“署名”三辨——兼评“安顺地戏案”等近期案例

作品上的自然人的姓名或组织的名称并非都是《著作权法》意义上的"署名"。"署名"必须针对特定作品表明作者的身份,因此有别于剧种名称,如"安顺地戏"等。根据英美法系国家版权法和《世界版权公约》的规定,"■"标记之后所接的姓名或名称表示的是版权归属,并非表明作者身份的"署名"。而且在版权归属于一个组织的情况下,该组织不可能对作品享有"署名权"。""标记之后所接的姓名或名称表示的则是商标注册人。即使图形商标构成作品,由于存在许可使用的情形,该姓名或名称也并非"署名"。只有作者才享有在作品上"署名"的权利,因此在作品上冒他人之名并非侵犯他人"署名权"的行为。     

Copyright infringement and potential technological prevention measures in UK universities

Sony Music v. Easyinternetcafe´ 1 Sony Music Entertainment (UK) Ltd, Sony Music Entertainment Inc., Polydor Limited, UMG Recordings Inc. and Virgin Records Limited (claimants) v. Easyinternatcafe Ltd [2003] EWHC 62 (Ch) in the High Court of Justice Chancery Division 28 January 2002. Case No: HC 02 C01798. View all notes has introduced a new facet to the debate concerning the copyright legality of peer-to-peer file transfer. The judgment and subsequent settlement has highlighted that companies offering services that are used to infringe copyright may be held to account in the UK courts. Liability may extend from the private to the public sector and the British Phonographic Industry (BPI)2 The action was supported by the BPI's international sister organization: The International Federation of the Phonographic Industry (IFPI). View all notes has reinforced this theme recently. In March 2003 every university in Britain received a letter pointing out the legal risks of universities acting as copyright infringement facilitators. By allowing students to download copyright material such as software, Mp3s and DVDs, universities and their vice-chancellors may face injunctions, damages, costs and potential criminal sanctions. This paper first, briefly reviews the history and literature concerning peer-to-peer file sharing and secondly provides a preliminary discussion of the heads of peer-to-peer copyright infringement liability with regard to UK universities. Although the law at present gives no clear precedent in regard to the university sector, the area is unlikely to remain static. It is feasible that student copyright infringement liability could be transferred to universities in the future if universities do not show due diligence when dealing with copyright infringement. Thirdly this paper outlines the technological and administrative actions that may be taken to satisfy the British Phonographic Industry (BPI) and other copyright holders that UK universities are showing due diligence in preventing student copyright infringement. It is proposed that the university sector will follow the Internet service providers (ISPs) and will begin to work with the collecting and enforcement societies to prevent copyright infringement, perhaps in a similar way to the operation of the Copyright Licensing Agency (CLA). This article puts forward two main reasons for this: First, to avoid the potential legal costs of a copyright infringement action and secondly as the majority of downloading of copyrighted Mp3s, DVDs and computer software does not constitute an academic pastime or fulfil any worthwhile university endorsed learning aims it should be actively discouraged.3 Certain limited peer-to-peer use may fulfil legitimate educational goals: This area in the UK is governed by the Copyright, Design and Patents Act of 1998 in sections 28–44. View all notes     

非法发行链上的侵权所得赔偿

在合法利用他人作品的情形,著作权人只能要求发行链第一个环节的发行人支付报酬,而在非法利用他人作品的情形,著作权人却可以同时要求发行链所有环节的侵权人赔偿各自的侵权所得。判断赔偿是否超额不应当以权利人在合法发行链上能够收取的报酬为准,而应当以被侵权人所遭受的损害为准,只有超出损害的赔偿,才构成超额赔偿。被侵权人以与侵权人同样的方式利用作品所能够获得的利润就是以特殊方法计算出来的损害。允许权利人获得非法发行链各环节的全部侵权所得并不构成超额赔偿。在计算上游侵权人应当赔偿的侵权所得时,不应当扣除下游侵权人已经支付的赔偿金。利用发行权一次用尽或者连带责任的原理将赔偿义务人的范围限定在非法发行链某一个环节的做法不值得借鉴。     

Levola Hengelo BV v Smilde Foods BV: The Hard Work of Defining a Copyright Work

The Court of Justice of the European Union's judgement in Levola Hengelo BV v Smilde Foods BV ruled that the taste of food cannot be protected as a copyright work under EU copyright law. This note describes the issues in the primary dispute concerning the claim of copyright in the taste of cheese, the reasoning of Advocate General M. Wathelet who advised the CJEU, and the reasoning of the CJEU in its broad concurrence with the AG. It then critiques the CJEU's judgement, which is surprisingly brief, considering the gravity of the question, which probes the boundaries of the copyright work under EU law. The note explains the many opportunities that were overlooked by the court in its brief judgement, attempts to unravel some of the more ambiguous aspects of the judgement, and assesses the merit and utility of the court's primary pronouncement that a copyright work must be objectively identifiable.     

