International Protection Of Works Of Applied Art And China's Choice

The works of applied art, which can beautify life and has great value on artistry and practicability, has many different forms in our daily life. It is one of the protected objects under Berne Convention, which is a kind of work of practical and artistic nature. Most counties have provided copyright protection for it, but China's current attitude towards it remains unclear. Therefore, there still is room to research Chinese legislation and judicatory experience about providing protection for works of applied art. Based on current situation in China, this thesis illustrates the concept of works of applied art, standards of international protection, typical protection systems and tries to put forward some legislative advices on its protection by means of analyzing Chinese current legislation and judicatory predicament and researching the standards of international protection.In addition to preface and epilogue, the thesis falls into five chapters. Chapter One introduces the definition of works of applied art by means of defining and comparing relative notions, which is necessary to demonstrate practical and artistic nature and is logical starting point of this thesis. Chapter Two analyzes standards of international protection for works of applied art by means of studying related international treaties, which establishes keynote of protection concerning works of applied art. Chapter Three explores mature copyright systems concerning legislation and judicatory experience by means of researching typical systems in three foreign countries. Chapter Four and Chapter Five propose some thoughts on how to set standards on cognizing works of applied art and infringement concentrating on Chinese legislations and judicatory experience about protection for it, which show practical significance of this thesis.Chapter One: Practicability and Artistry of Works of Applied Art. The works of applied art has artistry and practicability as its two major characteristics. The works of fine art has value on beauty appreciation but doesn't have practicability. In a certain area, it is similar to works of applied art while it cannot include it. Works of arts and crafts can be divided into traditional ones and ones for daily use. The former combines materials with special crafts, which is mainly used for people to display, appreciate and enjoy and has basically escaped from the category of appliance arts. This kind of works of arts and crafts belongs to works of fine art. The latter has value on beauty appreciation and is close to our daily life, so it belongs to the works of applied art. Industrial design has characters on both industry and art, which emphasizes application on industrial production. Its artistry is based on technique foundation, so it is different from works of applied art which should be given proper protection separately.Chapter Two: Standards of International Protection for Works of Applied Art. Berne Convention's provisions in 1971 firmly and clearly gave legal protection for works of applied art while it didn't put forward concrete requests on protection scope and condition but provided mutual protection among members. The provisions had great influence on protection of works of applied art. Universal Copyright Convention also includes works of applied art. TRIPS overall accepts provisions about works of applied art in Berne Convention. The standards of international protection for works of applied art which are established by these two conventions and some fundamental regulations deeply affect the conclusion of many conventions on protection of works of applied art. The standards show that in the absence of special protection, works of applied art should enjoy copyright protection, which should last not less than 25 years. North America Free Trade Agreement as well as Bangui Agreement revised by African Intellectual Property Organization mentions to give protection concerning works of applied art as their obligations.Chapter Three: Comparisons and Apocalypse on Typical Systems concerning Protection of Works of Applied Art. Take the U.S, France and Germany as examples. American copyright law brings works of applied art into the scope of "paintings, sketches or carve works", instead of putting them together without any order. "The separate identity and independent existence test" principle is used in judicatory practice to recognize which kind of works should be called works of applied art. "The separate identity and independent existence test" principle is that artistic aspect must be separated from practical aspect physically and conceptually, which reflects American judges'role of law interpretation, but also brings trouble of judging what "conceptual" separation characteristics is. China can learn from its legislative technology in copyright protection, but not copy this principle. Both France and Germany distinct works of applied art from ordinary art works by judging practical function. But France is different from Germany in protection mode, which offers more kinds of protection to choose. Being a developing country, it is necessary for China to consider legislative environment and reality and to learn from the mature systems concerning protection of works of applied art.Chapter Four: Current Situation on Protection of Works of Applied Art in China. Based on the above three chapters, Chapter Four pays close attention to Chinese current situation. China joined Berne Convention in 1992 and promised to take obligations of TRIPS to take part in WTO in 2001, so it means that we should take both conventions'obligations on protection of works of applied art. While China only gave foreign works of applied art a 25-year-period protection without mentioning home protection in Provisions on the Implementation of the International Copyright Treaties in 1992. So Chinese relevant law still keep unclear attitude towards copyright protection for Chinese works of applied art and haven't give effective protection. In judicatory practice, we often put works of applied art into ordinary works of fine art, which not only does harm to law explanation but also doesn't agree to original meaning of our lawmaking. Meanwhile, judges and parties often cannot reach agreement on protection standards and modes, so it brings conflict within current situation.Chapter Five: Suggestions on Protection Concerning Works of Applied Art. We should construct a proper system to protect the copyright of works of applied art. Works of applied art should firstly has originality(done by the author alone), secondly it should be found a certain character, and we can know clearly such character by studying its artistry and practicability, thirdly we should define artistry from a whole perspective instead of focusing one component's artistry. We should adopt a loose standard to cognize the works of applied art and its artistry shall be defined as aesthetical nature. Meanwhile, we needn't take American "the separate identity and independent existence test" principle. Concerning the infringement of works of applied art, we should concentrate on the similarity of two pieces of works of applied art in order to protect interests of civil right subjects and promote the prosperity of arts market.