现场直播节目版权保护研究
发布时间：2018-08-23 11:07
【摘要】：作品性质的判断是版权保护的基本前提。如何判断一部视听节目在著作权法下的性质一直困扰着法律界,至今仍颇具争议。现场直播是不同于电影的视听节目摄制方法的一种。随着现场直播技术的发展与进步,现场直播节目的创作水平已有了质的飞跃,其独创性已经可以达到一个较高的程度。然则,由于我国现行《著作权法》下影视作品独创性标准的模糊不明以及“摄制方法”要件的制约等原因,现场直播节目在著作权法下性质的认定在法律界存在不同观点,甚至导致同一节目在不同法院形成不同判定结果的混乱局面出现。值得重视的是,法律上对现场直播节目版权保护严重不足的现状已经越来越成为挫伤节目投资者和创作者积极性,制约相关产业发展的焦点问题。现场直播节目的版权保护之所以在法律上引发广泛争议,究其原因,主要在于该问题涉及视听作品的概念定义、独创性标准的界定、权利归属及利益平衡机制等诸多在法律理论上尚存争议的问题,相对比较复杂。同时,法律界对特属于媒体工作领域的现场直播节目制作流程、节目创作及表达的特征分析、制作节目所需要的智力劳动和资金投入状况以及版权保护对相关文化产业发展的重要性等事实存在认知上的困难和误区也是导致相关问题始终无法得到突破和解决的原因之一。为此,本文结合版权理论和媒体知识,对现场直播节目版权保护问题从理论到实际进行了相对系统深入地研究,以期达到完善我国版权法律制度,切实保护现场直播节目创作者和投资者的积极性和版权权益,促进相关产业发展的目的。基于以上分析和考虑,针对现场直播节目的版权保护这一主题,本文针对性地提出了需要研究的五个主要问题,分别是:(1)视听作品的定义;(2)视听作品的独创性标准;(3)现场直播节目的可版权性分析;(4)现场直播节目的权利归属;(5)如何完善现场直播节目的版权保护制度。在这五个问题中,前两个问题是在我国现行著作权法下颇具争议性质的版权基础理论问题,暴露出我国著作权法在制度上存在的缺陷以及理论上的不成熟。第三、第四个问题则是当前在司法实践中所面临且亟待解决的两个焦点问题。前两个问题需要理论上的系统研究和突破,而后两个问题则需要在理论基础上对实际中所存在的问题结合实际案例进行针对性的分析和解答。第五个问题则是本文研究所希望达到的目标,无论是理论上的研究成果还是对实践问题的解答,最终都需要落实到法律制度的完善上。对这五个问题的分析、研究和解答不仅是本文的主要研究成果,也是本文创造性将作品独创性理论成果与影视创作知识相结合的研究方法的实现。对于视听作品的定义问题,本文认为,我国现行《著作权法》下“电影及类电影作品”的定义以“类似电影的摄制方法”为要件,使得概念和保护范围过于狭窄。比较各国立法,国际立法趋势是以保护范围相对较宽的“视听作品”概念取代“电影或类电影作品”的概念。而且,大多数国家在立法中都摒弃了“摄制方法”,以视听作品的表现形式作为视听作品定义中最基本的构成要件,使得那些在摄制方法上虽不同于电影但表现形式相同且独创性较高的视听节目均能纳入“视听作品”的范畴加以保护。同时,本文认为,此次《著作权法》第三次修法的《送审稿》中以“视听作品”取代“影视作品”并同时取消“录像制品”的立法方案存在明显缺陷,这是因为《送审稿》虽提出了“视听作品”取代“影视作品”并同时取消“录像制品”的方案,却未能就“视听作品”的独创性标准有一个清晰的界定,势必仍然造成“视听作品”的保护范围模糊不清和司法判定上的混乱,可能造成“视听作品”保护范围过于宽泛或者过于狭窄的风险。针对视听作品独创性标准的问题,本文认为,首先,作品的独创性问题虽然十分复杂,但也不可陷入“不可知论”。根据各国版权法的比较和本文更深层次问题思考,作品独创性的界定有三个不可或缺的基本条件,分别是独立的创作、智力的创造和最低限度的创新性,而其中最低限度的创新性是界定作品的最关键条件,如何界定视听作品最低限度的创新性也是本文所需要研究和解决的核心问题之一。同时,在作品独创性界定的三个基本条件不明或难以断定的情况下,从司法实践出发,还应该从作者创作意图、作品个性化的体现以及有无劳动和投资来作为作品独创性界定的可参考条件。其次,值得注意的是,作品的独创性界定应遵循“区别对待原则”。由于不同类别作品的表现形式和创作特征不同,在独创性标准的界定上也应针对不同类别的作品采取不同的规则来评判其独创性。为此,我们需要在版权基本理论和文艺作品创作两个不同学科领域寻找到一条结合的方法之路,基于版权法的基本原理,为不同类别作品分别建立各自的独创性标准体系。第三,本文中,笔者以学者王坤关于作品独创性的最新理论成果“增量要素分析法”与影视创作知识结合起来进行,将视听作品独创性的最本质体现归纳为“镜头”、“衔接”两个维度上,并据此建立起视听作品的表层、中层和深层独创性标准体系。其中,视听作品的中层独创性是判断视听作品可版权性的根本标准和关键步骤。关于现场直播节目的可版权性问题,本文认为,首先,该问题的复杂性源于对现场直播多维度概念及其相互之间关系的复杂性,造成对现场直播节目版权保护客体上的理解误区。本文指出,文中所分析的版权客体是指现场直播节目而不是现场直播活动。更具体而言,版权保护的客体事实上是现场直播节目影像化的表现形式,其保护实质是对现场直播节目影像化创作的创造性劳动及其成果的保护,而保护的最终目的则是通过对节目表现形式的实然保护达到对其“表达实质”的应然保护。其次,本文以体育赛事直播节目为例对其独创性结合实际案例进行了具体而深入地分析和阐述。本文认为,体育赛事直播节目是节目编导个性化、创造性的劳动,在其影像化的创作中融合了创作者高超的戏剧化创作手法,是节目娱乐化的艺术表达以及体育精神与情感表达的最终体现。而体育赛事直播节目的独创性特征可以从机位设计、景别选择等“镜头”要素以及镜头的切换频率与节奏、“蒙太奇”手法的运用、时间型变与空间型变以及故事性叙事的表达等“衔接”要素所体现的多个方面进行分析和判定。为此,本文以梅西任意球前后镜头衔接和齐达内“惊天一头”片段镜头拍摄及组接的两个视频片段作为案例具体分析了体育赛事直播节目在镜头与衔接上的创作技巧与特征以及在故事性叙事和情感表达上的独创性体现。结合节目画面的具体案例进行独创性分析与界定也是目前大多数法律学者和法官所缺乏的专业知识和分析方法。第三,本文对以央视“春晚”为代表的综艺直播节目的独创性问题进行了同样深入地分析和论证。本文认为,与体育赛事直播节目虽然在机位设计、景别选择以及镜头切换手法与技巧的运用等方面十分类似,但不同的是,综艺直播节目的独创性更多地还体现在了对综艺节目舞台的美术设计、场面调度等方面。具体而言,本文以2009春晚小品《不差钱》和2015年春晚杂技节目《青花瓷》中的两个视频片段的连续画面在“镜头”和“衔接”两个维度的创作及其叙事与情感表达上的独创性进行了分析和界定,提出了以央视“春晚”为代表的电视综艺直播节目具有较高独创性,应被定性为著作权法下“电影及类电影作品”的观点和主张。对于现场直播节目的权利归属问题,首先,根据各国关于视听作品权利归属制度的比较可以看到,作者权法国家与版权法国家虽然在视听作品权利归属制度的理解上存在着较大不同,但已表现出显著的趋同效应,其核心是基于视听产业对于各国文化经济的发展和文化输出上的战略意义和价值,无不通过法定或者推定转让等不同路径将视听作品权利集中到制片者手中,以便于视听作品使用的效率和产业的整体发展。