经济学视角下对版权贸易中平行进口立法取向的探析
发布时间：2019-04-08 09:39
【摘要】：随着全球经济一体化进程的加快发展并伴随着知识经济时代的到来,涉及一国政治、经济、文化、科技等各个层面的版权贸易已经成为现代国际贸易发展中的重要内容,在国际交往日益频繁的今天,其地位日益突出,越来越受到各国的重视。 版权贸易的平行进口是伴随着版权贸易的出现而产生的知识产权问题,它涉及到法律、经济、政治等各领域,并牵涉到版权人、进口国授权经销商、版权贸易平行进口商、进口国消费者等多个相关利益主体以及版权作品平行进口的国家的社会福利,因此自版权贸易平行进口行为出现起,国际上对有关其立法取向应如何判定的争议就从未停止。争议的实质贸易自由化趋势下对版权如何保护及保护程度的问题。 目前,国际上涉及此问题的国家法律以及国际公约对版权贸易平行进口行为的判定都不尽相同,有些甚至截然相反,这必然给国际文化贸易的和谐深入发展带来不利影响。而对国际贸易中某些行为的法律判定,特别是在国际上具有争议的贸易行为,如何科学准确地预测未来对此问题的统一立法取向将对于前瞻性地完善国内相关法律,提前避免或应对未来国际贸易中出现的摩擦和纠纷具有不可估量的重大意义。因此,从长远发展来看国际版权贸易交流将会日益频繁,也许在未来因版权贸易平行进口行为而出现的新情况新问题会越来越多,需要尽快在国际范围内确立对此行为统一的立法取向,并依据国际统一的立法取向,积极完善一国国内相关法律。一方面有利于从法律上充分保护本国相关权益主体的正当利益,使相关权益主体获得稳定的行为预期,减少贸易中可能存在的风险；另一方面可以保证在权益人遇到涉此问题的国际纠纷时,能够做到有法可依,鼓励权益人积极地应对版权贸易中因平行进口问题产生的摩擦和纠纷,为未来该国文化贸易的发展提供了法律的保证。 然而对于版权贸易平行进口行为的性质为何、立法取向如何判定等一系列问题,很多学者也都对此进行过研究,但由于这一问题表现的相对复杂性及研究方法的局限性,至今仍没有提出具有说服力的判定结果。目前仅有的针对版权贸易平行进口问题的探讨多是集中于从法学理论方面进行的推理论证,但是对这种牵涉到多方利益的复杂问题单纯从法律层面研究难以突破有关知识产权理论的法律局限。因此,通常陷入“见仁见智”的困境之中,至今在国际上仍没有形成统一的立法取向。 鉴于上述情况,本文试图跳出以往对国际贸易中版权贸易平行进口问题立法取向的判定单纯从法学视角来论证的思路,转而主要从经济学的相关理论和研究方法对此问题进行分析论证,借助博弈分析和构建经济学模型进行数理推导等经济学常用方法进行深入分析,再辅以对国家立法趋势的预测以及利益均衡下的利益取舍,站在国家社会福利最大化的角度并尽可能的维护各权益主体的正当利益不受侵犯,从理性和公平的双重角度最终确定具有说服力立法取向,并在此基础上提出适合我国的法律的构想。 对我国来说,由于受我国国情以及相关贸易政策的影响,版权贸易平行进口行为目前并不十分突出。但在未来随着我国加入WTO后贸易地位日益提高,版权作品的进出口贸易量将会快速增长,再加之关税大幅下降,可以预测有关版权领域的平行进口纠纷可能会呈现愈发增加的趋势。因此,结合对未来国际立法趋势的判断,从理性和公平的角度做出具有说服力的立法判定,前瞻性地修订和完善我国涉及版权贸易平行进口的相关法律,这对于我国未来积极应对版权贸易中可能出现因平行进口行为而产生的贸易摩擦,具有重大的现实意义。
[Abstract]:With the rapid development of the global economic integration process and with the coming of the age of the knowledge economy, the copyright trade involving a country's political, economic, cultural, scientific and technological aspects has become an important content in the development of modern international trade, and today, Its position is becoming more and more prominent, and it is more and more important to all countries. The parallel import of the copyright trade is the intellectual property problem arising from the appearance of the copyright trade, which involves the fields of law, economy, politics and the like, and involves the copyright owner, the authorized distributor of the importing country and the parallel import of the copyright trade. As a result of the parallel import of the copyright trade, the dispute over how the legislative orientation should be determined has never stopped since the parallel import of the copyright trade. The question of how to protect and protect the copyright under the trend of the substance trade liberalization of the dispute At present, the international law on the issue and the international convention on the parallel import of the copyright trade are different, some even in the opposite direction, which will inevitably bring to the harmonious and in-depth development of the international cultural trade The influence of the law on some conduct in international trade, especially in the international trade behavior, how to scientifically and accurately predict the future of the unified legislative orientation of this issue will be to perfect the domestic phase forward and forward To avoid or deal with the frictions and disputes in the future international trade have an immeasurable weight. Therefore, in the long-term development, the exchange of international copyright trade will become more and more frequent, and the new problems that may arise in the future due to the parallel import of the copyright trade will become more and more, and it is necessary to establish the unity of this behavior in the international scope as soon as possible. On the basis of the international unified legislative orientation, the law is oriented, and the domestic phase of a country is actively improved Close the law. On the one hand, it is beneficial to fully protect the legitimate interests of the relevant rights and interests of the country from the law, to make the subject of the relevant rights and interests stable, and to reduce the risks that may be present in the trade; and on the other hand, to ensure that the rights and interests meet the international problem In the event of a dispute, the law can be established to encourage the rights and interests to actively deal with the friction and the dispute arising from the parallel import problem in the copyright trade and provide the law for the development of the country's cultural trade There are a series of problems, such as the nature of the parallel import behavior of the copyright trade, the determination of the legislative orientation and so on. The limitations of the law have not yet been put forward. At present, only the research on the parallel import of copyright trade is focused on the reasoning demonstration from the theory of law, but it is difficult to break through the relevant intellectual property theory from the legal level to the complex problem involving the multi-interest. The legal limitation of the law is, therefore, in the dilemma of "see-in-the-eye", and has not yet formed a unity in the world. In view of the above-mentioned situation, this paper tries to get out of the way of judging the legislation orientation of the parallel import of the copyright in international trade from the point of view of law. The analysis and demonstration of the problem, through the analysis of the game and the construction of the economic model, carries on the in-depth analysis of the common methods, such as the mathematical deduction, and the prediction of the national legislation trend and the benefits The trade-off of the balance of interests, the angle of maximizing the social welfare of the State and the maintenance of the legitimate interests of the subject of the rights and interests as far as possible is not infringed, and the orientation of the persuasive legislation is finally determined from the dual angle of the rational and the fairness, and it is proposed to be suitable for me on the basis of that. The concept of the country's law. For our country, due to the national conditions of our country and the influence of the related trade policy, the copyright trade is parallel to the import line. However, in the future, the import and export trade volume of the copyright work will increase rapidly, and the import and export trade volume of the copyright work will increase rapidly, and the tariff is greatly reduced, and it is possible to predict the possibility of a parallel import dispute in the relevant copyright field. Therefore, combining with the judgment of the trend of future international legislation, making a convincing legislative decision from the angle of rationality and fairness, and looking forward to the revision and perfection of our country's copyright trade The relevant laws of the parallel import, this is for the future of our country to actively deal with the trade friction that may arise from the parallel import behavior in the copyright trade,
