委托作品权利归属法律适用标准之探讨

Explanation of the Ownership of Copyright in Commissioned Works

有效实现委托作品制度目的,有赖于权利归属制度中委托创作关系、委托创作的合同约定、委托人获取的权益三个核心要素的准确适用。就委托创作关系的判断而言,有必要对比雇佣创作关系和合作创作关系;就委托作品的合同主体而言,不应限制为自然人;就合同约定的形式要件而言,应是一种书面形式;就合同约定的范围而言,应包括署名权除外的精神性权利;就委托人的"特定目的范围使用权"而言,应对使用权的期限、种类及性质进行恰当解释,从而实现委托人和受托人利益平衡。

The copyright law regulates ownership of copyright in commissioned works, and it includes the most important three factors, the relationship of commissioned artists creating, the contract for commission and the benefit of commission party. Therefore, we should supply explicit statutory provisions dealt with works made for hire, joint works and works made under commission. The commissioned party is not only one person, but also includes other organizations. The commissioned contract should be signed in written form and include the moral right of author except the right to have the author＇s name associated with the work. Furthermore, the commissioning organization acquires the right to use the work only within the specific purpose in the contract with the author, but the duration, category and nature should be explained by the court and experts. The rights are granted primarily as a balance for the benefit of the commissioner and the private interests of authors.