Viewpoint | Qualification for copyright protection of practical works of art: artistic unity, separability or high-class (II)

Through the combing of the development of the qualification standards for copyright protection of practical works of art, we can find two chains on which its development depends, one is the secularization of art (including the development of industrial art), and the other is the dichotomy of the idea and expression of copyright protection. With the development of the industrial revolution and the popularization of culture, art gradually moved from the so-called noble palace to the secular and daily life. As the poet Paul Valerie said, "Great innovation will change all the techniques of art, which will definitely affect the artistic creation itself, and may eventually lead to the most charming way to change the artistic concept itself." In fact, art or beauty itself is a difficult concept to define, the concept of art should be open. When we appreciate and protect the pictures hanging in the art museum as works of art, can't we appreciate and protect the pictures carved on the dish as works of art. The unified theory of art fully reflects the development of modern art, especially the development of a branch of art-practical art. Another legal basis of the unified theory of art is the respect of intellectual labor, which holds that if the intellectual labor of pure art should be respected, then the intellectual labor of practical art should also be respected, so it should be protected by copyright.

Adhering to the traditional concept of pure art, the high class believes that art is aesthetic and appreciative and belongs to the realm of the spiritual world, while the practical goods are the realm of the material world; if the practical goods are incorporated into pure art, the purity of art will be destroyed. Secondly, the theory also puts forward from the perspective of economic development, such as the inclusion of real goods into copyright protection to obtain monopoly rights, it will hinder its rapid entry into the public domain, weaken the competition in the practical market, and hinder the development of industrial economy. In addition, real goods can be protected through patents such as industrial designs, and no additional protection is required through copyright.

The separable standard is a compromise between the two theories of art separation and art unification. It avoids the question of whether art unification or art separation as much as possible. It insists on adopting the dichotomy theory of thought and expression in the field of copyright, and holds that the function of practical goods cannot be protected by copyright. Therefore, it puts forward the theory of separable function and art to fit the dichotomy of thought and expression, copyright protection can only be obtained when the artistic features of practical goods can be separated from the functional features. Although the separable criterion is a compromise between artistic separation and artistic unity, it actually recognizes the objective existence of practical art and prefers artistic unity.

Although there has been a dispute between the separation of art and the unification of art, since the Berne Convention has made clear the qualification of practical works of art, and with the development of industrial art, the copyright protection qualification of practical works of art has been more and more accepted by the international community. Although some countries adhere to high-class standards, they still give copyright protection to practical works of art, which is actually a compromise; and the separable standard is also a compromise to practical works of art. From the perspective of the development of EU countries, the 1998 directive and the subsequent legislative or judicial changes of its member states further show the trend of artistic unification.

The most controversial issue of the unified theory of art, as opposed to the criterion of separability, is its dichotomy that may confuse thought and expression. But this problem can be corrected to a great extent. In French judicial practice, the rule of exclusion of full-function domination has been developed, and when there is only one or several limited designs for the realization of the function of real goods, it cannot be protected by copyright. This functional dominance exclusion criterion is similar to the functional binding method in the separable standard, but the separable standard requires a lower degree of functional binding, as in the American theory, as long as the practical function largely dominates the artistic characteristics, then copyright protection cannot be obtained. From this perspective, there is no difference in essence between the separable standard and the unified art standard for the copyright protection qualification of practical products, only the difference in degree, and the unified art standard does not completely break through the two points of thought and expression.

Compared with the high-class standard, the unified standard of art has obeyed the trend of the development of practical art, and promoted the development of practical art to a great extent. And those fears of artistic unity hindering economic development have not happened. In France, which practices the unified theory of art, its industrial economy is not restricted, but its fashion industry is booming. According to a survey initiated by the French Fashion Institute (IFM), the sales of the French fashion industry such as jewelry and glasses far exceed that of the French automobile industry and aviation industry. According to statistics, the annual sales of the French fashion industry have reached 150 billion euros, while the aviation industry is 102 billion euros and the automobile industry is 39 billion euros. Although we can find many factors in the development of the French fashion industry, its extensive protection of practical works of art is one of the key factors that cannot be ignored. Some scholars in the United States also called for learning from the French approach and giving fashion design copyright protection to promote the development of the American fashion industry. In addition, although practical designs can be protected in the patent field, the conditions and contents of design protection in the patent field are quite different from those in the copyright field. The patent field cannot protect all original designs, so the patent field protection is not suitable as an excuse to give up the copyright protection of practical products.

