Research On The Definition And Legal Protection Patterns Of The Works Of Applied Art

Works of applied art are generally defined as art works which can be practically used.At present,China has not yet established the legal protection system of works of applied art from the legal aspect,and the basis for providing legal protection to foreign and domestic copyright owners is not the same.According to the“Regulations for the Implementation of International Copyright Treaties”promulgated by the State Council in 1992,China has granted a 25-year term of protection for works of applied art of foreign authors.Based on the understanding of domestic judicial practice,the copyrights of works of applied art of domestic author are temporarily available by regarding the works as the works of fine art.With the rapid economic development in China,there are more and more disputes involving works of applied art in economic life.In order to fulfill the obligations of international conventions and meet the requirements of economic development,the legal protection of works of applied art in China has been put on the agenda.In 2011,China started the third revision of the Copyright Law,adding works of applied art to the object of copyright.As the cognizance of works of applied art and the issue of overlap of protection of works of applied art and industrial design are still a hard nut to crack in the world,many of the problems relating to this field are lacking in consensus in China and it is bound to affect the course of the third revision.The legal research on works of applied art is particularly urgent.In the field of legal research on works of applied art,the difficulties mainly focus on the definition of works of applied art and its legal protection mode,which involves the difference between works of applied art and industrial design and the choice of protection mode as well.The “theory of dissociation” proposed in U.S.A.impact Chinese legal practice a lot,which is worth of further study.This article mainly uses the methods of comparative analysis,historical analysis,empirical analysis and semantic analysis and focuses on the attributions and scope of works of applied art;the principle of separation,the differences between works of applied art and design,the issue of overlap protection and the choice of legal protection model of works of applied art.On this basis,this article makes theoretical innovations in setting thecriterions of the practicality and the artistic properties of works of applied art and further developing the concept separation theory.The article also present new points of view on the definition of works of applied art;argue the irrationalities of the physical separation;make some deep-level mining of the differences between works of applied art and design and demonstrate the rationality of the “either or gain right”model.For the first time in the 1948 Brussels Revised Conference,works of applied art was listed in Article 2 of the Berne Convention and became the type of works that was protected by copyright law.Owing to the difficulty of distinguishing between works of applied arts and industrial designs,two reservations have been made in the1948 Berne Convention.Firstly,it shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial designs and models,as well as the conditions under which such works,designs and models shall be protected.Secondly,works protected in the country of origin solely as designs and models shall be entitled in another country of the Union only to such special protection as is granted in that country to designs and models.This makes works of applied arts the only type of works that is still based on reciprocity in some sense.The study of works of applied art should not neglect its profound sociological background.As a social phenomenon,“Art and Crafts Movement” originated in the second half of the 19 th century is the source of the protection of works of applied art.Tracing the history of this movement,we can see that to inherit the traditions of a certain nation is an important motive for the protection of works of applied art.Moreover,the scope of works of applied art is limited to the daily necessities.As the birthplace of “Arts and Crafts Movement”,Britain fully recognized the basic value of the movement in identifying the works of applied art.Although China did not participate too much in this movement,as one of the oldest and most traditional country,to protect the works of applied art on the base of inheriting tradition will undoubtedly increases the connotation and value of the legal protection of works of applied art.Works of applied art is difficult to define,and the definition in the BerneConvention Guidelines is the only authoritative one so far.Although there is no clear definition of works of applied art in all the major countries,all the major countries agree on that there are two basic attributes of works of applied art: “practicality” and“artistry”.In spite of this,the evaluation criteria of “practicality” and “artistry” vary from country to country.On the criterion of “practicability”,the United States puts forward the standard that “is not merely to portray the appearance of the article or to convey information”.In Chinese judicial practice,courts put forward the standard of“having practical value,rather than simply having the value of ornamentation or collection” to evaluate the practical attribute.Britain focused on the identification of“artistic” attribute and evolved several standards such as “general standards”,“author’s own intellectual creation” standard,“daily concepts and overall considerations” standard and so on.The United States has developed the standards of“art history” and “ordinary values”,and followed the Italian’ step to identify the works of applied art by inserting a test of artistic separability in the law.Germany placed emphasis on using the “author’s own intellectual creation” criterion in originality recognition,limiting the copyright protection to articles with obvious artistic attribute.In judicatory practice in China,the understanding