民间文学艺术衍生作品著作权的认定及其权利边界——基于相关司法判例的思考

On the Copyright Protection of the Derivative Works of Folklore and Its Right Boundary——Thinking Based on Relevant Judicial Precedents

近些年来,运用著作权模式保护民间文学艺术衍生作品得到学界及实务界的普遍认可。但是以何标准认定民间文学艺术衍生作品的著作权?如何界定民间文学艺术衍生作品著作权的权利范围?对于这些问题,立法上尚存在空白之处且学界、实务界尚存分歧。或认为民间文学艺术衍生作品著作权宜采用较低独创性标准,或认为衍生作品著作权应限于作者所独创的内容。基于此,应从两方面厘清民间文学艺术衍生作品著作权的权利边界:一是厘清其与民间文学艺术的来源群体权利的边界,二是厘清其与其他利用民间文学艺术再创造作品的权利边界。

In recent years, the use of copyright models to protect derivative works of folklore has been widely recognized by academics and practitioners. However, which standard is used to determine the copyright of derivative works of folklore How to define the right boundary of the copyright of derivative works? On these issues, there are still gaps in the legislation and still differences in the academic and practical circles. As for the standard of recognition of copyright for derivative works of folklore, the lower originality recognition standard should be applied. The copyright of derivative works shall be limited to the content of the works originally created by the author of the derivative works. On this basis, the right boundary of the copyright of derivative works should be clearly defined in two aspects. Firstly, it is necessary to clarify the boundaries between the copyright of derivative works and the right of source groups of folklore. In particular, the copyright of derivative works shall be restricted by the source of identification, non-distorting use, and benefit sharing enjoyed by the source group.Secondly, it is necessary to clarify the boundaries between the copyright of derivative works and right of other re-creation works using folklore.