Research On The Scope Of Copyright Follow-up Protection Of Design

Design is the integration of industry and art,when it is combined with a specific product and novelty,it conforms to the protection elements of patent law,can apply for a design patent.When the artistic part of the design can meet the composition of the works,it can be used as the object of copyright protection,and the phenomenon of overlapping protection of rights arises.When a design patent expires due to the expiration of the protection period or fails to pay the annual royalty of the patent,it enters the public domain.In view of the existence of overlapping protection of rights,the definition of the scope of protection of rights in practice is more complex than a single intellectual property protection.The judgment of whether the specific act falls into the scope of the protection of rights needs to be examined separately in the field of patent rights and copyright.Even if the protection objects are the same,the elements and standards of protection should not be mixed.Coupled with the judicial practice,the infringement judgment of design and practical works of art is difficult,the copyright follow-up protection scope of design patents has become a practical problem,and the re-creation behavior of public use of product design becomes unpredictable.The difference between patent right and copyright protection premise and protection period is the premise of subsequent protection,and the elements that satisfy copyright protection requirements after the design is terminated can not enter the public domain.The overlap between design and practical works of art on the object of protection causes the phenomenon of overlapping protection of rights,and the object that can enjoy overlapping protection needs not only to meet the constitutive requirements of design but also to meet the constitutive requirements of practical works of art.The former requires the design of the product to have novelty while the latter requires the separation of aesthetics and practical functions,with different emphasis.After the design entered the public domain.If the carrier is not replaced,it can still be protected as a practical work of art;if the carrier is replaced,the original design elements are expressed on the plane and can be protected as an art work.In terms of content,there are differences between patent protection and copyright protection.Specifically,the design patent right prohibits the execution of the design on the same or similar category of products,which does not include the use of the technical function of the design,and when the design product is used as a component of another product,if it is playing a technical function,it does not constitute a patent infringement of the design.However,if there is still copyright protection on the design patent,then the right holder can use the copy right in the copyright to prohibit the use of the product by others,whether using the technical function or the United States Learning function.When the patent right of design is terminated,if the original design still exists as a practical work of art,whether the use of the original design on similar products constitutes infringement should be judged by substantive similarity,which is different from the overall observation standard in the design.