产品说明书著作权保护研究
发布时间：2018-09-05 18:14
【摘要】：产品说明书是我们日常生活中经常接触和需要用到的重要“工具”,随着市场经济竞争的扩大,产品说明书的作用已经不仅仅局限于简单介绍产品和指导消费者合理使用产品了,产品制造商将智慧的触角延伸到了产品说明书这一本看似不起眼的部分上。厂家对于投入了自身人力物力财力的产品说明书,便有了保护其成果和权利的意识,典型的产品说明书著作权纠纷案和药品说明书著作权纠纷案的不同判决,引人深思,在理论界和实务界都有着广泛的争论。药品说明书作为产品说明书的一种特殊形式,其著作权争议尤其大,最高人民法院和全国人大常委会还曾在2012年就“关于知识产品著作权中的药品说明书是否给予司法保护、明确相关法律界限”向社会征询修改意见展开调研,各界人士积极参与讨论,对此看法不一。随着产品说明书的重要性加强,对其进行司法保护的问题亟待解决,产品说明书这一特殊的文字成果的保护模式,可以通过反不正当竞争法的保护、作为一种财产利益的权利保护,也可以纳入著作权保护范畴,通过对比采取各模式保护的利弊,可知采取著作权保护是最为妥当的。事实上,无论是判定产品说明书应当作为作品保护还是否定产品说明书作品的属性,都来自于对作品独创性的理解与把握,独创性是作品认定的核心的、实质的要件,也是此类案件的争议焦点。然而我国无论是法律法规还是最高人民法院司法解释都没有对“独创性”的判定有相对明确的说明,司法实践中,多依靠法官根据案情和自身对独创性的理解进行自由裁量,这会造成司法秩序的混乱。基于“独创性”这一概念本身的主观性和抽象性,对其判定的标准终究不可能无比精确,但是要作出一个相对明确的规定,有章可循、有据可引才能无限靠近公正客观。大陆法系和英美法系对独创性的解释在司法实践中不断发展完善,也在发展中趋向于融合,无论是大陆法系的作者权体系还是英美法系的版权体系,都对我国独创性标准的判断有着可吸收、借鉴之处。总结学界各主要观点,我国独创性的判断标准主要有三点：独立完成、具有最低限度的创造性、表达不同或不完全相同,而从包括药品说明书在内的产品说明书的产生制作过程、表现形式等方面来看,可符合上述标准,虽然产品说明书主要为说明文,且受到一定规范标准的约束,创作空间比较有限,但是这个空间即使再小也是存在的,就应当肯定其具有独创性的可能,只是由于产品说明书本身的特殊性,其在著作权的权利保护和权利限制上,也有不同于一般作品的特殊性。
[Abstract]:Product description is an important "tool" that we often contact and need to use in our daily life. With the expansion of market economy competition, The role of product instructions is no longer limited to simply introducing products and instructing consumers to use them properly. Product manufacturers extend their intellectual tentacles to the seemingly obscure part of the product manual. Manufacturers have a sense of protection of their achievements and rights when they have invested their own human and material resources in the product specification. The different judgments of the typical product specification copyright dispute case and the drug instruction copyright dispute case are thought-provoking. There is a wide range of arguments in the theoretical and practical circles. As a special form of product instructions, the copyright dispute is especially great. The Supreme people's Court and the standing Committee of the National people's Congress also gave judicial protection to the pharmaceutical instructions in the copyright of intellectual products in 2012. Clarify the relevant legal boundaries "to the community to consult the revision of the opinion to conduct research, people from all walks of life actively participate in the discussion, this view is different." With the strengthening of the importance of the product specification, the judicial protection of the product specification needs to be solved. The protection model of the product specification, which is a special written achievement, can be protected by the anti-unfair competition law. As a kind of property right protection, it can also be brought into the scope of copyright protection. By comparing the advantages and disadvantages of adopting various modes of protection, we can know that it is most appropriate to adopt copyright protection. In fact, whether it is to judge whether the product specification should be regarded as the property of the product description as the protection or negation of the product description, it comes from the understanding and grasp of the originality of the work, which is the core and essential element of the work. It is also the focus of controversy in such cases. However, neither the laws nor the judicial interpretations of the Supreme people's Court have a relatively clear explanation of "originality". In judicial practice, the judge is more dependent on the judge's discretion according to the circumstances of the case and his own understanding of originality. This will cause confusion in the judicial order. Based on the subjectivity and abstractness of the concept of "originality", it is impossible to judge the standard of "originality" very accurately after all, but it is necessary to make a relatively clear stipulation that there are rules to follow, and there is evidence to be cited in order to be infinitely close to impartiality and objectivity. The interpretation of originality in the civil law system and the common law system has been continuously developed and perfected in the judicial practice, and also tends to merge in the development, whether it is the author's right system of the civil law system or the copyright system of the common law system. Both of our country's original standards of judgment have absorbable, reference. Summing up the main points of view in academic circles, the criteria for judging originality in our country are mainly three: independent completion, minimum creativity, different or not identical expressions, And from the production process and form of production of product instructions, including drug instructions, it can meet the above standards, although the product specifications are mainly written and are bound by certain normative standards. The creative space is relatively limited, but this space exists even if it is small, so it should be affirmed that it has the possibility of originality, only because of the particularity of the product description itself, it is in the protection and limitation of copyright rights. There are also different from the general works of particularity.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.41
