董皓、顾敏康：我国著作权法中的违法作品问题
全文载：《法学》2009年第3期，页75-83，请查阅期刊以获取已发表的全文。
【内容摘要】在当前我国的著作权法中，不仅内容违法的作品，而且程序上违法的作品都不被授予著作权，并且程序与内容之间存在相互影响的关系。尽管“违法作品即无著作权”在现行国内法层面具有合法性，但在国际著作权法层面却无法获得正当性，并导致了超国民待遇的产生。通过“三步测试法”对“内容违法即无著作权”的规则予以衡量后，可以发现问题的关键是：并非不能在立法中否定内容违法的作品的著作权，而是需要通过各种手段明确内容违法的范围，使其符合 TRIPS 协定第 13 条中“特定的特殊情形”的要求。在此基础上，有必要探索出一套既符合国际公约，又有益于国内法治发展的制度改革方案。
【关键词】 违法作品 著作权 TRIPS 协定 三步测试法 实证法
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Copyrightable or Not: A Positive Review of illegal Works under China’s Copyright Law and Suggestions to the Legal Reform
GU Minkang & DONG Hao
Abstract:
Abstract: This article reviews the copyright dilemma of illegal works in the context of Chinese copyright system. Under the current law, not merely the works with illegal content, but also the works did not fulfill the procedural requirement will be denied the copyright protection. Article 4(1) may find legitimacy in the domestic level, but does not comply with the WTO law. The three criteria in Article 13 of TRIPS Agreement can be applied to examine Article 4(1). The key problem lies in the uncertainty of the scope of denial of copyright. This leads to the Super-national Treatment. Based on these analyses, the last part of the article proposed some suggestions for the future legal reform.
Here are English abstracts of my book chapters in CHEN Xinghua (ed.), The Intellectual Property Law (Kunming: Yunnan University Press, 2004).
Chapter 25: Name of Commercial Entities and Geographical IndicationThere are about 18,000 Chinese words in this chapter.
On 2 Dec 2008, invited by my friend Ms. LEE Na, I lectured for 2 hours in English at the bilingual course "Advanced Int’l Trade Law" in School of Law, Kunming University of Sci. & Tech. The topic is: WTO IP Disputes: US v China DS362 & DS363.
Here is the PPT. It will be updated along with the dispute resolution procedures. Please visit my website for the newest version.
DONG Hao, “Taxation Issues in the E-commerce”, in LI Zuming (ed.), E-commerce Law, Beijing: University of International Business and Economics Press (2009), 19,000 words;
Introduction:
The E-commerce should not escape itself from the taxation. However, the troditional tax law and taxation policies would not cope with the new challenges including the identification of the taxpayer, the jurisdiction issues, the "new" objects of taxation, etc. This chapter firstly analyzed the impacts of the online commerce to the traditional tax law. Then it introduced the achievements either in the academia or in the legislations in various countries. China’s relevant taxation policies and the future development are discussed in the third section of this chapter. To make this book more practical, although the structure of the chapter can be divided to the above three parts, the whole chapter always focuses on the possible dilemma as well as the solution in the context of Chinese taxation system.
书章：电子商务中的税收问题
Promoting and Protecting Human Rights in Transitional Cultures:
An Empirical Case Study in Minority Regions (Excerpt)
DONG Hao
The article includes six sections. Only the Introduction and an excerpt of Part I and Part II are provided here. The Chinese full-text was published at Achieves for Legal Philosophy and Sociology of Law, Vol. 7, 2004, Beijing, 18,000 words in Chinese.
Click here for the Chinese Full-text (PDF)
Abstract:
This article reviews the dilemma on the notion of “culture” in current human rights research with seven cases related to the ethnic cultures. Associated with the analysis of cultural relativism and the universalism of human rights, the following conclusions have been made: (1) culture itself is a dynamic phenomenon which will produce significant influence on people’s rights in reality; (2) the transformation of specific ethnic culture could be in accordance with the international human rights standard by occasion, at the same time, it also constitute the obstacles to the realization of those human rights; (3) National ideology can influence the transformation of certain culture; (4) through this influence, it is possible that the traditional ethnic culture can absorb the values of modern human rights ideas; (5) there’s no hurdle between ethnic culture protection and human rights protection; (6) the culture transformation is based on its origins and basis no matter how the national ideology want to impose the impacts; (7)a precondition of influencing the ethnic culture through national intervention is to protect the existing cultures as well as its autonomy and free development; (8) the so-called culture protection could produce further influence on the transformation of the protected culture.
