Literary Works译意探源

现实中,作品千差万别,《伯尔尼公约》将其分为两类:文学作品和艺术作品。20世纪80年代,美国等国将计算机软件作为文学作品,纳入版权法的保护范围。随后,在西方国家的鼓动下,《TRIPS协定》也要求WTO成员将计算机软件作为《伯尔尼公约》中的文学作品加以保护。令人遗憾的是,我国学界未能将"文学作品"理解为一个法律概念,想当然地认为软件与"文学"无关,将literaryworks译成"文字作品"以期涵盖计算机软件。此后,在概念法学的驱使下,又推断出"口述作品"。受此误导,我国《著作权法》以双重标准——作品形式和作品内容——对作品进行分类,致使作品各种类之间矛盾、重叠。为了使我国著作权法中作品的分类更加科学,建议将Literary Works译为"文学作品"。

The Beme Convention classifies works into two categories： literary works and artistic works, although works differ in thouands of ways in reality. In1980s the United States and some other countries incorporated computer programs as literary works into their respective copyright law. During the Uruguay Round trade negotiation, the TRIPS agreement, insisted by the United States and the EU, requires that the members of the WTO protect computer programs as literary works under the Berne Convention. Disappointingly, academia in China did not understand the term ＂literary work＂ as a legal term, and took it for granted that a ＂literary work＂ had nothing to do with literature. Accordingly, they intentionally translated ＂literary work＂ as ＂written work＂ to include computer programs. Subsequently, driven by the mechanic jurisprudence, ＂oral works＂ was inferred from the translation. Misled by this, the Chinese Copyright Law classified works by applying two different criteria： the form and the content. As a result, the classified categories are overlapped and contravene with each other. No logic or rule can be discerned from the classification.