摘要
"雇佣作品(the works made for hire)"制度是版权法体系的重要制度,主要解决存在雇佣、委托、特殊定制情况下所创作作品的版权归属问题。我国著作权法制定之初,由于劳动关系尚未普遍建立,把职工任职期间为完成工作任务所创作作品定义为"职务作品",留下了深深的时代烙印。"职务作品"制度既有英美法系版权法"视为作者"原则的元素,同时又保持了大陆法系著作权法"创作者为作者"原则的成分,二者存在天然的矛盾。随着我国劳动关系或者雇佣关系更为普及,加之计算机软件、人工智能作品等新型作品的出现,如何确定作品的著作权归属,成为新的难题。原"职务作品"制度难以应对新的情况,实践与理论出现背离。《著作权法》第三次修改正在进行,应当借鉴"视为作者"原则,重构"职务作品"制度,以"雇主"和"雇员"安排"雇佣关系",建立新的"雇佣作品"制度,采用"法律拟制"技术,确立人工智能作品的"法律作者"地位,让人工智能作品发挥应有的作用,真正服务人类。
"Works made for hire" is the important system of copyright law, which mainly determines copyright ownership of the work under hiring, attorney and custom-made. Because the labor relationship was still not universal when copyright law of the people’s republic of China was made, the work which is created during the job and is completed for the job task has been defined as Service works. It is affected by the history deeply. Service works is affected by the principle of "being regarded as the author" of copyright act of the common law and the principle of "the creator is the author" of copyright law of civil law which are naturally contradictory. With the increasing popularity of labor relation or employment relation in China and the emergence of new type of work including computer software, work of artificial intelligence, it has become a new problem how to determine their copyright ownership. The Service works is difficult to cope with new situations and the practice departures from the theory. The paper believes that we should reform for Service works by the principle of "being regarded as the author ", establish the new "works made for hire" which includes "employer" and "employee", and use "legal fiction" to establish "legal author" of the work of artificial intelligence. Therefor the work of artificial intelligence can play the due role and truly serve for humanity.
出处
《法学评论》
CSSCI
北大核心
2020年第3期108-124,共17页
Law Review
关键词
著作权法
雇佣作品
职务作品
人工智能作品
Copyright Law
Works Made for Hire
Service Works
Works Created by Artificial Intelligence
