INTELL. PROP. L.J. 105, 106 (2006). ↩︎
19. See Copyright Act 1968 (Cth) s 10(1) (Austl.); see also Copyright, Designs and Patents Act, 1988, c. 48, § 4(2) (Eng.), available at http://www.legislation.gov.uk/ukpga/1988/48/data.pdf. ↩︎
20. Preregistration and Registration of Claims to Copyright, 37 C.F.R. § 202.11(b)(2) (2010) (defining protectable “buildings” within the meaning of the law as “humanly habitable structures that are intended to be both permanent and stationary, such as houses and office buildings, and other permanent and stationary structures designed for human occupancy, including but not limited to churches, museums, pergolas, gazebos, and garden pavilions”). ↩︎
21. Choon-Sup Yoon, Keonchukjeojakmului Soksunggwa Beomjue Kwanhan Yoenku [A Study on the Copyrightable Attributes and Extent of Architectural Works], 25 DAEHANKEONCHUKHAKHOEJI [J. OF THE ARCHITECTURAL INST. OF KOREA ] 107, 109 (2009). ↩︎
22. Beijing Taiheyateqiche Xiaoshou Fuwu Youxian Gongsi Yu Baoshijie Gufen Gongsi Qinfan Zhuzuo Caichanquan Jiufen Shangsu An (北京泰赫雅特汽车销售服务有限公司
    与保时捷股份公司侵犯著作财产权纠纷上诉案) [Porsche AG v. Beijing TechArt Automotive
    Sales & Service Co., Ltd.] (Beijing Higher People’s Ct. Dec. 19, 2008) [hereinafter Porsche
    case]. ↩︎
23. Copyright Act, B.E. 2537, 1994, § 4(4) (Thai.). ↩︎
24. Yoon, supra note 21, at 111. ↩︎
25. Berne Convention, supra note 16. ↩︎
26. WIPO-Administered Treaties, WORLD INTELLECTUAL PROPERTY ORGANIZATION, http://www.wipo.int/ wipolex/en/wipo_treaties/parties.jsp?treaty_id=15&group_id=1 (last visited Mar. 8, 2015). ↩︎
27. Fact Sheet P-08: The Berne Convention, THE UK COPYRIGHT SERVICE , http://www.copyrightservice.co.uk/copyright/p08_berne_convention (last updated Dec. 6, 2011). ↩︎
28. Id. ↩︎
29. TRIPS, supra note 17. ↩︎
30. Id.; see also Kirk W. Wilbur, Renovating Architectural Copyright: The Case for Protection of Nonhabitable Structures, 43 MCGEORGE L. REV. 461, 465 (2012). ↩︎
31. Wilbur, supra note 30. ↩︎

 

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† J.D. (Equivalent) Candidate, Handong International Law School, 2015; B.A. University of Washington, 2011. I am deeply grateful to Dean Eric G. Enlow for his valuable insights. I also want to thank the advisors and editors of the Handong International Law School Law Review for their help and support: Dean Hee Eun Lee, Professor David L. Mundy, Beka Tesgera, Yohosua Kim, Soochan Cho, Junoh Park, Jieun Shin, Jin Son, and Lili Yang.

*Sjmole, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons