追续金计量研究——兼论《著作权法》修改草案
发布时间：2018-10-26 18:59
【摘要】：我国《著作权法》修改草案新增了追续权条款,但其中并未明确追续金的计量方法。追续金是具体确定追续权法律关系内容的关键因素,我国应当明确追续金的计量方法。在计量基础上,追续权是对艺术作品使用的补偿,无论艺术品转售中是否发生增值,艺术家都有权获得追续金,我国追续金的计量基础应为除税的转售总额。在计提比例上,滑动计提比例的计量方法较为复杂,并且对于追续权义务人而言相对不公平,我国的追续金计提比例宜采用固定计提比例。我国还应设定追续金的计量门槛,排除一部分转售价格极低的艺术品交易,以提高追续权的运行效率。最后,我国不宜规定追续金的计提上限,否则将有违获酬权的财产逻辑。
[Abstract]:The revised draft of copyright Law of our country has added the right of continuation clause, but there is no clear method to measure the compensation. Pursuing the gold is the key factor to determine the content of the legal relation of the right of pursuing continuation, and our country should make clear the measurement method of pursuing the continuation of the gold. On the basis of measurement, the right of continuation is the compensation for the use of works of art. No matter whether or not the increase in value of art occurs in resale, artists have the right to receive the continuation of the compensation. The measurement basis of the continuation of the compensation in our country should be the total amount of resale excluding tax. In the proportion of calculation and withdrawal, the measuring method of sliding proportion is more complex, and it is relatively unfair to the obligor of the right of recovery. In order to improve the efficiency of the right of follow-up, China should also set the threshold for the measurement of the continuation of the gold and exclude some of the art transactions with very low resale prices in order to improve the efficiency of the operation of the right of follow-up. Finally, our country should not stipulate the upper limit of the compensation, otherwise it will violate the property logic of the right to be paid.
【作者单位】： 华东政法大学知识产权学院;埃克斯-马赛大学法学院;
【分类号】：D923.41
，
本文编号：2296656
[Abstract]:The revised draft of copyright Law of our country has added the right of continuation clause, but there is no clear method to measure the compensation. Pursuing the gold is the key factor to determine the content of the legal relation of the right of pursuing continuation, and our country should make clear the measurement method of pursuing the continuation of the gold. On the basis of measurement, the right of continuation is the compensation for the use of works of art. No matter whether or not the increase in value of art occurs in resale, artists have the right to receive the continuation of the compensation. The measurement basis of the continuation of the compensation in our country should be the total amount of resale excluding tax. In the proportion of calculation and withdrawal, the measuring method of sliding proportion is more complex, and it is relatively unfair to the obligor of the right of recovery. In order to improve the efficiency of the right of follow-up, China should also set the threshold for the measurement of the continuation of the gold and exclude some of the art transactions with very low resale prices in order to improve the efficiency of the operation of the right of follow-up. Finally, our country should not stipulate the upper limit of the compensation, otherwise it will violate the property logic of the right to be paid.
【作者单位】： 华东政法大学知识产权学院;埃克斯-马赛大学法学院;
【分类号】：D923.41
，
本文编号：2296656
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