其次,我国虽师从著作权法国家,但在现行《著作权法》中“电影及类电影作品”的权利归属却更多倾向于英美等版权法国家的规定。对此,有的学者(如曲三强)认为我国现行著作权法将影视作品的经济权利统一由制片者所有的制度原则符合世界各国立法现状,但也有学者(如王迁)认为我国著作权法存在“小说、戏剧等原作品与根据其拍摄而成的电影作品之间的法律关系不明确”、“没有规定电影作品中音乐作品的著作权人有权从电影作品的播放中获得合理报酬”等一系列问题。除了原作品以外,在我国著作权法下对影视作品产生之前就在先发表的作品与影视作品的法律关系也同样存有疑问和争议。这样的争议也引发了对于何为“可以单独使用的作品”及其如何单独行使“可以单独使用的作品”版权的争议。第三,本文鲜明指出,虽然视听作品的权利归属以及利益分配问题在国内学术界以及此次修法过程中都存在较大争议,但这些争议问题不应该成为现场直播节目可版权性的障碍。对于现场直播节目版权保护这一主题而言,本文认为,具有较高独创性的现场直播节目被定性为“电影及类电影作品”的情况下,其版权主体与权利归属与影视作品并无实质区别,可以适用法律类推规则。为此,本文就现场直播节目作品的版权主体进行详细分析和界定,并就其权利归属制度适用于我国《著作权法》的现行法及第三次修订送审稿的法律类推规则分别进行了详细分析和论证。最后,作为本文研究的目标,针对现场直播节目版权保护的法制完善这一分量沉重但也最具现实意义的问题,本文首先从现场直播技术进步与产业发展对版权保护制度完善的必然诉求及迫切需求出发阐述了通过完善法制实现对现场直播节目版权保护的必要性。其次,本文认为,在现行《著作权法》的基本框架下,完全可以通过法律解释方法对现行法予以完善。综合本文理论结合实际的研究成果,本文首次提出了通过法律解释完善现行《著作权法》对现场直播节目版权保护的详细的方案与建议,包括完善现行《著作权法》中相关规定的法律解释方案以及《关于现场直播节目著作权纠纷若干问题的解释》的建议案。最后,为了抓住正在进行中的我国《著作权法》自立法以来最重要的一次法律修订的重大契机,本文特别提出了针对此次《著作权法》第三次修订的《送审稿》的完善方案与建议,以期供立法者参考和决策。本文的研究意义在于,基于著作权法的立法宗旨,一方面在于切实保护现场直播节目作品作者的著作权及有关权益,鼓励我国本土化现场直播节目的创作和传播;另一方面也在于对我国现场直播节目及相关文化产业发展与繁荣的有效促进,具有较大的现实意义和紧迫性。从研究成果及其创新性角度,本文一方面就视听作品的定义及独创性标准等基础理论问题进行了系统的理论研究,提出了自己的见解和观点,对现场直播节目的可版权性及权利归属等困扰当前司法判断的法律问题进行了针对性的研究和解答,并提出了在现行《著作权法》制度下以及针对《著作权法》第三次修订案的具体的建议性方案;另一方面,从方法论角度,本文创造性地将作品独创性理论与影视创作领域的相关专业知识结合起来,通过对影视创作方法的法律抽象去探寻视听作品的创作规律,总结出视听作品独创性的界定方法和标准,寻找到一条分析、界定视听作品的独创性及其标准体系建立的方法之路,并将之用于解决现场直播节目版权保护的具体问题当中。笔者希望该方法能为作品独创性问题的研究提供一个借鉴和参考,将之作为作品独创性研究的基本方法之一,以期通过学者专家的进一步研究逐步完善著作权法下各类作品的独创性标准,弥补相关研究的空白。
[Abstract]:The judgment of the nature of a work is the basic premise of copyright protection. How to judge the nature of an audio-visual program under the copyright law has been puzzling the legal circle, but it is still controversial. However, due to the ambiguity of the original standard of film and television works under the current Copyright Law and the restriction of the requirements of the "production method", there are different opinions and even guidance in the legal circles on the identification of the nature of live broadcast programs under the Copyright Law. It is worth noting that the serious inadequacy of copyright protection in law for live programs has increasingly become the focus of damaging the enthusiasm of program investors and creators and restricting the development of related industries. Therefore, it has aroused widespread controversy in law. The main reason lies in the fact that the problem involves the definition of audio-visual works, the definition of original standards, the ownership of rights and the balance of interests mechanism, and many other controversial issues in legal theory, which are relatively complex. At the same time, the legal circles are relatively complex about live broadcasting programs, which belong to the field of media work. The difficulties and misunderstandings in the process of production, the analysis of the characteristics of program creation and expression, the state of intellectual labor and capital investment required for program production, and the importance of copyright protection to the development of related cultural industries are also the reasons why the relevant