学术剽窃和法律内外的对策

尽管剽窃与学术诚信相对立,但是,两者又从不同的方向折射出学者个人、学术群体和制度之间的紧张关系。在一定程度,遏制剽窃的力量的来自我们对问题本身的认识和言说,诸如:什么是剽窃?作者为什么要归认来源?版权法、侵权法和学术纪律在遏制剽窃过程中分别和共同担当什么样的角色?本文试图在国内外现有的研究的基础上,以中国实情为主要关注,探讨上述问题。     

电视节目保护方式的有效性论证

电视节目之间的抄袭已成为一种社会现象,需要法律在其保护方式上予以回应。如果将电视节目模板视为作品,由模板到节目既不是著作权法上的复制,又不符合演绎忠于原作的义理,所以保护模板并非保护电视节目的有效方式。如果将电视节目视为试听作品,由于节目使用不同主题人物和主持人即可呈现不同的试听效果,所以依据著作权侵权三步法和第三方测试都很难阻碍电视节目之间的抄袭和题材雷同。即使寻求反不正当竞争保护,其为电视节目提供的庇护也非常有限。新鲜性和即时性是电视节目的灵魂,除雷同和剽窃者外,应允许电视节目之间相互学习和模仿。     

Paying the piper

The results of our assessments, apart from providing us with an assurance of the quality of our own provision, make representations to employers and other organisations that rely on our results. If universities are to continue to use essay-based coursework as a basis of assessment, we have to have confidence in it. The ease with which students can compile essays from Internet-based sources is a known and probably growing problem. Knowing of its existence, as professionals we are surely under an obligation to employ the best available techniques to counter it. In any event, it would send an unfortunate message to the world if, being aware of plagiarism possibilities, we have methods to counter them but choose not to use them. The only reasonable interpretation would be that we were condoning it. In principle, at least, the Internet can be used to conquer plagiarism, at least as successfully as, up to now, it has facilitated it. But using the Internet to fight a problem exacerbated by the Internet raises issues of both a legal and pedagogical nature. It is these issues which are examined in this article.     

Plagiarism litigation trends in the USA and Australia

In this article we explore the increasing complexity of plagiarism litigation in the USA and Australia. Plagiarism has always been a serious academic issue and academic staff and students have wrestled with its definition and appropriate penalties for some time. However, the advent of the Internet and more freely accessible information resources, along with busy lives and pressures to succeed, may be leading to more frequent incidents of plagiarism. Alternatively, the same information resources and software packages may mean that we are now more able to identify when plagiarism occurs. The following discussion explores not just the traditional issues that have arisen with respect to plagiarism, but also the extended contexts in which plagiarism discussion is taking place in courtrooms, not university staffrooms. We consider issues in common in the two nations, as well as the wider academic community, and distinctive areas of litigation that have arisen in the USA and Australia.     

论音乐作品的著作权保护

音乐作品是整个著作权作品体系中十分重要的组成部分,保护音乐作品著作权反映了我国著作权法律制度的发展水平。随着网络技术的飞速发展,音乐作品在国际范围内的交流日益加深,我国的法律制度也应该与国际接轨,因而在音乐作品的保护上建立和完善著作权限制制度和著作权集体管理制度是必然的趋势。本文首先分析了音乐作品的表演权、广播权以及网络传播权三项重要的音乐作品财产权,进而对音乐作品著作权受到侵害的情形进行分析,并提出对策建议,即完善著作权权利限制制度、著作权集体管理制度以及互联网管理制度。     

