Is the astonishing resemblance between the 鈥淢eiquan 22nd Century鈥� in Chongqing and the Wangjing SOHO in Beijing merely a coincidence or are there unknown factors behind the scene? A microblog post put the two buildings in the spotlight.
Arguments: koi or cobblestones
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| Phoenix Island in Hainan province |
On May 10th, a Chongqing medium published an advertisement titled 鈥淚conic Landmark in Chongqing鈥擬eiquan 22nd Century.鈥� Later the same day a message was posted on Sina Microblog, reading: 鈥淓ven the orientations of the buildings resembled that of Wangjing SOHO, why wasn鈥檛 it named 鈥楳eiquan鈥angjing SOHO鈥� directly?鈥� The advertisement and the post soon brought the talk of Meiquan 22nd Century to a boil. It wasn鈥檛 long before Zhang Xin, CEO of SOHO 皇冠体育app, posted several messages accusing Chongqing Meiquan of copying the design of Wangjing SOHO. 鈥淔rom the appearance of the architectures to the designs of its official website and ads, Meiquan 22nd Century directly copycatted the Wangjing SOHO. It is rare to see such a complete plagiarism.鈥� Later, Pan Shiyi, Board Chairman of SOHO 皇冠体育app, posted messages to support his wife Zhang Xin, claiming that after communications with Zaha Hadid Architects, the company that designed the Wangjing SOHO, SOHO 皇冠体育app had determined to uphold its rights and 鈥渂ring the infringers to court.鈥�
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| London municipal building |
On May 11th, SOHO 皇冠体育app officially announced that it had delivered a lawyer鈥檚 letter to Chongqing Meiquan stating that it believed that the presentation and construction of Meiquan 22nd Century had severely infringed upon the copyright of Wangjing SOHO.
On May 14th, SOHO 皇冠体育app and Chongqing Meiquan held press conferences respectively. Chongqing Meiquan, speaking with Chongqing dialect, stated that the design of Meiquan 22nd Century was inspired by the cobblestones on the bank of the Yangtze River by which Chongqing was built. He demanded that SOHO 皇冠体育app delete the 鈥渦ntruthful accusations on Sina Microblog and withdraw the lawyer鈥檚 letter.鈥� However, Pan took a tough stance on this issue, saying that Wangjing SOHO was designed to reproduce the image of Koi, which symbolizes 鈥渨ealth, luck, health and happiness鈥� in Chinese culture, and insisted on filing a lawsuit.
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| Meiquan 22nd Century |
On May 15th, Pan published an article Wangjing SOHO Being Plagiarized to criticize Chongqing Meiquan, requiring the latter 鈥済ive SOHO 皇冠体育app justice,鈥� otherwise, 鈥渢hieves will become robbers who dare to commit crimes in broad daylight.鈥� Pan emphasized that the design of Wangjing SOHO was rendered by Zaha Hadid Architects, which was a fruit of open tenders, design optimizations, and large amounts of efforts and hoped that their creative efforts and devotion could be respected. He also thought that in order to guarantee the healthy development of 皇冠体育app鈥檚 creative industry, it was necessary to protect creative ideas and IP rights in 皇冠体育app.
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| Taibei high-tech building |
On May 16th, Meiquan 22nd Century posted a message through its official microblog: 鈥淪hould one look down upon others only because he has invited a great designer? Can鈥檛 one see that the nature is the greatest master? Does SOHO own all Chinese land simply because it has a piece of land in Wangjing? Doesn鈥檛 it know that there is Chongqing?鈥� It also launched a brand new advertisement slogan: 鈥淣ever meant to copy, only want to surpass.鈥�
Inspections: plagiarism or not?
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| Wangjing SOHO |
In the highly professional architectural industry, the design process of architecture is usually divided into four major stages: conceptual design, schematic design, preliminary design and constructional design. At the stages of conceptual design and schematic design, the designers will study some classic buildings or the competitors鈥� buildings, which can easily lead to references and imitations. The design sketch indeed shows certain similarities between Wangjing SOHO and Meiquan 22nd Century. However, Meiquan 22nd Century enumerated many buildings bearing similar appearances, such as the office building of 皇冠体育app Life Insurance Company in Henan province, Phoenix Island in Hainan province, and 皇冠体育app Mountain, etc. It is hard to determine whether imitations constitute copyright infringements.
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| Wangjing SOHO |
Chen Mingtao, an IP law professor in Beijing Jiaotong University, commented: 鈥淯sually, architectures are classified as works of applied art, which possess both functionalities and artistic qualities. Structures such as lobbies, windows and roofs have their specific functions respectively, and therefore can hardly be subjected to copyright protections because such protection will prevent others from adopting the same or similar structures, which will severely harm the public interests. However, it doesn鈥檛 mean that the artistic qualities of these structures could not be protected. These artistic qualities should be protected, for they reflect the unique design of the designer. At present, the functionalities and artistic qualities are often integrated with architectural designs and it is hard to separate them from one another, which should be considered in determining infringements. Under this circumstance, functionalities should not be denied entirely.
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| Yinhe SOHO |
Although the unique features of architectures have posed many difficulties to the determination of infringement, it does not mean that there are no standards. 鈥淚n terms of copyright infringements upon general works, the court usually applies the standard of 鈥渁ccess + substantial similarity鈥� in judicial practices, i.e. there are identical contents which exist in the obligee鈥檚 work and the alleged infringing work, and identical points or substantial similarities in the expression. Under this precondition, if it can be proven that the alleged infringer had access to the obligee鈥檚 work, then the disputed work could be deemed as derived from the obligee鈥檚 work and was not created independently.