Compared with artistic unity and artistic separation, the separable standard seems to be able to coordinate the two to a certain extent, balancing the protection of intellectual labor in the design of practical goods and the rapid popularization of industrial products. However, from the perspective of American judicial practice, the application of the separable standard in practice is extremely complicated and difficult. Even professionals can hardly judge whether specific practical works of art are qualified for copyright protection, which makes the law lose its clarity and stability. From the above combing of the American concept can be separated method, can be divided into two categories. One is the subjective method, the ordinary rational observer method, the design process method, the marketability method belongs to this category. The subjective method of judgment deviates from the characteristics of artistic development to a large extent. Art is not completely restricted by ordinary rational people. For example, Van Gogh's paintings did not receive the attention of ordinary people at that time; in addition, the subjective method itself is difficult to get rid of subjective arbitrariness. Dilemma. The other is objective methods. Other methods in American judicial practice are more inclined to this type. No matter how these methods are expressed, their essence cannot be separated from the practical function binding exclusion rule, that is, if the practical function of practical works of art binds its artistic characteristics, then it cannot be protected by copyright. However, these methods are neither clear nor clear about the degree of binding, so they are inevitably limited to a vague state. The unified standard of art in France is a simple path out of the quagmire similar to the separable standard. Some scholars in the United States also support the use of similar art unified standards instead of separable standards.

So far, China's "Copyright Law" has not included practical works of art in the scope of copyright protection. According to the understanding of the legislative participants at that time, the reasons are as follows: first, it is difficult to distinguish between practical art works and pure art works. Some art works belong to pure art, but they can be used in practical products. For example, Qi Baishi's paintings may be printed on bed sheets; second, it is difficult to distinguish between practical art and industrial design. Compared with copyright, industrial property protection has no advantages in terms of renewal and protection period. If copyright protection is given, no one may apply for industrial property protection; third, it is difficult to distinguish between practical arts and arts and crafts, and the latter is more widely accepted by the public. After joining the "Berne Convention", in order to implement the Convention, the State Council issued the "Regulations on the Implementation of International Copyright Treaties" in 1992, which granted foreign practical artworks copyright protection qualifications. Since then, China's judicial practice has also begun to try to include domestic practical works of art into copyright protection. Through more than 20 years of development, the fear that giving copyright protection will cause no one to apply for industrial property protection has not occurred, and the concept of practical works has begun to be widely accepted in the field of intellectual property and art.

In the judicial practice of our country, there are roughly three kinds of judgment standards for the copyright protection of practical works of art: one is the public cognition standard, the other is the separable standard, and the other is the unified standard of aesthetic significance.

1. Public perception standards

The public perception standard means that a practical work of art should reach a certain degree of art, so that the general public can regard it as a work of art. A typical case of this standard is the "Swiss Interleger Company v. Kecao (Tianjin) Toys Co., Ltd. and other copyright disputes" of the Beijing Higher People's Court ". In this case, Interleger Company believed that Kegao Company had infringed the copyright of 53 kinds of Lego toy building blocks. The court classified these building blocks into the category of "practical art works" and held that: practical art works should have the characteristics of practicality, artistry, originality and reproducibility; Practicality means that the article has practical value, rather than simply having ornamental and collection value; artistry, on the other hand, requires that the object has a degree of artistic creation that is at least sufficient for the general public to regard it as a work of art. Based on this standard, the court confirmed that some Lego toy blocks are practical works of art and are protected by copyright. This standard has also been used in other cases, such as the "Huahaida Company v. Ruichuan Company's Dispute over Infringement of Property Rights of Other Works" heard by the Intermediate People's Court of Xiamen City, Fujian Province ". When judging whether Huahaida's "Babylon Outdoor Stove Dining Table" enjoys copyright, the court held that whether the work involved in the case is a work of art should depend on its artistry, so that when the general public sees it, whether it is considered a work of art. According to this standard, the court determined that "Babylon Outdoor Stove Dining Table" is not a work of art.