视听作品画面与内容的二分思路

在现行著作权法下,视听作品的著作权保护是否或如何覆盖非连续画面内容,并不十分清楚。实务中,如何看待视听作品所含内容对视听作品独创性和权利归属的影响,也一直存在争议。决策者应当接受画面与内容二分思路指引,消除视听作品著作权规则的模糊性。在二分思路下,视听作品独创性体现在画面制作的三个环节,即过程事件的可视化、连续画面的拍摄和后期制作环节。视听作品著作权保护限于连续画面本身。非画面内容应按照传统作品类型分别予以保护。内容贡献者如果没有参与上述任一画面制作环节,则没有对视听作品的独创性做出贡献,也不影响视听作品的权利归属。二分思路可以很好地解释复杂的网络游戏画面著作权争议,展现了宽广的应用前景。     

Protecting the Public Policy Rationale of Copyright: Reconsidering Copyright Misuse

Copyright misuse protects a defendant's use of copyrighted material when the plaintiff has claimed a right in his work beyond the scope of copyright law and when such a claim is contrary to public policy. Historically, as this article demonstrates, courts have been reluctant to find in favor of defendants who claim copyright misuse and have interpreted the doctrine narrowly on the basis of antitrust considerations. However, more recent decisions and a growing body of literature suggest a greater role for copyright misuse. This article argues for such an expanded role and proposes a new section of copyright law titled "Limitations on Infringement: Copyright Misuse."     

Women Behind the Scenes in the Performing Arts

Within Ireland, interest in strategically supporting young people's participation in the arts has increased. Additionally, awareness of the Internet's potential for promoting engagement with the arts has grown. Addressing national directives and local needs assessments, South Dublin County Council's Arts Office initiated NOISE South Dublin (http://www.noisesouthdublin.com), an interactive Web site based on Australia Council's NOISE project (http://www.noise.net), to promote the creative development of young people in the county. This article presents the practical challenges and potential of youth arts Web-based programs for harnessing the creative engagement of youth. It concludes that the Internet is only useful if it expands online engagement offline.     

著作出租权研究

我国著作权法虽已明确规定出租权是著作权人独立的一项财产权,但规定尚不完善。研究著作权出租理论,比较国际条约和各国出租权制度立法,对于完善著作权人的权利保护,协调著作权人与作品使用人之间的利害关系,并寻求解决该问题的最佳途径具有极为重要的现实意义。     

网络服务商共同侵权制度之重塑

网络服务商共同侵权(间接侵权)制度是影响网络版权秩序最重要的法律规则。在这一领域,美国式的安全港规则居于统治地位。十几年来的网络版权实践表明,安全港规则不合理地降低了网络服务商的注意义务,损害了网络服务商预防第三方侵权的积极性,使得网络盗版泛滥。为了克服安全港规则的制度缺陷,美国和中国的法院被迫限制适用红旗标准或策略性地适用引诱侵权和替代责任规则,结果过度扭曲了网络间接侵权规则。为了改变这一现状,中国在修改著作权法时应当果断地放弃美国式的安全港规则,恢复侵权法一般规则的适用,强化网络服务商的注意义务。     

《著作权法》修改:关键条款的解读与分析(下)

修改后的《著作权法》将视听作品分为"电影作品、电视剧作品及其他视听作品",并分别规定了不同的著作权归属规则,但两类视听作品分类标准不明,且对其他视听作品采用约定优先的著作权归属规则,不利于此类视听作品的许可与传播。当一名合作作者无正当理由反对对合作作品的特定利用时,其他合作作者不能发放专有许可,这可能给合作创作的学术论文和专著的出版带来负面影响。修改后的著作权法将电台、电视台和报刊通讯社员工的职务作品定为特殊职务作品,可能产生其员工离职后无法获得出版其职务作品文集所须授权的问题。新增的有关职务表演的规定合理地解决了长期以来将"演出单位"作为"表演者"的问题。对传播录音制品获酬权的规定并不是法定许可,因为《著作权法》并没有为录音制作者规定除信息网络传播权之外的传播权专有权利。修改后的《著作权法》的一大亮点是将广播组织的转播权以技术中立的方式拓展至网络环境。有关用作者的署名推定权利存在的规定,被诉侵权人应证明其使用涉案作品已获许可的规定,以及法院有权没收和销毁侵权复制品的规定,均直接来源于《中美经济贸易协定》,其中有些仅具有形式意义。修改后的《著作权法》为摄影作品享受新的保护期(作者有生之年加50年)所设定的条件与《世界知识产权组织版权条约》不一致,可能需要再次修改。     

