Functional graphic-image channeling doctrine to distinguish design right with copyright

Abstract

In the late 20 century, computer graphic technology enabled graphic image design embodied in a variety of display screens of devices such as a cellular phone. Graphic image designs embodied in display screens became protected by design rights by the revision in the level of guidelines in many countries. However, in this 21th century, computer graphic image designs were freed from display screens thanks to the new 4th generation computer graphic technology. To protect graphic image designs oudside screens in the form of design rights, design laws themselves had to be revised. In South Korea, the 2021 design law made graphic image design automatically fulfill the article of manufacture requirement. Therefore all graphic images can pass over into the arena of design rights. In order to pull out non-functional graphic images which are cultural contents and send them back to the arena of copyrights, Korean design law put a new filter requirement by adding a restriction clause into the definition of graphic image designs. This article reviews the article of manufacture requirement and the restriction of the definition of the graphic image design in the right of intellectual property channeling effect filters. Under the umbrella of the intellectual property law, channeling doctrines, which channel inventions to the arena of utility patent rights, copyright materials to that of copyrights, trademarks to that of trademark rights and designs to that of design rights, play their roles to prevent backdoor patent, backdoor copyright etc. That is because backdoor rights inhibit industrial competition and cultural free expression. The most famous channeling doctrine is the functionality exclusion doctrine which blocks backdoor patents all through in the areas of design law, copyright law and trademark law. This article views that the article of manufacture requirement is a copyright/design right channeling filter that separate applied art copyright materials from design for utilitarian articles. However the article of manufacture requirement cannot be an appropriate copyright/design right channeling filter for graphic image designs. With it, functional graphic image designs cannot enter into the arena of design rights and thus fair competition in the related industry is disturbed. Without it, non-functional graphic image designs pour into the arena of design rights and the freedom of expression is oppressed. This article relates that the new filter introduced in the form of the restriction of the definition of the graphic image design, that is, “provided for use in the operation of the device or displayed as a result of the device performing its function” is in substitute for the article of manufacture requirement in order to separate and channel copyright materials and designs in relation to graphic image designs. This article named the new filter as “the functional-graphicimage-requirement” in order to distinguish it with the so-called functionality exclusion doctrine by shortening the long words “provided for use in the operation of the device or displayed as a result of the device performing its function” to a word, “functional.”