试论广告语征集的合同性质及其作品著作权
发布时间：2019-06-19 05:23
【摘要】：科技的发展、社会的进步和新媒体的崛起,促进了广告产业的发展和繁荣,广告设计愈加色彩斑斓、精彩纷呈。与此同时,广告语也已成为吸引受众、传达理念、成功营销甚至是树立品牌形象的关键。因此,很多企业不惜重金征集广告语,甚至有些公益广告语也走向集思广益之路。 广告语征集包括内部征集和外部征集两种。内部征集是指在企业内部发布通知或以开会布置任务的形式征集本企业员工的好想法和新创意并应用于广告设计之中;外部征集即向社会大众公开征集的行为。本文不考虑与企业有劳动关系的职工利用本企业的物质条件、资金、材料或设备进行创作的情况,而把研究对象瞄准在外部征集广告语的相关法律问题上。 本文以征集广告语为切入点,首先讨论征集广告语行为的性质,对发布征集启事和以寄交作品的形式应征等行为作合同法上的分析,得出以上行为分别属于要约和承诺的结论,即以征集启事的形式成立了委托创作合同,该合同的性质是委托合同;其次,结合作品的特征和构成要件,特别是作品的独创性要求,对比征集广告语的各种类别和表现形式,确认一部分有创作高度的征集广告语可以成为文字作品;再次,针对委托合同产生了委托作品的事实,结合我国著作权法第17条的规定,阐述和论证了国内外的理论和立法,并结合我国基本国情和司法实践现状,就委托作品的归属问题进行探讨,以及对双方当事人并无约定之时的权利分配方案进行讨论、分析,以期实现征集方和应征方的权利最大化;最后,在论证了著作人身权不可转让之后,对署名权、修改权和保护作品完整权、发表权等著作人身权以及与征集广告语相关的著作财产权的使用和利用情况进行逐项分析,为实践应用提供参考。 由于我国知识产权的理论引进和立法都比较滞后,人民群众的知识产权保护意识尚未很好树立,进而造成了实际应用中的各种权利冲突,相关著作权纠纷逐年上升。面对市场经济推进大潮中层出不穷的新情况和新矛盾,惟有脚踏实地加强理论研究、跟进实务操作,以寻求法律和现实之间的平衡点。
[Abstract]:The development of science and technology, the progress of society and the rise of new media have promoted the development and prosperity of advertising industry, and advertising design has become more colorful and colorful. At the same time, advertising language has become the key to attract audiences, convey ideas, successful marketing and even establish brand image. Therefore, many enterprises do not hesitate to collect advertising language, and even some public service advertising language is also on the road of brainstorming. Advertising language solicitation includes internal solicitation and external solicitation. Internal solicitation refers to the behavior of soliciting good ideas and new ideas of employees in the form of meeting assignment in the form of issuing notices within the enterprise and applying them to advertising design; external solicitation is the behavior of soliciting openly to the public. This paper does not consider the situation that employees with labor relations make use of the material conditions, funds, materials or equipment of the enterprise to create, but aims at the legal issues related to the external solicitation of advertising language. This paper takes the solicitation advertising language as the starting point, first discusses the nature of the solicitation advertising language behavior, makes the contract law analysis of the issuing solicitation notice and the application in the form of sending in the work, and draws the conclusion that the above behavior belongs to the offer and the acceptance respectively, that is, the entrustment creation contract has been established in the form of solicitation notice, and the nature of the contract is the entrustment contract. Secondly, combined with the characteristics and constituent elements of the work, especially the original requirements of the work, compared with the various categories and forms of expression of the solicitation advertising language, it is confirmed that some of the solicitation advertising language can become written works. Thirdly, in view of the fact that the entrustment contract has produced the entrusted works, combined with the provisions of Article 17 of the copyright Law of our country, this paper expounds and demonstrates the theories and legislation at home and abroad, and probes into the ownership of the entrusted works according to the basic national conditions of our country and the present situation of judicial practice, and discusses and analyzes the distribution scheme of the rights when there is no agreement between the two parties, so as to realize the maximization of the rights of the solicitors and the requisitioners. Finally, after demonstrating the non-transferability of the personal right of the author, this paper analyzes the personal rights of the works, such as the right to sign, the right to modify, the right to protect the integrity of the work, the right to publish, as well as the use and utilization of the property rights of the works related to the collection of advertising language, so as to provide a reference for practical application. Due to the lag of the theoretical introduction and legislation of intellectual property rights in our country, the awareness of intellectual property protection of the people has not yet been well established, which has resulted in all kinds of rights conflicts in practical application, and the related copyright disputes have increased year by year. In the face of the endless new situation and new contradictions in the tide of market economy, we can only step up theoretical research and follow up the practical operation in order to find the balance between law and reality.
【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
[Abstract]:The development of science and technology, the progress of society and the rise of new media have promoted the development and prosperity of advertising industry, and advertising design has become more colorful and colorful. At the same time, advertising language has become the key to attract audiences, convey ideas, successful marketing and even establish brand image. Therefore, many enterprises do not hesitate to collect advertising language, and even some public service advertising language is also on the road of brainstorming. Advertising language solicitation includes internal solicitation and external solicitation. Internal solicitation refers to the behavior of soliciting good ideas and new ideas of employees in the form of meeting assignment in the form of issuing notices within the enterprise and applying them to advertising design; external solicitation is the behavior of soliciting openly to the public. This paper does not consider the situation that employees with labor relations make use of the material conditions, funds, materials or equipment of the enterprise to create, but aims at the legal issues related to the external solicitation of advertising language. This paper takes the solicitation advertising language as the starting point, first discusses the nature of the solicitation advertising language behavior, makes the contract law analysis of the issuing solicitation notice and the application in the form of sending in the work, and draws the conclusion that the above behavior belongs to the offer and the acceptance respectively, that is, the entrustment creation contract has been established in the form of solicitation notice, and the nature of the contract is the entrustment contract. Secondly, combined with the characteristics and constituent elements of the work, especially the original requirements of the work, compared with the various categories and forms of expression of the solicitation advertising language, it is confirmed that some of the solicitation advertising language can become written works. Thirdly, in view of the fact that the entrustment contract has produced the entrusted works, combined with the provisions of Article 17 of the copyright Law of our country, this paper expounds and demonstrates the theories and legislation at home and abroad, and probes into the ownership of the entrusted works according to the basic national conditions of our country and the present situation of judicial practice, and discusses and analyzes the distribution scheme of the rights when there is no agreement between the two parties, so as to realize the maximization of the rights of the solicitors and the requisitioners. Finally, after demonstrating the non-transferability of the personal right of the author, this paper analyzes the personal rights of the works, such as the right to sign, the right to modify, the right to protect the integrity of the work, the right to publish, as well as the use and utilization of the property rights of the works related to the collection of advertising language, so as to provide a reference for practical application. Due to the lag of the theoretical introduction and legislation of intellectual property rights in our country, the awareness of intellectual property protection of the people has not yet been well established, which has resulted in all kinds of rights conflicts in practical application, and the related copyright disputes have increased year by year. In the face of the endless new situation and new contradictions in the tide of market economy, we can only step up theoretical research and follow up the practical operation in order to find the balance between law and reality.
【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
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