The Research On The Application Of Separability Doctrine In The Protection Of Works Of Applied Art

Works of applied art are works consisting both practical functions and artistic components.The third draft amendment to Copyright Law of the People's Republic of China has listed works of applied art as an independent type of works.Based on the idea-expression dichotomy,the applicable purpose of the Separability Doctrine is to exclude the protection of the practical function part.The basic meaning is that the artistic components should be protected only when it can be separated from practical function and then is independent of the practical function.The Separability Doctrine is gradually being valued,but two major problems are exposed during its application process.One is the understanding of the Separability Doctrine is sometimes twisted,such as the failure to fully grasp the core of the Separability Doctrine,which refers to the separate identity,and lack of the comprehensive understanding of the difference of Physical Separability and Conceptual Separability.The other is the lack of specific and feasible judgment standards,and as a result,the fact is that the Separability Doctrine is difficult to be applied.By combing the evolution of the Separability Doctrine in the United States,it is concluded that Physical Separability has the disadvantage of inappropriately reducing the scope of protection of works of applied art.The judgment of Conceptual Separability has three basic ideas.The first one is to clarify the relationship between practical functions and artistic components.The second one is the use of third-party factors to alleviate the practical difficulties of judges' judgments.The third one is to take the related regulations into account.By understanding the evolution of Separability Doctrine in the United States,the choice of specific separability criteria in China should be physically inseparable and conceptually separable.This paper presents the concept of step-by-step judgment method,that is,the aesthetic meaning of the artistic component is separable and independent of the practical function,and the artistic component is not completely dominated by the practical function.On one hand,through the standard of the ordinary attention of ordinary observers,works that do not have aesthetic significance or that cannot be separated from practical functions are excluded.On the other hand,those artistic components completely dominated by practical functions will also be eliminated.This method may help us define the scope of protection for works of applied art reasonably.