Research On Copyright Protection Model Of Works Of Applied Art

There is no specific provision about works of applied art in the current Chinese copyright law.Therefore,Chinese courts usually classify works of applied art as works of fine art,and apply principle of separation and originality as requirements for the corresponding works of applied art.However,differing with judicial views,legislation chooses to stipulate works of applied art as independent types of works and to reduce its duration of protection to 25 years in the third revision of the copyright law(draft)which has not yet been approved.For the former,although the application of the principle of separation is the current trend of judicial practice,there is no a universal separation test method about principle of separation.And for the latter,although it is clear in the law that works of applied art should be independent types of works,and its duration of protection is only 25 years,there is not any directive about what requirements should be applied in it,the original standard or still applying theprinciple of separation? Comparing those two models,the different classification of the work is likely to form different standards of identification.Meanwhile,the limitation of rights or the duration may also affect the threshold of identification of works.Therefore,this paper will refer to the legislation and applicable experience of comparative law,analyze the theoretical and structural defects that may exist in above two models,or try to reconstruct the two models while selecting them.Although the principle of separation strictly follows the basic principle that copyright protection does not extend to idea or function,it sets an exorbitant threshold for works of applied art.Taking the development of separation principle in American law as reference,under the separation principle model which premises on dichotomy of art and function/industry,only pure decorative artistic elements on useful article can gain protection of copyright,and it is hard to extend the protection to the whole or part of the shape designs which represent both artistic expression and functional structure simultaneously.Even though the conceptual separability,which was in the Kieselstein-Cord case,have once made protection of the overall design possible,there are only a few overall designs can meet requirements of protection under the limitation of dichotomy between art and function and the inconsistent test methods of conceptual separation.In other words,the threshold which is set by the principle of separation far beyond its purpose of excluding function from copyright protection.Therefore,this paper holds that under the mode of separation principle,the protection that works of applied art can obtain is insufficient.However,although the stipulation in draft of third revision which reduce theduration of works of applied art relax to the extent that requirements of works of applied art,the single stipulation about reduction of the duration cannot substitute for the principle of separation completely.As a reference to the British model which also chooses to reduce the duration of works of applied art,this model does have certain advantages,such as the idea about unity of art,which can theoretically free the court from the dilemma of applying the separation principle,and overcome the drawbacks of separation principle to the extent.However,there are still some defects and limitations in this model.On the one hand,on the basis of the interpretation of the Arts and Crafts movement(the 19 th century design aesthetics movement),the British courts constructed the criteria for the identification of works of applied art by analyzing the artistic quality or craft(craftsmanship)attributes of the works.Those standard often intend to ignore the legal analysis of the relationship between art and function;On the other hand,British copyright law is unable to demarcate between works of artistic craftsmanship and other works,such as sculpture works and works of artistic craftsmanship,due to absence of definition of works of artistic craftsmanship,which cause a new problems about the boundary of works of applied art.As to above defects,the last part of this paper will try to reconstruct a reasonable and effective protection model for works of applied art with the reference of the defects and advantages of the foregoing two protection model.In general,the suggestion of this paper is to acknowledge the relationship between artistic expression and function as a unified relationship,and exclude products only having pure technology form and low degrees of formal freedom fromcopyright protection with reference to the concept of pure technology form and formal freedom in design aesthetic theory.Meanwhile,the original standard can be applied to products with higher degrees of formal freedom,and to examine their personal artistic creation.If products concerned can meet the original standards,it can be identified as works of fine art in the current Chinese copyright law.At the same time,the protection of copyright law does not extend to the form of pure technology contained in the form of the product.