The Principle Of Aesthetic Nondiscrimination In The Copyright Law Of The United States And Its Referential Lessons To China

The principle of aesthetic non-discrimination plays an important role in copyright of American since Bleistein was decided in 1903,but its definition,theoretical basis and its status have become highly controversial in copyright.Therefore,it is of great necessity to make clear explanation about the definition of the value judgment and the status of this principle and put forward possible approaches to resolve conflicts concerning copyright eligibility,useful arts and fair use.This thesis includes six sections apart from the introduction and the conclusion which are as follows:In Section One,it discusses the historical background,initial definition of this principle and the disputes in copyright based on the analysis of Bleistein.In Section Two,it argues that aesthetic judgments are "dangerous undertakings" for courts but that does not overturn the innocence restraint of the Progress Clause that copyright is denied to content of an illegal,immoral,or obscene character.In Section Three,it shakes the theoretical foundation of this principle in copyright eligibility with the interpretation of the mere need of a work to express its author's "personality" to satisfy copyright law's originality requirement which initself exclude judging aesthetic merit.In Section Four,it argues that as a common law principle the non-discrimination doctrine is controversial in copyright as transformativeness inquiry in fair use requires courts to evaluate the aesthetic value of the allegedly infringing use while courts are forced to engage in aesthetic evaluation to determine whether a useful article is eligible for copyright protection by drawing a line between the aesthetic aspects and the utilitarian aspects of the article.In Section Five,it introduces the possible approaches of "permission of courts' aesthetic judgment","fixed aesthetic theory" and "Community of Practice" to resolve these conflicts.In Section Six,it probes into referential lessons of this principle and the possible approach of "Community of Practice" for China's copyright protection by introducing the established technical investigation officer system to the copyright to reduce the effect of judges' aesthetic subjectivity on their verdict.