Plays,Performances and Power Struggles – Examining Copyright's ‘Integrity’ in the Field of Theatre

This article explores the notion of ‘integrity’ under copyright law by analysing examples of 'integrity‐based objections' in the field of theatre. These objections typically involve playwrights objecting to changes being made to their copyright works by other parties, such as directors and actors. This analysis is deepened by the use of two concepts from the field of art theory – ‘aura’, as put forward by Walter Benjamin, and ‘trajectory’, as outlined by Bruno Latour and Adam Lowe. Finally, to shed further light on the issues raised, the work of Pierre Bourdieu is used to present new empirical research recently undertaken by the author in the field of UK theatre. This research demonstrates that ‘power struggles’ are a common feature of theatrical collaboration; that copyright is deeply implicated in the way such power struggles are conceived; and moreover, that resolving these power struggles successfully – including taking account of ‘integrity‐based objections’ – is crucial to theatrical practice.     

Cultural Spillovers: Copyright,Conceptions of Authors,and Commercial Practices

Economists, sociologists, and legal scholars agree that intellectual‐property law is fundamental to markets because legal control over copying motivates creative production. But in many markets, such as fashion and databases, there is little or no intellectual‐property protection, yet producers still create innovative products and earn profits. Research on such “negative spaces” in intellectual‐property law reveals that social norms can constrain copying and support creative production. This insight guided our analysis of markets for American literature before the Civil War, in both magazines (a negative space, where intellectual‐property law did not apply) and books (a positive space, where intellectual‐property law did apply). We observed similar understandings of authors and similar commercial practices in both spaces because many authors published the same work in both spaces. Based on these observations, we propose that cultural elements that develop in positive spaces may spill over to related negative spaces, inducing changes in buyers' and sellers' behavior in negative spaces. Our historical approach also revealed nuances—shades of gray—beyond the sharp distinction typically drawn between negative and positive spaces. In the 1850s, a few large‐circulation magazine publishers began to claim copyright, but many still allowed reprinting and none litigated to protect copyright.     

Balancing in Light of the Purposes of Copyright: Whether Video Music Lessons Constitute Copyright Infringement

Faced with diminished sources of revenue, school systems in recent years have cut funding for music education. Looking for alternative ways to learn about music, budding musicians have turned to the Internet. On YouTube and other Web sites, visitors can view thousands of instructional videos on how to play popular songs, complex genres, and a seemingly unlimited variety of musical techniques. Despite altruistic motivations, creators of video music lessons routinely use copyrighted content during lessons. This article argues that the defense of fair use should protect the creators of video music lessons from liability in a copyright infringement lawsuit. Specifically, the author argues that it is the purpose of copyright law to promote knowledge and that video music lessons further this objective.     

Identifying Successor Corporations Liable under CERCLA and Pursuing Insurance Coverage for That Liability

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) imposes liability well beyond general corporate successor rules. A company can allocate liability to other Potentially Responsible Parties as more culpable, taking advantage of CERCLA's joint and several liability. Often a source of recovery must be teased from a complex corporate history somehow connected to the site. This article examines the basis for attributing environmental liability to entities within a corporate history, before addressing how even a bankrupt or dissolved target may still have insurance that can be tapped. Similarly, CERCLA's strict liability enables recovery from insurance with some connection to either the target's or the company's corporate history, notwithstanding insurers' non-assignment arguments.     

版权法上的公共领域研究

Public domain is a core rule of copyright law, under which various creative materials are available for an author to use without charge or liability for infringement, hence ensuring the effective implementation of copyright law. Public domain is characterized by openness, public ownership, irrevocability and formality. Based on the premise that the author’s work will not be interfered, public domain ultimately aims at the enlargement of its own universe and prosperity of the culture of human society. Its introduction into copyright law satisfies both historical and logical demands. Without its acknowledgement, copyright cannot be justified. In that sense, public domain and copyright can be deemed as twins. Public domain is not only an existing institution, but also an ideological tendency or a methodology. It has evaluative and inspective values towards copyright. It is an important precondition of copy-rights, and what is more, an important measure for controlling the expansion and realizing the purpose of copyright. Huang Hui, Ph.D, is a lecturer of civil law at Southwest University of Political Science and Law. Till now, he has released over 20 research articles in academic journals in China, such as Modern Law Science, Legal Forum, Academic Forum, etc. His magnum opus includes: Legal Philosophy Exposition of Unreasonable Outstretch in Intellectual Property Rights, Interpretation & Transfer: An exposition of de-intelligence of intellectual property rights, research on the protection of works in public domain, etc.     