2. Separable standard

Separable standard is also used in the judicial practice of our country. A more typical case is "Blue Box International Co., Ltd. v. Dumex Infant Food Co., Ltd., Shanghai Lechao Household Products Co., Ltd., Zhejiang Krupp Machinery Co., Ltd.," heard by Shanghai Pudong New Area People's Court and Shanghai No. 1 Intermediate People's Court. "Shanghai Aishitu Economic and Trade Development Co., Ltd. Copyright Ownership and Infringement Dispute Case". Blue Box registered a "Bear Amusement Luggage Cart" as a work of art, and believed that Krupp and other companies violated its copyright if they used it without its authorization. In the trial of the case, the court of first instance held that the "bear amusement luggage cart" conforms to the characteristics of practical works of art. The specific analysis is as follows: the bear car is composed of two parts: the pulley trunk box (I. e. pulley amusement car) and the amusement car faucet (I. e. bear face panel). On the whole, it is a toy with practical functions. The bear face panel with artistic beauty and the box with practical function can be physically distinguished and independent of each other. In addition, the part of the faucet itself has a bear face pattern but has a general practical function. The two are integrated and are difficult to separate physically, but they can be separated conceptually, because even if there is no pattern, it will not affect the function of the faucet. Secondly, the design of the bear face pattern is original, and the beauty has reached a certain artistic height. Accordingly, the court of first instance determined the art qualification of the works involved. In this case, the court of first instance first adopted the methods of physical separability and conceptual separability commonly used in American judicial practice to determine whether there are separable artistic features, and then determined whether they constitute works of art according to the originality standard of works of art. The standard of separability is followed in the judicial practice of Shanghai courts. For example, in the case of "Yongfu Co., Ltd. v. Huang Xixin and Shanghai Duyi Trading Co., Ltd. Copyright Dispute" heard by Shanghai No. 1 Intermediate People's Court, the court held that: to constitute a practical art work, first of all, its practical function and artistic beauty should be independent of each other; secondly, its independent artistic design has originality.

3, the aesthetic significance of the creation of a unified standard

Another standard is the unified standard of aesthetic significance, which does not adopt the separable method or the public cognitive method, that is, regardless of whether the practical function and artistic characteristics of practical works of art can be separated or not, and regardless of whether the artistry can be recognized by the public, the unified standard of originality of works of art is adopted. As long as this standard is met, works of art are constituted. The typical case of adopting this standard is the series of cases of "Lego Company v. Guangdong Xiaobai Dragon Animation Toy Industry Co., Ltd. and other copyright infringement disputes. Lego Company believes that Guangdong Xiaobai Dragon Animation Toy Industry Co., Ltd. and others have infringed the copyright of 57 of its building blocks and initiated 57 lawsuits around 2010. In the trial of these cases, the Beijing No. 1 Intermediate people's Court unified the qualification standards for copyright protection of practical works of art, and held that intellectual creativity should reach the basic height required by the copyright law. The basic intellectual creativity does not require the intellectual achievement to reach a higher degree of artistic or scientific beauty, but only requires that the intellectual creativity embodied in the work should not be too insignificant. In the appeal trial of this series of cases, the Beijing Higher People's Court held that the creative labor required to constitute a work requires not only the input of simple manual labor, but also not only an industrial or manual skill, but must include The necessary "creative" factor. In the retrial of this series of cases, the Supreme People's Court held that for art works, their originality requires the author's unique creativity and concepts in the field of aesthetics; therefore, for those objects that have both appreciation value and practical value, Whether it can be protected as a work of art depends on the unique personality and creativity embodied in the author's intellectual labor in aesthetics. Intellectual labor that does not belong to the field of aesthetics has nothing to do with originality. A series of cases such as Lego Company v. Xiaobai Dragon Company have been tried by the intermediate, senior and highest courts in China, which is of typical significance. In this series of cases, no matter the intermediate, senior or the Supreme people's Court, they did not adopt the separable standard to analyze whether the practical works of art need to be separated from the function and art in order to obtain the copyright protection qualification, but only adopted the originality standard of the works of art. This standard is obviously similar to the French uniform standard of art.

