A FAREWELL TO BARRIERS： TOWARDS A FLEXIBLE SYSTEM OF EXCEPTIONS IN CONTINENTAL COPYRIGHT LAW  

作　　者：Pedro Letai 

机构地区：[1]Universidad Autonoma de Madrid [2] Professor of Law, IE Law School, Spain

出　　处：《US-China Law Review》2014年第7期793-821,共29页美中法律评论（英文版）

摘　　要：The paper would analyze the law and economics of introducing flexibility in the system of exceptions and limitations on European Copyright Law. Such flexibility would exist in an open norm on the basis of which the courts can decide whether certain uses of copyrighted material are permissible or not, instead of explicitly defining this in the law. First, it would assess problem areas where the lack of flexibility creates legal disputes and potential barriers to innovation and commercialization. Second, it would analyze the economic rationale and economic effects of introducing flexibility. Exceptions and limitations in the current copyright system are meant to balance the protection granted to rights owners with the public interest＇s need to make certain unauthorized uses. However, this paper would identify a number of situations that do not fit well within the current set of exceptions and limitations and attribute this to a lack of flexibility. Several of these problem areas have given rise to court proceedings with varying outcomes. The interpretation given by courts to existing exceptions and limitations---such as the quotation right, the exception for transient and incidental copying, the private copying exception, and the incidental use exception--is usually too narrow to respond to new technological developments, new developments in the creation process, or new commercialization models. These types of uses generally do not fit the narrowly defined exceptions and limitations and therefore lack legal basis. The same is true for things not yet invented.

关 键 词：著作权法 系统 大陆 屏障 法律纠纷 保护材料 障碍问题 经济效应 

分 类 号：N94[自然科学总论—系统科学] D923.41[政治法律—民商法学]