版权法体系下的“接触权”研究
发布时间：2019-01-06 14:48
【摘要】：版权1作为知识产权体系的重要组成部分,其产生和发展都和人类科学技术的进步密切相关。而版权制度本身就是科学技术发展的产物。印刷术的发明,对作品的大量而节省费用的复制成为了可能,2也就产生了版权保护的必要。3 版权制度产生之后,科学技术的发展总是对版权制度不断提出挑战,而版权制度也在应战之中不断发展完善。随着技术手段的不断革新以及信息扩散日益加速,相比传统的传播手段,网络从诞生的那一刻开始就注定要引发一场轰轰烈烈的科技革命。网络技术的飞速发展完成了知识的迅速传播,建立了广阔的网络技术背景,丰富了知识经济时代信息传播的途径。4知识产权专有权利的自身属性和典型特征引发了深远的影响以及全方位的创新。5网络技术的发展使得公众“接触”作品变的越发容易。为了适应网络技术带给版权作品保护的冲击,版权权利人开始对自己的作品施加“技术措施”予以保护。然而“技术措施”远不能一劳永逸地成为保护版权作品的最佳手段,于是,要求创设一项名为“接触权”的呼声逐渐兴起。 针对版权法领域中有关“接触权”存在与否的争议,笔者在文章中进行了详细的阐述和论证。论文的第一章,笔者先是引入了对“接触权”产生的背景以及其含义的介绍,直观地将有关“接触权”问题的争议展现给读者,并且开门见山地引入有关“接触权”的不同的含义界定。同时,笔者论述了当下学者们对于“接触权”创设的不同说法,着重引入了相关支持者的立论。与此同时,笔者将这些赞同的观点同反对的意见予以横向比较,驳斥了学者们坚持的“接触性技术措施是“接触权”存在的基础、以及“‘接触权’是版权法专有权利体系的固有权利”的说辞。同时,澄清了有关学者对于“权利”和“权力”两者之间在法理意义上的区别。第二章,论述“接触权”不能纳入版权法专有权利体系成为整篇论文的重点。在该部分,笔者采用了正面说理以及反面批判的论证方式,结合国内外发生的典型案例,批判了有关“接触权”存在的法理依据和正当理由在版权法专有权利体系下是难以立足的,从而说明了有关“接触权”存在的论调是难以自圆其说的。无论是过去还是现在,或是将来的版权法体系都不可能接纳“接触权”成为其具体内容。在文章的最后章节,笔者立足于“接触权”存在与否的争论,发散地展开思路,希望文章本身不仅仅停留在对于“接触权”本身的认识之上,通过对于国内外案例的分析对比,以及对于创设“接触权”于版权专有权利之下的批判,笔者希望本文可以对我国现行的著作权法中的相关规定有所借鉴意义,无论是立法者还是学者们,都可以从中得到启发,以便更好地保证我国的版权法体系得以不断地发展和完善。
[Abstract]:As an important part of intellectual property system, copyright 1 is closely related to the progress of human science and technology. The copyright system itself is the product of the development of science and technology. The invention of printing made it possible to reproduce a large number of works and save money, 2 which created the necessity of copyright protection. 3 since the emergence of copyright system, the development of science and technology has always challenged the copyright system. The copyright system is also in the face of constant development and improvement. With the continuous innovation of technological means and the acceleration of information diffusion, compared with the traditional means of communication, the network is destined to trigger a vigorous scientific and technological revolution from the moment of its birth. The rapid development of network technology has completed the rapid dissemination of knowledge and established a broad network technology background. It enriches the ways of information dissemination in the era of knowledge economy. 4 the own attributes and typical characteristics of proprietary rights of intellectual property rights have caused profound influence and all-round innovation. 5 the development of network technology makes the public "contact". The product becomes easier and easier. In order to adapt to the impact of network technology on the protection of copyright works, copyright owners began to impose "technical measures" to protect their works. However, "technical measures" are far from becoming the best means of protecting copyright works once and for all, so calls for the creation of a "right of access" have gradually arisen. In view of the dispute about the existence of "right of contact" in the field of copyright law, the author expounds and demonstrates it in detail. In the first chapter, the author introduces the background of "right of contact" and its meaning, and presents the controversy about "right of contact" to readers directly. And the introduction of the right of contact about the different meanings of the definition. At the same time, the author discusses the scholars' different views on the creation of the right of contact, and introduces the arguments of the relevant supporters. At the same time, the author compares these agreed views with the opposing views, refuting the scholars' insistence that "the contact technical measures are the basis of the existence of the" right of contact ". And "right of contact" is an inherent right of copyright law exclusive right system. At the same time, it clarifies the legal differences between right and power. The second chapter discusses that "right of contact" cannot be incorporated into the exclusive right system of copyright law. In this part, the author adopts positive reasoning and negative criticism, combined with the typical cases at home and abroad, This paper criticizes the legal basis and justification of the existence of "right of contact", which is difficult to establish under the system of exclusive rights of copyright law, and thus explains that the argument about the existence of "right of contact" is difficult to justify. It is impossible for the copyright law system to accept the right of contact as its concrete content, whether in the past, now, or in the future. In the last chapter of the article, the author bases himself on the debate about the existence of "right of contact" and spreads out his ideas, hoping that the article itself will not only remain on the understanding of "right of contact" itself, but also through the analysis and comparison of cases at home and abroad. As well as the criticism of the creation of "right of contact" under the exclusive right of copyright, the author hopes that this article can be used for reference to the relevant provisions of the current copyright law of our country, and that both legislators and scholars can get inspiration from it. In order to better ensure that China's copyright law system can continue to develop and improve.