In the field of intellectual property theory in China, the separable standard has been generally recognized. Zheng Chengsi, a well-known copyright research expert in my country, believes: "The copyright owner of a practical artwork can only confirm the infringement if he can prove that the defendant has copied the part of the artistic modeling that can still exist independently in his work except for the practical function." The scholar Lu Haijun thinks that the practical works of art should be regarded as a separate kind of copyright object, and the separable standard should be adopted as the qualification standard. Other researchers have combined the separable criteria and the high-class criteria. For example, scholar Wang Qian believes that the protection of practical art works as art works should meet three conditions: first, the practical function and artistic beauty must be independent of each other; second, the art design that can exist independently is original; third, it should reach a higher level of artistic creation. On the basis of separable criteria, other researchers distinguish different types of separation to determine different protection periods. For example, scholar Cui Guobin believes that for physically separable parts, the artistic part constitutes an independent work and enjoys the same long protection period as ordinary works of art. For artistic parts and practical parts as a whole, a shorter protection period is applicable. For practical works of art that can only be separated conceptually, a special shorter protection period is applicable as a whole.

1. The direction of choice: the value of artistic unity

It needs to be emphasized that whether it is high-class, separable or artistic unity, all recognize the existence and development of practical art. In fact, there is also a key ethical significance to the recognition of the practical arts as a respect for their labor. To borrow Euripides's famous saying: Virtue arises in labor, respect for labor itself is a virtue, and it is against virtue to use the fruits of other people's labor for nothing. Borrowing the labor theory of value again, the practical art labor is valuable, and the practical art should get its due value. As discussed above, the main reasons for opposing the copyright protection qualification of practical works of art are not supported in practice. Such as copyright protection does not stimulate innovation, but will inhibit the development of industry. The practice of the development of the French fashion industry just hits back at these ideas. The reason why many creators of practical art gather in Paris Fashion Week and other exhibition activities is that their artistic creations can be protected by copyright, and the prosperity of the French fashion industry cannot be separated from copyright. Protection, and the protection of practical art did not inhibit the development of French industry. Another reason for the copyright protection qualification of practical works of art is that practical art labor can obtain sufficient profits through the time difference between the first sale of products. In fact, in a modern society with a developed industrial market, counterfeit technology is like a shadow. If the results of intellectual labor are not protected, general products will be counterfeited immediately after they are put on the market, and there is almost no time difference. It is expected to protect intellectual labor through an uncertain time difference. Achievements are obviously relegated to labor; in addition, it will also increase the cost of intellectual workers to prevent counterfeiting, in particular, it inhibits the enthusiasm for innovation of small owners who do not have scale operations. On the whole, among the three standards, artistic unity is more in line with the trend of artistic development and the ethical value orientation of labor.

2. The economic context of choice: utilitarian considerations

When my country's copyright legislation does not provide copyright protection for practical artworks, it may also be based on a concern: my country's economic development is relatively backward, most intellectual innovations come from abroad, and comprehensive protection will hinder the development of my country's manufacturing industry. In fact, the provisions on the implementation of the International Copyright Treaty in 1992 have protected foreign works of applied art, which has not hindered the development of China's economy, and then the judicial practice of protecting domestic works of applied art has not hindered the development of China's manufacturing industry. China's manufacturing industry has achieved rapid development so far, the world ranking of manufacturing exports, from 1992 to 2008 from 13th to 1st; in 2012, China's manufacturing output ranked first in the world. At present, my country has become a major manufacturing country in the world, and the worry that the protection of practical artworks will hinder economic development has not happened at all. On the contrary, the development of China's manufacturing industry provides a solid material basis for the copyright protection legislation of practical works of art. In addition, although China has become a big manufacturing country, high-end technology products account for a relatively low proportion of China's manufacturing exports, and most of the high-tech products exported come from foreign-funded enterprises. For example, 73% of China's high-tech products exported in 2013 were produced by foreign-funded enterprises. In addition, the phenomenon of counterfeiting in my country's manufacturing industry is also serious. The phenomenon of counterfeiting may even form a culture. This counterfeit atmosphere will extremely inhibit innovation, and once the counterfeit economy and culture are formed, the transformation is also very difficult. Therefore, the upgrading of my country's manufacturing industry at this stage requires the protection of intellectual property rights of intellectual labor achievements to curb the formation of counterfeit economy and culture, to promote the innovation of my country's manufacturing industry, and to increase my country's industrial added value.

