試論廣告語征集的合同性質(zhì)及其作品著作權(quán)
發(fā)布時間：2019-06-19 05:23
【摘要】：科技的發(fā)展、社會的進(jìn)步和新媒體的崛起,促進(jìn)了廣告產(chǎn)業(yè)的發(fā)展和繁榮,廣告設(shè)計愈加色彩斑斕、精彩紛呈。與此同時,廣告語也已成為吸引受眾、傳達(dá)理念、成功營銷甚至是樹立品牌形象的關(guān)鍵。因此,很多企業(yè)不惜重金征集廣告語,甚至有些公益廣告語也走向集思廣益之路。 廣告語征集包括內(nèi)部征集和外部征集兩種。內(nèi)部征集是指在企業(yè)內(nèi)部發(fā)布通知或以開會布置任務(wù)的形式征集本企業(yè)員工的好想法和新創(chuàng)意并應(yīng)用于廣告設(shè)計之中;外部征集即向社會大眾公開征集的行為。本文不考慮與企業(yè)有勞動關(guān)系的職工利用本企業(yè)的物質(zhì)條件、資金、材料或設(shè)備進(jìn)行創(chuàng)作的情況,而把研究對象瞄準(zhǔn)在外部征集廣告語的相關(guān)法律問題上。 本文以征集廣告語為切入點,首先討論征集廣告語行為的性質(zhì),對發(fā)布征集啟事和以寄交作品的形式應(yīng)征等行為作合同法上的分析,得出以上行為分別屬于要約和承諾的結(jié)論,即以征集啟事的形式成立了委托創(chuàng)作合同,該合同的性質(zhì)是委托合同;其次,結(jié)合作品的特征和構(gòu)成要件,特別是作品的獨創(chuàng)性要求,對比征集廣告語的各種類別和表現(xiàn)形式,確認(rèn)一部分有創(chuàng)作高度的征集廣告語可以成為文字作品;再次,針對委托合同產(chǎn)生了委托作品的事實,結(jié)合我國著作權(quán)法第17條的規(guī)定,闡述和論證了國內(nèi)外的理論和立法,并結(jié)合我國基本國情和司法實踐現(xiàn)狀,就委托作品的歸屬問題進(jìn)行探討,以及對雙方當(dāng)事人并無約定之時的權(quán)利分配方案進(jìn)行討論、分析,以期實現(xiàn)征集方和應(yīng)征方的權(quán)利最大化;最后,在論證了著作人身權(quán)不可轉(zhuǎn)讓之后,對署名權(quán)、修改權(quán)和保護(hù)作品完整權(quán)、發(fā)表權(quán)等著作人身權(quán)以及與征集廣告語相關(guān)的著作財產(chǎn)權(quán)的使用和利用情況進(jìn)行逐項分析,為實踐應(yīng)用提供參考。 由于我國知識產(chǎn)權(quán)的理論引進(jìn)和立法都比較滯后,人民群眾的知識產(chǎn)權(quán)保護(hù)意識尚未很好樹立,進(jìn)而造成了實際應(yīng)用中的各種權(quán)利沖突,相關(guān)著作權(quán)糾紛逐年上升。面對市場經(jīng)濟(jì)推進(jìn)大潮中層出不窮的新情況和新矛盾,惟有腳踏實地加強(qiáng)理論研究、跟進(jìn)實務(wù)操作,以尋求法律和現(xiàn)實之間的平衡點。
[Abstract]:The development of science and technology, the progress of society and the rise of new media have promoted the development and prosperity of advertising industry, and advertising design has become more colorful and colorful. At the same time, advertising language has become the key to attract audiences, convey ideas, successful marketing and even establish brand image. Therefore, many enterprises do not hesitate to collect advertising language, and even some public service advertising language is also on the road of brainstorming. Advertising language solicitation includes internal solicitation and external solicitation. Internal solicitation refers to the behavior of soliciting good ideas and new ideas of employees in the form of meeting assignment in the form of issuing notices within the enterprise and applying them to advertising design; external solicitation is the behavior of soliciting openly to the public. This paper does not consider the situation that employees with labor relations make use of the material conditions, funds, materials or equipment of the enterprise to create, but aims at the legal issues related to the external solicitation of advertising language. This paper takes the solicitation advertising language as the starting point, first discusses the nature of the solicitation advertising language behavior, makes the contract law analysis of the issuing solicitation notice and the application in the form of sending in the work, and draws the conclusion that the above behavior belongs to the offer and the acceptance respectively, that is, the entrustment creation contract has been established in the form of solicitation notice, and the nature of the contract is the entrustment contract. Secondly, combined with the characteristics and constituent elements of the work, especially the original requirements of the work, compared with the various categories and forms of expression of the solicitation advertising language, it is confirmed that some of the solicitation advertising language can become written works. Thirdly, in view of the fact that the entrustment contract has produced the entrusted works, combined with the provisions of Article 17 of the copyright Law of our country, this paper expounds and demonstrates the theories and legislation at home and abroad, and probes into the ownership of the entrusted works according to the basic national conditions of our country and the present situation of judicial practice, and discusses and analyzes the distribution scheme of the rights when there is no agreement between the two parties, so as to realize the maximization of the rights of the solicitors and the requisitioners. Finally, after demonstrating the non-transferability of the personal right of the author, this paper analyzes the personal rights of the works, such as the right to sign, the right to modify, the right to protect the integrity of the work, the right to publish, as well as the use and utilization of the property rights of the works related to the collection of advertising language, so as to provide a reference for practical application. Due to the lag of the theoretical introduction and legislation of intellectual property rights in our country, the awareness of intellectual property protection of the people has not yet been well established, which has resulted in all kinds of rights conflicts in practical application, and the related copyright disputes have increased year by year. In the face of the endless new situation and new contradictions in the tide of market economy, we can only step up theoretical research and follow up the practical operation in order to find the balance between law and reality.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D923
