职务作品中单位义务的认定
发布时间：2018-09-12 17:31
【摘要】：职务作品指的“员工在受雇佣期间和受雇佣范围内所创作的作品”。职务作品制度的关键在于职务作品著作权的分配,而分配的依据就是对双方各自承担之义务的认定。认定单位的义务,正是为了确定单位享有著作权的条件,这就是职务作品中单位义务认定的意义之所在。 我国的现行法中对职务作品中的权利归属虽然通过一般职务作品与特殊职务作品二分的规定区别了权利归属的不同情况,然而对权利分配依据的规定过于粗糙,尤其是对单位承担的义务规定不清,无法作为单位取得职务作品著作权的具体标准,因此,我们必须对单位义务的认定予以重构。 为了重构单位义务的认定标准,笔者从著作权取得的理论依据入手,论证了单位承担义务与取得著作权之间的因果关系,然后从作品的异化和作者的变化这两个角度阐述了单位参与作品创作的过程,并分析了单位在作品创作中的地位和作用,奠定了单位义务认定的基础。随后,笔者着重分析了我国现行法上对职务作品规定,通过对其外部范围和内部种类的界定指出了现行规定的不合理性。 通过对理论和法律规制的分析,笔者提出了单位义务认定的具体标准： 1.明确职务作品的范围,确立职务作品单位义务分析的前提条件。坚持将智力投入者与财产投入者之间的关系作为作品划分的原因基础,纠正目前法人作品、职务作品、委托作品分类混乱的现状,限定职务作品的适用范围。 2.明确职务作品单位承担义务的性质。单位承担的性质就是一种财产性义务,这是由单位非生理性的本质决定的,也与单位一直以来在作品创作中扮演的财产投入者的身份相符。尽管单位也会为职务作品的创作提出要求、提供建议,但这并没有改变单位作为财产性投入者的地位。 3.坚持职务作品中单位义务认定的原则和一般标准,判断具体作品中单位义务的承担情况,以确定单位享有著作权的资格和权利内容。首先,我们要看单位提供的财产性投入是否对作品的完成发挥了主要作用。其次,看作品的性质对单位义务认定的影响。
[Abstract]:Duty works refer to "works created by employees during employment and within the scope of employment". The key to the system of duty works lies in the distribution of copyright in the work of duty, and the basis for distribution is the determination of the obligations of both parties. The obligation of the affirming unit is precisely to determine the conditions under which the unit enjoys copyright, which is duty. The meaning of the unit's obligation cognizance in works.
In the current law of our country, although the ownership of the right in the work of duty is different from that in the work of special duty through the dichotomy between the work of general duty and the work of special duty, the stipulation of the basis for the distribution of the right is too rough, especially the stipulation of the obligation undertaken by the unit is not clear, and the copyright of the work of duty can not be obtained as a unit. Therefore, we must reconstruct the identification of unit obligations.
In order to reconstruct the criteria for determining the obligations of a unit, the author begins with the theoretical basis of copyright acquisition, demonstrates the causal relationship between the obligations of a unit and the acquisition of copyright, then expounds the process of the unit participating in the creation of a work from the perspectives of alienation of the work and the change of the author, and analyzes the status of the unit in the creation of a work. After that, the author emphatically analyzes the provisions of the current law of our country on duty works, and points out the irrationality of the current provisions by defining their external scope and internal types.
Through the analysis of theory and legal regulation, the author puts forward specific criteria for the determination of unit obligations.
1. Define the scope of the work, establish the premise of the duty analysis of the work unit. Adhere to the relationship between intellectual investors and property investors as the basis for the division of the work, rectify the current juridical person work, job work, entrusted work classification confusion, limit the scope of application of the work.
2. Define the nature of the obligation of the work unit. The nature of the work unit is a kind of property obligation, which is determined by the non-physiological nature of the unit, and is consistent with the identity of the property investor that the unit has been playing in the creation of the work. Although the unit will also put forward requirements for the creation of the work, provide suggestions, but this is. It has not changed the status of units as property investors.
3. Adhere to the principles and general criteria for determining the obligations of the units in the work of duty, and judge the obligations of the units in the specific work so as to determine the qualifications and rights of the units to enjoy copyright. First of all, we should see whether the property input provided by the units has played a major role in the completion of the work. Second, we should look at the nature of the work to the units. The influence of obligation recognition.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.41
本文编号：2239744
[Abstract]:Duty works refer to "works created by employees during employment and within the scope of employment". The key to the system of duty works lies in the distribution of copyright in the work of duty, and the basis for distribution is the determination of the obligations of both parties. The obligation of the affirming unit is precisely to determine the conditions under which the unit enjoys copyright, which is duty. The meaning of the unit's obligation cognizance in works.
In the current law of our country, although the ownership of the right in the work of duty is different from that in the work of special duty through the dichotomy between the work of general duty and the work of special duty, the stipulation of the basis for the distribution of the right is too rough, especially the stipulation of the obligation undertaken by the unit is not clear, and the copyright of the work of duty can not be obtained as a unit. Therefore, we must reconstruct the identification of unit obligations.
In order to reconstruct the criteria for determining the obligations of a unit, the author begins with the theoretical basis of copyright acquisition, demonstrates the causal relationship between the obligations of a unit and the acquisition of copyright, then expounds the process of the unit participating in the creation of a work from the perspectives of alienation of the work and the change of the author, and analyzes the status of the unit in the creation of a work. After that, the author emphatically analyzes the provisions of the current law of our country on duty works, and points out the irrationality of the current provisions by defining their external scope and internal types.
Through the analysis of theory and legal regulation, the author puts forward specific criteria for the determination of unit obligations.
1. Define the scope of the work, establish the premise of the duty analysis of the work unit. Adhere to the relationship between intellectual investors and property investors as the basis for the division of the work, rectify the current juridical person work, job work, entrusted work classification confusion, limit the scope of application of the work.
2. Define the nature of the obligation of the work unit. The nature of the work unit is a kind of property obligation, which is determined by the non-physiological nature of the unit, and is consistent with the identity of the property investor that the unit has been playing in the creation of the work. Although the unit will also put forward requirements for the creation of the work, provide suggestions, but this is. It has not changed the status of units as property investors.
3. Adhere to the principles and general criteria for determining the obligations of the units in the work of duty, and judge the obligations of the units in the specific work so as to determine the qualifications and rights of the units to enjoy copyright. First of all, we should see whether the property input provided by the units has played a major role in the completion of the work. Second, we should look at the nature of the work to the units. The influence of obligation recognition.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.41
【参考文献】
相关期刊论文 前1条
1 王迁;;论“法人作品”规定的重构[J];法学论坛;2007年06期
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