中美著作权法定许可制度比较研究

Comparative Analysis of Works' Statutory Licensing Systems in Chinese and American Laws

著作权客体属于准公共产品,法定许可是为了促进“物尽其用”而将部分作者权利交由适格者行使。美国法定许可制度以反垄断、市场定价和保护公众知情权为原则。在作者权利保护上,主要有表明其身份、保护作品完整、广告插播和收取许可费的权利。被许可人的权利则主要为实施权和因实施而产生的相关著作权。双方都有在实体和程序上配合对方实现权利并进行取证的义务,对违反义务的行为原则上承担过错责任。在许可费及其相关条款的确定上,采取协议优先原则;难以达成时,由行政裁决和司法诉讼依照市场价格作出决定。中国在系统性的法定许可制度方面可以吸收美国经验,但其“默示许可”方式有一定长处,可以有条件地予以保留。

The object of copyright is a kind of quasipublic goods which is non-excludable and non-rival in consumption. For the purpose of making the best use of everything, qualified people and organizations are entitled to obtain statutory licenses to retransmit owners' works or distribute copies under the conditions specified by the law. The statutory licensing system in the American law is based on three principles: anti-monopolism, fair market price in negotiated terms, and maximizing the availability of creative works to the public. It affords the copyright owners fair protection to make owners' identification clear, obtain licensing fee distribution, and prohibit willful altering of the content of particular works or any commercial advertising or station announcement transmitted by the primary transmitter during, or immediately before or after, the transmission of such program. It endows copyright users with the right of secondary transmission and fair incomes under the existing economic conditions. Both sides have the obligation to cooperate with each other for their exertion of right and acquisition of evidence in substantial law and procedural law. Neglect violation is actionable as acts of infringement and fully subject to remedies provided by the law. Notwithstanding any provision of the antitrust laws, in negotiating statutory licenses in accordance with copyright law, any copyright owners and users may negotiate and agree upon the royalty rates and license terms and conditions for the performance. In the absence of negotiated license agreement, and upon the filing of a petition, a copyright arbitration royalty panel is to determine and establish such rates and terms, considering these for comparable types of performance and circumstances under the voluntary license negotiated under market conditions. Any decision of the agency should be under judicial reviews when it is appealed by aggrieved party who would be bound by it. In the absence of the systematization of statutory licensing proceedings in the American law, China has much to do to absorb all the forenamed theories and practices. Acquiescence licensing is characteristic of the Chinese system and shows its strongpoints, which may be reserved under particular conditions.