problems can not be solved. Copyright theory and media knowledge have made a relatively systematic and in-depth study of the copyright protection of live programs from theory to practice, with a view to perfecting China's copyright legal system, effectively protecting the enthusiasm and copyright rights of the producers and investors of live programs, and promoting the development of related industries. Considering the copyright protection of live broadcasting programs, this paper puts forward five major issues that need to be studied, namely: (1) the definition of audio-visual works; (2) the original standards of audio-visual works; (3) the copyright analysis of live broadcasting programs; (4) the ownership of the rights of live broadcasting programs; (5) how to improve live broadcasting programs. Among the five problems, the first two are the controversial basic theoretical problems of copyright under the current copyright law of our country, which expose the defects of the copyright law in the system and the immaturity of the theory. Third, the fourth problem is facing the current judicial practice and needs to be solved urgently. The first two questions need theoretical research and breakthroughs, and the latter two questions need to be analyzed and answered on the basis of theoretical research and practical cases. The analysis of these five questions is not only the main research results of this paper, but also the realization of the research method which combines the creative theoretical results of works with the knowledge of film and television creation. This paper argues that the definition of "film and film-like works" under the current Copyright Law in China is too narrow in concept and scope of protection because of the "film-like production method". Moreover, most countries have abandoned the "shooting method" in their legislation, taking the form of expression of audio-visual works as the most basic component of the definition of audio-visual works, so that those audio-visual programs which are different from movies but with the same form of expression and higher originality can be included in the category of "audio-visual works". At the same time, this paper argues that the legislative scheme of replacing "film and television works" with "audio-visual works" and canceling "video products" in the third amendment of the Copyright Law has obvious defects, because "audio-visual works" has been proposed to replace "film and television works" and "video works" has been cancelled at the same time. The scheme of "products" fails to clearly define the originality standard of "audio-visual works", which will inevitably result in the ambiguity of the scope of protection and the confusion of judicial judgment, and may result in the risk that the scope of protection of "audio-visual works" is too broad or too narrow. According to the comparison of copyright laws in different countries and the deeper problems in this paper, the definition of originality of works has three indispensable basic conditions: independent creation, intellectual creation