[Abstract]:The development of science and technology, the progress of society and the rise of new media have promoted the development and prosperity of advertising industry, and advertising design has become more colorful and colorful. At the same time, advertising language has become the key to attract audiences, convey ideas, successful marketing and even establish brand image. Therefore, many enterprises do not hesitate to collect advertising language, and even some public service advertising language is also on the road of brainstorming. Advertising language solicitation includes internal solicitation and external solicitation. Internal solicitation refers to the behavior of soliciting good ideas and new ideas of employees in the form of meeting assignment in the form of issuing notices within the enterprise and applying them to advertising design; external solicitation is the behavior of soliciting openly to the public. This paper does not consider the situation that employees with labor relations make use of the material conditions, funds, materials or equipment of the enterprise to create, but aims at the legal issues related to the external solicitation of advertising language. This paper takes the solicitation advertising language as the starting point, first discusses the nature of the solicitation advertising language behavior, makes the contract law analysis of the issuing solicitation notice and the application in the form of sending in the work, and draws the conclusion that the above behavior belongs to the offer and the acceptance respectively, that is, the entrustment creation contract has been established in the form of solicitation notice, and the nature of the contract is the entrustment contract. Secondly, combined with the characteristics and constituent elements of the work, especially the original requirements of the work, compared with the various categories and forms of expression of the solicitation advertising language, it is confirmed that some of the solicitation advertising language can become written works. Thirdly, in view of the fact that the entrustment contract has produced the entrusted works, combined with the provisions of Article 17 of the copyright Law of our country, this paper expounds and demonstrates the theories and legislation at home and abroad, and probes into the ownership of the entrusted works according to the basic national conditions of our country and the present situation of judicial practice, and discusses and analyzes the distribution scheme of the rights when there is no agreement between the two parties, so as to realize the maximization of the rights of the solicitors and the requisitioners. Finally, after demonstrating the non-transferability of the personal right of the author, this paper analyzes the personal rights of the works, such as the right to sign, the right to modify, the right to protect the integrity of the work, the right to publish, as well as the use and utilization of the property rights of the works related to the collection of advertising language, so as to provide a reference for practical application. Due to the lag of the theoretical introduction and legislation of intellectual property rights in our country, the awareness of intellectual property protection of the people has not yet been well established, which has resulted in all kinds of rights conflicts in practical application, and the related copyright disputes have increased year by year. In the face of the endless new situation and new contradictions in the tide of market economy, we can only step up theoretical research and follow up the practical operation in order to find the balance between law and reality.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2011
【分類號】：D923
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2 ;著作權(quán)的概念[J];中國現(xiàn)代醫(yī)藥雜志;2011年08期
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