坏声明与好法治——社会主义中国文艺法律政策中的权利书写

The Bad Announcement and the Rule of Good Law——Visiting the History of the Writing of Rights in the Socialist China’s Legal Regulations of Literature and Art

中央芭蕾舞团的“法盲”声明，是现代法治回溯历史，建立起对文艺的治理者身份的产物。认识这个历史过程，关键在于梳理改革开放前和改革开放后的文艺法律政策的关系。《红色娘子军》著作权纠纷案反映了，通过确立个人产权来解决分配不公的逻辑和不断完善的《著作权法》，从而悄然完成了从集体权利到个体权利的置换。但这一产权逻辑与劳动者享有果实的逻辑与改革开放前的社会主义文化生产机制均发生激烈碰撞。为了获取伦理正当性，该逻辑借力现代言论自由来消解红色经典，但由此造成改革开放前、后的历史的紧张关系，政治伦理无法重建，这一后果的严重性随着新形势的到来更加突出。

The National Ballet of China＇s layman critics on the courts＇ decision in the case involving the copyright of the Red Detachment of Women is the outcome of both the retrospection by the modern rule of law and the founded new relationship in which literature and art shall be governed by law. To understand this historical process, it is essential to review the relation between the socialist legal regulations of literature and art before and after the Reform and Openning up. The logic, which believes in changing the unequal distribution by legalizing individual property rights, dominates the copyright law from the beginning, silently transferred copyright from community to individual. This logic in practice, however, conflicts intensely with both the logic, laborers keep their fruits and the socialistic cultural production mechanism. To acquire its ethical justice., the copyright law under this logic embraces the modern freedom of speech to dilute the red classics. The aftermath is that the relation between the former and the latter thirty years＇ histories is intensified and that the political ethnic cannot be reconstructed. These problems are becoming more severe with the coming new situation.