| With the development of digital technology and the Internet around the world, the traditional system of intellectual property right has undergone tremendous poundings and challenges. How to protect the right entitled to the copyright owners to disseminate their works on the Internet? It has been a question concerned by the global field of intellectual property right in the past ten years. In our country, the computer network service also develops very fast. As the Internet developing impetuously, torts online, which get more and more serious, have also forced us to face the problem of how to regulate the dissemination of works on the network.In the 1990s, the international societies adopted the method of extending the explanation of the rights in the traditional copyright, such as the copying right and the publishing right, to solve this problem. However, the attempt to regulate the online works transmission by the copying or publishing right has certain defects, and can't well protect the rights of copyright owners. In December 2000, the World Intellectual Property Organization (WIPO) signed the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty in Geneva, Switzerland. In these two treaties, it is confirmed that the concept of "the right of communication to the public" includes the right of a copyright owner to disseminate his/her works on the Internet; it is explicitly provided that a copyright owner is entitled to permitting others to disseminate his/her works to the public by wire or in a wireless way. Through this provision, WIPO authorizes the copyright owners with a new proper right-----the right to disseminate the works on the network. From then on, the dominant developed countries have revised their national laws to join the two above-mentioned treaties. The United States, Japan and the European Union have respectively adopted different legislative models to implement the regulations on the right of dissemination on the network provided in the above two treaties. Influenced by the international society, in 2001, the newly revised Copyright Law of our country sets a proper right called the right of dissemination on informational network.To some extent, the appearance of the dissemination right on informational network in our country protects the right of a copyright owner to disseminate his/her works on the network. However, because the our domestic regulation on the dissemination right on the network is in a sense of principles and general terms, much margin is left in many aspects; although the judicial explanation from the Supreme Court makes provisionson some specific problems, the rationality and feasibility of some of the provisions are still left to be deliberated.On the basis of the above situation, the paper is divided into two parts, respectively exploring the emergence of the dissemination right on the network and the legislative margin in our dissemination right on the informational network. The first part approaches the emergence of the dissemination right on the network, mainly discussing several experimental resolutions, adopted by the international society and our country before WIPO established the dissemination right on the network, and their respective defects; also discussing the regulations on the right on the network provided by WIPO Copyright Treaty and WIPO Performance and Phonograms Treaty; and summing up different legislative models adopted by the United States, Japan and the European Union to implement the dissemination right on the network.The second part of the paper explores part of the legislative margin in our dissemination right on the informational network. With reference to the legislative experiences of developed countries about these, combining with specific analysis to the less rational points in the relating judicial explanations and provisions, the paper clarifies that our legislative body should accord with the present times and the international usual practices to make the legislation of the dissemination righ... |
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