论在线浏览、欣赏目的临时复制的法律保护

Study on Legal Protection of Temporary Reproduction of Online Browsing and Appreciating

在线浏览、欣赏,必然要对作品、表演、录音录像制品等进行临时复制。这种临时复制行为应否纳入复制权的保护范围,国际公约并未作出强制性的规定,发达国家和发展中国家的态度也截然相反。我国的立法状况是,未将临时复制纳入复制权的保护范围,只是对权利人采取的限制他人浏览、欣赏等行为的技术措施加以保护。从本质上讲,在线浏览、欣赏目的的临时复制与传统环境下的复制行为并无区别,采取赋权+技术措施+默示许可+限制权利滥用的立法模式,不仅能使权利人的利益得到有效的保护,而且也会使制度设计更加科学、合理。

Temporary reproduction of works, performance, audio and video has to be made in order to serve the purpose of online browsing and appreciating. However, international conventions do not include mandatory regulations on whether such temporary reproduction should be protected by reproduction right. Developed and developing countries also have contradictory attitudes towards this. In China, temporary reproduction is not protected by reproduction right. The legislation only protect the technical methods that obligee adapts to restrict others＇ conducts of browsing and appreciating. Intrinsically, there is no difference between the temporary reproduction of online browsing, appreciating and traditional duplication. Therefore, a legislative model of ＂empowerment＋technical methods＋implied license＋restricting the abuse of right＂ should be adapted, which would not only provide effective protection for obligee＇s interests, but also would make legal system more complete as well as reasonable.