and minimum innovation. How to define the minimum innovation of audio-visual works is also one of the core issues that need to be studied and solved in this paper. At the same time, when the three basic conditions of the definition of original works are unclear or difficult to determine, we should proceed from judicial practice. The author's creative intention, the individualized expression of the work and whether there is labor and investment are the reference conditions for the definition of the originality of the work. Different rules should be adopted to judge the originality of different types of works. Therefore, we need to find a way to combine the basic theory of copyright and the creation of literary and artistic works in two different disciplines. Based on the basic principles of copyright law, we should establish their own standards for originality of different types of works. In this paper, the author combines the latest theoretical achievement of Wang Kun about the originality of the works with the knowledge of film and television creation. The most essential embodiment of the originality of audio-visual works is summed up in two dimensions of "lens" and "cohesion". Accordingly, the author establishes the superficial, middle and deep originality standards of audio-visual works. Quasi-system, in which the middle-level originality of audio-visual works is the fundamental criteria and key steps to judge the copyright of audio-visual works. On the copyright of live programs, this paper argues that, first of all, the complexity of the problem stems from the complexity of the concept of live multidimensional and the relationship between them, resulting in live programs. This paper points out the misunderstanding of the object of copyright protection. The object of copyright protection analyzed in this paper refers to live programs rather than live broadcasting activities. The ultimate goal of the protection is to achieve the "expressive essence" protection through the actual protection of the program form. Secondly, this paper takes the sports events live program as an example to analyze and elaborate its originality combined with the actual case. The individualized and creative work of the program director is the ultimate embodiment of the artistic expression of the entertainment of the program and the expression of sports spirit and emotion. The original features of the live sports programs can be seen from the camera design, scene selection and other "lens" elements. And the frequency and rhythm of lens switching, the use of "montage" techniques, time-type and space-type changes, as well as the expression of narrative stories and other "convergence" elements reflected in many aspects of analysis and judgment. Two video clips are used as case studies to analyze the creative skills and characteristics of the live sports programs in terms of lens and cohesion as well as the original expression of narrative and emotion. Thirdly, this paper analyzes and demonstrates the originality of the live variety show represented by CCTV "Spring Festival