论著作人身权的产生

On the Emergence of Moral Rignts

著作人身权的立法理由,按大陆法系的经典表述,就是作者通过作品实现精神表达,作品包含并反映作者的人格利益,所以有保护作者在作品中体现出来的人身利益的必要。普通法系与大陆法系对著作人身权的态度并不相同,普通法系在历史上一直排斥对作者精神权利进行保护,把作品视为劳动成果,把版权视为财产权,历史上强调作者对作品的权利的主张实为书商为维护自己永久版权的诉讼策略。大陆法系之所以产生这样的理论,原因在于十八世纪发韧于德国的浪漫主义运动对文学艺术作品与作者天才创作内在关系的认识,从理论到司法再到立法,著作人身权得以确立和受到保护。

The legislative reason of moral rights,in accordance with the classic description of civil law,is what an author achieves their spiritual expression through his / her work which contains and reflects personality interests of the author,so it is necessary to protect such personality interests included in the work. There has been a difference in moral rights protection between civil and common law. Historically,the common law repels moral rights all the time,only regards works as fruits of labor,copyright as property right. In England,the earliest case to assert the right of authors to works was only a litigation tactics which the stationers safeguarded their permanent copyright.The reason to emerge the theory from the civil law is the Romantic Movement which begins in German in 18 th century,which realizes the inner relation between literary and artistic works and the genius creation,from the theory to the jurisdiction to the legislation,moral rights are admitted and protected.