临摹是复制吗?——法教义学视角的分析

Is Linmo a Kind of Copy?:An Analysis from the Perspective of Legal Dogmatics

临摹有"临"和"摹"之别,二者与复制的关系如何,既应考虑临摹的本质,又应置于《著作权法》的框架下思考。1990年《著作权法》规定临摹是复制的一种,但这对"临"并不妥当,应对该条款进行目的性限缩,将此处临摹限于接触性的"摹"。2001年《著作权法》修订了临摹的相关条款,其文义解释、历史解释和体系解释的结论应是:临摹不是复制的一种形式,临摹品属于演绎作品的一种类型;将"拓印"作目的性扩张以包含接触性的"摹"。如此理解,方符合立法的文义和规范意旨。

In Chinese, the word linmo 临摹 is composed of two morphemes, i.e. lin 临(literally to watch and imitate) and mo 摹(to copy an art piece on a covering sheet of paper). That is to say, the single word linmo refers to two different kinds of 'reproduction' or 'copy' of an art piece: one is done without any physical contact with the original art piece, but the other is done through physical contact. When we consider the relationship between linmoand true copy, we have to pay attention to the essence of linmo and put it into the framework of the copyright law. China's Copyright Law(1990) defines linmo as one type of reproduction, which failed to recognize the difference between lin and copy in general sense. The provision in that law should be narrowed down to the activity of mo, thus excluding the activity of lin. The amendment to the provision governing linmo activities in Copyright Law(2001) should be so interpreted that the textual and etymological factors and its position in the legal system should all be taken into consideration. If that happens, linmo cannot be regarded as a type of copy; rather, it should be recognized as an activity aiming at deriving something new from the original art piece. At the same time, the term of tayin 拓印(literally to make rubbings) should be expanded to cover the activities indicated by mo(i.e. to copy through physical contact). Only such kind of understanding can match the legislative meaning and purpose of the document of Copyright Law.