In the era of commodity economy, science and technology, technology, culture and design are developing rapidly. These skilled intellectual workers can form their own patents through registered trademarks. So, what is intellectual property?What are the intellectual property laws and regulations in the architectural engineering design industry?
1. Definition of Intellectual Property Rights.
Intellectual property rights refer to "the exclusive rights enjoyed by the right holder to the fruits of intellectual labor created by themselves", which are generally only valid for a limited period of time. Various intellectual creations such as inventions, literary works, artistic works, as well as signs, names, images, and designs used in commerce, can be considered intellectual property owned by a person or organization. The main categories are: patent rights, trademark rights, copyright rights, etc.
Intellectual property refers to specific rights with specific incentive effects, which are granted by specific state authorities in accordance with specific laws and through specific procedures to protect specific inventions and identifiable marks that meet specific conditions. The definition has the following characteristics: nine specific (specific national authorities, specific laws, specific persons, specific conditions, specific inventions and identifiable signs, specific procedures, specific protection, specific incentives and specific rights), covering basically all aspects of intellectual property. Civil Code (2021.)1).Article 1185:Where the intellectual property rights of others are intentionally infringed upon, and the circumstances are serious, the infringed party has the right to demand corresponding punitive damages.
2. Intellectual property laws and regulations in the construction engineering design industry.
1) Right holder.
1. The right holder of intellectual property rights on the building.
All participants (architects, other professional designers, engineering technicians, real estate developers) and owners are authors of architectural works. An architectural work expressed in the form of a building or structure is designed by an architect, invested by the construction unit building and real estate developer, and then transferred to the owner. There is no doubt that the owner has taken ownership of the architectural work. However, who has the right to obtain the right to the construction work?For other professional designers, they can enjoy authorship protection for their designs if they are conceptually detached from the building, rather than an integral part of the building's function and architectural elements. For example, if an architect designs a building and asks a gardener to design a garden loft at the top of the building, the horticulturist can apply for protection of the garden loft if the garden loft is original;However, if the garden loft is an integral part of the building's function and architectural elements, it cannot enjoy the protection of the right to do so. For the engineering and technical personnel of the construction unit, they only use their own construction technology to reflect the architectural design in the form of architecture or construction, and there is no originality, and they cannot enjoy the rights of architectural works. Contributions to breakthroughs in technical difficulties during construction can be protected by patent law. Real estate developers do not have the right to work on architectural works. Although the architect's creative architectural design could not have been expressed in the form of a building or structure without his investment, the law of rights protects intellectual achievements, not investments. Countries around the world have different regulations on the attribution of rights to film and television works. But there is a similarity, that is, the producer has the right to distribute and reproduce the film and television works, because the producer invests in the film and television works not to occupy the film and television works, but to obtain benefits through their distribution. However, the purpose of a real estate developer investing in real estate is to occupy the representation of the architectural design – the building or structure – and to make a profit by managing the building or structure. An architect is the author of an architectural work. It is his creativity that gives the building originality and can be copyrighted. As a result, the U.S. Copyright Act generally does not consider architecture to be a work for hire, but directly identifies the architect or his company as the author of the architectural work. In addition, the standard construction contract text developed by the American Institute of Architects clearly states that the architect is the copyright owner of the architectural work and that the real estate developer is granted a non-exclusive license to use it.
In the process of identifying the owner of the right of work of architectural works, the issue of whether the author is an entity or an individual is also involved. According to the professional system of Chinese architects, the creative activities of architects depend on the design unit. In the design process, the organization, coordination and creative willingness of the units are different. The reform of design units in China is underway and should therefore be treated separately. Some design units are only responsible for the undertaking of projects and the standardized review of drawings, so it is difficult to say that they have the will to organize, coordinate and create;Some design firms collectively create schemes, and this creative model has even become their famous creative style (a phenomenon that is common in some parts of China).
2. The right holder of the three-dimensional trademark of the building.
A trademark is a sign that distinguishes the goods or services provided by a manufacturer from those provided by other manufacturers. The owner of a trademark is the registrant or user of the trademark. The owner of an architectural three-dimensional trademark is not the designer of the building, but a business crystal or service provider that associates the building with certain goods or services, enables the building to mark certain goods or services, reflects its goodwill. Pei is the designer of the Cleveland Rock and Roll Hall of Fame in Cleveland, Ohio, USA, but he is not the owner of the Hall of Fame's three-dimensional logo, but the owner of the museum.
The owner of a three-dimensional trademark and the owner of a building are two different concepts. In some cases, the owner of the building is the same as the owner of the three-dimensional mark of the building. However, in some cases, the owner of the building three-dimensional mark is separate from the owner of the building. Buildings are often part of the urban environment, and the owners of the buildings cannot prevent the use of the building's intangible assets.
3. The right holder of the application for architectural design.
The right to apply for a patent is a unique concept in patent law. Only those who have the right to apply are eligible for patent rights. Therefore, the determination of the subject of the patent application is the premise and core content of the determination of the subject of the patent.
If an invention-creation is jointly completed by two or more units or individuals, and an invention-creation is completed by one unit or individual under the entrustment of other units or individuals, the right to apply for a patent belongs to the unit or individual that completed or jointly completed the invention-creation. According to the professional system of Chinese architects, the creative activities of architects are based on the design unit, so the architectural design should belong to the service invention creation. Although the vast majority of buildings are designed by design units commissioned by real estate developers, in the absence of an agreement, the patent applicant for the design should be the design unit. After the application is examined, the patentee of the design is the design unit.
2) Exploitation of intellectual property rights on buildings.
1. Strengthen publicity and understand the existence of rights.
Although our country's Law on Copyright, Trademark Law, and Patent Law do not deny intellectual property rights on buildings, it has not been fully utilized recently. On the one hand, the right holder is not aware of the existence of the right. For example, China's construction industry does not attach importance to the right of architects to sign. The name of the architect is not usually mentioned in the description of the building. The inscription of the building bears the name of the building unit. Even if there is a design column, there is only a design unit, not a designer's name. On the other hand, companies do not pay attention to the utilization of intangible assets. For example, a building is only registered as a fixed asset, and the intangible assets of the building are not developed or registered.
At present, China's neglect of architectural intellectual property rights has led to a large number of plagiarism and imitation of architectural works, resulting in the poverty of architectural styles. The field of architecture is rife with a lack of innovative architectural design, which greatly discourages architects from ignoring creativity and hinders the development of architectural design and architectural development.
2. Pay attention to the application for intangible asset rights on buildings.
In terms of intellectual property rights, under Chinese law, trademarks and designs can only be obtained through registration or application, unless the author automatically obtains the right to work after the completion of the work. In addition, after a building is registered as a three-dimensional trademark, it is possible to override its flat trademark.
3. Use the intangible assets on the building to maximize the benefits.
The value of intellectual property is not in possession, but in utilization.