本文编号：2225062
[Abstract]:Product description is an important "tool" that we often contact and need to use in our daily life. With the expansion of market economy competition, The role of product instructions is no longer limited to simply introducing products and instructing consumers to use them properly. Product manufacturers extend their intellectual tentacles to the seemingly obscure part of the product manual. Manufacturers have a sense of protection of their achievements and rights when they have invested their own human and material resources in the product specification. The different judgments of the typical product specification copyright dispute case and the drug instruction copyright dispute case are thought-provoking. There is a wide range of arguments in the theoretical and practical circles. As a special form of product instructions, the copyright dispute is especially great. The Supreme people's Court and the standing Committee of the National people's Congress also gave judicial protection to the pharmaceutical instructions in the copyright of intellectual products in 2012. Clarify the relevant legal boundaries "to the community to consult the revision of the opinion to conduct research, people from all walks of life actively participate in the discussion, this view is different." With the strengthening of the importance of the product specification, the judicial protection of the product specification needs to be solved. The protection model of the product specification, which is a special written achievement, can be protected by the anti-unfair competition law. As a kind of property right protection, it can also be brought into the scope of copyright protection. By comparing the advantages and disadvantages of adopting various modes of protection, we can know that it is most appropriate to adopt copyright protection. In fact, whether it is to judge whether the product specification should be regarded as the property of the product description as the protection or negation of the product description, it comes from the understanding and grasp of the originality of the work, which is the core and essential element of the work. It is also the focus of controversy in such cases. However, neither the laws nor the judicial interpretations of the Supreme people's Court have a relatively clear explanation of "originality". In judicial practice, the judge is more dependent on the judge's discretion according to the circumstances of the case and his own understanding of originality. This will cause confusion in the judicial order. Based on the subjectivity and abstractness of the concept of "originality", it is impossible to judge the standard of "originality" very accurately after all, but it is necessary to make a relatively clear stipulation that there are rules to follow, and there is evidence to be cited in order to be infinitely close to impartiality and objectivity. The interpretation of originality in the civil law system and the common law system has been continuously developed and perfected in the judicial practice, and also tends to merge in the development, whether it is the author's right system of the civil law system or the copyright system of the common law system. Both of our country's original standards of judgment have absorbable, reference. Summing up the main points of view in academic circles, the criteria for judging originality in our country are mainly three: independent completion, minimum creativity, different or not identical expressions, And from the production process and form of production of product instructions, including drug instructions, it can meet the above standards, although the product specifications are mainly written and are bound by certain normative standards. The creative space is relatively limited, but this space exists even if it is small, so it should be affirmed that it has the possibility of originality, only because of the particularity of the product description itself, it is in the protection and limitation of copyright rights. There are also different from the general works of particularity.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.41
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