| As P .van Heck pointed out, "every order of law determines a conflict between interests .The law is originated from struggles of conflicting interests, the supreme task of which is equilibrating interests, including private interest and public interest, as well as material interest and moral interest." The copyright law is of it's own characteristics. First, the exclusiveness of copyright calls for absolute protection against any illegal transition and usage. To seek enormous profits, the owners of copyright tend to abuse the right of exclusiveness and handicap the development of literature and art. On the other hard, other individuals and the public eagerly claim to share the literature and art. Great interests are involved in the conflict. Second, the interference of the government with copyright has, to some extent, contributed to the restraint and denial on autonomy of wills. Accordingly, the conflict among these interests is noticeable during the protection and restraint of copyright. This is the reason why the author choose the topic of equilibrating interests in protection of copyright as that of his thesis.Except for the introduction and conclusion, four parts are contained in the thesis .It is about 3,4000words long.Part I: The equilibrium of interests is the theoretical basis for copyright law. First, the author reviews different conceptions put forward by western legal scholars on the equilibrium of interests. Second, based on the definition of copyright, the basic relations of interest involved in copyright are analyzed. The social purpose of copyright law can be generalized as equilibrating the above relations of interest. Moreover, equilibrating the interests, as a means, is applied to the legislation, the application and the interpretation of copyright law. Third, the author, from the viewsof history, economy and philosophy, expounds the necessity of establishing equilibrium of interests as the theoretical basis for copyright law.Part II: The value-orientation of equilibrating interests. Onequilibrating interests, there are three value-orientations including justice, efficiency, as well as honesty and trustworthiness. Equality, public interests and rationality give expression to justice in equilibrating interests evolved in copyright law. It is the function of equilibrating interests that makes copyright law a just one; the essence of honesty and trustworthiness is the equilibrium of interests involved in civil law. According to the requirements of honesty and trustworthiness, the effective copyright law should be the one that lower the transactional costs as much as possible; by equilibrating interests, the copyright law improves it's efficiency. However, the efficiency can't be gained at the expense of any single party involved in copyright law. The above mentioned value-orientations will conflict with each other, especially efficiency and justice as well as efficiency and honesty and trustworthiness. Consequently, reconciling with these values has become another task of equilibrating interests in copyright law. The principle of reconciling is best efficiency and overcompensation.Part III: The protection and restraint of copyright.Firstly, the protection and restraint of autonomy of wills in 晅ransferring the possession of copyright is discussed. The principle of autonomy of wills embodies respects for the producer of intellectual property, which can lower the cost of transactions and help the spreading of democratic ideas. However, the autonomy of wills does not mean unlimited freedom, which should be under restraint. The restraint of transferring the possession of copyright is established in copyright law in the form of the limitations of target, time and region.Secondly, the system of fair use is discussed. After briefly reviewing the history of fair use, the author makes a comparisonbetween two copyright law of china-the one in force and the oneceasing to be effective,and between the copyright law of china and 晅hat of some typical foreign countries. Then... |
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