A Study On The Copyright's Follow-up Protection Of Designs

Industrial design is the object of protection of patent law in our country.The design is based on aesthetic design,when the aesthetic component of the design meets the requirements of copyright law,it can also be the object of copyright law protection.There is no disagreement in theory that the protection requirements that satisfy two or more rights are protected at the same time,however,if one of the rights fails,the design can be further protected by other rights?All countries are making efforts to solve this problem,at the same time,the problem is also a controversy in China,but no corresponding solutions could be introduced.This article analyzas and discusses the dual protection of design patent right and copyright,baesd on whether or not the invaild design can continue to be protected by copyright.First,In order to show the importance of resolving the issue of the follow-up protection of copyright,the article introduces two similar cases but the judgments are quite different,and tries to initially analyse the controversial focus of the case.Next,the article combines with the different voices of our country's theorists who agree or disagree the dual protection,it shows the attitude which from our country's academic circle,about the follow-up protection of the patent copyright when the patent invalidation.When a design becomes a work of art,it is mainly embodied as a practical work of art.The author introduces the protection of practical works of art and provides valuable reference for the follow-up protection of design copyrights.Finally,the article combines with the position of the United States,France and Germany on dual protection of design patent and copyright,as well as the results of judicial practice in the United States,puts forward the author's views on the topic and explain the reasons fully.This article is divided into five parts:The first part puts forward the problem of the follow-up protection of industrial design copyright,and introduces two cases in which the invalid design is protected by the follow-up protection of copyright.By introducing the facts of the case,the author preliminarily analyzes the dispute focus of the case and clarifies the full text of theperspective and key issue.The second part introduces that the industrial design must meet the requirements of copyright law,such as "originality","aesthetic expression" and other essential elements.But not all designs can become works,only when the aesthetic elements of the design meet the requirements of copyright originality,they could fall into the scope of copyright law.The third part summarizes the view of domestic scholars on the dual protection of industrial design,especially on the follow-up protection of design copyright.In this part,the author explains two different viewpoints of the theoretical circle,someone in favour of the follow-up protection of design but someone have different view,and then introduces “the principle of intellectual property selection” in the analysis of the reasons for opposing the follow-upt protection of copyright.The forth part starts with the analysis of the reasons,which the follow-up protection of the design copyright,there are four legitimate reasons: firstly,there is a coincidence between the design patent right and the copyright on the object of protection.Secondly,the following protection of design copyright is a reflection of the balance of interests.The next criticizes “the principle of intellectual property selection”.The last,it is questionable that whether or not the design will enter the public domain after the failure of the design patent.Through the analysis of the legitimate reasons,the author's point of view is clear.The fifth part mainly introduces the protection of practical works of art,which are closely related to the design.Because when the design is protected by copyright,it is bound to become a work,which the main form is practical art.Then,combines with the position and the corresponding judicial practices of the United States,Germany and France to further explain that the follow-up protection of the design copyright has reasonable legitimacy.