论合作作品中主体身份的确认

就合作作品的主体身份确认的要件而言,共同创作的行为与共同创作的意图历来被认为是核心要件.然而,对两个要件内涵的理解,一直存在模糊的认识.为此,有必要对两个核心要件进行深入地阐述和分析,以期建 立正确的判断标准,从而引起司法实务的重视.     

论著作权侵权与著作权犯罪

著作权的保护在不同的法律制度中都有相关的规定,其中在民法和刑法中存在着对著作权侵权与著作权犯罪的规定,对著作权的民事保护与刑事保护已经成为各国对著作权保护的两种主要的手段,本文主要研究的问题是在解释论的角度如何区分著作权侵权与著作权犯罪;在立法论的角度,如何完善对著作权的保护,从而实现民法与刑法在著作权保护方面的协调和配合。     

论“署名权”应改为“保护作者身份权”

我国现行著作权法中规定的"署名权,即表明作者身份,在作品上署名的权利"与我国著作权法第三次修订草案送审稿中曾拟定的"署名权,即决定是否表明作者身份以及如何表明作者身份的权利"的表述,都以偏概全,名不副实。其实署名权是表明作者身份权的下位概念,表明作者身份权又是保护作者身份权的下位概念。建议在我国著作权法第三次修改中,将"署名权"改为"主张作者身份和反对损害作者身份的权利"的保护作者身份权。我国著作权法中的著作人身权应当由保护作者身份权、保护作品完整权与发表权共同构成。     

Awareness and use of social science research among executive and administrative staff members of state correctional agencies

Officials and staff members of public agencies must become aware of social science research information if they are to make use of it in their work. Contemporary research has largely ignored the issue of awareness, however, concentrating instead on later stages of the research utilization process. In this study of executive officials and administrative staff members of state correctional agencies, respondents consider awareness of social science research to be important, but most believe that they make less use of it than they should. Persons working in both research and nonresearch areas perceive the utility of social science research as relatively low, and turn to nonscholarly sources of information before using scholarly sources. Researchers, however, tend to view social science as basic knowledge, whereas many nonresearchers view social science simply as one of several types of knowledge that may be applied to clearly defined problems. Research results must be disseminated more widely to the sources of information that correctional agency personnel encounter routinely, despite traditional academic publishing norms.     

Authorship,Authenticity, and Intellectual Property in Australian Aboriginal Art

This article analyzes research and legal cases about authorship, authenticity, and intellectual property in Aboriginal art. The concepts of Aboriginality, authenticity, and ownership are used to show the complexities of Aboriginal law, legal copyright, and the moral rights framework. The clan ownership of Dreaming makes Aboriginal artists' relationship different to other artists' individual ownership of their work. Research on this topic by members of the Faculty of Business and Law unit of the Centre for Leisure Management Research at Deakin University was undertaken for the Australian Institute of Aboriginal and Torres Strait Islander Studies. This article provides significant contextual analyses of major issues leading to Commonwealth Government inquiries and legislation in Australia during 2006-8.     

Gender and Publication Patterns: Female Authorship Is Increasing,But Is There Gender Parity?

Women's authorship has historically been underrepresented in criminal justice publications. The current study updates previous research by examining the authorship patterns of articles published in 8 criminological journals spanning 2007 to 2013. Women's representation increased from earlier rates but remained below that of their male contemporaries. This growth corresponded with general trends of increasing coauthorship, suggesting that the recent gains in women's representation do not indicate decreases in gender disparities. Men also were more likely to have sole-authored articles and be lead authors in papers coauthored by men and women. In addition, the vast majority of articles included at least 1 male author, and far fewer included a female giving men a larger visual presence. Gender representation also varied considerably between mainstream/traditional journals and 2 gender-specialized journals.     

