法学研究

文章摘要

许可权抑或禁止权：广播组织权的权能研究

Right to Authorize or Right to Prohibit: Study on the Content of a Broadcasting Organization’s Right

DOI：

英文关键词: broadcasting organization’s right; right to authorize; right to prohibit; right of making available

基金项目:

作者	单位
王迁

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中文摘要:

将著作权法中广播组织“有权禁止”的规定解释为广播组织权无许可权能的“防止侵害他人权利说”和“遵从国际条约说”均不能成立。前者不能说明为什么其他邻接权及演绎作品的著作权中均含许可权能，后者未能理解国际条约中“有权许可”“有权许可或禁止”“禁止”“有权禁止”等用语的法律效果。TRIPs协定保护广播组织的条款使用“有权禁止”，是指世界贸易组织成员可以不为广播组织规定财产性民事权利，但至少应规定民事救济。广播组织权在著作权法中被规定为财产性民事权利，应当被解释为具有许可权能。将广播组织的信息网络传播权限定在广播组织自己制作的节目上，虽然会出现权利重叠现象，但可有效解决保护具有许可权能的广播组织信息网络传播权所导致的正当性问题。

英文摘要:

There are two theories that support the interpretation of “the right to prohibit” of a broadcasting organization in Chinese Copyright Law as meaning that it does not have “the right to authorize”, namely “the theory of preventing infringement on other people’s rights” and “the theory of complying with international treaties”, and neither of them is tenable: the former cannot explain why other neighboring rights, as well as the right to derivative work, contain “the right to authorize”, while the latter fails to understand the legal effects of the terms “the right to authorize”, “the right to authorize or prohibit”, “prohibit” and “the right to prohibit” in international treaties. “The right to prohibit” used in the TRIPS Agreement on the protection of broadcasting organizations means that WTO members are allowed not to provide for the property rights of broadcasting organizations, but they should at least provide for related civil remedies. The right of a broadcasting organization, which is defined as a property right in Chinese Copyright Law, should be interpreted as containing “the right to authorize”. In addition, the scope of the right of making broadcasting available enjoyed by a broadcasting organization should be limited to the programs produced by the broadcasting organization itself. Such an interpretation may lead to the overlap of rights, but it can effectively solve the legitimacy problems caused by the protection of the broadcasting organization’s right of making broadcast available that contains “the right to authorize”.

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