论汉语诗歌的内在音乐境界

诗歌语言是一种音乐化语言,但诗歌不能等同于韵语。诗歌的音乐形式既是其外部声音特征,也是其内在规定,节奏、韵律仅是其本质的外在显现。音乐和诗歌都是时间艺术,其共同逻辑起点是人对于世界的时间化感知。时间是内省形式,因而不可言说,但可通过时间对象——意象得以揭示。只有当诗歌语言被用于呈现生命时间本身,诗歌才达到旋律的境界,声韵一变而为神韵。动态意象成就了诗歌的内在节奏,它使得体验者当下的时间音乐化了。律化时间片断的延续构成了生命过程本身,由此抵达诗歌的内在旋律。动态意象所形成的内在节奏与声音节奏统一,内在旋律也与声调之曲折相呼应。如此,诗、音乐、思共在。     

Hermes: God of Thieves. Plagiarism in Twentieth Century Literature

The question of imitation moves from an open and obvious phase, the phase of Classicism, during which the models from antiquity were imitated with pride and with a conscious desire to set fixed and codified models for compositions, following norms for distinction in well-defined genres, to the period of Romanticism, during which the concept of the work's uniqueness predominated, and the work was seen as the link between God and the world. During the twentieth century the attitude towards plagiarism changed again: in our century the question of artistic originality becomes anxiety-provoking and the relationship with tradition becomes competitive. The heavy weight of tradition creates in the writer a desire to exorcise in some way the fear of the death of creative originality and gives rise to the playful, demystifying re-presentation of previous works, in an attempt to desecrate genres and precursors, re-creating them overtly and covertly at the same time. Thus plagiarism transforms itself into a new creative force, in which tradition is no longer imitated in a subservient, nor a reverential fashion, nor in the sense of the subdivision of pre-established genres. Plagiarism becomes instead a challenge on the same grounds of the canonical authors, demonstrating in this manner a strong capacity to capture the essence of the author's own language (a link to the new emphasis on the act of reading). This revised version was published online in July 2006 with corrections to the Cover Date.     

Part one: Turnitin and the perils of entering the evil house of cheat at cheathouse.com

Abstract

Plagiarism is one of the most serious offences in the academic world. It has occurred as long as there have been teachers and students, but the recent growth of the Internet has made the problem much worse. Recent studies indicate that approximately 30% of all students may be plagiarising on every written assignment they complete. The “information technology revolution” is almost always presented as having cataclysmic consequences for education. In post‐secondary circles, perhaps the most commonly apprehended cataclysm is “Internet plagiarism”. Academics at all British universities and colleges can now test students’ work for cheating using the anti‐plagiarism program Turnitin. The program, run by the Joint Information Systems Committee and thought to be the first national system of its kind, offers free advice and a plagiarism detection service to all further education institutions in the UK. This article will try to: first, define exactly what plagiarism is; second, give examples and reports on samples of the new plagiarism detection software; and finally suggest strategies that lecturers can use before turning to the new software.     

On the economics of plagiarism

Cheating and plagiarism can involve the transgression of intellectual property rights across many areas of life. When a direct financial benefit from such practices is identifiable, the opportunity to seek legal redress is available via civil court action. When it is undertaken by a public official it may constitute malfeasance. Yet in the case of breaches of university regulations (from the growing number of student cheating and plagiarism incidents) subsequent legal intervention may be characterised by situations where the university is the defendant and the alleged plagiarist is the plaintiff (seeking compensation for interrupted study and/or tarnished reputation). University defences can flounder around the issue of proving intent to deceive. What can they do to try to prevent such occurrences? This paper uses economic analysis to examine such issues. Economic models of plagiarism motivated primarily by (i) time-saving and (ii) dishonesty are developed to help frame the discussion. Both model approaches overlap in their implications, namely, ensuring that sufficient resources are devoted to monitoring coursework (to increase the probability that cheating and plagiarism are detected) and of providing sufficiently clear and severe institutional penalties (to counter-balance any expected benefits that the student may perceive to be available from cheating and plagiarism). Policy proposals are raised for further debate and consideration.     