Gala" in the same depth. This paper argues that although it is very similar to the live sports program in terms of position design, scene selection and the use of camera switching techniques and techniques, it is different. The originality of live variety shows is more reflected in the art design of the stage, scene scheduling and so on. Specifically, this paper takes the two video clips of the 2009 Spring Festival Gala sketch < not bad money > and the 2015 Spring Festival Festival Festival Festival Festival Acrobatic < Blue and White Porcelain > to create the two dimensions of "lens" and "connection". This paper analyzes and defines the originality of its narrative and emotional expression, and puts forward the viewpoint that the live TV variety show represented by CCTV "Spring Festival Gala" has higher originality and should be classified as "film and similar film works" under the copyright law. Comparing the ownership system of audio-visual works, we can see that although there are great differences in the understanding of the ownership system between Authorship Law and Copyright Law, they have shown significant convergence effect. The core of the system is the strategic meaning of the audio-visual industry to the development of cultural economy and cultural export of different countries. Meaning and value concentrate the rights of audio-visual works in the hands of producers through different ways, such as statutory or presumptive transfer, in order to facilitate the efficiency of audio-visual works and the overall development of the industry. Secondly, although our country is a copyright law country, the ownership of the rights of "film and film-like works" in the current Copyright Law is more inclined. For this, some scholars (such as Qu San Qiang) think that the current copyright law of our country unifies the economic rights of film and television works by the producer ownership system principle conforms to the legislative status of countries around the world, but some scholars (such as Wang Qian) believe that China's copyright law exists "novel, drama and other original works and according to its." A series of problems such as the unclear legal relationship between the films produced, the lack of stipulation that the copyright owners of the musical works in the films have the right to receive reasonable remuneration from the broadcast of the films, etc. There are also doubts and disputes about the legal relationship of works. Such disputes have also triggered controversies about what works can be used independently and how to exercise the copyright of works that can be used independently. However, these disputes should not be an obstacle to the copyright of live broadcasting programs. As for the copyright protection of live broadcasting programs, this paper argues that the copyright of live broadcasting programs with higher originality is defined as "movies and movies". There is no substantial difference between the subject and the ownership of rights and the film and television works, so the rule of analogy of law can be applied.
