法学研究

文章摘要

信息网络传播权的适用靳学军

Application of the Right of Communication through Information Network

DOI：

英文关键词: copyright;the right of communication through information network;WCT;transmission in digital networks

基金项目:

作者	单位
靳学军,石必胜	北京市海淀区人民法院;北京市海淀区人民法院

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中文摘要:

制定《世界知识产权组织版权公约》(WCT)第8条是为了将数字网络中的作品传播权纳入到著作权中。我国著作权法中信息网络传播权的立法目的与WCT第8条相同。不能脱离数字网络传播方式来理解“选定的时间和地点”要件。数字网络传播具有交互性，即在数字网络中，数字信号是否开始向某个特定用户传输由该用户“在其个人选定的时间和地点”决定。从文义解释出发，数字网络传播也应适用信息网络传播权。为弥补立法缺陷，可以删除“选定的时间和地点”要件，合并广播权，确立实至名归的信息网络传播权。

英文摘要:

It has become a problem whether the timed online TV broadcasting satisfies the element stipulated in the definition of the right of communication through network in Copyright Law of PRC, that is, whether the users can access online TV series “from a place and at a time individually chosen by them”. This element was transplanted from Article 8 of the WIPO Copyright Treaty (WCT). Both the WCT and WPPT address the challenges posed by today's digital technologies, for this reason, they have sometimes been referred to as the “Internet Treaties”. Article 8 of the WCT intends to clarify that the transmission of works in digital networks should be the object of an exclusive right of the author or other copyright owner. “From a place and at a time individually chosen by them” in Article 8 is used to convey the interactive nature of the transmission in digital networks. The purpose of the right of communication through information network in the Copyright Law of PRC is the same as that of the Article 8 of the WCT. Because the transmission in digital networks is characterized by the interactive nature, and the interactive nature is conveyed by “from a place and at a time individually chosen by them”, the transmission in digital networks can naturally satisfy such element. A lot of real copyright infringement cases indicate that the understanding of the majority of people in relevant industries is correct, so the application of the right of communication through information network should accord with this understanding. Whether digital signals begin to transmit in digital networks to a certain user depends on that user's decision from a place and at a time individually chosen by him, so even literally interpreted, various ways of transmission in digital networks, including online TV broadcasting, are all within the scope of the right of communication through information network. In fact, “from a place and at a time individually chosen by them” can’t describe the interactive nature of digital transmission accurately. To amend the Copyright Law to correct the defects and to establish a right worthy of the name of communication through information network, this essay proposes deleting “from a place and at a time individually chosen by them” from the definition, and merging the right of broadcasting with the right of communication through information network.

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