论著作权的易受侵害性--以民法中的“占有”理论为视角

Study on Vulnerability of Copyright: From the Perspective of Possession Theory in Civil Law

著作权的易受侵害性往往被归咎为网络环境使然,甚至上升为知识产权必然消亡的一种论断。通过对著作权的性质以及大陆法系物权制度中占有理论的考察,试图厘清著作权的易受侵害性是由其客体的性质这一直接原因所决定的,且自著作权诞生之时即存在,网络环境只是进一步放大了此种困境。此外,著作权客体的占有阙如,则是导致这一困境的间接原因。

In view of the vulnerability of copyright, it always has been attributed to the internet environment. To some extent, it has even been risen to a kind of judgment that intellectual property rights will definitely head for demise in the future. Through studying the character of copyright and the theory of possession in continental legal system, this essay tries to indicate that the vulnerability of copyright is determined not only by the intemet environment, but also by the direct reason that the character of the object of copyright results in it. The vulnerability of copyright had been existed since the beginning of its birth, in fact, the interact environment only enlarge such dilemma. Furthermore, lacking of possession to the object of copyright is the indirect reason which leads to such dilemma.