【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：2402936
[Abstract]:As an important part of intellectual property system, copyright 1 is closely related to the progress of human science and technology. The copyright system itself is the product of the development of science and technology. The invention of printing made it possible to reproduce a large number of works and save money, 2 which created the necessity of copyright protection. 3 since the emergence of copyright system, the development of science and technology has always challenged the copyright system. The copyright system is also in the face of constant development and improvement. With the continuous innovation of technological means and the acceleration of information diffusion, compared with the traditional means of communication, the network is destined to trigger a vigorous scientific and technological revolution from the moment of its birth. The rapid development of network technology has completed the rapid dissemination of knowledge and established a broad network technology background. It enriches the ways of information dissemination in the era of knowledge economy. 4 the own attributes and typical characteristics of proprietary rights of intellectual property rights have caused profound influence and all-round innovation. 5 the development of network technology makes the public "contact". The product becomes easier and easier. In order to adapt to the impact of network technology on the protection of copyright works, copyright owners began to impose "technical measures" to protect their works. However, "technical measures" are far from becoming the best means of protecting copyright works once and for all, so calls for the creation of a "right of access" have gradually arisen. In view of the dispute about the existence of "right of contact" in the field of copyright law, the author expounds and demonstrates it in detail. In the first chapter, the author introduces the background of "right of contact" and its meaning, and presents the controversy about "right of contact" to readers directly. And the introduction of the right of contact about the different meanings of the definition. At the same time, the author discusses the scholars' different views on the creation of the right of contact, and introduces the arguments of the relevant supporters. At the same time, the author compares these agreed views with the opposing views, refuting the scholars' insistence that "the contact technical measures are the basis of the existence of the" right of contact ". And "right of contact" is an inherent right of copyright law exclusive right system. At the same time, it clarifies the legal differences between right and power. The second chapter discusses that "right of contact" cannot be incorporated into the exclusive right system of copyright law. In this part, the author adopts positive reasoning and negative criticism, combined with the typical cases at home and abroad, This paper criticizes the legal basis and justification of the existence of "right of contact", which is difficult to establish under the system of exclusive rights of copyright law, and thus explains that the argument about the existence of "right of contact" is difficult to justify. It is impossible for the copyright law system to accept the right of contact as its concrete content, whether in the past, now, or in the future. In the last chapter of the article, the author bases himself on the debate about the existence of "right of contact" and spreads out his ideas, hoping that the article itself will not only remain on the understanding of "right of contact" itself, but also through the analysis and comparison of cases at home and abroad. As well as the criticism of the creation of "right of contact" under the exclusive right of copyright, the author hopes that this article can be used for reference to the relevant provisions of the current copyright law of our country, and that both legislators and scholars can get inspiration from it. In order to better ensure that China's copyright law system can continue to develop and improve.
【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
【参考文献】
相关期刊论文 前5条
1 熊琦;;论“接触权”——著作财产权类型化的不足与克服[J];法律科学(西北政法大学学报);2008年05期
2 彭学龙;;论著作权语境下的获取权[J];法商研究;2010年04期
3 栾东福;;论著作人身权中作者的接触权[J];消费导刊;2010年03期
4 陈岚;;权力与权利的界说[J];江汉大学学报(社会科学版);2009年04期
5 王迁;对技术措施立法保护的比较研究[J];知识产权;2003年02期
相关硕士学位论文 前1条
1 刘楠;技术措施的滥用和规制[D];华东政法大学;2008年
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