【作者】 余智晟；

【导师】 陈动；

【作者基本信息】 厦门大学 ， 民商法学， 2007， 硕士

【摘要】 版权穷竭制度是平衡创作者和社会公众之间利益的重要制度。如今,世界上大多数国家认可了这一制度并对其有明确规定,虽然各国对这一制度的具体规定并不统一,但版权穷竭原则在著作权制度中的重要性是无法回避的。我国还没有对版权穷竭制度做出完善规定,随着经济一体化和贸易自由化的加快,重视这一制度的作用并对其进行研究是当前完善我国版权制度的一个重大课题。本文分为四章。第一章介绍了版权穷竭制度的基本理论。从版权穷竭的涵义入手,阐述了其含义和特征。然后揭示了版权穷竭制度的相关理论,从而探寻版权穷竭制度的合理性。第二章探讨了版权穷竭制度的适用问题。首先对版权穷竭制度适用的权能和适用的特殊问题进行分析。其次,版权穷竭的空间效力范围即地理市场范围一直是版权穷竭制度最具争议的问题,由此进一步探讨构建我国版权穷竭制度之必要性。而在版权穷竭的空间效力问题中,平行进口则是各国和国际知识产权立法的重要方面,并且关系到我国对外贸易和经济发展的重要利益,故对平行进口问题进行了专门论述。第三章对版权穷竭制度在各国和国际上的不同立法例进行阐述,通过对不同立法例的比较分析,使我国对相关问题得以借鉴,完善我国版权穷竭制度的立法。第四章论述了我国版权穷竭的立法完善问题。虽然我国著作权业已走出了无法可依的时代,但对于版权穷竭制度却并没有完善的规定。随着我国科学技术的进步和综合国力的提高,在我国著作权法律制度中确立版权穷竭原则已为历史的必然。同时,笔者建议在我国现行《著作权法》中将版权权利穷竭原则的规定纳入“权利的限制”一节,对象范围规定为发行权穷竭和出租权穷竭,空间适用范围采用国内穷竭原则,以完善我国的版权穷竭制度。更多还原

【Abstract】 Exhaustion of copyright is an important system to equilibrium benefits of the creator and social public. With the changes of ages, it has been the one of important functions for justice of request of copyright law. Nowadays, most countries in the world have approved the exhaustion of copyright and had the explicit laws. Although different countries do not have the same concrete provisions of this system, it is unavoidable that the exhaustion of copyright has always played an important role in the copyright law. Each country has different attitude towards exhaustion of copyright and makes different stipulation to it. Most developed countries recognize it and make it as a principle in law. Because of the complex of exhaustion of copyright, most related universal copyright conventions don’t make any stipulation to it. Exhaustion of copyright has arisen and the exhausted right has changed in accordance with the development of science and technology. China does not have overall provisions about exhaustion of copyright in copyright law. But with fast development of integrity of world economy and global trade liberalism, exhaustion of copyright is an important issue to be researched for the development of Chinese copyright law.The whole thesis is divided into five chapters. The first chapter mainly analyzes the concepts and characteristics about exhaustion of copyright from different aspects.Then it uncovered the essence of exhaustion of copyright to explore the rationality.The present study on exhaustion of copyright is mostly confined to the introduction of the basic knowledge, or gives more emphasis to excavate and probe the negativeeffect. Exhaustion of copyright is closely related to the law character of copyright. Therefore, it is necessary to fully recognize the law character of copyright in traditional copyright theory.The second chapter discusses the scope of validity of exhaustion of copyright, including the scope of validity of right and the scope of validity of space. And the scope of validity of space in exhaustion of copyright is one of the most controversy problems in copyright law. The problem on exhaustion of copyright has arisen in our country. The development of international economic integration and freedom of trade will inevitably give rise to the issue of parallel import, which is actually most complicated. It involves the problem of parallel import in the field of copyright. The parallel import in copyright law has been an important aspect about all countries and international intelligent property right lawmaking and relates to the benefits of the foreign trade and economic development in China.The third chapter mainly makes a comparative study on the stipulations and related legal practices of foreign countries about exhaustion of copyright. Thought the analysis of exhaustion of copyright in different countries, China can perfect the law of exhaustion of copyright by the lessons from other countries.Then the last chapter is about how to improve the exhaustion of copyright in China. The copyright law in our country has no related stipulation on exhaustion of copyright, which has not been given enough attention by the people. Although China has kept off the ages of no laws to be depended, it is still not good enough on the copyright law especially the system of exhaustion of copyright. Exhaustion of copyright is on the bases of the balance of interests between the author and society, and it is the law adjustment between the free movement of copyright commodity and copyright protection clash. The exhaustion of copyright is the important embodiment in copyright law by not abusing rights. With the development of science technique and comprehensive national strength, it is inevitable to improve the system of exhaustion of copyright in legislation of Chinese copyright. And it is suggested that the provision of the system of exhaustion of right of copyright be included in the section of "limit of right" to improve the copyright law,including the exhaustion of copyright and publish right., the exhaustion of rent right and the territorial exhaustion.更多还原