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

Published:

2023-04-14

[Abstract] For the copyright protection of practical art, two theories of artistic unity and artistic separation have been formed. On this basis, three basic standards for the qualification of copyright protection of practical art have emerged: artistic unity, separability or high class. In comparison, the high-class standard deviates from the era of industrial art development and has a tendency to be gradually abandoned; the separable standard has major defects of ambiguity and uncertainty; and the unified art standard is concise and clear, which is more in line with industrial art. The trend of development, more respect for the fruits of intellectual labor, practice has also proved that it can stimulate the development of the practical art industry to a large extent. At present, the protection of practical works of art in China's copyright legislation is not clear; judicial practice is also chaotic, forming a public cognitive standards, separable standards, aesthetic significance of the creation of unified standards and other standards; theoretical circles more advocate the use of separable standards, but lack of sufficient research and demonstration. At present, China has become a big manufacturing country and is transforming into an innovative economy, which provides a material basis for the copyright protection of practical art, and puts forward high requirements for protection. In this context, the revision of China's copyright law is appropriate to choose a unified standard of art and protect the copyright of original practical works of art; at the same time, it compromises with separable and high-class standards, giving a shorter 25-year protection period for general practical works of art, and giving a protection period equivalent to pure works of art for practical works of art with a higher degree of art; no copyright protection is granted to practical works of art whose artistic characteristics are completely or extremely governed by practical functions. Key words: practical art copyright art unity separable high class Presentation of 1. issues Traditional copyright law adopts a strict dichotomy of art and utility, and the object of protection is pure art or works of fine art (works of pure or fine art). This theory may be more appropriate in the early industrial and earlier times, when the separation of practical products and works of art was more obvious; materialistic products that satisfy clothing, food, housing and transportation are not very artistic, such as clothes are coarse linen, lack of exquisite colors, patterns and shapes; spiritual products that satisfy aesthetics have fewer practical functions, such as literature, painting and sculpture. But with the development of modernization, real goods are becoming more and more exquisite; such as mobile phones, which were earlier bulky and bulky models, but now have a variety of shapes, colors and exquisite decorations. With the broad spectrum of art in the practical field, more and more practical products with aesthetic value put forward strong copyright protection requirements, so the copyright law is facing the reform of the protection object. The country that made the earlier legislative change was France. In 1902, it amended the copyright law and clearly stipulated that regardless of the purpose of the work, the carving and design of decorations should be protected. This change is also gradually reflected in international treaties. At the Brussels Congress to revise the Berne Convention held in 1948, works of applied art (works of art) was explicitly included in the object of copyright protection. However, at the Berlin Congress to revise the Berne Convention in 1909, the object qualification of works of applied art was opposed by many members. After 1948, more and more countries of the Berne system included works of applied art in the object of copyright protection. Although the copyrightability of works of practical art has rarely been questioned, the eligibility conditions and protection standards for their copyrights have not been agreed upon in the international community. On the whole, there are three main qualification criteria for copyrightable goods: artistic unity, separability or high class. In our country, the early copyright law did not treat practical works as works. In 1992, with my country's accession to the Berne Convention, my country promulgated the "Regulations on the Implementation of International Copyright Treaties", Article 6 of which stipulates: "The protection period for foreign applied art works is 25 years from the completion of the work. The provisions of the preceding paragraph shall not apply to works of art (including animated designs) used in industrial products." Although the regulation stipulates the copyright protection qualification of practical art works, it is clearly limited to foreign works, and there is no specific judgment standard for practical works. For domestic works of applied art, the qualification of works has not been clear in the legislation. However, in judicial practice, many courts have used the way of expanding interpretation to include practical works of art in the protection of works of art, but the criteria adopted are very confusing. At present, my country is undergoing the third revision of the "Copyright Law". In the "the People's Republic of China Copyright Law (Revised Draft for Review)" issued by the State Council, it is clear that practical art works are regarded as a type of work, and it stipulates: "Practical art works, It refers to toys, furniture, accessories and other flat or three-dimensional plastic art works with practical functions and aesthetic significance". However, the draft does not specify the qualification conditions for practical works of art. So after the passage of the legislation, China is still facing the current judicial practice in the chaotic situation. Therefore, the copyright protection qualification of practical goods is still a subject that needs to be studied in the field of copyright law in China, and it is necessary to put forward a reasonable and feasible standard for copyright protection of practical goods on the basis of the standards of separation, high class and artistic unity, according to the current situation in China. 