Study On Separation Test Application In Copyright Protection Of Works Of Applied Art

Works of applied art pertain to practical artworks, they possess both practical and artistic component features. Thereinto,the artistic component comply with the requirement of originality. At current levels of consumption, people are increasingly seeking elegant, high-quality way of life. Works of applied art is closely related to daily life and, by virtue of their high aesthetic art, they attract more and more consumers. This shows the huge market interest in the works of practical art, and the interests will inevitably lead to businesses competition. The consequence is that the infringement will occurred frequently in the market of the works of applied art. It is imminent to strengthen the protection of works of applied art. And the theoretical and practical fields have been discussing these issues for a long time.Currently, only does the “Rules of implementing International Copyright Treaties” promulgated by the State Council explicitly states the "works of applied art". The Rules only gives copyright protection to works of applied art from foreign countries, and the term of protection is only 25 years. In addition, there is not any other clear legal reference to "works of applied art." Due to the lack of clear legal provisions, the protection issues of works of applied art have been debated among the theory and practice fields.March 2012, the third revised draft of "Copyright Law" explicitly absorbed "works of applied art" into it, and give it a 25-year protection period. The modified causes the discussing heat of copyright protection issues of works of applied art become warmer and warmer. I found that, in judicial practice, copyright law protects the works of applied art by the way of being absorbed into the work of art. However, due to the lack of clear legal provisions, there is no uniform understanding that whether shall the works of applied art be protected by the way of being absorbed into the work of art, or not be protected by copyright law. In addition, the theory and practice fields usually use the expression "practical artworks”, the presence sense of "works of applied art" is weak. Besides, there is the phenomenon of super-national treatment. More importantly, the theorists have unanimously approved the separation should be a necessary condition for copyright protection of works of applied art, but judicial practice often overlooked separation judgment of works of applied art which are involved in cases.All these problems are reflected the flaws of copyright protection system for the works of applied art. In particular, the separation judgment status is very vague. Therefore, by various legal analysis methods, focusing on the separation judge position in copyright protection of works of applied art, this article attempts to explore the meaning of works of applied art. Then, this article will analyze the existing copyright protection mode and status of works of applied art, find the defects, and then based on the third draft of the revised "Copyright Law", confirm the right status of separation judgment of works of applied art in copyright protection, meanwhile give some advice to improve the copyright protection of works of applied art.Specifically, in order to understand the general connotation of the works of applied art, the first chapter studied the expression of works of applied art in "Berne Convention" and related documents, national legislation. Found that, whether it is hand-made or by industrial production, the works of applied art possess both practical and artistic component features. Thereinto,the artistic component comply with the requirement of originality, and practicality means that the article can be used in real life, rather than simply having appreciation or collections, etc.. The second chapter analyzed the existing copyright protection mode and the status quo of works of applied art, and found that the separation test position in the copyright protection of works of applied art is not clear, which leads to the following problems:(1) super-national treatment for foreign works of applied art;(2) judicial practice is not uniform;(3) lack of separation test in judicial practice;(4) lack of a unified and effective separation test method. As separation test a starting point, the third chapter studied the separation status in US copyright protection of works of applied art, as well as the separation test method of works of applied art in American judicial practice. Based on the above analysis, combined with the relevant provisions in the third draft of "Copyright Law", the Chapter IV proposed solutions advice to the four questions above. Overall, the recommendations includes giving domestic inseparable works of applied art the copyright protection for 25 years to eliminate the super-national treatment; recognizing the relevant modifications in the third draft of "Copyright Law", but the "Copyright Law Implementing Regulations," or the judicial interpretation should interpret the "works of applied art" in draft as inseparable type, and clarify that the separable works of applied art should be protected as works of art. In addition, it is recommended that the separation test should be the foundation of copyright protection for works of applied art. As for the separation test method, we can learn from the practice of the United States.