【学位授予单位】：华东政法大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D923.41;G222
，
本文编号：2198895
[Abstract]:The judgment of the nature of a work is the basic premise of copyright protection. How to judge the nature of an audio-visual program under the copyright law has been puzzling the legal circle, but it is still controversial. However, due to the ambiguity of the original standard of film and television works under the current Copyright Law and the restriction of the requirements of the "production method", there are different opinions and even guidance in the legal circles on the identification of the nature of live broadcast programs under the Copyright Law. It is worth noting that the serious inadequacy of copyright protection in law for live programs has increasingly become the focus of damaging the enthusiasm of program investors and creators and restricting the development of related industries. Therefore, it has aroused widespread controversy in law. The main reason lies in the fact that the problem involves the definition of audio-visual works, the definition of original standards, the ownership of rights and the balance of interests mechanism, and many other controversial issues in legal theory, which are relatively complex. At the same time, the legal circles are relatively complex about live broadcasting programs, which belong to the field of media work. The difficulties and misunderstandings in the process of production, the analysis of the characteristics of program creation and expression, the state of intellectual labor and capital investment required for program production, and the importance of copyright protection to the development of related cultural industries are also the reasons why the relevant problems can not be solved. Copyright theory and media knowledge have made a relatively systematic and in-depth study of the copyright protection of live programs from theory to practice, with a view to perfecting China's copyright legal system, effectively protecting the enthusiasm and copyright rights of the producers and investors of live programs, and promoting the development of related industries. Considering the copyright protection of live broadcasting programs, this paper puts forward five major issues that need to be studied, namely: (1) the definition of audio-visual works; (2) the original standards of audio-visual works; (3) the copyright analysis of live broadcasting programs; (4) the ownership of the rights of live broadcasting programs; (5) how to improve live broadcasting programs. Among the five problems, the first two are the controversial basic theoretical problems of copyright under the current copyright law of our country, which expose the defects of the copyright law in the system and the immaturity of the theory. Third, the fourth problem is facing the current judicial practice and needs to be solved urgently. The first two questions need theoretical research and breakthroughs, and the latter two questions need to be analyzed and answered on the basis of theoretical research and practical cases. The analysis of these five questions is not only the main research results of this paper, but also the realization of the research method which combines the creative theoretical results of works with the knowledge of film and television creation. This paper argues that the definition of "film and film-like works" under the current Copyright Law in China is too narrow in concept and scope of protection because of the "film-like production method". Moreover, most countries have abandoned the "shooting method" in their legislation, taking the form of expression of audio-visual works as the most basic component of the definition of audio-visual works, so that those audio-visual programs which are different from movies but with the same form of expression and higher originality can be included in the category of "audio-visual works". At the same time, this paper argues that the legislative scheme of replacing "film and television works" with "audio-visual works" and canceling "video products" in the third amendment of the Copyright Law has obvious defects, because "audio-visual works" has been proposed to replace "film and television works" and "video works" has been cancelled at the same time. The scheme of "products" fails to clearly define the originality standard of "audio-visual works", which will inevitably result in the ambiguity of the scope of protection and the confusion of judicial judgment, and may result in the risk that the scope of protection of "audio-visual works" is too broad or too narrow. According to the comparison of copyright laws in different countries and the deeper problems in this paper, the definition of originality of works has three indispensable basic conditions: independent creation, intellectual creation and minimum innovation. How to define the minimum innovation of audio-visual works is also one of the core issues that need to be studied and solved in this paper. At the same time, when the three basic conditions of the definition of original works are unclear or difficult to determine, we should proceed from judicial practice. The author's creative intention, the individualized expression of the work and whether there is labor and investment are the reference conditions for the definition of the originality of the work. Different rules should be adopted to judge the originality of different types of works. Therefore, we need to find a way to combine the basic theory of copyright and the creation of literary and artistic works