著作权法上的出租权研究
发布时间：2018-08-12 15:29
【摘要】：出租权是我国2001年修订《著作权法》时赋予著作权人的一项新的著作财产权。我国作为TRIPS协议等国际条约的成员国,为了履行条约规定的义务,在内国法中规定了出租权,但具体内容和国际条约以及国际通行做法的相关规定还是有很大差距的。这主要体现在对出租权控制的出租行为的界定上,立法表述不明确。以及对出租权的限制没有细化的规定,在实践中缺乏可操作性。明晰出租行为的构成要件,是严格界定出租权行使范围的基础,也是进一步研究出租权的首要任务,因此对出租行为构成要件的研究,以及对出租权限制规定的具体研究有着重要的现实意义。 本文总体上分为五个部分: 第一部分是引言,介绍了我国的出租权的立法过程并指出立法中的不足。 第二部分探讨出租权立法的必要性。出租权的产生有其特定的现实背景,出租行业的盛行很大程度上削弱了著作权人的利益,因此赋予著作权人以出租权是新技术条件下著作权法平衡各方利益的需要,是从经济上对权利人利益的补偿。 第三部分主要论述了出租行为的构成要件。较之日常生活中所用到的“出租”一词,著作权法意义上的出租权控制的出租行为范围更窄,它仅指作品原件或复制件在物理空间上发生了转移的出租,并且这种出租行为须具有商业性,也即出租目的的营利性。要构成著作权法意义上的出租行为,以上两点必不可少。然而,我国著作权法却并没有体现出这两个要件,因此,有必要修改著作权法中的相关规定对其加以明确,即在我国现行的法律体制下,出租行为只能适用于对有形载体转移的控制上,且著作出租权控制的必须是商业性的出租行为。 第四部分是对出租权限制和例外的分析,我国对出租权的限制主要体现在对计算机软件的例外规定上,即计算机软件不是出租的主要标的时,著作权人对此不能主张出租权。但是我国并没有对该例外作出细化规定。对此,本文建议应对立法加以完善,明确对例外的判定应根据租赁人的租赁目的、软件在出租标的中的作用和价值以及软件是否可以被再次复制或独立使用等标准,结合具体的案情加以判断。同时因为商业性使用作品是构成出租的要件,而合理使用制度的核心是非商业性的使用作品,因此合理使用制度不应适用于出租权。 第五部分是结语,集中论述全文的核心内容,并依据全文的论述提出修改我国出租权相关立法的建议。
[Abstract]:The right to lease is a new property right granted to copyright owners when the copyright Law was amended in 2001. China, as a member of TRIPS and other international treaties, in order to fulfill its obligations under the treaty, has stipulated the right of lease in its internal law, but there is still a big gap between the specific contents and the relevant provisions of international treaties and international common practices. This is mainly reflected in the definition of the rental behavior controlled by the right to rent, and the legislative expression is not clear. As well as the limitation of the right to lease without detailed provisions, lack of operability in practice. It is the basis of strictly defining the scope of the exercise of the right to lease, and the primary task of further study of the right to lease, so the study of the constitutive elements of the act of lease. And the specific research on the restriction of rental right has important practical significance. This paper is divided into five parts as a whole: the first part is the introduction, introduces the legislative process of the right to lease in China and points out the deficiencies in the legislation. The second part discusses the necessity of rent right legislation. The emergence of the right of lease has its specific realistic background, the prevailing of the leasing industry has weakened the interests of the copyright owner to a great extent, so it is necessary for the copyright law to balance the interests of all parties under the condition of the new technology to give the copyright owner the right to lease. Is the economic compensation for the interests of the obligee. The third part mainly discusses the elements of rental behavior. Compared with the term "lease" used in daily life, the term "lease" in the sense of copyright law is much narrower. It only refers to the lease in which the original or duplicated work has been transferred in the physical space. And this act of leasing must be commercial, that is, the profitability of the purpose of leasing. To constitute the meaning of copyright law rental behavior, the above two indispensable. However, the copyright law of our country does not reflect these two elements, therefore, it is necessary to amend the relevant provisions of the copyright law to make it clear, that is, under the current legal system of our country, The behavior of leasing can only be applied to the control of the transfer of tangible carriers, and the control of the right to lease must be commercial. The fourth part is the analysis of the limitation and exception of the rental right, which is mainly embodied in the exception of the computer software, that is, when the computer software is not the main object of the lease, the copyright owner can not claim the rental right. But our country has not made the detailed stipulation to this exception. In view of this, this paper suggests that the legislation should be perfected, and that the exception should be judged according to the lease purpose, the function and value of software in the subject matter of the lease, and whether the software can be reproduced or independently used. Judge in combination with the specific circumstances of the case. At the same time, because the commercial use of the work is an important element of the rental, and the core of the reasonable use system is the non-commercial use of the work, the reasonable use system should not be applied to the rental right. The fifth part is the conclusion, focusing on the core content of the full text, and based on the full text of the proposal to amend the relevant legislation of rental rights.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.41
