The Separability Doctrine In Protection Of Works Of Applied Art

Applied art is works consisting of both utility and art features. The3rd draftamendment to China’s copyright law has included in its scope of protection works ofapplied art. Copyright protection does not lead to utility function of useful articles.The separability doctrine provides that the artistic aspects of useful article shall not besubject to copyright protection unless it can be separated from useful aspects. That isto say, the design of useful article is not decided by utility function. Before applyingthe separability, the court must examine whether the item is a useful article. If anitem’s utility is derived solely from the way it looks, it is not a useful article. Thispaper seeks to provide a method for determining the copyrightability of useful article,one that will provide more consistent results, and treat the work of useful article morerealistically and fairly. Useful article has its own particular characteristics. Theexistence of two constraints-functionality and mass production-means that the rangeof potential variation in designing a useful article is more constricted than the range ofpossibilities in creating non-useful subjects of copyright protection. The separabilitydoctrine is the outgrowth of idea-expression dichotomy. Because the separabilitydoctrine and merger doctrine share the same rationale, they should mirror one another.If there exists equally viable alternative designs to perform the same intended function,the design of the useful article is independent from function and can be copyrightable.This paper examines the problems of protection of useful article in China,compare the various tests and propose a more reasonable solution to apply the separability doctrine. PartI explores the condition in Chinese judicial practice, and theproblems of applying the separability doctrine. PartII summarizes the controversialtests for conceptual separability in USA. PartIII forces on the specificity of usefularticle, the intension of the separability doctrine and the preferable solution tocorrectly apply the doctrine including what is “useful article”.