The RedTube copyright infringement affair in Germany: shame on who?

Recently, tens of thousands of German Internet users were confronted with copyright infringement claims for allegedly watching porn clips on the streaming platform RedTube.com. The alleged copyright infringers received ‘Abmahnung’ cease and desist letters that gave them an opportunity to settle copyright infringements out of court by paying rights-holders €250 in compensation. While in cases relating to peer-to-peer file-sharing, the IP address of a peer can easily be identified,¹1. In order to identify the subscriber of a certain IP address at a given time, the rights-holders will file a disclosure request with a court. For details see below, Section 2.3.View all notes the RedTube case raises the question how consumers of a stream could be identified. In addition, it raises the question of whether the consumption of a stream is illegal under German law. Assuming that this is not the case, this analysis of the RedTube case highlights that the system of Abmahnungen is prone to abuse in an Internet context. Several weaknesses of the current system are identified, which show that disclosure requests are not thoroughly assessed by courts and that lawyers are far too willing to send out cease and desist letters although an infringement is not obvious. This environment allowed the emergence of anti-piracy business models that succeed in turning infringements into profit and that do not hesitate to make unfounded claims.     

Why Does Copyright Ignore Performers? The Case of Flamenco in Spain

Abstract

This article analyzes the gap between the perceived value of the performer's contributions to the musical work and the treatment that it receives in the market. It applies to the case of flamenco in Spain. The proposed methodology is based on three approaches: a study of intellectual property laws; interviews with experts to differentiate among creative and humdrum agents; and finally, double system surveys to determine the perceived valuation of the contributions of such agents. The conclusions show how the flamenco performer develops a creative labor; however, it is not protected by copyright or via royalties, commensurate with its importance.     

深层链接法律规制理论的反思与重构

所有具有或者可能具有重大的经济或实际重要性的作品利用方式，原则上都应当保留给作者。中国著作权法“应当由著作权人享有的其他权利”为应对技术发展提供了充分的制度空间。深层链接对著作权人具有重要商业利益，应属于著作权人专有权的涵盖范围；相比于适用兜底条款，采取扩张解释“信息网络传播权”的方式更优。借鉴国际版权法学界早期应对固定服务卫星传播的规制方案，并结合《世界知识产权组织版权条约》的文本与外交会议文件，可提炼出“间接提供理论”，以合理平衡著作权人、网络服务提供者与公众之间的利益关系。     

The Outer Limits of Copyright Law – Where Law Meets Philosophy and Culture

This article engages in a cultural critique of copyright law. The point is to explain how and why this body of law is culturally exclusive, notwithstanding the claims made by judges and others that the law is culturally open and inclusive. This involves a discussion of the relationship between philosophy and law, and of how this nexus has been misrepresented by the courts and in recent writings on the subject. Analysis centres on a discussion of Australian case law involving indigenous claims of communal ownership of copyright and the treatment of technology when it comes to attributing authorship.     

Hyperlinks citations, reproducing original works

A hyperlink (or simply a link) is a citation of an electronic address where further information can be found but, additionally, navigates the surfer almost instantaneously to material hosted anywhere on the Internet at a mere click of a mouse. Controversy arises because either the composition or functionality of the hyperlink can potentially infringe property rights of the claimant. Many have written about the hyperlink as a navigation tool authorising or contributing to infringement of copyright by a third party.¹This article concentrates on the composition of an external hyperlink, as a citation. Part 2 outlines the nature of Internet communication and explains why hyperlinks are often controversial. Part 3 asserts when copyright subsists in original literary works, but because a hyperlink may incorporate diverse formats, this part also addresses the protection of other works including the issue of composite works covered under section 1(1) of Copyright, Design and Patents Act, 1988. Applying copyright principles, it suggests that a hyperlink reproducing an identifiable part of a web page capable of standing apart from its context can infringe copyright in the web page containing the part. That said the claimant might face difficulty in demonstrating that the work is substantive or, where the hyperlink consists of diverse inputs, in categorising the subject matter. Part 4 acknowledges the significance (electronic) collections and therefore defines a database falling within the Databases Directive.² It then highlights challenges presented by copyright and sui generis right relating to databases concluding that reproducing an identifiable part of author compiled work can infringe copyright and/or sui generis right therein but the same is not true of search engine generated returns. Part 5 concedes that, in practice, subsistence of copyright and/or sui generis right is open to challenge because the part reproduced in a hyperlink may not be substantive, may not easily fit into the category of protected subject matter or lacks ‘substantial investment.’ Nevertheless, it argues that proving infringement in an identifiable part of a web page reproduced in a hyperlink remains the most viable option for indirectly controlling access to the target page, which may itself be unprotected by copyright.