Study On Moral Rights Of Legal Person Or Unincorporated Organization

Modern legal entity system was originated from Roman law,For Non-human person such as corporation and consortium have had Roman citizenship.In modern civil law legal person in whom the vast complex of property rights,therefore,whether entity will own Non-property rights is still up for question.And to address this,Fiction theory Reality theory and Deny theory provides researcher with various angles to study the essence of legal entity.In the field of copyright,this problem is reflected in whether legal person can obtain the moral rights.And copyright law stipulates that "the author can be a natural person or a legal person or an organization without legal personality","the works of a legal person or an organization without legal personality,whether published or not,enjoy copyright in accordance with this Law(hereinafter,the works of a legal person or an organization without legal personality are referred to as legal person works for short).Therefore,China’s legal person can become an author and obtain the personal right of the original copyright.However,at the theoretical level,it is still necessary to clarify the relationship between legal person’s copyright personal right and legal person’s personality right.Although the personal right of legal person copyright and the right of legal person personality are similar,such as non-transferability and non-property,there are many differences between the personal right of legal person copyright and the right of legal person personality.In civil law,the right of legal personality can be obtained when the legal person is established,but it is generally believed that the personal right of works can be obtained only through the factual act of creation.Therefore,there is a debate on whether the right of legal personality and the right of legal personality are essential or heterogeneous.In addition,there are also differences in personality rights between legal persons and natural persons.The most obvious is that legal persons do not have civil rights that only belong to natural persons,such as the right to life and the right to health.Whether the personal right of legal person copyright is different from that of natural person author also needs to be clarified.Therefore,in theory,it is necessary to clarify the difference between the personal right of legal person copyright and legal person personality right,and the difference between the personal right of legal person copyright and that of natural person author,that is,the nature of legal person copyright.At the institutional level,the copyright law has been revised several times.Except that "legal person or other organization" is modified to "legal person or organization without legal person" in the expression of the subject,other contents basically continue the provisions of the copyright law of 1990.However,there are many problems in the current legal person copyright system.For example,China’s copyright law is generally close to the legislative style of civil law countries,and the relevant systems are constructed with the author as the center.However,Article 11 of the copyright law stipulates that natural person authors and legal person works are juxtaposed,which is relatively rare in civil law countries.Therefore,if we want to give legal persons the personal right of copyright,what is its legitimacy? Secondly,China’s copyright law stipulates both legal person works and duty works.Their functions are similar and it is difficult to distinguish them in practice.What are the reasons for retaining legal person works and duty works at the same time? Thirdly,the system of legal person obtaining the personal right of copyright in China belongs to a legal fiction,but the wording uses the expression based on the will of legal person or illegal person organization.This expression seems to imply that legal person can carry out creative activities as natural person.However,the concept of "corporate will" is not clear.In judicial practice,corporate works tend to expand interpretation,and the copyright or reward right of natural persons participating in the creation is not reserved in corporate works.Is such a right setting reasonable? In addition,there are more than one system of granting personal rights to legal persons in the copyright laws or copyrights of other countries,such as hired works in the United States copyright law,national nominal works and collective works in the Italian copyright law,and collective works in the French law.These systems can provide legal persons with the protection of copyright personal rights,but the legislative purpose of each system and the content of giving legal persons copyright personal rights are different.In China’s copyright law,it is only stipulated as "legal person works" in the same cage,and there is no typed distinction to give legal persons personal rights.Is it necessary for China to distinguish,or still retain the unified concept of legal person works? This is another research focus of this paper.Finally,even if the legal person’s author status is recognized,the legal person is given the personal right of the copyright.However,due to the obvious differences in the way and ability of legal persons to exercise their rights with natural person authors,the personal rights of legal persons may be different from those of natural person authors.For example,in the current copyright law,the protection period of legal person’s personal right is different from that of natural person’s author,and whether other personal rights of works are also different from that of natural person’s remains to be further studied.To sum up,the topic of this paper has theoretical value and practical significance.In terms of structure,in addition to the introduction and conclusion,the main body of the paper will be divided into three parts.The first part is the research on the basic problems of legal person’s personal right,the second part is the research on the legal person’s personal right system at the necessary level,and the third part is the improvement of China’s current legal person’s personal right system.The first part first clarifies the relevant concepts of legal person’s copyright personal right,combs the provisions that legal person can obtain copyright personal right in the two legal systems by means of historical interpretation,and analyzes the necessity of giving legal person’s copyright personal right.Secondly,it reviews the development process of legal person works in China and analyzes the achievements of the two legal systems in the legislative process of our country.Finally,from the perspective of philosophy and jurisprudence,this paper analyzes the basis for legal persons to obtain the personal right of copyright.The problem solved in the basic theory part is: why do we need to give the personal right of non natural persons? What is the legitimacy and necessity of giving personal rights to legal persons?The second part demonstrates the system construction of legal person’s personal right of copyright at the should be level.Through the way of systematic interpretation,this paper analyzes the general path of obtaining civil rights based on factual acts in civil law,and logically further explains the general process of obtaining personal rights based on the factual act of "creation".At the same time,clarify the connotation of "creation" in copyright law.By analyzing the general mechanism of the meaning of legal person,this paper explains whether the civil subject of non natural person can implement the factual act,and the key role of the meaning organ of legal person in obtaining the personal right of copyright.Among them,based on the reality of legal person,this paper analyzes the specific meaning of "reflecting the will of legal person" in China’s copyright law.Based on the clear premise of connotation and extension,this paper analyzes the coordination between China’s special copyright ownership systems,such as legal person works,entrusted works,duty works and so on.Finally,through the study of comparative law,this paper analyzes the differences between the legal person works stipulated in Article 11 of China’s copyright law and similar systems in other countries.The problems solved in the system theory part are: at the should be level,the normative purpose,right content,necessary restrictions on the exercise of legal person’s personal right,and whether its legal person members can obtain civil rights related to the work while legal person obtains the personal right.The third part will analyze the loopholes in the system related to the legal person’s acquisition of copyright and further improve the system related to the legal person’s acquisition of copyright in China: first,further explain the specific connotation of "legal person’s will" referred to in Article 11 of the copyright law,so as to narrow the scope of legal person’s works,The core content of this element is the will of the legal representative absorbed by the legal person’s organ or legal person.Second,in the system of legal persons obtaining the personal rights of works,we investigate the protection system of natural persons participating in creation in the systems of other countries.Comparing the multiple rights model of natural person author and legal person author in the "collective works" of civil law system,which legislative model is more in line with China’s national conditions.Third,construct the exercise rules of the personal rights of legal persons’ works,and clarify the right protection period of legal persons’ works;This paper analyzes the necessity for the natural person author to revoke the authorization of the collective work author when the collective work author is waiting to exercise the copyright in the collective work.