of the “artistic”attribute of works of applied art mainly based on the “daily concept” and no other standards has been formed yet.Domestic courts often touch on lightly on the issue of“artistic”,and dispute on the problem of the artistic merit of the works of applied art.Although the evaluation criteria of the foreign countries are worth of studying,we should see that many problems have not been solved,especially in the determination of artistic standards.The question of what is “artistic” is a problem in itself,and its controversy in the art world is earlier,more intense and far more influential than the controversy that has arisen in the legal world as an attributes of works of applied art.In the field of art,there even emerged a theory of art nihilism which caused a great panic.Combining the research achievements of art theory with the research on the artistic properties of works of applied art,this article proposes “objective artistic criteria based on the history of art” as the standard for evaluating artistic features,among which the “objectivity” manifested in three aspects: firstly,the standard starts from the works itself but not from the artist’s subjective understanding;secondly,thestandard bases on the artistic criteria described by the continuous and stable artistic language in art history;thirdly,the standard does not violate everyday cognition and feelings,or is objectively accepted by the relevant public,thus forming a daily concept of artistic standards.Objectively examining the inheritance of artworks to their local art traditions can also serve as a reference for artistic evaluation.On the issue of artistic height or artistic value,based on the opposition between artistry and industry and the commodity attributes of works of applied art,this article puts forward the viewpoint that works of applied art should be applied to higher artistic standards.The theory of dissociation is the basis of the principle of separation,which means that the artistic expression of a utility article must be able to separate from the functional section and exist independently in order to be protected by copyright.The principle was first produced in Italy and France and later developed greatly in the United States,which became an important principle in the identification of works of applied art.In recent years,domestic courts have begun to apply the “principle of separation” in the process of defining of works of applied art.In essence,the principle of separation is a means of limiting the copyright protection to industrial products by increasing the artistic standards of practical articles.The evolution of the principle of separation of the United States reveals that the principle itself has some limitations,such as irrationality of physical separation and the ignorance of functional and artistic relations,which suggested that the introduction of the principle of separation cannot solve the problems once and for all but is controversial and may make the identification of works of applied art more uncertain.In Chinese judicial practice,the courts emphasized the “independence” and neglect the “separation” and sometimes applied the physical separation and the concept separation contradictorily and ambiguity.This paper on one hand falsifies the physical separation and on the other hand develops the concept separation by constructing the functional and artistic entanglement and fusion theory on a more specific level.The paper points out that the concept separability does not exist only when artistic and functional aspect integrates together and the artistic aspect is the result of the domination of the functional aspect.Based on the research results of the origin and artistic and practical attributes ofworks of applied art,this article makes a more detailed distinction between industrial designs and works of applied art from the perspectives of definition and elements requirements.Judging from the normative value orientation,the works of applied art mainly inherit the traditions,therefore suit to be judged by artistic aesthetic standards;while the industrial designs more often embrace the future and suit to be judged by realistic aesthetic standards.This article points out the problems of confusing the artistic aesthetic and the realistic aesthetic and other problems relating to the works of applied art,which existing in the process of revising the copyright law.The legal protection model of works of applied art is an issue constantly explored by all major countries.Although member states of the Berne Convention must provide legal protection for works of practical art,to protect as a design or as a works of applied art may be freely chosen by member states.Through historical research,it can be seen that although the main countries provide protections to the industrial design,copyright protection of works of applied art is preserved.Trying hard to avoid cumulating of protection is a hidden principal line.For a particular utility item,it may,in certain circumstances,satisfy both elements of a work of applied art and design,thereby triggering overlap protection of a particular object.This article focuses on the difference between object of right and carrier of right,and proves theoretically and empirically that the conflict and overlap of the rights of works of applied art and industrial design are pseudo-proposition.Based on the aforesaid distinction,the issue of overlap protection is essentially the dual empowerment of right.As the works of applied art and design are in the same system of legal relationship and have the same legislative aim and the value goal and only different in authorization mechanisms,repeated empowerment will lead to over-protection of rights.Therefore,this paper proposes that it is more reasonable to choose “either or gain right” model based on the choice of parties when the specific object meets the requirements of both works of applied art and design.This choice is not only the objective requirement of different rights and interests arrangement,but also has certain institutional advantages.