否弃集体作者观——民间文艺版权难题的终结

对民间文学艺术版权的传统保护以集体作者观作为核心论点。当代民间文学艺术保护热潮背后有文化民族主义的情感支撑。在其影响下,文艺学者刻意区分民间文学与作家文学,建构民间文学所谓“集体性”;法律学者在此基础上进一步虚构所谓集体创作机制、集体作者观;部分学者借用结构主义文学理论、批评个人主义作者观,为民间文学的集体产权观铺路。然而,这种民间文学艺术领域的集体作者观歪曲了著作权法的发展方向。版权法应该放弃集体作者观,而赋予传承人以作者身份,将民间文学艺术作品视为普通作品,按照普通的个人作品加以保护,才能最终解决民间文学的版权难题。     

Guidelines for police undercover work: New questions about accreditation and the emphasis of procedure over authorization

A survey of the 100 largest police departments in the United States was conducted to document the experience of police undercover operations and the existence of agency guidelines. Eighty-nine agencies responded, revealing that all 89 conduct undercover activities but only 64 have guidelines for such operations. Types of crimes investigated by police undercover operations, reasons for having or not having guidelines, and regional analyses are offered. One finding is that police undercover guidelines emphasize either procedure or authorization in undercover police work. Of the departments that have guidelines, more emphasize procedure (“how to”) than authorization (“when to”). Questions about this dichotomy and the impact of national accreditation standards are raised for future research.     

Asking the Gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert World

Drawing on the responses provided by a survey of state court judges (N = 400), empirical evidence is presented with respect to judges' opinions about the Daubert criteria, their utility as decision-making guidelines, the level to which judges understand their scientific meaning, and how they might apply them when evaluating the admissibility of expert evidence. Proportionate stratified random sampling was used to obtain a representative sample of state court judges. Part I of the survey was a structured telephone interview (response rate of 71%) and in Part II, respondents had an option of completing the survey by telephone or receiving a questionnaire in the mail (response rate of 81%). Survey results demonstrate that judges overwhelmingly support the gatekeeping role as defined by Daubert, irrespective of the admissibility standard followed in their state. However, many of the judges surveyed lacked the scientific literacy seemingly necessitated by Daubert. Judges had the most difficulty operationalizing falsifiability and error rate, with only 5% of the respondents demonstrating a clear understanding of falsifiability and only 4% demonstrating a clear understanding of error rate. Although there was little consensus about the relative importance of the guidelines, judges attributed more weight to general acceptance as an admissibility criterion. Although most judges agreed that a distinction could be made between scientific and technical or otherwise specialized knowledge, the ability to apply the Daubert guidelines appeared to have little bearing on whether specific types of expert evidence were designated as science or nonscience. Moreover, judges' bench philosophy of science seemed to reflect the rhetoric, rather than the substance, of Daubert. Implications of these results for the evolving relationship between science and law and the ongoing debates about Frye, Daubert, Joiner, and Kumho are discussed.     

How staff attitude and support for inmate treatment and rehabilitation differs by job category: An evaluation of findings from Pennsylvania's Department of Corrections' employee training curriculum ‘Reinforcing Positive Behavior’

In July 2006, the Pennsylvania Department of Corrections began delivering a training session titled Reinforcing Positive Behavior to all new employees. The training educated staff about the department's philosophy on inmate treatment programming and about staff responsibilities for reinforcing treatment concepts. Findings from a survey administered immediately after the training revealed that treatment and clerical staff strongly agreed that how they treat inmates and how they behave in a correctional facility impacts inmate rehabilitation efforts, and that reinforcing positive behavior among inmates was a requirement of their profession. Also, treatment and clerical staff, more so than correctional officers, recognized that staff support of treatment programs impacted inmate rehabilitation outcomes and that staff actions and interactions with other staff and inmates can make a correctional facility a more positive place.     

