著作权法上的公共领域研究
发布时间：2018-07-17 22:12
【摘要】：面对20世纪80年代以来日益扩张的知识产权,尤其是TRIPS协议的签署将全世界推上了知识产权不断扩张之路,知识产权的不断扩张,引起了对该扩张的反思,同时也引起了对公共领域的关注。知识产权相关立法不断修正,国际法律以及区域间法律的冲突不断出现使有关公共领域的研究逐渐复杂。尤其著作权的扩张尤为显著,著作权法的历史是一部逐渐扩张的历史,著作权扩张,主要表现著作权客体的扩张、著作权权能的扩张、著作权期限的扩张、著作权权能的限制等。著作权保护范围的扩大,对著作权人起着激励作用,保障其享有的经济权利和精神权利,然而,却忽视了著作权人对社会的责任,社会公众的利益不能得到有效保障,对著作权人设置过强保护措施,就等于对社会公众权益的弱保护。面对著作权人与社会公众的权益不平衡,由此反对著作权扩张的公共领域理论被西方国家一些学者提出来。 对著作权中的作品,进入公共领域的问题进行了细致研究和探讨。随着知识产权的不断扩张,公共领域不断萎缩受到西方国家广泛关注与评析。然而,从公共领域在我们日常生活中的重要性来说,也仅仅是在最近几十年里才受到重视,著作权法上的公共领域问题研究尤为突出。然而,公共领域研究在国外已成为热点的境况下,其研究在我国还处于初步阶段,公共领域的研究在我国并未受到足够重视,中国学者对公共领域研究才刚刚开始。伴随着知识产权不断扩张,公共领域不断受到侵蚀,公共领域问题也会受到越来越多人的广泛关注与重视。侵犯著作权公共领域的抗辩近年来悄然成为著作权司法领域的热点,在理论上和现实中存在很深的原因。著作权的扩张随着技术的发展而加剧,同时,面对其扩张进行遏制的诉求也日益增加,这体现了公众对公共领域保护呼吁的增强,保护意识的提高。 第一部分：从国际立法及国内立法来介绍了著作权法上的公共领域问题产生的背景,公共领域观念的产生,公共领域的词语以及概念,公共领域的特征以及公共领域的价值功能等基本理论； 第二部分：从公共领域正当性法哲学思考、民主政治与人权保障的要求及经济效益的体现三个方面论证著作权法上公共领域存在的正当性。 第三部分：对著作权法上公共领域范围进行归纳：权利保护期满的作品；著作权法不予保护的作品；著作权法中作品不予保护的成分；缺少著作权法保护实质要件的作品；使用者对作品的有权使用；不受著作权法保护的外国作品；作者放弃著作权的作品；孤儿作品；民间文学艺术。 第四部分：介绍了当今著作权法上公共领域面临的危机：国际环境中,国际不公平现象存在严重；国内环境中,国家过多保护,限制公共利益的实现；公共领域自身具有的局限；个人私权捍卫,弱化社会责任,公共领域理念传播受限；著作权扩张对公共领域侵蚀的具体表现。 第五部分：从著作权法上公共领域的保护原则要求及公共领域保护角度谈到著作权法上公共领域的保护问题。
[Abstract]:In the face of the increasing expansion of intellectual property rights since 1980s, especially the signing of the TRIPS agreement, the world has pushed the world to expand the intellectual property right. The expansion of intellectual property has caused the reflection on the expansion, and it has also aroused the attention to the public domain. The legislation of intellectual property rights is constantly revised, international law and district are in the area. The conflict in the interdomain law has gradually complicate the research on the public domain, especially the expansion of copyright law. The history of copyright law is a history of gradual expansion, the expansion of copyright, the expansion of copyright objects, the expansion of copyright power, the expansion of the time limit for copyright, the restriction of copyright power, and so on. The expansion of the scope of the protection of the right to the copyright has an incentive to the copyright owner to guarantee its economic and spiritual rights. However, it ignores the responsibility of the copyright owners to the society, the interests of the public can not be effectively guaranteed, and the strong protection measures for the copyright owners are equal to the weak protection of the public rights and interests of the society. The rights and interests of the public and the public are not balanced, so the theory of public sphere against copyright expansion has been raised by some western scholars.
With the continuous expansion of the intellectual property rights, the continuous shrinking of the public domain has been widely concerned and evaluated by the western countries. However, the importance of the public domain in our daily life has only been paid attention to in the last few decades. The research on public domain in the law of rights is particularly prominent. However, the research in the public field has become a hot spot abroad, its research is still in the initial stage in our country. The research in the public field has not been paid enough attention in our country. The Chinese scholars have just started the Research on the public field. The problems in the public domain are also being paid more and more attention. The plea of copyright infringement has become a hot spot in the field of copyright judicature in recent years. There is a deep reason in theory and reality. The expansion of copyright is aggravated with the development of technology. At the same time, it faces its expansion. Zhang's demands for containment are also increasing. This reflects the public's appeal for public domain protection and the improvement of protection consciousness.
