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영어

In France, the protection of industrial design is base on the theory of the unity of art. It results from the legislative history relative to the protection of industrial design because the jurisprudence and the doctrine did not find the criterion which can divide the field of application between the copyright and the design right. This theory means that an industrial design is protected concurrently and automatically by the copyright and the design right. This said system " the total accumulation of protection I" protects an industrial design in the same way as a creation of pur art. The creator of an industrial design enjoys not only the patrimonial rights foreseen by the copyright and the design right but also the moral rights foreseen only by the copyright. However, the theory of the unity of the art provokes certain number of problem First of all, the protectable object in the design right is strongly influenced by the copyright to know the notion of creation of the spirit. The notion of design became a decorative notion by excluding the utilitarian character of an industrial creation. As a consequence, the design right protects only purely aesthetic creation. Secondly, by applying automatically, the copyright, the condition of protection in the design right is absorbed by that of the copyright. As a consequence, the jurisprudence and the doctrine consider that these two conditions are identical and confuse them in favour of the condition of protection in copyright. The novelty in the design right lost its own characteristic in favour of the originality in copyright. In conclusion, the theory of the unity of the art provokes a general confusion between the copyright and the design right.