in two different disciplines. Based on the basic principles of copyright law, we should establish their own standards for originality of different types of works. In this paper, the author combines the latest theoretical achievement of Wang Kun about the originality of the works with the knowledge of film and television creation. The most essential embodiment of the originality of audio-visual works is summed up in two dimensions of "lens" and "cohesion". Accordingly, the author establishes the superficial, middle and deep originality standards of audio-visual works. Quasi-system, in which the middle-level originality of audio-visual works is the fundamental criteria and key steps to judge the copyright of audio-visual works. On the copyright of live programs, this paper argues that, first of all, the complexity of the problem stems from the complexity of the concept of live multidimensional and the relationship between them, resulting in live programs. This paper points out the misunderstanding of the object of copyright protection. The object of copyright protection analyzed in this paper refers to live programs rather than live broadcasting activities. The ultimate goal of the protection is to achieve the "expressive essence" protection through the actual protection of the program form. Secondly, this paper takes the sports events live program as an example to analyze and elaborate its originality combined with the actual case. The individualized and creative work of the program director is the ultimate embodiment of the artistic expression of the entertainment of the program and the expression of sports spirit and emotion. The original features of the live sports programs can be seen from the camera design, scene selection and other "lens" elements. And the frequency and rhythm of lens switching, the use of "montage" techniques, time-type and space-type changes, as well as the expression of narrative stories and other "convergence" elements reflected in many aspects of analysis and judgment. Two video clips are used as case studies to analyze the creative skills and characteristics of the live sports programs in terms of lens and cohesion as well as the original expression of narrative and emotion. Thirdly, this paper analyzes and demonstrates the originality of the live variety show represented by CCTV "Spring Festival Gala" in the same depth. This paper argues that although it is very similar to the live sports program in terms of position design, scene selection and the use of camera switching techniques and techniques, it is different. The originality of live variety shows is more reflected in the art design of the stage, scene scheduling and so on. Specifically, this paper takes the two video clips of the 2009 Spring Festival Gala sketch < not bad money > and the 2015 Spring Festival Festival Festival Festival Festival Acrobatic < Blue and White Porcelain > to create the two dimensions of "lens" and "connection". This paper analyzes and defines the originality of its narrative and emotional expression, and puts forward the viewpoint that the live TV variety show represented by CCTV "Spring Festival Gala" has higher originality and should be classified as "film and similar film works" under the copyright law. Comparing the ownership system of audio-visual works, we can see that although there are great differences in the understanding of the ownership system between Authorship Law and Copyright Law, they have shown significant convergence effect. The core of the system is the strategic meaning of the audio-visual industry to the development of cultural economy and cultural export of different countries. Meaning and value concentrate the rights of audio-visual works in the hands of producers through different ways, such as statutory or presumptive transfer, in order to facilitate the efficiency of audio-visual works and the overall development of the industry. Secondly, although our country is a copyright law country, the ownership of the rights of "film and film-like works" in the current Copyright Law is more inclined. For this, some scholars (such as Qu San Qiang) think that the current copyright law of our country unifies the economic rights of film and television works by the producer ownership system principle conforms to the legislative status of countries around the world, but some scholars (such as Wang Qian) believe that China's copyright law exists "novel, drama and other original works and according to its." A series of problems such as the unclear legal relationship between the films produced, the lack of stipulation that the copyright owners of the musical works in the films have the right to receive reasonable remuneration from the broadcast of the films, etc. There are also doubts and disputes about the legal relationship of works. Such disputes have also triggered controversies about what works can be used independently and how to exercise the copyright of works that can be used independently. However, these disputes should not be an obstacle to the copyright of live broadcasting programs. As for the copyright protection of live broadcasting programs, this paper argues that the copyright of live broadcasting programs with higher originality is defined as "movies and movies". There is no substantial difference between the subject and the ownership of rights and the film and television works, so the rule of analogy of law can be applied.
【学位授予单位】：华东政法大学
【学位级别】：博士
【学位授予年份】：2015
【分类号】：D923.41;G222
，
本文编号：2198895
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