On The Right Of Disclosure

The right of disclosure is the right of author and other copyright owners to decide whether, when, where and how to make works available to the public. As the most fundamental copyright in persona, the right of disclosure plays an important role in the whole copyright system. The right of disclosure, as the right to determining the destiny of works, offers legal basis for the author and other copyright owners to covert works from private sphere to public domain, and provides firm protection for the realization of works'value. The study of the right of disclosure, not only has important theoretical value, but also has important practical significance.This thesis is divided into four chapters:Chapter One: The act of disclosure as the foundation of the right of disclosure. Deeply studying the right of disclosure, the discussion of the act of disclosure is a necessary step. In this chapter, we mainly study the act of disclosure from both its historical investigation and its semantic analysis. The former reveals the implicit relations between the disclosure of works and the social evolution. From the oral distribution and manual copying before the invention of printing press, to the massive mechanical copying after the generally application of the printing press, and the instant copying and distribution in the era of internet, the disclosure of works intends to be easy and fast. In the meantime, with the social impact of the disclosure of works expanding, the public power of state reinforces their intervention. Although the individual has the right to decide whether the disclosure of works should take place, its realization is limited by the public power and other external conditions. The disclosure is a historical and social category, which constitutes the basic theoretical background of the study of the act and right of disclosure. Based on this, the semantic analysis elaborates the meanings of the disclosure to specifically answer the question of what the disclosure is, which supplies basic factor for the understanding of the right of disclosure. The disclosure has different semantic sphere in the context of common life and copyright law, and should not be confused. The disclosure as the specific definition of civil copyright law, many legislations and doctrines had made the owners'intention as its components, which we think it could not stand its ground. This would cause the tautology of the definition of the right of disclosure, erase the boundaries between the disclosure and the right of disclosure, confuse the idealistic disclosure with the actual disclosure, and cause theoretical disturbance to the relief of the right of disclosure. The Definition of the act of disclosure will inevitably involve the relation between the disclosure and the publication. As to this, we should not treat them as the like, but distinguish between civil law system and Anglo-American law system to make separate investigation.Chapter Two: The definition and nature of the right of disclosure. The historical investigation and semantic analysis of the disclosure, make clear the preliminary issue of what the disclosure is; and on this basis, the definition and nature of the right of disclosure concretely answer the question of what the right of disclosure is. After examining the existing opinions, this chapter mainly analyzes the subject of the right of disclosure, the right of disclosure with the intention of owners, the content of the right of disclosure and the one time exhaustion of the right of disclosure. The subject of the right of disclosure is not only the author, but the copyright owner. The excise of the right depends on the intention of the right owners, but only on the condition that the disclosure of works does not take place. The right of disclosure contains both negative and positive rights, which not only can object unauthorized disclosure but also can actively choose the concrete matters of disclosure. The right of disclosure could be excised for many times, and the one time exhaustion is not the intrinsic characteristics of the right of disclosure but the necessary nature of the act of disclosure, which justifies the multiple submissions of works in the copyright law. In view of the close relations among the right of disclosure with the right of publication and the right of withdrawal, we analyze them separately. The right of publication is not equal to copyright, and has many meanings, which of them in the context of copyright law is the important means of realizing the right of disclosure. In Anglo-American copyright law, the right of publication assumes similar functions of the right of disclosure in some way. The disclosure of works is only one time, the right of withdrawal does not necessarily involve the right of disclosure and the right of withdrawal is not the precondition of the right of disclosure. As to the nature of the right of disclosure, both the Monism and the Dualism have its defects. The former view can not completely cover characteristics of the right of disclosure, and the later view is a paradox. In fact, the right of disclosure shares both persona and property attributes, and should be treated as a third independent right.Chapter Three: The justification of the right of disclosure. Chapter two elaborates the basic content of the right of disclosure, and answers the question of what the right of disclosure is. The justification of the right of disclosure starts from the view of history and reality, examines the idea, institution and value of the right of disclosure, and discusses systematically the reasonableness of the right of disclosure as the right of positive law, which further elaborates the question of what the right of disclosure is. This deepens the knowledge of the right of disclosure, makes us really learn to respect it, and offers theoretical basis for its protection. The idea basis of the right of disclosure shows that, the essential right came into existence long before the recognition of judicature and legislature. From the ancient to the modern times, the idea of the right of disclosure gradually rooted in people's mind, which offers social foundation for the formal recognition of the right of disclosure. From the 20th century, by the judicial and legislative recognition, the right of disclosure got integral institution forms, and reinforced its justification in positive law. Three French landmark cases established the place of the right of disclosure in the judicature of civil law system, and the first publication right as some substitute for the right of disclosure also realized judicial protections of the right of disclosure through various cases in Anglo-American system. The right of disclosure is widely recognized by many legislatures, and has its universality. In the value level, the right of disclosure also has its justification. It safeguards both personal interest and property interest of the right owners, and at the same time, regardless of positive or negative exercise, the right of disclosure will not excessively sacrifice the interest of the public.Chapter Four: The limitation and protection of the right of disclosure. The justification of the right of disclosure does not mean that its existence and excise is absolutely right in all cases. On the contrary, the right of disclosure exists in some social relations, which means that it must be reasonably limited in order not to be abused to harm public and private interest. In a sense, the limitation of the right of disclosure is prior to its protection, and without reasonable limitation its protection would be bind. The limitations of the right of disclosure comprise public power limitations and private right limitations. On the one hand, the limitation of public power represent as general limitations, such as the period of duration and the means of exercise. On the other hand, it also represents as specific limitations, such as specific subjects and specific works. The limitations of private rights to the right of disclosure comprise the limitations of others'copyright, others'personal right and others'property right. The first mainly reflects in three kinds of works, i.e. joint works, works in the course of employment and derivative works. The second behaves eminently in others'limitations of the right to privacy and the right of portrait. The last manifests both in right in rem and right of credit. The right of disclosure is the right to the undisclosed works, and the infringement of it does not harm public interest. According to this, the protection of the right of disclosure is mainly civil law protection, which appears in the affirmation and assumption of liability for tort. Unlawful enjoyment and unlawful impediment are two basic types of infringement on the right of disclosure, which is different in the constitutive requirements. The former does not require the culpa of the actor, and the latter not only requires the culpa but also is restricted to the willfulness. In addition, their forms of liability also have their own characteristics, and must be analyzed according to specific conditions.