Study On Moral Rights And Its Circulation

Not only on theory study but also on legislative practice are Moral Rightsand its circulation in disputes continuously. At present, scholars are stillholding differing views on the fundamental attribute of Copyright. Manyscholars studying Civil Law believe Copyright has both Property Right andPersonality Right and Copyright is a third fight independent of PropertyRight and Personality Right. The mistaken idea of Moral Right would be anobstacle to the solution of Moral Right in Civil Law and the circulation ofMoral Right, etc. At present, regulations about circulation of Moral Right aredifferent in many aspects. This state of affairs not only affects the law of onecountry but only hinder the integration of Intellectual Property Law in world.What's more, along with the rapid strides is computer network, we shouldestablish circulation system of Moral Right to keep abreast of times. So, bymeans of comparing and analyzing this thesis studied the issue of MoralRight and its circulation. Firstly, from Lock's Property Right Theory and thestandard of Property Right to the defect of "Property and Personality Theory",this paper drew a conclusion the Copyright is a kind of Property Right.Lock's Property Right theory holds that labor whether manual labor orintellectual labor creates property and labor is the sole source of wealth. Also,Lock's theory refuted another doctrine that owing property is the source ofwealth seeing the reverse as well as the obverse side of this. This criteriondistinguishing Property Right and Personality Right is whether object can beexternal to subject forever. And another criterion that if it contains directproperty or not is identical to the former criterion. So we can easily find that"Property and personality Theory" put the holders in a dilemma. Then, byway of reviewing the course of history of Moral Right, criticizing the basis ofMoral Right and inspecting the lack of Identity Right in Moral Right, thispaper reached another conclusion the Moral Right is author's PersonalityRight. Look back on the history we can find that birth of Moral Right inGermany or France is closely linked with given historical conditions and trends of thought in art and literature. Their Moral Right based on an idea thatworks reflect personality. The idea that works reflect personality whether inphilosophy or aesthetics are out of historical coincidence but not inevitability.As to Identity Right, it is not part of the content of Moral Right. Summing upthe former opinions the present writer believes that Moral Right is a rightwhich a potential right one owns but not a right one enjoys only when hebecomes author. At the same time, supporting by jurisprudence and sociology,the present writer made a penetrating analysis of the circulation of MoralRight, considered the circulation Moral Right is feasible in theory. Alongwith the commercial trend of Civil Law part of Personality Right haseconomic factors or property content. This means circulation of personalityright has already existed in Civil Law. Because the quality of Moral Rightand Personality Right are identical, circulation system of Moral Right shouldbe admitted. Circulation system of Moral Right also base on sociology. Newtechnology has made the infringement on Moral Right frequently; thetraditional way protecting Moral Right has impeded the healthy developmentof digital works; the traditional way protecting Moral Right would still hindthe global strategy of message market. Secondly, the paper compared therelation between Moral Right and personality Right in Civil Law. Reviewingthe course of history of Personality Right, we can find that Personality Rightcome from Moral Right. It is not a coincidence. That's exactly both MoralRight .and Personality Right protect personality interests. So, Moral Right andPersonality Right are identical in quality. Many papers discussed the differentpoints between Moral Right and Personality Right, such as the different righttypes between the two, etc. but the subtle difference between the two can'tchange the conclusion the Moral Right and Personality Right are identical innature. The same quality would lay a foundation for the circulation of MoralRight originating in personality Right. The difference between the two wouldfind basis for protecting Moral Right in special law at legislative technologylevel. Thirdly, the paper the measure of value, right types and ways of usecontrast in different countries. Britain and the United States base their Copyright on property value, consider, Copyright in fact to be right toduplicate. The property value lead to the different right types compare withother countries such as Germany or France. On ways of use, they admit thewaiver of Copyright. The waiver of Copyright in Britain and the UnitedStates means they permit others use author's Moral Right. Compared with theformer two countries, Germany and France base their Copyright onpersonality value, deem works to be reflection of author's personality. Onright types, they create contact fight, etc which Britain and the Unites Statesdon't stipulate in their copyright. Germany and France are different on waysof use because Germany is a monism but France is a dualism country.Germany permits the use of Moral Right by means of signing a license butFrance does not. France admits the inheritance of Moral Right. Lastly, thispaper offered suggestions to improve the Moral Right legislation andstipulate circulation system of Moral Right. The present writer deem it shouldseparate Moral Right from Copyright(Property Right) and arrange MoralRight at independent section. Then this paper provides the ways of license,inheritance and abandonment. Most countries have stipulated the license ofCopyright (Property Right). This paper thought it is necessary to stipulate thelicense of Moral Right in future Copyright Law. License of Moral Right is arelative right, author would still own his Moral Right beyond the contract.And also, different right types have different ways of license. License ofalteration right can not be mixed with adaptation right, etc. On inheritance, itshould be distinguished between Copyright(Property Right)and Moral Rightin two points. One point is that inheritance of Moral Right should beregistered with the proper authorities. Another point is that inheritance ofMoral Right can't be owned by several people, it can only be permitted toone people. Because the emergence of Moral Right is voluntary,abandonment of Moral Right only can be clearly indicated. What's more,forming circulation system of Moral Right should pay attention to thejoinment to the original law because Copyright Law is different in differentcountries. The correct location and the right arrangement in Civil Law are not only beneficial to the clarification the disputes which disturbed people butalso important to solve the circulation of Moral Right; the circulation systemof Moral Right not only conform to fundamental tenets of Civil Law but alsoaccord with interest-balance tenet as Intellectual property, not only beneficialto the protection of author's interests of his personality and his intellectualproduction but also good for the uncertain people to obtain knowledge andintellectual production, not only favor to the prosperity of culturalundertaking but also promote the fast development of market economic. Sowe should abandon some wrong theories in the traditional Civil Law andclarify all kinds of wrong theories about Moral Right and establishcirculation system of Moral Right as fast as possible. Thus can we keep upwith the development of society which changes with each passing day.