Permissible plagiarism? Navigating normative expectations in the pre- and post-admission landscape

Plagiarism in the context of the law is a highly nuanced and complex concept, involving consideration of academic integrity and disciplinary rules and assessments of intent, which colour the responses of both universities and courts when confronted by the misuse of others’ words and ideas without appropriate referencing. Within academia, plagiarism is treated as ‘a capital offence’. In the context of admission as a lawyer, professional admissions boards in Australia use findings of major plagiarism at university as a reason for denying or delaying admission to practice on two grounds: firstly, if it amounts to cheating per se, as being indicative of a character flaw inconsistent with the character requirements of officers of the court; and secondly on the related basis that it is (or is assumed to be) a reliable predictor of future professional misconduct. Given this, Australian universities must educate students about academic integrity and referencing (particularly in the digital age, where sources and opportunities for misconduct are escalating), provide law students with training and practice in appropriate use of others’ material, and provide relevant information to students about the implications of findings of misconduct being made against them. This is important because, while there is a widespread perception that plagiarism ceases to be a consideration after admission as a lawyer, this is not supported by the decided cases.     

论债权之罹于时效与担保物权之存续

关于担保物权在被担保的债权罹于诉讼时效后的法律地位,有不同的立法例。基于诉讼时效的立法宗旨,以及我国担保物权以担保债权实现为功能,在我国,应确立如下改革方向:债权罹于诉讼时效时,担保该债权的担保物权应仍然存续,且其效力不受任何影响;关于质权和留置权,应明确规定,被担保的债权消灭之前,质权或留置权不消灭;关于抵押权,应以除斥期间限制其存续期间。     

The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content

We address fundamental questions about the ability of interest groups to shape public policy by examining the influence of amicus curiae briefs on U.S. Supreme Court majority opinion content. We argue that the justices will incorporate language from amicus briefs into their opinions based on the extent to which the amicus briefs contribute to their ability to make effective law and policy. Using plagiarism detection software and other forms of computer assisted content analysis, we find that the justices adopt language from amicus briefs based primarily on the quality of the brief's argument, the level of repetition in the brief, the ideological position advocated in the brief, and the identity of the amicus. These results add fresh insight into how interest groups influence the development of federal law by the Supreme Court.     

Together!

Sympathy, attention, anxiety, curiosity, and alas, even malicious pleasure can be seen in the eyes from various parts of the world focused on the Chernobyl Atomic Electric-Power Plant [AEPP]. Our friends are alarmed and share our misfortune. Our enemies try to amuse themselves with the hope that things will turn out badly for us. Everyone is interested in knowing why and how it happened. To be sure, this interest is also variously motivated. While specialists are trying to determine the technical causes of the accident, those alien to us in spirit and conviction are feverishly searching for an explanation not only (and not so much) for what happened as for what is happening: their hopes are being dashed, their predictions are falling apart at the seams-catastrophe was averted, a tornado of panic did not sweep our people away nor empty our cities. And Chernobyl itself, as reported from the epicenter of events by Valentina Mikhailovna Kalinchenko, a courageous woman who never left her post at the AEPP headquarters from the very first days, our Chernobyl is alive, is working, is functioning, and even smiles at the sun.     

UPOV1991实质性派生品种保护规则及启示

实质性派生品种保护规则是UPOV1991新规定的内容之一,也是UPOV1991应对生物育种技术发展的一项有力措施。通过实质性派生品种保护规则,UPOV1991将品种权保护范围延伸至受保护品种的实质性派生品种,既强化了对原始品种育种者利益的保护,减少了植物育种创新剽窃的发生,也实现了原始品种权人与实质性派生品种权人的利益平衡。研究实质性派生品种保护规则,对于中国决定何时加入UPOV1991,如何在生物育种技术背景下激励育种创新能力的提高,确保中国种业的可持续发展具有十分重要的现实意义。     

‘Me and My Drank:’ Exploring the Relationship Between Musical Preferences and Purple Drank Experimentation

