On Protection Of Works Of Applied Art Under The Separability Dotrine

With the increasing abundance of material life, people's spiritual life demands gradually increase. Works of applied art which meet the everyday utilitarian functions, and embodies the aesthetic pursuit of useful articles, is more popular with consumers comparing with only functional of useful articles. Under theoretical research is deepening about the copyrightability of works of applied art and judicial practice of “Forced”, the National Copyright Administration started the third revision of the Copyright Act at 2012. In this revision,works of applied art can be protected as a separate category works, the protection duration is 25 years. Even so, the define of works of applied art and identification details of the uncertainty is still a lot of inconvenience copyright. Therefore, it is necessary to be refined to that standard works of applied art, with a view to better guide judicial practice.The general idea of the dissertation is: First, typical case draws the focus of controversy, and inductively analyses that copyright protection of works of the applied art required to meet the conditions. Then, from the current situation of works of applied art's protection in China and the use of the United States' separability doctrine view, the thesis holds that our country should apply separability doctrine, and adhere to physical separability and conceptual separability. The dissertation is divided into four parts.The first part is to put forward questions. By the D.K.D. Group Co. Ltd. v. 361 Degrees(China)Co., Ltd. copyright ownership and infringement disputes, the thesis considers that the works of applied art should be conducted around the following aspects:(1) How to separate utilitarian functions and aesthetic functions of works of applied art;(2) Originality of after the separation;(3) Artistic height of after the separation.The second part is separable standard background briefings. First, through the current situation of judicial protection of works of applied art,the goal is to analyze the existing problems about works of applied art's protection. Thereafter, by introducing the United States' s the relevant legislation and judicial practice, the target argues the separable doctrine is used in the identified works of applied art.The third part is the protection of works of applied art under separation doctrine. Our country works of applied art are divided physical separability and conceptual separability under the guidance of the separable doctrine. Physical separability requires that artistical feature of works of applied art can be separated from useful articles and capable of independent existence. Conceptual separability needs works of applied art's artistic is conspicuous to utilization function. The existence of such a significant should be an ordinary general rational observer's standpoint, based on the works of applied art itself observed, and combined with the works of applied art and other works of applied art or ordinary useful articles the difference of the price in the market whether caused the works of applied art's "artistic", and then determine whether there is an integrated conceptual separability. In addition, the works of applied art's originality demands less, just not a copy, plagiarize the work of others. The works of applied art's article height should be consistent with the fine works, can not be too insignificant. The works of applied art's protection duration is twenty-five years from the creation or publication of date, however can be divided into physical and conceptual the works of applied art.The fourth part is watching the protection of clothing form the separability doctrine. The paper argues that appeal court biases identified that involved dress are works of applied art. The paper hold that whether works of applied art's copyrightable should focus on itself, not be consider production scale or purpose of use and other factors. Meanwhile, the thesis holds that clothing should be protected Copyright Act which conceptual separability doctrine and originality, and the garment process model should not be copyrightable.