Research On The Right Of Authorship Alienation And Its Legal Regulation

The right of authorship is the foundation and core of moral rights. There are many differences regarding the issue of moral rights in the civil law and the common law. Therefore, debates center on the right of authorship in the domain of the theoretic study and legislative practices. In reality, it is not rare to see violations against the right of authorship, which not only affect authors’ personal interests, but also infringe upon the public interest. Thus, we need to carry out more research on the basic theory and perfect the legal regime from the legislative aspect, so as to provide legal guarantee to both private right and public interest.The dissertation begins with definition and categorization of authorship alienation, followed by analysis of its reasons and damages, and suggestions on improving the legal regulation. The dissertation is composed of seven parts as follows:Part one focuses on the background, significance, scope, and methodology of the dissertation. The author analyzes the current research on the right of authorship. Although the related research is abundant, there are still many different opinions and shortcomings. Targeted towards existing problems, the dissertation has strong practical significance and theoretical value. The boundary and scope of the study are clear. It focuses on external phenomena, internal reasons, harm and improvement of the legal regulation about authorship alienation.Part two discusses some of the basic theories and analyzes the development of authorship. The author believes it’s a long process from non-authorship to authorship, which reflects the social progress. The preconditions of authorship include invention of characters and symbols, existence of names and creative works, as well as awareness of authorship. The author also makes analysis of the objective, function and significance of authorship, which is not only a right but also a duty. According to the author, it is not impartial to regard authorship only as a right. In this part, the author also looks into the value of authorship, including order value, incentive value, and cultural value. The order value includes function of marking, specifying the right, academic norms, disclosing information and securing right to information. Incentive value includes moral encouragement and material incentives. It will encourage authors to create more valuable works. Cultural value is mainly about passing on cultural heritage.Part three defines the meaning of authorship alienation. It looks into the origin of alienation and clarifies the meaning and character of alienation and right alienation. Based on the comparison of right alienation and right abuse, the author puts forward the concept of authorship alienation. The author of the dissertation believes authorship alienation is always accompanied by the emergence of authorship. It is essentially a departure from the purpose and intention of the authorship. By comparing authorship alienation with reasonable use and public interest, the author believes that authorship alienation doesn’t belong to copyright’s reasonable use; rather it is harmful to public interest.Part four discusses phenomena of authorship alienation. In terms of specific rights, the author lists six types of authorship alienation, defining their contents, analyzing their legal characteristics, and comparing similarities and differences among the six types. The author believes the study on phenomena will contribute to in-depth analysis of the causes of authorship alienation.Part five focuses on the internal causes of authorship alienation from four perspectives, i.e. legal concepts, legislation, policies, and social impacts. China Copyright Law is to some extent confusing, for it absorbs ideas from both the civil law and the common law, which have different ideas about copyright. The Chinese legislative body borrowed fine parts from the two legal systems, but ended up in logic inconsistency. Policies and regulations adopted in China are prescriptive, brief, scattered, insufficient to complement legislation, and even leading to alienation of authorship. Besides, social and cultural factors also impact authorship alienation.Part six analyses the harm of authorship alienation. The author believes authorship alienation brings damages to the authority of law, deviating from the intention to protect rights, challenging academic integrity, and infringing upon public’s access to information. Firstly, it harms the authority of law, leaving some laws and regulations not complied with. Secondly, it is against the intention---legal protection of authors’rights and interests. Therefore, the authors’rights cannot be guaranteed. Thirdly, authorship alienation challenges academic integrity. The authorship is an important part of academic works, with great bearing on academic integrity and ethics; whereas, authorship alienation is a deviation from academic integrity, ethics and norms. It can harm the public’s right to information. In addition, false authorship can deceive and mislead the public.Part seven provides suggestion on improving the legal regulation for authorship alienation, from the perspectives of legislation, regulation, and judicial relief based on the theory of profit balance. The author suggests separating authorship from the right to identity, redesigning the copyright system, differentiating academic works from commercial works. The authorship of academic works should be pragmatic and that of commercial works should be decided by partners through consultation. From the aspect of policies and regulations, the author provides proposals on integrating current policies and regulations and formulates a high-level administrative regulation or a ministerial rule that stipulates authorship of academic works. As for judicial relief, the author suggests enforcing relative invasion responsibilities according to six typical authorship alienations, including civil liability, administrative liability and even criminal liability. The ways to address authorship alienation should also be improved, including mediation, arbitration and litigation.