2. III standard traceability Unified Standard for (I) Art Earlier French law also adhered to the strict distinction between pure art and practical art (applied art). As an industrial art, practical design is not protected by the copyright law of 1793, but by the design law of 1806. French judicial practice has also developed many standards for the distinction between the two. For example, whether the production process of the product is mechanical, if it is a practical work of art, it is not protected by copyright law; Industrial purpose standards, if the purpose is to use industrial designs are not protected by copyright law; The standard of artistic characteristics is judged by the judge through the aesthetic point of view. These standards have many flaws and can easily lead to subjective arbitrariness. For example, products produced mechanically or used for industrial purposes do not mean that they are not artistic. In these objections, the theory of "unity of art" gradually developed, and some representative scholars, such as Eugene Pouillet, thought that it was difficult to draw a clear boundary between beauty and unbeauty, and it was unreasonable to deny the artistry of practical products simply because of their practicality. With the great development of industrial art, the theory of the unification of art gradually gained the upper hand in France. In 1902, the French copyright law was revised to list decorations as the object of copyright protection, regardless of their purpose. It was further amended in 1909 to include all physical designs as objects of copyright protection, regardless of the nature, artistic features and nature of the physical article. Since then, the French copyright law has always adhered to the theory of artistic unity, not only explicitly listing practical works of art as works, but also specifically listing seasonal clothing industrial products as works. However, the unified standard of art in France does not mean that all practical works of art are accepted without conditions. According to French judicial practice, designs that are completely (entirely,exclusively or solely) governed by function (dictate) are excluded from the protection of copyright law. (II) separable standard The separable standard means that the artistic part embodied in the appearance of the real product is physically or conceptually separated from the practical function of the real product, then the appearance of the real product will be protected by copyright law. Separable standards were developed earlier in Italy and later adopted by many countries, and some typical countries are selected below to illustrate the development of the separable standard system. 1. Italian copyright law-the origin of the legislation of separable standards. The theory of separable standard in Italy (the theory of dissociation) is developed in the debate with the French theory of the unification of art. This theory is called the theory of separation of art and utility (the duality of art), and its representative scholar is Piola (Piola-Caselli), which advocates that art and utility are separated, and practical goods cannot be protected by copyright. As early as 1925 in the Italian copyright law, the theory of artistic unification was supported, but in judicial practice, the Italian High Court adopted Piola Caselli's point of view. In 1940, the Italian Design Law made it clear that decorative designs and models could not be protected by copyright law, which strengthened the view that art and practicality were separated. However, the Italian copyright law of 1941 amended it to give copyright protection to the part where the artistic value of practical goods can be separated from the industrial characteristics, which is the Italian separable standard (scindibile). Italy's separability standard includes both physical separability and conceptual separability. For example, the figure statue on the door of Florence's baptistery will still maintain its artistic characteristics even if it is embedded in other media, which is physically separable. The structure of the salt bottle made by Cellini can undoubtedly be used on candy bottles or ink bottles, which is conceptually separable. However, the Italian concept of separability is very narrow, almost all three-dimensional designs are excluded in practice. In 1998, the European Community passed the "Design Legal Protection Directive" (Directive 98/71/EC), which made design copyright protection a mandatory obligation of members and stipulated that designs registered in member states should also be eligible for copyright protection. However, the degree of protection and the conditions of protection are determined by the member states themselves. The latest deadline for implementing the directive is 2001. In order to implement the directive, Italy amended its copyright law in 2001 to remove the separability condition and to include industrial designs with clear innovative and artistic value into the category of works protected by copyright. In terms of artistic value, the standard of artistic quality (artistic quality) has been formed in judicial practice. How to define "artistic quality" has caused a lot of controversy in Italy, and many solutions have been proposed, two of which are followed by case law. The first method is: to judge the purpose of creation, copyright is granted to designs made by artists in the art field of the same trade and practical products can be sold in artistic terms; The second method is that the design should be highly creative, that is, its appearance design is more likely to attract aesthetic evaluation rather than practical functional evaluation. The evidence of its aesthetic evaluation lies in whether the design is quoted in art books or displayed in museums or pavilions. 