試論我國保護作品完整權(quán)的侵權(quán)判定標(biāo)準(zhǔn)——從《九層妖塔》案說開去
發(fā)布時間：2018-08-22 11:55
【摘要】：保護作品完整權(quán)是指消極控制他人歪曲、篡改作品的改動行為。實踐中對于"歪曲""篡改"存在兩種判斷侵權(quán)標(biāo)準(zhǔn):存在違背作者原意(主觀標(biāo)準(zhǔn))與損害作者聲譽(客觀標(biāo)準(zhǔn))。何種程度的改動才是"歪曲、篡改",應(yīng)回歸保護作品完整權(quán)的功能進行理解。保護作品完整權(quán)的功能在于維護作者人格利益,即保持作者思想與作品表達(dá)的同一性。就客觀標(biāo)準(zhǔn)而言,"歪曲"、"篡改"是指改變作者思想與作品表達(dá)的同一性,其有可能會造成公眾對作品是否為作者創(chuàng)作的誤解,但并不一定會造成作者聲譽損害,故不應(yīng)以損害作者聲譽為要件。主觀標(biāo)準(zhǔn)也更適用于作品未發(fā)表狀態(tài)下的侵權(quán)判斷。兩種標(biāo)準(zhǔn)本質(zhì)上都因破壞作者思想與作品表達(dá)的同一性而引起。故而,我國的歪曲、篡改之內(nèi)涵應(yīng)采取同一性標(biāo)準(zhǔn),只要違背作者原意即可能侵犯了保護作品完整權(quán)。
[Abstract]:The right to protect the integrity of the work refers to the negative control of others to distort and tamper with the alteration of the work. In practice, there are two kinds of criteria for judging infringement of "distortion" and "tampering": violating the author's original intention (subjective standard) and damaging the author's reputation (objective criterion). The degree of alteration is "distortion, tampering", which should be understood by the function of protecting the right to complete works. The function of protecting the right to the integrity of a work is to safeguard the interests of the author's personality, that is, to maintain the identity of the author's thought and the expression of the work. In terms of objective criteria, "distortion" and "tampering" refer to changes in the identity of the author's ideas and the expression of the work, which may cause public misunderstanding as to whether the work is created by the author, but it does not necessarily cause damage to the author's reputation. Therefore, the author's reputation should not be damaged. Subjective criteria are also more applicable to the judgment of infringement in the state of unpublished works. Both standards are essentially caused by the destruction of the identity of the author's thought and the expression of his work. Therefore, the connotation of distortion and tampering in our country should adopt the criterion of identity, as long as it violates the author's original intention, it may infringe the right to protect the integrity of the work.
【作者單位】： 華東政法大學(xué)知識產(chǎn)權(quán)學(xué)院;
【分類號】：D923.41
，
本文編號：2197026
[Abstract]:The right to protect the integrity of the work refers to the negative control of others to distort and tamper with the alteration of the work. In practice, there are two kinds of criteria for judging infringement of "distortion" and "tampering": violating the author's original intention (subjective standard) and damaging the author's reputation (objective criterion). The degree of alteration is "distortion, tampering", which should be understood by the function of protecting the right to complete works. The function of protecting the right to the integrity of a work is to safeguard the interests of the author's personality, that is, to maintain the identity of the author's thought and the expression of the work. In terms of objective criteria, "distortion" and "tampering" refer to changes in the identity of the author's ideas and the expression of the work, which may cause public misunderstanding as to whether the work is created by the author, but it does not necessarily cause damage to the author's reputation. Therefore, the author's reputation should not be damaged. Subjective criteria are also more applicable to the judgment of infringement in the state of unpublished works. Both standards are essentially caused by the destruction of the identity of the author's thought and the expression of his work. Therefore, the connotation of distortion and tampering in our country should adopt the criterion of identity, as long as it violates the author's original intention, it may infringe the right to protect the integrity of the work.
【作者單位】： 華東政法大學(xué)知識產(chǎn)權(quán)學(xué)院;
【分類號】：D923.41
，
本文編號：2197026
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