浅析软件授权合同与著作权保护之关系

一、引言 随着第三次科技革命的深入,人类的生存方式产生 了巨大的变化。数字技术和网络相结合使作品的 传播具有了不同以往的特征,使作品可以被无限 次数地重复制作与传播,而且复制品传输的速度非常快。     

CONTU revisited: the case against copyright protection for computer programs in machine-readable form

Professor Samuelson casts a critical eye on the Final Report of the National Commission on New Technological Uses of Copyrighted Works (CONTU) which recommended that copyright protection be extended to machine-readable versions of computer programs. CONTU appears to have misunderstood computer technology and misinterpreted copyright tradition in two significant respects. The Commission failed to take into account the historical importance of disclosure of the contents of protected works as a fundamental goal of both the copyright and patent laws. It also erroneously opined that the utilitarian character of a work was no bar to its copyrightability when both the statute and the case law make clear that utilitarian works are not copyrightable. Since computer programs in machine-readable forms do not disclose their contents and are inherently utilitarian, copyright protection for them is inappropriate. Congress acted on CONTU's recommendation without understanding the significance of these conceptual flaws. Professor Samuelson recommends the creation of a new form of intellectual property law specifically designed for machine-readable programs.     

计算机软件专利保护法律问题研究

一、问题的提出 从有关司法判例和趋势来看,美国联邦最高法院于1999年1月维持了联邦巡回上诉法院联邦巡回庭(C.A.F.C.--U.S.Court of Appeals for the Federal Circuit)关于州街信托银行诉签记金融集团案件(State Street Bank＆Trust Co.v.Signature Financial Group,Inc.)对轴辅金融服务咨询配置处理系统(DataProcessing System for Hub and Spoke Financial Service Configuration)判决受专利保护.     

Part II of David Bainbridge's study of the copyright (computer software) amendment act 1985

The considerable amount of piracy of computer programs which has taken place recently has shaken the software industry's confidence in legal methods of protecting their products. If nothing more, the new Act should restore some of this confidence, but the industry must be prepared to take the legal measures now available. The stronger criminal sanctions provided for by section 3 of the Act emphasise the criminality of software piracy and it is hoped that the police will also begin to take software theft seriously. But there are some grey areas in copyright law as amended by the new Act; the precise scope of ‘material form’ and ‘adaptation’ are unclear - will the making of a duplicate of a program stored on magnetic cassette tape infringe copyright? A wide definition of ‘material form’ could have put protection beyond doubt whilst allowing for future developments in computer storage media. The new Act is seen as an interim measure pending a comprehensive review of copyright law (per Lord) Lucas of Chilworth, Hansard House of Lords, 10 May 1985 p. 873; he said that the Government hoped to bring forward a comprehensive Copyright Bill no later than the 1986/7 session). Furthermore, the whole area of computer storage of more traditional works of copyright such as literary and musical works, is not specifically mentioned in the new Act. Other questions such as the ownership of works including computer programs produced by or with the aid of a programmed grammed computer (first identified as being a likely problem as early as 1977 by the Whitford Committee) are not dealt with all by the Act. Lord Macmilland of Ovenden recently called for new legislation to deal with the copyright problems caused by new technology (The Times 18th September 1985 p.3), and it is hoped that full consideration will be given to the effect of computers on all forms of intellectual property when copyright law is rationalised and re-codified.     

加大著作权犯罪惩治力度的思考

著作权是知识产权的重要组成部分。中国加入WTO,履行TRIPS协议,意味着要对著作权进行更为广泛的保护。反映在刑事法领域,应降低刑事起诉门槛,划定更大的犯罪圈,以加大对著作权犯罪的惩治力度。由于我国刑法对著作权犯罪规定的罪名较少,适用的范围相对较窄,客观上限制了对著作权犯罪的打击,难以适应保护著作权的需要,为此,需要时刑法进行相应的完善。     

