摘要(Abstract)：
"电影作品和以类似电影的方法表现的作品"是《保护文学和艺术作品伯尔尼公约》保护的作品类型,各成员国有权依据国内法自行制定"电影作品"的归属制度。英美版权法适用"视为作者"原则安排"电影作品"的权利归属,原作的作者及编剧作为拍摄"电影作品"的"雇员"对待,只是"电影作品"的事实作者,不享有新作"电影作品"的著作权。由此,原作不构成新作,原作作者不是新作的作者。大陆法系著作权法,普遍把编剧作为"电影作品"的创作人对待,是新作"电影作品"的合作作者。由此,原作构成新作,原作作者也是新作的作者。我国现有"电影作品"法律制度没有厘清"电影作品"原作与新作的关系,造成了"电影作品"出现了"双重版权"、"双重署名权"的问题,同时也与"作者享有署名权"的著作权理论相冲突。中国《著作权法》有必要明确规定,"原作是电影作品和视听作品的成分或者素材,不是电影作品和视听作品本身,原作作者也不是电影作品和视听作品的作者,原作作者不享有电影作品和视听作品的署名权。"
关键词(KeyWords)：
Abstract:
Keywords:
基金项目(Foundation):
作者(Author): 李伟民;
Email:
参考文献(References)：
- 1 THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS,at http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=283698(Lasted visited on September 28,2017).
- 2 GUIDE TO THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS,at 68(Liu Bolin trans.,China Renmin University Press,2002).According to paragraph(2)(a)of article 14 of the Berne Convention,ownership of copyright in a cinematographic work shall be a matter for legislation in a country where protection is claimed.Copyright owners may be producers who enjoy original rights or obtain rights through legal transfer,or various creators of film according to regulations on the system of film copyright.Domestic law can adopt any system above.
- 3 In the copyright law of common law system,employers enjoy the copyright of“cinematographic work”.In the copyright law of the civil law system,“co-authors”enjoy the copyright of cinematographic works.
- 4 According to paragraph 3 of article 89 and paragraph 1 of article 93 in the Copyright Law of Germany,“original works used to produce cinematographic works and audiovisual works,such as novels,scripts,film music etc.are not cinematographic works and audiovisual works.”According to article 16 of the Copyright Law of Japan,“the authorship of a cinematographic work excludes authors of novels,scenarios,music or other works.”
- 5 According to article L.113-7 of the French Intellectual Property Code,“the original work constitutes an audiovisual work and authorship of an audiovisual work belongs to persons who have carried out the intellectual creation of the work.”According to article 15 of the Copyright Law of China,“the scriptwriter,director,cinematographer,lyric writer,composer of the work shall enjoy the right of authorship.”
- 6 Wang Qian,Redefinition of“Cinematographic Works”and the Improvement of Copyright Ownership and Exercising Rules,4 Law Science 85-89(2008).
- 7 Id.,Qu Sanqiang,On the Legal Relationship of Cinematographic Works,20 Intellectual Property 19(2010).
- 8 Article 15 of the Copyright Law of China.The current Copyright Law of China was adopted at the 15th Session of the Standing Committee of 7th National People’s Congress on September 7,1990 and came into force on June 1,1990.It was amended for the first time in 2001,for the second time in 2002 and the third amendment is in process.
- 9 Wang Qian,supra note 6.
- 10 The National Copyright Administration of China promulgated the Revised Draft of the Copyright Law(First Draft)on March 31,2012 and promulgated the second draft on July 6,2012.The Legislative Affairs Office of the State Council issued the Revised Draft of the Copyright Law(Revised Draft for Review)on June 6,2014,also known as“the third draft”.
- 11 ZHENG CHENGSI,INTELLECTUAL PROPERTY LAW,at 300(Law Press,2003).
- 12 Article 3 of the Revised Draft of the Copyright Law(First Draft),article 3 of the Revised Draft of the Copyright Law(Second Draft),and article 5 of the Revised Draft of the Copyright Law(Revised Draft for Review).
- 13 Article 10 of the current Copyright Law stipulates the right of production and the First and Second Revised Drafts of the Copyright Law stipulate the right of production.But the Revised Draft for Review of the Copyright Law deletes the right of production and expands the right of adaptation.“(VIII)The right of adaptation,that is,the right to change works into other types of new works or to make text,music,drama and others into audiovisual works and also supplement,abridge,change the instruction order or others in a computer program.”
- 14 SUN YUYUN,RESEARCH ON THE RIGHT OF ADAPTATION OF WORKS,at 43(Intellectual Property Publishing House,2014).
