教案著作权保护问题研究
发布时间：2018-12-16 10:20
【摘要】：2002年重庆的教案官司一时被教育界、新闻界、法律界争相关注,各大媒体纷纷报道了我国教案官司第一案。官司一波三折,历经三年零十个月,几乎经历了司法的全部诉讼程序,同时引发了法学界对教案著作权问题的关注和思考。本文试图通过对教案官司的探讨引出对整个教案著作权保护相关问题的研究。全文由四部分组成。 第一部分是对教案基础理论的探析。这部分主要讨论和明晰教案的概念、类型、特征,并分析了教案的法律属性,是全文的基础理论铺垫,其中关于教案法律属性问题的分析是本部分乃至全文的重点。教案的作品定性对于教案著作权问题研究非常必要,因为如果教案不属于作品就谈不上教案的著作权问题,尤其对于教案是否属于职务作品的问题,司法界说法不一。本文认为教案属于一般职务作品,对于教案职务作品属性的界定是全文的研究基础。 第二部分是对教案侵权现状的介绍。教案的侵权现象时有发生,这部分首先介绍教案的侵权主体。在此基础上阐述了教案著作权的侵权种类和常见类型。教案侵权有其自身特点,因此本文着重介绍了教案著作权侵权的常见类型。教案的侵权伴随着网络的发展有了不同的变化,本部分还分析了“远程教学”侵权的情形。 第三部分主要针对教案官司争议的问题和透视出的立法空白进行研究。在介绍了我国立法现状的基础上指出我国著作权法存在的立法缺陷。这部分主要探讨了三个问题。分别是我国著作权法关于作品认定制度的规定及不足；教案归属制度的规定及不足以及教案合理使用的规定及不足。其中前两个问题是由教案官司引发的立法思考,而教案合理使用则是与教案的侵权制度相关的探讨。三个问题分别以我国著作权法中作品的“独创性”标准、一般职务作品的“优先使用权”和与教案相关的合理使用规定的不足展开研究。 第四部分是本文的核心章节。这部分主要是针对第三部分阐述的我国教案著作权立法的不足提出的完善对策。在评析国外著作权法的基础上,借鉴国外著作权法来完善我国教案著作权立法。其中对于作品“独创性标准”、一般职务作品“优先使用权”和与教案相关的个人使用、教学使用和科研使用的立法完善是文章的研究重心。本文提出其一,降低作品独创性标准,同时将教案列为著作权法保护范围；其二,完善一般职务作品优先使用权制度,保障作者的物质利益；其三,在合理使用制度上,采用“因素主义”与“规则主义”并列的立法模式,同时完善与教案密切相关的个人使用、教学使用和科研使用。
[Abstract]:In 2002, the teaching case in Chongqing was concerned by the educational circles, the press and the legal profession, and the major media reported the first case of the teaching case in our country one after another. After three years and ten months, the lawsuit has gone through almost all the judicial proceedings, which has aroused the attention and thinking of the legal circles on the copyright of the teaching case at the same time. This paper attempts to lead to the study of the copyright protection of the whole teaching plan through the discussion of the teaching case. The full text consists of four parts. The first part is the analysis of the basic theory of teaching plan. This part mainly discusses and clarifies the concept, the type, the characteristic of the teaching plan, and analyzes the legal attribute of the teaching plan, which is the basic theoretical foundation of the full text, among which the analysis of the legal attribute of the teaching plan is the focus of this part and even the whole text. It is necessary to study the copyright of the teaching plan because if the teaching plan does not belong to the work, the copyright of the teaching plan cannot be discussed, especially whether the teaching plan belongs to the position work, the judicial circles have different opinions. This paper holds that teaching plan belongs to the general work of duty, and the definition of the attribute of teaching plan is the basis of the research. The second part is the introduction of the current situation of teaching case infringement. The infringing phenomenon of teaching plan occurs from time to time, this part first introduces the subject of teaching case infringement. On this basis, the author expounds the types and common types of copyright infringement. Teaching case infringement has its own characteristics, so this paper mainly introduces the common types of teaching case copyright infringement. The infringement of teaching plan has changed with the development of network. This part also analyzes the situation of "distance teaching" infringement. The third part mainly focuses on the legal disputes and legislative gaps. On the basis of introducing the present situation of our country's legislation, this paper points out the legislative defects of our country's copyright law. This part mainly discusses three problems. They are the provisions and deficiencies of copyright law on the system of the identification of works, the regulations and deficiencies of the system of teaching case ownership, and the regulations and deficiencies of the rational use of teaching plans. The first two problems are the legislative thinking caused by the teaching case, and the rational use of the teaching case is related to the tort system of the teaching case. The three problems are studied according to the standards of "originality" of works in China's copyright law, the "preferential right to use" of general official works and the deficiencies of the regulations on the rational use of teaching plans. The fourth part is the core chapter of this paper. This part mainly aims at the third part elaborated our country teaching plan copyright legislation insufficiency proposed the consummation countermeasure. Based on the analysis of foreign copyright law, this paper makes use of foreign copyright law to perfect the copyright legislation of teaching case in our country. Among them, the focus of the article is the "originality standard" of the works, the "priority right" of the general post works and the legislative perfection of the personal use, the teaching use and the scientific research use related to the teaching plan. In this paper, the author puts forward the following points: first, to reduce the originality standard of the works, and at the same time, to make the teaching plan the protection scope of copyright law, second, to perfect the system of the preferential use right of the general post works and to protect the material interests of the author; Thirdly, in the system of rational use, we should adopt the legislation mode of "factorism" and "rulesism", and perfect the personal use, teaching use and scientific research use which are closely related to teaching plan.