2. U.S. Copyright Law-The Prosperity of Separable Standards The copyright protection of the United States was first based on its constitution. In 1790, the United States promulgated the first copyright law. Later, after many amendments, the scope of its works became wider and wider. However, until 1909, the object of artistic works protected by its copyright law was limited to fine artistic works. In 1909, the United States copyright law explicitly used the term works of art (works of arts) and deleted the modified word fine (fine). This amendment of the United States copyright law shows the strong demand for copyright protection of industrial works of art. In fact, before this, the United States has begun to recognize that copyright protection can be granted to practical works of art, and should not be limited to fine works of art. During this period, the issue was hotly debated in the American theoretical circle, but the US Copyright Office, as an official institution, refused to provide copyright protection for practical works of art. The emergence of a landmark case to expand the object of copyright protection in 1954 completely changed the situation of serious differences before. This case is the Mazer v. Stein case. One of the main issues in the case was whether the dancer statue made in China was used as a table lamp base for copyright protection. The Supreme Court of the United States held that whether the dancer's statue is eligible for patent protection and whether it is installed on a desk lamp cannot prevent its copyright protection qualification; the intention or actual use of an industrial product cannot prevent its copyright protection qualification. In this case, the opinion of the Supreme Court of the United States completely removed the obstacles to the copyright protection of practical works of art, but the case did not specify the standard of copyright protection of practical works of art. In 1959, after the case, the U.S. Copyright Office issued regulations stipulating that if the shape of the actual product contains features such as artistic statues, curves, and drawings, the work can be registered when these features can be separated and independent as works of art. Since then, American legislation has borrowed the Italian standard of separability to distinguish practical works of art. The 1976 revision of the United States Copyright Act incorporated the contents of the 1959 statute, further clarified the separable standard, and described it in its entirety. Its 101st definition clause stipulates that paintings, graphics and sculptures contain practical works of art; For handicrafts, protect the shape of handicrafts rather than their mechanical or practical aspects; For the appearance design of practical products, if the painting, graphics and sculpture features contained in them can be separated and independent from the practical functions of practical products, the parts that can be separated and independent will be protected. The United States Copyright Act of 1976 establishes the separable standard in the form of an act. In the congressional report of the bill, it is particularly prominent that it is clear that separable includes physically separable (physical separability) and conceptually separable (conceptual separability), as long as one of them is satisfied. Although the United States Copyright Act of 1976 seems to clarify the standard of separability, it is completely impossible to find how to judge the conditions or methods of separability, especially the concept of separability, from the expression of its legislative provisions. Relatively speaking, physical separation is better understood, which means that the part as an artistic feature can be cut from its practical part. Or remove the practical part, the part of the artistic feature can exist independently. For example, the jewelry design on the belt, the separation of the jewelry design from the belt does not damage the practical function of the belt; Another example is the Mazer v. Stein case in 1954, the dancer statue can be cut out of the table lamp. Conceptually separable means that although the artistic features of a practical product cannot be physically separated, it can also be protected by copyright if it can be conceptually separated from the practical function. For example, the pattern carved on the vase can be used on the thermos. Although in many cases the pattern cannot be cut from the vase, it can be conceptually separated and used on other bottles. Relatively speaking, concept separability is a very abstract concept, which often gives us the feeling that we seem to understand its connotation, but when we encounter specific cases, it is vague and specious. For example, the shape of a vase is both beautiful and suitable for flower arrangement. At this time, the shape of beauty can also be applied to other bottles or jars. Generally speaking, it can be separated conceptually, but it is not easy to judge whether it is a concept separable in US copyright law. So far in the United States theory, legislation and judicial circles have not formed a unified concept can be separated to define the standard, but formed a large number of methods. For example, in the new Varsity Brands case in the United States in 2015, the Sixth Circuit Court of the United States summarized nine conceptual separable judgment methods; and scholar Shah Shahani (Sepehr Shahshahani) summarized 10 methods. Comprehensive American reality.

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