- 15 WANG QIAN,THE COPYRIGHT LAW,at 123(China Renmin University Press,2015).
- 16 SUN YUYUN,supra note 14,19.
- 17 SHELDON W.HALPERN,CRAIG ALLEN NARD&KENNETH L.PORT,FUNDAMENTALS OF UNITED STATES INTELLECTUAL PROPERTY LAW,at 61(Song Huixian trans.,The Commercial Press,2013).
- 18 SUN YUYUN,supra note 14,19.
- 19 Section 101 of the Title 17 of the United States Code.
- 20 Section 106(b)of the Title 17 of the United States Code.
- 21 SUN YUYUN,supra note 14,45-46.
- 22 Id.
- 23 YANG HEYI,THE INTELLECTUAL PROPERTY LAW OF JAPAN,at 20-22(Peking University Press,2014).
- 24 Paragraph 3 of article 89 and paragraph 1 of article 93 of the Copyright Law of Germany.
- 25 THE COPYRIGHT LAW OF GERMANY,at 124(Fan Changjun trans.,Intellectual Property Publishing House,2013).
- 26 Article 16 of the Copyright Law of Japan.
- 27 Article L.113-7 of the French Intellectual Property Code.
- 28 According to article 12 of the Copyright Law,where a work is created by adaptation,translation,annotation or arrangement of a preexisting work,the copyright in the work thus created shall be enjoyed by the adapter,translator,annotator or arranger,provided that the copyright in the original work is not infringed upon.According to article 37,to perform with the use of derivative work shall obtain permission from and pay remuneration to the copyright owner.
- 29 Id.
- 30 BERNE CONVENTION FOR THE PROTECTION OF LITARARY AND ARTISTIC WORKS,at http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=283698(Lasted visited on August 19,2017).
- 31 LIANG HUIXING,GENERAL INTRODUCTION TO CIVIL LAW,at 91-93(Law Press,2007).
- 32 According to article 15 of the Copyright Law of China,the producer is the copyright owner of cinematographic work.
- 33 Under the pressure of the Berne Convention,the US merely stipulates“moral rights”in“audiovisual works”.
- 34 According to article 13 of the Copyright Law of China,where a work is created jointly by two or more co-authors and the copyright in the work shall be enjoyed jointly by those co-authors.Co-authorship may not be claimed by anyone who has not participated in the creation of the work.
- 35 Li Weimin,On Inseparable Joint Work,7 Jinan Journal(Philosophy&Social Science Edition)114(2017).
- 36 Wang Qian,supra note 6;Qu Sanqiang,supra note 7.
- 37 Articles 12 and 37 of the Copyright Law,supra note 28.
- 38 Professor Qu Sanqiang and Prof.Wang Qian believe that“the cinematographic work is a special derivative work”.
- 39 Supra note 19.
- 40 Article 17 of the Copyright Law.
- 41 In commissioned work system,the employer and employee can make an agreement on the ownership of work,but whether the moral rights(personal rights of the work)can be transferred is not stipulated by law.In practice,some believe that the contract of commissioned work includes the transfer of moral rights.For example,when the employee is a legal entity,it is a work of the legal entity which certainly contains the moral rights(personal rights)of the work.Others hold that commissioned works can only include the agreement on property rights of works according to the theory that personal rights cannot be transferred in the Copyright Law of China.
- 42 Supra note 19.
- 43 Li Weimin,Definition of Work and Reconstruction of Classification Theory:Comment on Articles 1 and 5 of the Revised Draft of the Copyright Law,10 Intellectual Property 56(2015).
- 44 Article 13 of the Copyright Law of China.
- 45 The Copyright Laws of China and Japan adopt this legislation mode.
- 46 The Copyright Laws of Germany and France adopt this legislation mode.
- 47 Supra note 19.A“work made for hire”is a work prepared by an employee within the scope of his or her employment;or a work specially ordered or commissioned for use as a contribution to a collective work,as a part of a motion picture or other audiovisual work,as a translation,as a supplementary work,as a compilation,as an instructional text,as a test,as answer material for a test,or as an atlas,if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.For the purpose of the foregoing sentence,a“supplementary work”is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing,concluding,illustrating,explaining,revising,commenting upon,or assisting in the use of the other work,such as fore words,after words,pictorial illustrations,maps,charts,tables,editorial notes,musical arrangements,answer material for tests,bibliographies,appendixes,and indexes,and an“instructional text”is a literary,pictorial,or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