Secondly, China's economy is in a period of transition, and innovative economy is the direction of China's economic development. Therefore, the development concept of "innovation, coordination, green, openness and sharing" and the slogan of "mass entrepreneurship, mass innovation" are put forward. Innovation needs the incentive of intellectual property protection of intellectual labor achievements, so it is necessary to give copyright protection to the intellectual labor of practical art, so as to cultivate China's fashion industry.

Third, with the development of the economy, my country has become a world economic power. On the one hand, it needs to improve its international competitiveness and increase the core competitiveness of high-end technologies; on the other hand, it faces greater international responsibilities on a global scale and needs to abide by international intellectual property treaties., Strengthen the protection of intellectual property rights; on the one hand, it needs to protect its own intellectual property rights internationally. According to the principle of reciprocity and reciprocity, if it is not easy for China to protect practical works of art by copyright, it is also difficult for China's practical works of art to obtain copyright protection from other countries. From the international situation that our country faces now and in the future, it is imperative to strengthen the intellectual property protection of intellectual labor such as practical art.

3. Compromise of high-class, separable standards

From the current situation of our country, the copyright protection of practical works of art has been recognized in the legislative, judicial practice and theoretical circles, but there are great differences in the standards of protection. In judicial practice, there are not only subjective standards of public cognition, but also separable objective standards, as well as similar artistic unified standards, which shows that there is no basic consensus in the judicial field of our country. However, judging from the retrial cases in the Lego series, the Supreme People's Court did not identify whether the practical function and artistic characteristics of practical works of art can be separated, but adopted the unified standard of aesthetic significance, and preferred the unified standard of art. In the theoretical circle of copyright research, most of the views of well-known scholars tend to be separable standards, but most scholars less analyze the advantages and disadvantages of adopting separable standards, and even less analyze the advantages and disadvantages of the specific methods of separable standards and the reasons for their choice. The separable standard is indeed very beautiful and reasonable from its description-practical works of art protect separable artistic features, but it is difficult to find a clear method of how to separate them. American judicial practice has formed many methods to illustrate this point. The United States is a country that practices case law and enjoys finding ways to do so in the administration of justice, but our country does not adopt the case law system, so it should not be done by the judiciary. The difficulty and lack of clarity of the separable criterion indicates that it is not suitable for judging the copyright qualification of applied works of art. The public cognitive standard is a subjective standard. Although it has a certain objectivity, it is difficult to eliminate its subjectivity by judging art with the help of the public. Numerous judicial practices in the United States have proved that it is difficult to become the mainstream theory and method. On the whole, the unified standard of art is concise and clear, in line with the trend of art development, and also coincides with some judicial practices in our country. It is an ideal standard for the qualification of practical art copyright.

Of course, the problem with the unified theory of art is that practical works of art will enjoy the same period of protection as pure works of art, and it is difficult to dispel concerns that the monopoly of property rights in practical art inhibits industrial development; it may also be difficult to convince those who insist on pure art. In this regard, artistic unity can alleviate these concerns through compromise. First of all, the protection period of general practical works of art can be reduced, which is different from that of pure works of art. This is exactly the practice of the current revised draft of copyright law in China. The protection period of practical works of art is set to 25 years, which not only conforms to the rules of the Berne Convention, but also eliminates the worry of excessive monopoly of property rights of practical works of art, so that practical works of art can enter the public domain more quickly. However, works of practical art of higher artistic level should be given the same protection period as pure art, which can better stimulate the creation of exquisite practical works of art. For practical works of art with higher artistic level, high-class standards can be implemented: first, the production of practical works of art should have aesthetic purpose; Second, from the perspective of the public, recognize its artistry, such as Nemo's marketability method. Third, adopting German high-class theory, the field of art specialty can recognize the artistry of using artworks, such as being listed in art books, being collected by art museums, etc. Secondly, compromise with the separable standard and follow the principle of two points of thought expression. If the artistic characteristics of practical works of art are completely, uniquely or extremely governed by their functions, they are not protected by copyright.