著作权合同中作者权益保护的规则取舍与续造

Choice and Construction of the Rules on Strengthening Authors'Position in Copyright Contracts

著作权合同规则和集体协商所需中介组织的双重缺失,导致我国作者在著作权合同领域面临诸多不公平待遇时处于无法可依的境地。比较法上作者权益保护的制度安排,又因不同国家相关产业力量对比差异而有不同路径。在缺乏本土基本规则支撑的情况下,更符合我国产业特点的解决路径,一方面是根据比较法经验来重新校准作者权益的保护范畴,避免以事后规则直接保障作者收益,通过事前规则增助作者的自治能力;另一方面是运用法教义学的方法从著作权法合同章和民法典合同编两个领域完成对作者权益保护的解释学续造。应将著作权法合同章中规定的许可或转让的权利种类作为合同成立的“必要之点”,要求合同条款明确列举每项权利的使用范围、目的、期限和版税标准。应在区分无偿和有偿的著作权专有许可合同的基础上,类推适用民法典合同编中合同终止的一般规则和相关有名合同终止权来完成对作者利益保护规则的续造。

The absence of both copyright contract rules and intermediary organizations required for collective bargaining has led to a situation where Chinese authors have no law to rely on when face many unfair treatments in the field of copyright contract. Meanwhile, the institutional arrangements for the extraordinary protection of the author’s rights in comparative law have taken different paths due to the differences in the strength of relevant industries in different countries. In the absence of the support of basic local rules, the solution in conformity with the characteristics of the industry in China is firstly to recalibrate the protection scope of authors’ rights on the basis of comparative law experience, and avoid direct protection of authors’ profits by ex post rules, but instead increasing the authors’ capacity for autonomy through ex ante rules and, secondly, to apply legal dogmatics as the main method to achieve the judicial explanation on the basis of the contract chapter in the Copyright Law and the Contract Part in the Civil Code. The types of rights licensed or transferred in the contract chapter of the Copyright Law are regarded as the “necessary points” for the establishment of the contract, and the contract clauses are required to clearly list the scope of use, purpose, time limit and royalty standard of each right. Meanwhile, based on the differences between onerous and gratuitous contracts, general rules of contract termination should be applied by analogy to make sure that authors are not unreasonable restricted by continuous contract.