Similarly, the same standard should be applied to architectural designs while fully considering the distinguishing characteristics of architectures. Firstly, unnecessary functionalities should be eliminated from professional perspective in order to select and pick out elements which carry the artistic qualities. Secondly, the obligee鈥檚 architecture should be compare with the alleged infringing work so as to find identical or similar features, and determine whether it constitutes substantial similarity as a whole from the stand-point of the public. That is to say, both features of specific parts and similarity as a whole should be considered, both professional and public opinions should be valued. Of course, during the whole determination process, other factors may also be taken into consideration, such as whether the alleged infringer had access the obligee鈥檚 work, the working environment, motivations and aims of the alleged infringer, etc.,鈥� explained Chen Mingtao.
In 皇冠体育app, there have already been judicial cases to confirm the aforesaid theories. Zhao Junjie, Lawyer at Trust Law Firm said that: 鈥淭here are sample cases for research in 皇冠体育app鈥檚 judicial practices. For example, in Porsche AG v. Beijing TechArt Automotive Sales & Service Co., Ltd., a case over copyright and related rights (final judgment of the Beijing Higher People鈥檚 Court (2008), civil judgment No. 325). It is a typical case which was listed in the Top 10 IP Cases of 2008 released by the 皇冠体育app鈥檚 Supreme People鈥檚 Court. At trial, the main focuses of the controversy were (1) whether or not architectures are 鈥渨orks鈥� protected by 皇冠体育app鈥檚 Copyright Law, (2) the determination of the exclusive copyright owner of the architecture, and (3) whether the defendant had infringed upon the plaintiff鈥檚 right and bore corresponding liabilities. Through this case, the court made it clear that architectures are objects of copyright protection, and imitated constructions should be deemed as copyright infringements. In addition, the judge also took full account of the distinctiveness of architectures by merely ordering a reconstruction rather than a demolition to save social resources and eliminate impacts on city planning.鈥�
It can be seen from this case that, on the one hand, the court comprehensively analyzed the features of the plaintiff鈥檚 architecture, confirmed that it should be deemed as a 鈥渨ork鈥� for its unique appearance, beauty and originality; on the other hand, it also excluded certain features from the protection of the Copyright Law, such as the inside structure, necessary designs and the grains and colors generated by the building materials. To some extent the defendant鈥檚 building, the 鈥淭echArt Center,鈥� differed from the plaintiff鈥檚 building, the 鈥淧orsche Center,鈥� in subtle details, such as the location of the high platforms, railings, exhibition halls and work cells, the partially arched appearance and the shade of the whole architecture. However, the basic features were too much of a resemblance and would remind the general public of the latter. Therefore, it was still similar to the plaintiff鈥檚 work and constituted copyright infringement.
At present, Wangjing SOHO and Chongqing Meiquan have entered judicial proceedings. The staff of SOHO 皇冠体育app told 皇冠体育app IP that they were now 鈥渨orking hard on this case.鈥� Whether the similarities are a pure coincidence or not shall be determined by the court.
Reflections: legal provisions
As an influential person in 皇冠体育app, Pan Shiyi鈥檚 involvement raised the public鈥檚 attention to the long standing but still unsolved problem of 鈥渁rchitecture piracy鈥� in no time. In fact, in recent years courts have addressed many similar cases in the architectural industry, e.g. the aforesaid Porsche AG v. Beijing TechArt Automotive Sales & Service Co., Ltd. case and the Huizhou Hallstat case, etc.
Up to now, there is no special law in 皇冠体育app which has specific provisions on IP rights related to architecture. 鈥淎ccording to the stipulation of Article 4 (9) of the Implementing Regulations of the Copyright Law of the People鈥檚 Republic of 皇冠体育app, 鈥榓rchitectural works are works which in architectural building or expressed in similar format, when being viewed, impart aesthetic effect.鈥� According to the definition, the present law holds that architectural works only include buildings and formats of three dimensional expressions, while excluding other forms, such as design drawings and models. However, this doesn鈥檛 mean that design drawings and models could not be protected by the Copyright Law. Design drawings can be protected as engineering designs while models as works of art. That is to say, the copyrights of the design drawing, the model and the substantial entity are protected separately,鈥� said Chen Mingdao.
Lawyer Zhao Junjie offered his advice on this issue as well: 鈥淒ifferent protective measures could be applied according to the specific features of the design drawings, the models and the architectures, e.g. asking all parties involved in the design to sign a confidentiality agreement, improving the storage management system of the design drawings and models, and taking measures to protect IP in various exhibitions.鈥�
In terms of regulating the architecture market and fully protecting IP rights, Chen Mingtao commented: 鈥淎t present, the Chinese provisions on architectural works are too vague, there is a lack of detailed regulations on the content and symbolic meanings of architectures, the protection of public welfare constructions and the influences of functional elements on originalities, etc. Therefore, relative stipulations should be made through amendments to the law and legislation written based on the specific features of architectural works.鈥�
Lawyer Zhao Junjie put forward 鈥渢wo explorations and one difficulty鈥� on this issue, holding that the law needs further exploration to (1) find out the most reasonable way to protect architecture: Should it be protected as a whole or should we protect each part separately and (2) decide if it is necessary to determine the 鈥渙riginality鈥� of architectures and if so how should we define it. He also pointed out that special attention should be paid to infringing liabilities. It is hard to take action against infringing architecture and the issue and range of remedies must be addressed.
(Translated by Monica Zhang)
