Research On The Application Of Separable Principle Of Applied Works Of Art

Applied art works are specific works that combine artistic features and practical functions.In the process of revising the third draft of copyright law,the review draft clearly defines applied artistic works as an independent type of works.Based on dichotomy between thought and expression,the basic theory of copyright law,the application of separable principle aims to eliminate the protection of practical functions from the protection category of copyright law.This principle means that only when the artistic elements of the work can be separated from its functional elements,and the separated artistic elements can exist independently of the functional elements,such applied artistic works can be protected by copyright law.The principle of separability has been gradually promoted in practice,but there is still a long way to go before it is fully implemented in specific judicial practice.Generally speaking,most courts still ignore the principle of separability when deciding cases,even confuse fine art works with applied art works,and only examine whether applied art works are original or artistic.These current situations directly reveal the problems revealed in the process of judicial practice: many courts have not abandoned the model and immobilization of relevant cases,the principle of separability is seriously missing in judicial practice;There is a certain deviation in the understanding of the separable principle among different courts.They fail to accurately grasp the core of "independent existence" and only stay at the level of literal meaning.Different courts have adopted different standards for applying the separability principle to works of applied art.The principle of separability originated from overseas and has evolved into subjective and objective testing standards in practice.Subjective test standards are easily affected by the fluctuation of individual aesthetic quality,while objective test standards are more inclined to the game between practicability and artistry of applied artistic works.In order to implement the copyright protection of applied artistic works,the legislation should make clear that the principle of separability is the basis of the identification of applied artistic works and the judgment of infringement.In judicial practice,it is necessary to avoid making subjective judgment on the artistry of works,and face squarely the relationship between practicability and artistry,so as to construct a uniformly applicable separable test method,unify the theoretical steps in judicial documents,and strive to accurately apply the separable principle in judicial practice.