The Analysis On Our County's Legal Protection System Of Works Of Applied Art

To the concept of works of applied art, there is no explicit defination in the law of our country. Moreover, it has also been frequently used in the different significance in reality. And it has also been mixed-used with the concept of industrial design and manufactured art. According to the knowledge of WIPO's explanation, works of applied art refers to such artistic works, which have the actual use, no matter these kinds of works are the handicrafts or the industrial production products. As for the legal protection of these works, the Bern Convention only lists it as a certain protection object, and requests the signatory states to give the lowest protection time of 25 years . But the way of protection is unclear. The joint pledge member nation can choose either from the patent protection and the copyright protection. Moreover, it has not forbidden the member nation to provide the dual protections to the works of applied art.Our country copyright law and its implementation rule have not mentioned the works of applied art explicitly. And the State Council promulgates Implementation of International Copyright Treaty Stipulation, which is only clear about protects the works that the foreigners create. Therefore, the present universal view is: In our country, some works which the practical utility element and the art element may be separated obtain the copyright protection. However, when we meet other works which utility element and art element can not be separated, the legal protection vacuum appeared. As a result of this vacuum, the uncoordinated condition between our nation's citizens and the foreign citizens appears. Specifically speaking, if we consider the works of applied art as an industrial design patent, we protect our national citizens' creations which utility element and the art element cannot be separated with the exclusive law. Then it only can enjoy 10 years protection deadlines, which is lower than international 25-year standard. If we consider them as the works of pure art and give the copyright protection to it, the result is that the works created by our citizens, which the utility element and the art element cannot be separated, may enjoy author life-long and 50 years more. But this kind of foreigner creations' protection deadline is only the 25 years after it completed. That can cause foreigner's low national treatment, which has violated the national treatment principle, which the Bern Convention and WTO TRIPS stipulated.Aimed at the question exists in our country works of applied art protection, this paper analyze the goal of copyright protection and the nature of the object of protection and draws the conclusion: No matter utility element and art element can be separated, the works of applied art should obtain the copyright protection. At the same time, in model on international protection system of works of applied art, through the limiting of the relation between works of applied art and the industrial design, as well as the relation between copyright protection and the industrial design patent protection, we believe, so long as the works of applied art has the novelty, which the industrial design patent request, it may simultaneously obtain the copyright and the industrial design patent dual protections. Since legal protection vacuum has vanished, the foreigner's creations are the same as our citizens' creations about our country's protection deadline according to the national treatment. The time is author life-long and 50 more years. What's more, this has not violated the lowest protection time for 25 years which Bern Convention requests.