论广播组织权的体系定位与制度反思

On the System Orientation and Institutional Reflection of Broadcasting Organization Right

完善广播组织权制度以回应网络盗播等新兴侵权问题的挑战,是《著作权法》第三次修订的重要题中之义。新《著作权法》沿用旧法规定将广播组织权的客体定位为“广播、电视”,但对于广播组织网络传播权利的扩张持较为谨慎的立法态度。广播组织IPTV“回看”等业务模式引发的行业纠纷亦越发凸显,亟待明确广播组织权的权利范畴以维护市场主体间的行为预期与从业秩序。从广播组织权制度的历史沿革和体系定位来看,其立基于传播行为本身而非被传播的内容,客体应明确为物质层面的信号而非内容层面的节目,相应的权项则应当回归为同时性、非交互式的有线和无线转播禁止权。

Improving the system of broadcasting organization right in response to the challenges of new infringement problems such as network piracy is an important theme of the third revision of Copyright Law.The new Copyright Law follows the provision of the current law that the object of broadcasting organization right is “radio and television”,but there is a more cautious legislative attitude towards the expansion of broadcasting organization’s network communication rights.In recent years,the industry disputes caused by broadcasting organization IPTV business models such as “look back” have become increasingly prominent,and it is urgent to clarify the scope of broadcasting organization rights in order to maintain the behavior expectation and business order among market subjects.From the perspective of the historical evolution and system positioning of the broadcasting organization right system,the broadcasting organization right is based on the act of transmission itself rather than the content being transmitted,and the object should be positioned as a signal at the material level rather than a program at the content level.If we follow such an institutional position,the broadcasting organization right should be limited to the right of simultaneous and non-interactive rebroadcase prohibition from the technical properties of signals.