论视为作者原则--以中美两起著作权纠纷案为视角

1986年在美国发生的"美国的第三世界"版权纠纷案和1995年发生在我国的十世班禅大师灵塔案的涉案作品,均为雕塑作品,均是在委托关系下创作完成的,美国初审法院和中国二审法院均将委托关系认定为雇佣关系,并且均适用了视为作者原则。但中美两案的最终结局却大相径庭。1989年美国最高法院在此案终审中申明,委托关系不是雇佣关系,委托作品不是雇佣作品,不适用视为作者原则,遂做出维持二审判决的终审判决,在美国持续了百年之久的委托作品与雇佣作品之争,从此尘埃落定。此终审判决对于移植视为作者原则后深受法人作品与职务作品(雇佣作品)之争困扰的我国法院和正在进行中的著作权法的修订,均有重要的示范意义和参考价值。

The Evolution of Work for Hire Doctrine:In the Perspective of A Comparative Study of Two Similar Chinese and American Cases

The work at issue in CCNV in the United States in 1986 and the work at issue in the case of Banchan Coffin Tower in China in 1995 were both sculptures, the sculptures were both created under commission, and both the American trial court and the Chinese appellate court treated the relationship of commission as the relationship of employment. However, the final outcome of each case varied greatly. In 1989, the Supreme Court of the United States stated clearly in its final judgment, which sustained the judgment of the appellate court, that the relationship of commission was not the relationship of employment and a commissioned work was not a work made for hire to which the work for hire doctrine did not apply. Thus a rest was finally put to the century-longed dispute in the United States over the commissioned work and the work made for hire. This final judgment of the United States Supreme Court is of great exemplary significance and reference merits to the people’s courts which have been perplexed by disputes over commissioned works and works made for hire ever since the reception of the doctrine of work made for hire as well as to the third revision in the process of the Chinese Copyright Act of 1990.