论文字作品的冒名侵权

署名权的法律意义之一在于明确作品的权利归属、维护作品创作的特定风格。冒名侵权作为一种新的侵权形态,具有形式上的合法性、主观上的故意性、侵权对象的特定性和行为上的隐蔽性等特点,其实质是以不知名的某特定主体的姓名或署名(与知名作家的姓名或署名完全相同)冒称知名作家的姓名或署名发表、出版、复制、销售作品的侵权行为。冒名侵权的构成要件包括知名作家权利受损事实的存在、以知名作家为侵害对象、隐性的外在冒名行为和有冒名的故意等几个方面。现行著作权侵权救济法律制度有其不周延性,只有建立和完善著作权登记制度,充实现有的著作权法规,增加作者或著作权人署名的特定附随义务,才能有效地防止冒名侵权行为的发生、保护知名作家的署名不被冒用,激发创作者的积极性和创作潜能的充分发挥。     

Ethical concerns expressed by forensic psychiatrists

A survey was made of American Academy of Forensic Sciences (AAFS) forensic psychiatrists to evaluate whether there is concern among them about potential ethical problems in criminal justice work. Of the respondents, 93.8% had encountered such problems. The main concerns indicated were about those psychiatrists who become a "hired gun," become an advocate, do not give an honest opinion, or have problems with confidentiality. The need for ethical guidelines and further debate about ethical issues is presented.     

个人言语判别特征在短文本作者鉴别中的应用

目的以法律语言学为视角,通过测试语用、语篇语义以及语篇信息文本特征值对文本作者的判别能力,探究短文本作者鉴别或同一认定的方法。方法采用实验、语篇分析和统计的方法,对4位作者的28篇微博(每人7篇)共11种组合形式(二人组、三人组和四人组)逐一进行了文本特征值的测试和文本作者的判别分析。结果从语用、语篇语义学以及语篇信息领域抽取的5个特征值的不同组合对4名作者的所有11种判别组合都能进行显著区分,判别正确率达到85.7%~100%。结论基于4位作者微博文本的判别分类器已经建立并可以继续推演用于其他短文本作者的鉴别分析。     

Contribution and collaboration in joint authorship: too many misconceptions

Legal context: This Article examines the requirements of collaborationand contribution in joint authorship. It discusses the mainUK case law and provides a comparative assessment of the requirementsin the US and Canada. Key points: The author identifies and examines misconceptionssurrounding the definition of joint authorship; the nature ofthe requirements of collaboration and contribution; the confusionwithin the definition of what amounts to sufficient contribution.The author asserts that joint authorship cannot be determinedby using similar conceptions applicable to individual authorship.At the heart of the argument is the belief that the unavoidableresult of the present definition of joint authorship is denialof reward for authors and artists. Practical significance: This Article argues that the rules ofjoint authorship, as presently configured, do not recognizeintellectual input that should be recognized. The Article defendsthe proposition that this has far-reaching effects on the creativeprocess. It discourages authors from creating or contributingvaluable materials to other authors. More importantly, the flawsinherent in the present definitions of collaboration and contributionin joint authorship contradict the aims of our copyright systemthrough the denial of authorial contributions and withholdingof reward from authors.     

International Cougar Management Guidelines: Processes for Collaboration and Implementation

This article briefly describes the development of international cougar management guidelines for use in the United States, Canada, and Mexico. Release of the guidelines in mid-2005 is intended as the prelude to a further round of redrafting and revision, based on the experience of managers in the field, new scientific developments, and comments from various stakeholders. The guidelines are notable as the outcome of extensive scientific collaboration and careful consultation with wildlife agency administrators. The guidelines draw on the work and experience of cougar specialists in western North America through the regular meetings of the Mountain Lion Workshop.     

Smartphone and Tablet Applications for Crime Scene Investigation: State of the Art,Typology, and Assessment Criteria

The use of applications on mobile devices is gradually becoming a new norm in everyday life, and crime scene investigation is unlikely to escape this reality. The article assesses the current state of research and practices by means of literature reviews, semistructured interviews, and a survey conducted among crime scene investigators from Canada and Switzerland. Attempts at finding a particular strategy to guide the development, usage, and evaluation of applications that can assist crime scene investigation prove to be rather challenging. Therefore, the article proposes a typology for these applications, as well as criteria for evaluating their relevance, reliability, and answer to operational requirements. The study of five applications illustrates the evaluation process. Far away from the revolution announced by some stakeholders, it is required to pursue scientific and pragmatic research to set the theoretical foundations that will allow a significant contribution of applications to crime scene investigation.     