【学位授予单位】：陕西师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D997.1
[Abstract]:With the rapid development of the global economic integration process and with the coming of the age of the knowledge economy, the copyright trade involving a country's political, economic, cultural, scientific and technological aspects has become an important content in the development of modern international trade, and today, Its position is becoming more and more prominent, and it is more and more important to all countries. The parallel import of the copyright trade is the intellectual property problem arising from the appearance of the copyright trade, which involves the fields of law, economy, politics and the like, and involves the copyright owner, the authorized distributor of the importing country and the parallel import of the copyright trade. As a result of the parallel import of the copyright trade, the dispute over how the legislative orientation should be determined has never stopped since the parallel import of the copyright trade. The question of how to protect and protect the copyright under the trend of the substance trade liberalization of the dispute At present, the international law on the issue and the international convention on the parallel import of the copyright trade are different, some even in the opposite direction, which will inevitably bring to the harmonious and in-depth development of the international cultural trade The influence of the law on some conduct in international trade, especially in the international trade behavior, how to scientifically and accurately predict the future of the unified legislative orientation of this issue will be to perfect the domestic phase forward and forward To avoid or deal with the frictions and disputes in the future international trade have an immeasurable weight. Therefore, in the long-term development, the exchange of international copyright trade will become more and more frequent, and the new problems that may arise in the future due to the parallel import of the copyright trade will become more and more, and it is necessary to establish the unity of this behavior in the international scope as soon as possible. On the basis of the international unified legislative orientation, the law is oriented, and the domestic phase of a country is actively improved Close the law. On the one hand, it is beneficial to fully protect the legitimate interests of the relevant rights and interests of the country from the law, to make the subject of the relevant rights and interests stable, and to reduce the risks that may be present in the trade; and on the other hand, to ensure that the rights and interests meet the international problem In the event of a dispute, the law can be established to encourage the rights and interests to actively deal with the friction and the dispute arising from the parallel import problem in the copyright trade and provide the law for the development of the country's cultural trade There are a series of problems, such as the nature of the parallel import behavior of the copyright trade, the determination of the legislative orientation and so on. The limitations of the law have not yet been put forward. At present, only the research on the parallel import of copyright trade is focused on the reasoning demonstration from the theory of law, but it is difficult to break through the relevant intellectual property theory from the legal level to the complex problem involving the multi-interest. The legal limitation of the law is, therefore, in the dilemma of "see-in-the-eye", and has not yet formed a unity in the world. In view of the above-mentioned situation, this paper tries to get out of the way of judging the legislation orientation of the parallel import of the copyright in international trade from the point of view of law. The analysis and demonstration of the problem, through the analysis of the game and the construction of the economic model, carries on the in-depth analysis of the common methods, such as the mathematical deduction, and the prediction of the national legislation trend and the benefits The trade-off of the balance of interests, the angle of maximizing the social welfare of the State and the maintenance of the legitimate interests of the subject of the rights and interests as far as possible is not infringed, and the orientation of the persuasive legislation is finally determined from the dual angle of the rational and the fairness, and it is proposed to be suitable for me on the basis of that. The concept of the country's law. For our country, due to the national conditions of our country and the influence of the related trade policy, the copyright trade is parallel to the import line. However, in the future, the import and export trade volume of the copyright work will increase rapidly, and the import and export trade volume of the copyright work will increase rapidly, and the tariff is greatly reduced, and it is possible to predict the possibility of a parallel import dispute in the relevant copyright field. Therefore, combining with the judgment of the trend of future international legislation, making a convincing legislative decision from the angle of rationality and fairness, and looking forward to the revision and perfection of our country's copyright trade The relevant laws of the parallel import, this is for the future of our country to actively deal with the trade friction that may arise from the parallel import behavior in the copyright trade,
【学位授予单位】：陕西师范大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D997.1
【参考文献】
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1 陈玉莲;陈红霞;沈e，
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