학술논문
디지털 환경에서의 중국 판권 합리적 사용에 대한 보호와 규제
On the Protection and Regulation of Copyright Fair Use Rules in China in the Digital Age
On the Protection and Regulation of Copyright Fair Use Rules in China in the Digital Age
Document Type
Article
Text
Text
Author
Source
중국법연구, 03/31/2024, Vol. 55, p. 255-279
Subject
Language
Korean
ISSN
1738-7051
Abstract
数字化时代媒体深度融合正显著提升作品传播的效能和质量，但也令 版权合理使用规则的适用更为复杂. 版权合理使用的法律属性具有体系统 摄之功用，其与版权保护的演化阶段密切关联. 中国宜采权利限制说，其 民法理论基础在于禁止权利滥用原则，属于能权而非权利，系合法行为. 中国《著作权法》第24条将中国参加并缔结的国际条约对于“三步检验标 准”的规定转化为国内法，应将“三步检验标准”叠加适用于该条列举的特 定情形，以此作为合理使用的识别准则，即“三步检验标准”的后两步是对 特定情形的再限制. 基于合理使用的能权属性，排除合理使用合同条款的 约定宜归为无对价的双方法律行为，即便是双方真实意思，其蕴含的意 思自治利益亦并不足以对抗合理使用保护的社会公共利益，宜在立法论 和解释论上否定该条款的效力.
In the digital age, the deep integration of media is significantly enhancing the efficiency and quality of work dissemination, but it also complicates the application of copyright fair use rules. The legal nature of copyright’s fair use serves the purpose of systematic encapsulation and is closely related to the evolutionary stages of copyright protection. China should adopt the theory of right limitation, grounded in the civil law principle of prohibiting the abuse of rights. This principle represents a legal capability rather than a right, and constitutes a lawful act. Article 24 of the Chinese Copyright Law incorporates the provisions of the “three-step test” from international treaties that China has ratified, and applies these domestically. The “three-step test” should be cumulatively applied to the specific situations enumerated in this article, serving as the identification criterion for fair use. The latter two steps of the “three-step test” further restrict specific circumstances. Given the capability nature of fair use, exclusion of fair use contract terms should be classified as a bilateral legal act without consideration. Even if such terms reflect the true intentions of both parties, the autonomy interests contained therein are insufficient to counterbalance the societal public interest protected by fair use. It is advisable to negate the validity of such clauses in both legislative and interpretative contexts.
In the digital age, the deep integration of media is significantly enhancing the efficiency and quality of work dissemination, but it also complicates the application of copyright fair use rules. The legal nature of copyright’s fair use serves the purpose of systematic encapsulation and is closely related to the evolutionary stages of copyright protection. China should adopt the theory of right limitation, grounded in the civil law principle of prohibiting the abuse of rights. This principle represents a legal capability rather than a right, and constitutes a lawful act. Article 24 of the Chinese Copyright Law incorporates the provisions of the “three-step test” from international treaties that China has ratified, and applies these domestically. The “three-step test” should be cumulatively applied to the specific situations enumerated in this article, serving as the identification criterion for fair use. The latter two steps of the “three-step test” further restrict specific circumstances. Given the capability nature of fair use, exclusion of fair use contract terms should be classified as a bilateral legal act without consideration. Even if such terms reflect the true intentions of both parties, the autonomy interests contained therein are insufficient to counterbalance the societal public interest protected by fair use. It is advisable to negate the validity of such clauses in both legislative and interpretative contexts.