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.41
本文编号：2382180
[Abstract]:In 2002, the teaching case in Chongqing was concerned by the educational circles, the press and the legal profession, and the major media reported the first case of the teaching case in our country one after another. After three years and ten months, the lawsuit has gone through almost all the judicial proceedings, which has aroused the attention and thinking of the legal circles on the copyright of the teaching case at the same time. This paper attempts to lead to the study of the copyright protection of the whole teaching plan through the discussion of the teaching case. The full text consists of four parts. The first part is the analysis of the basic theory of teaching plan. This part mainly discusses and clarifies the concept, the type, the characteristic of the teaching plan, and analyzes the legal attribute of the teaching plan, which is the basic theoretical foundation of the full text, among which the analysis of the legal attribute of the teaching plan is the focus of this part and even the whole text. It is necessary to study the copyright of the teaching plan because if the teaching plan does not belong to the work, the copyright of the teaching plan cannot be discussed, especially whether the teaching plan belongs to the position work, the judicial circles have different opinions. This paper holds that teaching plan belongs to the general work of duty, and the definition of the attribute of teaching plan is the basis of the research. The second part is the introduction of the current situation of teaching case infringement. The infringing phenomenon of teaching plan occurs from time to time, this part first introduces the subject of teaching case infringement. On this basis, the author expounds the types and common types of copyright infringement. Teaching case infringement has its own characteristics, so this paper mainly introduces the common types of teaching case copyright infringement. The infringement of teaching plan has changed with the development of network. This part also analyzes the situation of "distance teaching" infringement. The third part mainly focuses on the legal disputes and legislative gaps. On the basis of introducing the present situation of our country's legislation, this paper points out the legislative defects of our country's copyright law. This part mainly discusses three problems. They are the provisions and deficiencies of copyright law on the system of the identification of works, the regulations and deficiencies of the system of teaching case ownership, and the regulations and deficiencies of the rational use of teaching plans. The first two problems are the legislative thinking caused by the teaching case, and the rational use of the teaching case is related to the tort system of the teaching case. The three problems are studied according to the standards of "originality" of works in China's copyright law, the "preferential right to use" of general official works and the deficiencies of the regulations on the rational use of teaching plans. The fourth part is the core chapter of this paper. This part mainly aims at the third part elaborated our country teaching plan copyright legislation insufficiency proposed the consummation countermeasure. Based on the analysis of foreign copyright law, this paper makes use of foreign copyright law to perfect the copyright legislation of teaching case in our country. Among them, the focus of the article is the "originality standard" of the works, the "priority right" of the general post works and the legislative perfection of the personal use, the teaching use and the scientific research use related to the teaching plan. In this paper, the author puts forward the following points: first, to reduce the originality standard of the works, and at the same time, to make the teaching plan the protection scope of copyright law, second, to perfect the system of the preferential use right of the general post works and to protect the material interests of the author; Thirdly, in the system of rational use, we should adopt the legislation mode of "factorism" and "rulesism", and perfect the personal use, teaching use and scientific research use which are closely related to teaching plan.
【学位授予单位】：西南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923.41
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