On The Application Of Separability Principle In Copyright Protection Of Applied Artistic Works

The inherent properties of utility and artistry present a distinctive quality that distinguishes works of functional art from ordinary works.Therefore,it is important to develop an appropriate and feasible method for examining the copyright protection of works of practical art.The primary requirement for copyright protection of a work of functional art is the separation of its functional and artistic qualities.The doctrine of separateness is considered a necessary and central principle in determining the copyrightability of a work of functional art,and is based on the fundamental principle of copyright law,the dichotomy of idea and expression.Adopting this principle allows creators to be more free and creative in their creative process,and promotes both the economic and cultural value of works of functional art.At the same time,this principle can ensure that the public does not infringe copyright when using works of practical art within the legal framework,avoiding the abuse of copyright and infringement.Therefore,the principle of separateness has a role to play in the copyright protection of works of practical art that cannot be ignored.Although an attempt was made in the third revision of the Copyright Law to treat works of practical art independently and in parallel with works of fine art,no explicit provision was finally made in the Copyright Law.The lack of legislative provisions has led to insufficient application of the separateness principle in judicial practice,or the use of the separateness principle without specific interpretation.The root causes of these phenomena are: firstly,the courts lack a clear basis for adjudication during trials;secondly,the positioning and connotation of the separability principle are unclear;thirdly,the judgment standards are divided,with both subjectivism and objectivism occupying a place;fourthly,the judgment methods are diverse and lack uniformity.After drawing on the relevant theories and judicial practices in the United States and Japan,it can provide inspiration for the construction of China’s localized separability principle.In terms of legislation,it is not necessary to set up an independent type of work,but to add "including the artistic components of practical artworks" to the concept of fine art works in Article 4(5)of the Copyright Implementation Regulations.Since it is impossible to avoid the connotation of separation of art and utility whether it is set as an independent type of work or in the concept of fine art work,the easier way to operate is chosen.In terms of judicial application,the principle of separateness should be highlighted as a necessary element in the determination of infringement of practical art works,while meeting the requirements of being physically indistinguishable and conceptually separable.Adopt a combination of subjective and objective judgment standards,i.e.,eclecticism,considering both the author’s creative intent and the work itself.After the judgment criteria are clarified,the determination and identification of artistic expression should be subject to the relevant public.Finally,under the guidance of the judgment standard,the subjective and objective hierarchical judgment method is adopted.