Study On The Separability Test In The Protection The Functional Works

The copyright law does not protect the practical function.Therefore,one of the preconditions for the functional work to be protected by the Copyright Law is that the aesthetic characteristics of the work can be separated from the practical function,that is,it must be separable.The aesthetic characteristics need to meet the original requirements.The practical function refers to the article need to be used in people's actual life rather than simple value of the collection or appreciation.The separability test intends to distinguish the artistic aspects and practical aspects of articles and avoid extending the protection of the copyrighted works to the functions,preventing violating the legislative purpose of the Copyright Law.The importance of the separability test in the judgment of the copyrightability of the functional works is self-evident.However,there are some applicable problems in the separability test at present,such as the existing separability tests cannot be applied to all functional works,and it is difficult to draw a clear line between aesthetic features and practical functions in concept separation,which makes it impossible to use the copyright law to protect some functional works.The imperfection of the theoretical system construction leads to the abstraction and ambiguity of the separability tests developed in the judicial practice,which leads to a series ofproblems that need to be resolved,such as the phenomenon of the absence of the judgment of the separability test in the trial activities,whether some functional products that cannot pass the separability tests are available to weak protection,the problem of whether science aesthetics can be separated from practical functions,and the reference significance of the separability tests in other countries to our country.This paper intends to study the present separability test ofdomestic and foreign country,the application and defects ofthem in China's judicial practice,the applicability of the existing foreign separability tests in China,and the judgment of separability test design and other hot issues and controversial focus.The article is divided into five chapters.The first chapter focuses on the origin and development of separability theory,the independent status of separability tests in intellectual property system and the difficulties of separabilitytests.The second chapter focuses on the application of separability tests in our country's judiciary,summarizes the separability tests involved in 66 classic cases by means of empirical research,and leads to the problems and shortcomings in the judicial practice of China.The third chapter mainly discusses the judicial practice of separability tests in the U.S.and critically demonstrates the applicability and reference significance of the American separability tests in our country.The fourth chapter puts forward the suggestion of perfecting the standard path design of separability in our country,and innovatively proposes a specific separability test as a Two-Step Test method.The first step requires an aesthetic perception that is independent of the practical function.The second step,the functional part of the functional work does not have absolute dominance of the aesthetic features.Only if the functional work meets the two-step requirement can achieve the conceptual separation.It is hoped that the two-step test will give a clear legal orientation to the separability test and reasonably define the scope of protection for functional works.The fifth chapter summarizes the full text.