“Purple drank” is a label typically applied to mixtures of codeine cough syrup with soda, although it has also been applied to mixtures of over-the-counter cough syrups and alcohol. This novel drug formulation was first popularized in the Houston, Texas rap music scene in the 1990’s, and since then references to purple drank have become common in rap and hip-hop songs, but remained virtually absent in other musical genres. Prior research has found that musical preferences can have an influence on choice and frequency of drug use. The goal of the present study is to examine the relationship between musical preferences and experimentation with purple drank. Self-reported information about musical preferences, substance use, and demographic characteristics were collected from 2,349 students at a large university in the southeastern United States. An analysis of lifetime purple drank and other drug use by musical preferences reveals that those who prefer rap/hip-hop music and rock/alternative have the highest risk for reporting purple drank use. Further, this relationship far exceeds the associations between musical preferences and other drugs. Results from logistic regression analyses indicate males, other drug users, and those that prefer rap/hip-hop music have a significantly higher likelihood of using purple drank.     

论学前儿童音乐审美经验的建构

学前儿童具有先天的音乐能力。这是人类音乐性的体现,是人类的一种生存本能和由音乐经验积淀而形成的集体无意识。以此为前提,学前儿童能够通过与音乐作品的互动来建构审美经验。从感知到音乐文本的存在开始,学前儿童以一种主动的态度去理解、阐释音乐,并将所获得的音乐体验内化、再建构,从而形成对某一作品的我自己的审美经验。其后,学前儿童将此经验迁移以形成良好的音乐审美判断和鉴赏能力。在这一过程中,听觉与动觉的相互转换占主导地位。学前儿童音乐审美经验的建构是存在于幼儿、作曲家、社会之间的一种多重交互行为,其结果是建立一种共享体验。     

和谐与利益

现代社会不仅是一个伦理共同体,同时更是一个利益共同体。利益在分化基础上形成多元结构,而多元结构的稳定性恰恰在于不同社会群体的利益均衡性,这种均衡性的实现,关键在于实现权利资源的平等分配。只有利益分配公正,多元利益得以协调共存,才能为实现和谐社会奠定基础。然而,我国社会现存的贫富悬殊、失业率高、三农问题、腐败、教育不公、社会保障体系缺位等问题表明:利益协调机制并未完善,弱势群体利益依然被忽视和剥削,致使社会利益分配格局失衡,成为社会不和谐的潜在威胁。因此,必须通过加强立法工作,提高弱势群体生存和发展的保障力;通过建立利益表达的制度化途径,完善社会分配机制、司法救助制度和社会保障体系,强化“社会安全阀”,保护弱势群体合法权益;通过完善监督体系,提供反腐败效果等措施,维护利益分配的公正性,实现利益的协调和共存,以更好地构建和谐社会。     

Lovely Beasts,Bestial Lovers: Animals,Righteous Men and the Semiotics of Musical Mirrors

In Aesop’s narrative world, metaphorical representations were apparently used to point out human flaws by attributing those to beasts, while anthropomorphic animals were actually able to disclose how bestial mankind is. In mediaeval bestiaries the same animal may carry multiple meanings, depending on what particular aspect of it is being highlighted and on its relationship with the other animals appearing in the same context. Even music forces to a continuous re-structuring of sounds in configurations which change depending on context, and which determine the conditions for a process of meaning-making based on both internal and external systems of relations. Thus, there seems to be a perfect analogy between the language of the bestiaries and that of music, and a commonality in how both bestiaries and music bestow on Nature its role as locus of truth. But how does musical rhetoric intervene in the effective construction of similarities, of metaphors and allegories that condense or articulate a narrative transformation through the organised conjunction of different animal figures? Throughout an analytic journey from mediaeval Italian musical bestiaries to erotic madrigals, from the intriguing fashion of musical “portraits” to the French late baroque representation of savages, this essay investigates the semiotic device of music as an ironic reversing mirror, which points out alterity and reveals the true bestial nature of mankind.