文化产品、版权保护与贸易规则

Cultural products are commodities with cultural contents, which are neither equivalent to cultural relics nor ordinary articles. Such dual natures bring forth divergences in trade policy, mandating the generality and particularity of trade rules. The WTO rules lay more emphases on free trade while the United Nations Educational, Scientific and Cultural Organization put more stress on the free exchange and diversity of cultures. Nations enjoy cultural sovereignty over their cultural policies and administrative measures. The rules of intellectual property rights also influence trade in cultural products. To develop trade in cultural products, science and technologies shall be employed to create diversified and competitive products of distinct cultural values. Han Liyu, Ph.D, is an associate professor of law, and director of International Law Teaching and Research at Renmin University of China, Vice Secretary-General of WTO Section in China Law Society, and member of China’s International Economic Law Society. Mr. Han teaches and does research on international economic law and WTO law, publishing several monographs and articles on the US trade law and the WTO law. For many times, Mr. Han did research as visiting scholar in American universities and UNIDROIT. Mr. Han got a post-graduate diploma in Common Law from Hong Kong University.     

谈广告作品版权的保护问题——由一起广告作品侵权案例引发的争议说起

自我国广告市场重开以来,我国广告业以年平均40％以上的递增率持续增长,如今广告是知名度最高、出现最频繁的经济现象之一;无论是企业家,还是消费者,抑或是广告人、广告传媒,都需要和离不开广告。然而,在广告业取得长足发展的同时,由广告作品引发的侵权纠纷也渐渐多了起来。本文试图就一起广告作品侵权案例谈谈广告作品的法律保护问题,以期为广告市场的健康     

Digital watermarking as a form of copyright protection

This article assesses the advance of digital water-marking as a form of rights management in the protection and authentication of digital images, audio and video files.     

South African Supreme Court rules on copyright in software and computer-generated works

The South African Supreme Court of Appeal considers a numberof fundamental issues concerning copyright protection of computerprograms and computer-generated works; in doing so, the courtanalyses a number of basic copyright principles, notably themeaning of originality and the meaning of ‘substantialtaking’ in infringement cases.     

MP3技术与网络环境下音乐著作权之保护

随着以数字技术为核心的信息化技术的迅速发展,互联网在带来巨大效益和便利的同时,也衍生出许多新的法律问题。自1999年起,网上录音制品的使用,尤其是以MP3格式为代表的使用方式愈演愈烈。很多网站对MP3格式的录音制品进行收集、整理,并收集国内外歌曲的网址,提供链接,网友通过网站聆听或下载MP3。上述提供链接服务的行为引发了很多纠纷。MP3现象对传统版权国际保护的主流原则及其价值取向提出挑战,现实世界的保护制度是否同样在虚拟世界里适用?音乐制品版权人、MP3在线提供商与社会公众间如何达到利益平衡?科技进步对著作权保护带来的挑战与冲突并存,如何看待MP3法律争讼对音乐著作权法律保护制度的影响,这是本文思考的主要问题。     

Fair use and copyright protection: a price theory explanation

Copyright scholars suggest that computer technology has reduced transaction costs associated with copyright transfer, allegedly eliminating the need for the fair-use doctrines that were developed to allow limited use of copyrighted material in situations where the transaction costs of securing authorized use would be prohibitive. According to this emerging view, in an ideal world with no contracting costs, third party use of copyrighted material could realistically only take place with the express consent of the copyright holder. This would give the author absolute power to dispose of his work, including the right to veto uses, without the possibility of a fair use “override” of any sort.This paper shows the limits of such transaction cost-based arguments. If transaction costs provide the dominant economic justification of “fair-use” doctrines, an exogenous reduction of such transaction costs would limit the scope and application of the defense of fair use. Nevertheless, in this paper we suggest that, when viewed in light of the anticommons theory, fair-use doctrines retain a valid efficiency justification even in a zero transaction-cost environment. Fair-use defenses are justifiable, and in fact instrumental, in minimizing the welfare losses prompted by the strategic behavior of the copyright holders. Even if copyright licenses can be transferred at no cost (for instance, in a “click and pay” frictionless computer world), the strategic behavior of the copyright holders would still create possible deadweight losses.In this context, we identify a number of critical variables that should guide and constrain the application of fair-use doctrines. These variables include (a) the number of copyright holders; (b) the degree of complementarity between the copyrighted inputs; (c) the degree of independence between the various copyright holders in the pricing of their licenses; and (d) ability to price discriminate.