我国著作追续权制度的立法研究
发布时间：2019-03-27 06:51
【摘要】：近年来追续权立法已然成为艺术领域和立法界的热点话题,2014年6月6日中华人民共和国著作权法(修订草案送审稿)①中追续权条款的增加饱受各界人士的争议;美国国会立法委员在2014年2月26日顺利地颁布了《美国版权非常法案》(American Royalties Too act),规定了美国艺术市场的转售提成税(追续权);追续权制度起源于1920年的法国,这一制度的设置主要是为了避免艺术领域中“米勒式的悲哀”,缩小艺术家们生前逝后生活上的巨大差距,平衡艺术作品创作者与普通作品创作者及艺术商之间的利益差距,它作为艺术创作领域中的一次产权界定,其引进必然是大势所趋,这篇文章主要运用比较研究方法、文献分析方法和理论分析方法,从如下几个层面进行写作:首先,文章开篇对追续权的基础理论知识进行阐述,从追续权的概念、法律属性以及特征出发,追溯追续权的历史渊源,同时也为后文的论述奠定理论基础;第二部分,针对各国有关追续权的规定及追续权制度的实施状况进行阐述,深入对比追续权制度的在两大法系、各个国家的不同,为我国引进此制度提供借鉴。第三部分主要是试图从著作权激励机制的法律构造、功利主义的正当性、法经济学和社会性实证材料等各个层面来分析论证我国著作权领域引入追续权的必要性和可行性。第四部分主要是从我国的具体国情出发,思考追续权制度如何入法,并针对性地提出相应的立法设计、追续权相关制度如何进行完善的见解。
[Abstract]:In recent years, the legislation of follow-up power has become a hot topic in the field of art and legislation. On June 6, 2014, the increase in the provisions of the copyright Law of the people's Republic of China (revised draft) 1 was controversial by people from all walks of life. On February 26, 2014, lawmakers of the United States Congress successfully promulgated the United States copyright Special Act (American Royalties Too act), which provides for a resale tax on the art market in the United States. The system of power of pursuit originated in France in 1920. This system was set up mainly to avoid "Hans Muller-style sadness" in the field of art, and to narrow the huge gap in the lives of artists after their death. Balancing the benefit gap between the creators of artistic works and the creators of ordinary works and art merchants, as a definition of property rights in the field of artistic creation, the introduction of which is bound to be the trend of the times. This article mainly uses comparative research methods. The literature analysis method and the theory analysis method, carry on the writing from the following several levels: first, the article carries on the elaboration to the basic theory knowledge of the pursuit right, from the follow-up power concept, the legal attribute and the characteristic, embarks from the follow-up right the concept, the law attribute and the characteristic, Tracing back the historical origin of the right of follow-up, but also laying a theoretical foundation for the later discussion; In the second part, according to the stipulations about the right of pursuit and the implementation of the system of the right to pursue, the author makes a deep contrast between the two legal systems and the differences of each country, and provides reference for the introduction of the system in our country. The third part mainly attempts to analyze and demonstrate the necessity and feasibility of introducing the right of follow-up in the copyright field of our country from the aspects of the legal structure of copyright incentive mechanism, the legitimacy of utilitarianism, legal economics and social empirical materials. The fourth part is mainly from the specific national conditions of our country, thinking about how to enter the law, and put forward the corresponding legislative design, how to perfect the relevant system of follow-up power.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.41
本文编号：2447959
[Abstract]:In recent years, the legislation of follow-up power has become a hot topic in the field of art and legislation. On June 6, 2014, the increase in the provisions of the copyright Law of the people's Republic of China (revised draft) 1 was controversial by people from all walks of life. On February 26, 2014, lawmakers of the United States Congress successfully promulgated the United States copyright Special Act (American Royalties Too act), which provides for a resale tax on the art market in the United States. The system of power of pursuit originated in France in 1920. This system was set up mainly to avoid "Hans Muller-style sadness" in the field of art, and to narrow the huge gap in the lives of artists after their death. Balancing the benefit gap between the creators of artistic works and the creators of ordinary works and art merchants, as a definition of property rights in the field of artistic creation, the introduction of which is bound to be the trend of the times. This article mainly uses comparative research methods. The literature analysis method and the theory analysis method, carry on the writing from the following several levels: first, the article carries on the elaboration to the basic theory knowledge of the pursuit right, from the follow-up power concept, the legal attribute and the characteristic, embarks from the follow-up right the concept, the law attribute and the characteristic, Tracing back the historical origin of the right of follow-up, but also laying a theoretical foundation for the later discussion; In the second part, according to the stipulations about the right of pursuit and the implementation of the system of the right to pursue, the author makes a deep contrast between the two legal systems and the differences of each country, and provides reference for the introduction of the system in our country. The third part mainly attempts to analyze and demonstrate the necessity and feasibility of introducing the right of follow-up in the copyright field of our country from the aspects of the legal structure of copyright incentive mechanism, the legitimacy of utilitarianism, legal economics and social empirical materials. The fourth part is mainly from the specific national conditions of our country, thinking about how to enter the law, and put forward the corresponding legislative design, how to perfect the relevant system of follow-up power.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.41
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，本文编号：2447959
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