著作权法定与自由的悖论调和
发布时间：2018-11-17 16:55
【摘要】：我国著作权法"应当由著作权人享有的其他权利"这一兜底条款的存在,意味着著作权法没有严格遵循承接自物权法的绝对权法定原则,而是允许特定条件下的造法行为,其中既包含着法官造法对著作权类型化不足的弥补,也关联了私人设权对新兴商业模式的回应。然而造法的限度如何界定,怎样通过合理解释兜底条款实现对著作权法定缺陷的科学补充,我国无论是司法判例还是理论研究都无章法可循,因而每当个案适用时都反复遭至质疑和批评。从协调法律规范性与产业现实需求的角度出发,兜底条款既承担着在待分配利益上界定权利归属的引致功能,也必须在解释上构建对著作权自由的限定,其正确解释方法,是在法官造法上体现为引致我国已加入的著作权国际公约中相关权利类型,并在认可著作权许可合同中存在处分行为的基础上,将私人设权限定为保障法定著作权实现而设立于作品之上的无形财产役权。
[Abstract]:The existence of the "other rights that should be enjoyed by copyright owners" in China's copyright law means that the copyright law does not strictly abide by the legal principle of absolute right to take over from the property law, but allows law-making under certain conditions. It includes not only the remedy of the lack of copyright typology, but also the response of private right to the emerging business model. However, how to define the limits of the law making and how to realize the scientific supplement to the defects of copyright law through the reasonable interpretation of the bottom clause, no matter the judicial case or the theoretical research, there are no rules to follow in our country. As a result, each case is repeatedly questioned and criticized when it applies. From the angle of harmonizing the legal norm with the industrial reality demand, the bottom clause not only bears the leading function of defining the ownership of the right in the interest to be distributed, but also must construct the limitation of the freedom of copyright in the interpretation, and the correct interpretation method. It is embodied in the judge's law as the relevant types of rights in the copyright international convention to which China is a party, and on the basis of the recognition of disposition in the copyright license contract. The private right is limited to the intangible property right established on the work to protect the realization of the legal copyright.
【作者单位】： 华中科技大学法学院;
【基金】：国家社科基金重大项目“3D打印技术与知识产权制度发展研究”的阶段性成果
【分类号】：D923.41
本文编号：2338495
[Abstract]:The existence of the "other rights that should be enjoyed by copyright owners" in China's copyright law means that the copyright law does not strictly abide by the legal principle of absolute right to take over from the property law, but allows law-making under certain conditions. It includes not only the remedy of the lack of copyright typology, but also the response of private right to the emerging business model. However, how to define the limits of the law making and how to realize the scientific supplement to the defects of copyright law through the reasonable interpretation of the bottom clause, no matter the judicial case or the theoretical research, there are no rules to follow in our country. As a result, each case is repeatedly questioned and criticized when it applies. From the angle of harmonizing the legal norm with the industrial reality demand, the bottom clause not only bears the leading function of defining the ownership of the right in the interest to be distributed, but also must construct the limitation of the freedom of copyright in the interpretation, and the correct interpretation method. It is embodied in the judge's law as the relevant types of rights in the copyright international convention to which China is a party, and on the basis of the recognition of disposition in the copyright license contract. The private right is limited to the intangible property right established on the work to protect the realization of the legal copyright.
【作者单位】： 华中科技大学法学院;
【基金】：国家社科基金重大项目“3D打印技术与知识产权制度发展研究”的阶段性成果
【分类号】：D923.41
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1 崔国斌;;知识产权法官造法批判[J];中国法学;2006年01期
，本文编号：2338495
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