TPP之著作权限制条款研究——兼论著作权法激励理论的适用

Study on Copyright Restriction Terms in TPP and the Application of Incentive Theory in Copyright Law

在美国主导下制订的TPP知识产权条款呈现出"高标准"特色,被称为TRIPs-Plus协定。同时多个谈判国被美国这一大经济市场吸引,以牺牲知识产权上的利益来获取该自由贸易协定给出的税负等其他经济惠益,版权限制条款即为其一。美国退出TPP标志着TPP的失败,但TPP中的相关条款值得借鉴。我国应将激励理论充分运用到著作权法中,在著作权保护标准上应当"适宜",在版权限制条款注重社会公众利益的考虑,注重版权限制之激励效用,明确著作权法激励应当回归到制度条款,而非整体以权利为中心,侵蚀公共利益。

TPP, known as the TRIPs - plus Agreement, and developed mainly by America, is typical of itshigh-standard intellectual property provisions. Many negotiating nationsare so attracted by the big economic market in the U. S. as to sacrifice their IP interesbenefits. The copyright restriction terms is such a sacrifice. The failure of TPP,but its relative terms are instructive. China should make full use in therevision of China Copyright Law, and makc e a proper standard for protecting copyright. Specialconsideration should be made on the interests of ttie public and special attention should be paid to the in-centive effect of copyright restriction which should be reflected by specific regulations and terms. China Copyright Law should balance well between copyright holders and the public.