Maternal and joint custody

The present study examined differences between 40 couples who agreed to traditional mother custody and 12 couples who agreed to joint custody as the postdivorce arrangement for their children. Data were collected by interview and questionnaire within six months of the filing of the divorce petition. Differences emerged in the social context of the decision process, the criteria used, and the application of criteria to parents' particular circumstances. The findings are then organized into a framework that suggests a model for the process by which parents make their decision about custody.     

Discretionary Justice: Decision Making in a State Juvenile Parole Board

The literature in Criminal Justice is replete with commentary on both the virtues and injustices associated with adult parole board decision-making. There has been far less attention paid to juvenile parole boards in part because so few of them exist. Institutional release decisions in most states still remain the purview of juvenile institutional staff members. This paper examines parole Authority decision-making in a citizen-dominated state juvenile parole board. The paper focuses on the conduct of hearings, dispositional guidelines, criteria used by board members in decision-making and the advocacy role of parole officers and institutional staff. The influence of deinstitutionalization and least restrictive policies on parole Authority decision making is also discussed. During recent years, the literature in criminal justice has become replete with commentary on the virtues and injustices associated with parole board decision-making. Consequently, many questions have been raised about disparate sentences, the criteria used by parole boards in making decisions, unstructured discretion, and the pressing need for guidelines and statistically accurate parole prediction instruments. The intent of this paper is to examine parole decision-making in a state juvenile parole board where individualized treatment and rehabilitation have been long standing goals. The paper focuses upon the criteria used by board members in decision-making, the conduct of hearings, the guideline system used to determine a recommended length of confinement and the advocacy role of parole officers and institutional staff. The influence of deinstitutionalization and least restrictive policies on parole board decision-making is also discussed. The author is presently completing the second year of a two-year appointment as a member of the Parole Authority under discussion. Since December, 1983, the author has continuously observed and participated in approximately 300 individual parole hearings over thirty-seven hearing days.     

The Language of Miranda Warnings in American Jurisdictions: A Replication and Vocabulary Analysis

Miranda warnings are remarkably heterogeneous in their language, length, and content. Past research has focused mostly on individual Miranda warnings. Lacking in generalizability, these studies have limited applicability to both public policy and professional practice. A large-scale survey by R. Rogers et al. [2007b, Law and Human Behavior, 31, 177-192] examined Miranda warnings from across the United States and documented striking differences in the length, content, and reading comprehension. In moving from single jurisdiction studies to nationally representative research, the replication of the Rogers et al. survey is essential. With an additional 385 general Miranda warnings, most of the original findings were confirmed; this replication allows Miranda researchers to use findings based upon nationally-representative warnings for their subsequent research. Beyond reading comprehension, the study makes an original contribution to the understanding of Miranda vocabulary that is often infused with abstruse words and legalistic terms. It provides the first analysis of sentence complexity, which affects both Miranda comprehension and retention. As a result of these analyses, preliminary guidelines are provided for increasing the comprehension and understanding of Miranda warnings.     

Opinions by AAPL forensic psychiatrists on controversial ethical guidelines: a survey.

A survey was conducted of a sample of AAPL members to determine their opinions on the inclusion of controversial ethical guidelines for forensic psychiatry. Members appear to appreciate the need to consider traditional Hippocratic values as at least one consideration in their functioning as forensic psychiatrists. They appear to balance their duties to an evaluee with duties to society and the legal system and to appreciate the responsibilities of multiple agency. Support was shown for interpreting ambiguities in AAPL's current guidelines in the directions indicated by most of this survey's proposed guidelines.