The first part: from the international legislation and the domestic legislation to introduce the background of the public domain problems in the copyright law, the emergence of the concept of public domain, the words and concepts of the public domain, the characteristics of the public domain and the value function of the public domain.
The second part: the justification of the existence of the public domain in the copyright law is demonstrated in three aspects: the legitimate philosophical thinking of the public domain, the requirements of the democratic politics and the protection of human rights and the embodiment of the economic benefits.
The third part: To sum up the scope of the public domain on Copyright Law: works full of rights protection; works not protected by copyright law; elements of non protection of works in copyright law; works lacking the protection of the essential elements of copyright law; the user's right to use the works; foreign works not protected by copyright law. The works of the author giving up copyright; orphan works; folk literature and art.
The fourth part: introduces the crisis in the public domain in the copyright law: International unfair phenomenon is serious in the international environment; in the domestic environment, the state has too many protection, restricts the realization of the public interests; the public domain has its own limitations; the personal private right defends, the social responsibility is weakened, the public domain concept is limited in communication; The concrete manifestation of the expansion of copyright to the public sphere.
The fifth part discusses the protection of public domain in copyright law from the perspective of protection principles and requirements of public domain in copyright law.
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.41
本文编号：2131087
[Abstract]:In the face of the increasing expansion of intellectual property rights since 1980s, especially the signing of the TRIPS agreement, the world has pushed the world to expand the intellectual property right. The expansion of intellectual property has caused the reflection on the expansion, and it has also aroused the attention to the public domain. The legislation of intellectual property rights is constantly revised, international law and district are in the area. The conflict in the interdomain law has gradually complicate the research on the public domain, especially the expansion of copyright law. The history of copyright law is a history of gradual expansion, the expansion of copyright, the expansion of copyright objects, the expansion of copyright power, the expansion of the time limit for copyright, the restriction of copyright power, and so on. The expansion of the scope of the protection of the right to the copyright has an incentive to the copyright owner to guarantee its economic and spiritual rights. However, it ignores the responsibility of the copyright owners to the society, the interests of the public can not be effectively guaranteed, and the strong protection measures for the copyright owners are equal to the weak protection of the public rights and interests of the society. The rights and interests of the public and the public are not balanced, so the theory of public sphere against copyright expansion has been raised by some western scholars.
With the continuous expansion of the intellectual property rights, the continuous shrinking of the public domain has been widely concerned and evaluated by the western countries. However, the importance of the public domain in our daily life has only been paid attention to in the last few decades. The research on public domain in the law of rights is particularly prominent. However, the research in the public field has become a hot spot abroad, its research is still in the initial stage in our country. The research in the public field has not been paid enough attention in our country. The Chinese scholars have just started the Research on the public field. The problems in the public domain are also being paid more and more attention. The plea of copyright infringement has become a hot spot in the field of copyright judicature in recent years. There is a deep reason in theory and reality. The expansion of copyright is aggravated with the development of technology. At the same time, it faces its expansion. Zhang's demands for containment are also increasing. This reflects the public's appeal for public domain protection and the improvement of protection consciousness.
The first part: from the international legislation and the domestic legislation to introduce the background of the public domain problems in the copyright law, the emergence of the concept of public domain, the words and concepts of the public domain, the characteristics of the public domain and the value function of the public domain.
The second part: the justification of the existence of the public domain in the copyright law is demonstrated in three aspects: the legitimate philosophical thinking of the public domain, the requirements of the democratic politics and the protection of human rights and the embodiment of the economic benefits.
The third part: To sum up the scope of the public domain on Copyright Law: works full of rights protection; works not protected by copyright law; elements of non protection of works in copyright law; works lacking the protection of the essential elements of copyright law; the user's right to use the works; foreign works not protected by copyright law. The works of the author giving up copyright; orphan works; folk literature and art.
The fourth part: introduces the crisis in the public domain in the copyright law: International unfair phenomenon is serious in the international environment; in the domestic environment, the state has too many protection, restricts the realization of the public interests; the public domain has its own limitations; the personal private right defends, the social responsibility is weakened, the public domain concept is limited in communication; The concrete manifestation of the expansion of copyright to the public sphere.
The fifth part discusses the protection of public domain in copyright law from the perspective of protection principles and requirements of public domain in copyright law.
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.41
【引证文献】
相关硕士学位论文 前3条
1 田地;著作权质押研究[D];安徽大学;2012年
2 乔新亮;著作权法公有领域研究[D];北京化工大学;2012年
3 李明江;侵权演绎作品的著作权问题研究[D];北京化工大学;2012年
，本文编号：2131087
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