雇佣关系与法人作品构成要件

创作社会化要求更精确的非个人作品权属规则。现有法人作品研究重视其与职务作品的区分,轻视其与委托作品的区分,忽略了雇佣关系对作品归属的决定性影响。将非雇佣作品判定为法人作品的司法实践违背了产权原则,不符合对法人作品和委托作品的文义解释和体系解释,与比较法经验不符,同时存在法政策缺陷。所以法人作品必须以雇佣关系为要件,非基于雇佣关系产生的非个人作品是委托作品。

Employment Relationship and the Constituent Element of Works Made for Hire

Creation of works in modern society is becoming more and more impersonal,which explains the necessity of more detailed rules regarding the ownership of impersonal works. Some courts held that works which are not created in the course of employment was considered to be those made for hire. Such practice is not accorded with the proper allocation of ownership of works,deviates from well-established comparative law experiences,and raises policy concerns. This article proposes a bright line rule that unless agreed upon,works which are not created in the course of employment shall not be categorized as those made for hire.