委托作品中的著作人身权归属问题探讨

Discussion on the Ownership of Personal Right of Copyright in Commissioned Works

传统著作人身权理论中,著作人身权只能由作者基于创作行为享有,我国《著作权法》第17条中受委托创作的作品,著作权的归属可由委托人和受托人通过合同约定的规定引发了很多争论。通过对著作人身权性质和《著作权法》及其司法解释对著作人身权保护的分析,比较研究两大法系现行的相关规定,对于解决委托作品中保护作者的人格利益和促进作品有效流通的矛盾具有一定的意义。

In the traditional theory,personal right of copyright is only enjoyed by the authors based on their acts of creating works. According to the Article 17 of Copyright Law in our country, the ownership of copyright for commissioned works can be agreed by the client and consultant through contracts,which has aroused many arguments. This paper analyses the protection of personal right of copyright from its characteristics and Copyright Law with judicial interpretation, and compares the relative provision in the law of the two western legal systems.Adopting permit system in legislation of our country to solve the contradiction between protecting the authors＇ personality benefit and promoting the effective circulation of the commissioned works is proposed.