职务作品的界定及其权利归属——吴某诉张某、付某国家海洋信息中心侵害著作权纠纷案

The Study on the Identification and the Ownership of WFH——The Analysis of the Copyright Disputes about Wu X Prosecuting Zhang X、Fu X、National Oceanic Information Center

现行著作权法对职务作品著作权权属的规定以著作权归属作者为一般原则,同时规定了著作权属于单位的特定情形。实践中,职务作品的形成具有一定的复杂性和特殊性,也为一般职务作品抑或特殊职务作品的判断增加了难度。案件审理中,对涉案职务作品著作权归属的认定,应在法律框架内,分别审查涉案作品是否构成推定型特殊职务作品、法定型特殊职务作品或约定型特殊职务作品,在排除以上三种特殊职务作品的成立情形外,才能认定属于一般职务作品,进而确定其著作权归属。

Regarding the provisions for Ownership of WFH in the existing Copyright Law, that the copyright belongs to the author is the general principle. Meanwhile, that the copyright belongs to the Legal entity, or other Organization is set by the Law in specific provisions. In practice, making of WFH has complexity and particularity to certain degree. That increases the difficulty on judging whether a work is a general WFH or a specific one. In the trial of the case, identification of the ownership of the copyright of the work in question, should be within the framework of the law, examining the work involved whether it constitutes constructive type of special work, legal special work or agreement with the special work of ownership of the copyright of related WFH. Apart from the establishment of the above three special work for hire, we can identify works belonging to the general WFH, and then determine the ownership of copyright. In accordance with the above idea of trial,the case has carried out a detailed analysis and demonstration of the nature of the work in question, and finally identified it as an appointed special work.