本文编号：2179478
[Abstract]:The right to lease is a new property right granted to copyright owners when the copyright Law was amended in 2001. China, as a member of TRIPS and other international treaties, in order to fulfill its obligations under the treaty, has stipulated the right of lease in its internal law, but there is still a big gap between the specific contents and the relevant provisions of international treaties and international common practices. This is mainly reflected in the definition of the rental behavior controlled by the right to rent, and the legislative expression is not clear. As well as the limitation of the right to lease without detailed provisions, lack of operability in practice. It is the basis of strictly defining the scope of the exercise of the right to lease, and the primary task of further study of the right to lease, so the study of the constitutive elements of the act of lease. And the specific research on the restriction of rental right has important practical significance. This paper is divided into five parts as a whole: the first part is the introduction, introduces the legislative process of the right to lease in China and points out the deficiencies in the legislation. The second part discusses the necessity of rent right legislation. The emergence of the right of lease has its specific realistic background, the prevailing of the leasing industry has weakened the interests of the copyright owner to a great extent, so it is necessary for the copyright law to balance the interests of all parties under the condition of the new technology to give the copyright owner the right to lease. Is the economic compensation for the interests of the obligee. The third part mainly discusses the elements of rental behavior. Compared with the term "lease" used in daily life, the term "lease" in the sense of copyright law is much narrower. It only refers to the lease in which the original or duplicated work has been transferred in the physical space. And this act of leasing must be commercial, that is, the profitability of the purpose of leasing. To constitute the meaning of copyright law rental behavior, the above two indispensable. However, the copyright law of our country does not reflect these two elements, therefore, it is necessary to amend the relevant provisions of the copyright law to make it clear, that is, under the current legal system of our country, The behavior of leasing can only be applied to the control of the transfer of tangible carriers, and the control of the right to lease must be commercial. The fourth part is the analysis of the limitation and exception of the rental right, which is mainly embodied in the exception of the computer software, that is, when the computer software is not the main object of the lease, the copyright owner can not claim the rental right. But our country has not made the detailed stipulation to this exception. In view of this, this paper suggests that the legislation should be perfected, and that the exception should be judged according to the lease purpose, the function and value of software in the subject matter of the lease, and whether the software can be reproduced or independently used. Judge in combination with the specific circumstances of the case. At the same time, because the commercial use of the work is an important element of the rental, and the core of the reasonable use system is the non-commercial use of the work, the reasonable use system should not be applied to the rental right. The fifth part is the conclusion, focusing on the core content of the full text, and based on the full text of the proposal to amend the relevant legislation of rental rights.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.41
【引证文献】
相关博士学位论文 前1条
1 陈绍玲;公开传播权研究[D];华东政法大学;2012年
，本文编号：2179478
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