Orphan Works in the Context of Chinese Copyright Law:
A Comparative Research
DONG Hao
Abstract: "Orphan Works" means works whose copyright (if not expired) owners can hardly be located, hence the users may not exploit the works lawfully with the licenses issued by right owners. Discussions to this topic in the U.S. and Britain have been raised for years, and the Bills for orphan Works have been introduced to the U.S. congress several times. The dilemma of orphan works and abandon softwares also exists in the context of Chinese copyright system, and this phenomena may be more widespread because the history of Chinese copyright law in the recent 100 years are inconsistent, unsteady and intermittent. Furthermore, the current Chinese copyright system is of not mature enough. It not merely lacks solutions for the orphan work problem, but also exists unreasonable provisions that may worsen it. Four factor should be considered when one is about to solve the problem: (1) comply with the three-step test; (2) based on existing legal system of the country; (3) minimize the cost of both right owners and users; (4) guarantee the predictability of the benifits and the obligations. Based on these four premises, this article critically reviewed the solutions in the U.S., Canada and Japan, and then proposed a set of multi-method and integrated suggestion that suit to the features of Chinese copyright regime.
Keywords:
orphan Work, statutory licence, compulsory licence, authorship, public domain
The paper (in Chinese, 21,000 words) has been accomplished in Nov. 2006, and it is continuously updating before the formal publication. If you need it, please conatct the author.
论著作权法中的孤儿作品问题董皓：一项基于比较法视角下的研究（摘要）
董皓
[摘要] “孤儿作品”是指因难以找到权利人而无法取得使用授权的作品。美国《2006孤儿作品法案》已被提交国会讨论。孤儿作品现象在中国同样存在且可能更为普遍，现行中国著作权法律体系不但没有为该问题的解决提供足够的制度资源，而且还存在着不合理的规则。在选择孤儿作品问题的治理方案时应考虑四个方面的因素，以它们为评价标准，综合各种解决模式的优长，结合中国体制的特点后，方可形成一套多模式并用的、中国的孤儿作品法律治理方案。
[关键词] 孤儿作品、法定许可、强制许可、作者、著作权
Competition Policy and Updating Vehicles for the Delivery of Legal Services: The New South Wales Experience and Lessons for Hong Kong
John BURKE* & Hao DONG**
Accepted by SSCI Journal: Asian and Pacific Law Review
Abstract: Competition policy has been applied to the legal profession in NSW for over a decade. The introduction of a broad reaching competition law to Hong Kong is currently being considered there. This article will review two key aspects of competition policy in NSW, the introduction of incorporated legal practices (‘ILPs’) and multi-disciplinary legal practices (‘MDPs’). In particular, it will explore the degree to which these changes have altered the traditional professional model of legal practice in NSW and the benefits and costs of these effects. These lessons are relevant to legal profession in Hong Kong because proposals in a public consultation paper issued by the Commerce and Economic Development Bureau on 6 May 2008 envisage that competition policy would apply prima facie to all business models. Furthermore, existing (but dormant) legislation permitting ILPs and recommendations to allow MDPs make these changes to the landscape of legal practice a real possibility. This article will conclude that such changes should be viewed with caution in Hong Kong and perhaps other solutions sought to improve the efficiency and productivity of the legal system and access to justice in that jurisdiction.
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* Teaching Fellow, City University of Hong Kong. BA (Macquarie University), Dip. Law (SAB), LLM (UTS), Graduate Certificate in University Teaching and Learning (Charles Sturt University).
** Lecturer in Yunnan University (PRC), PhD Candidate in City University of Hong Kong. The authors would also like to thank Professor Christopher Roper and Professor Gino Dal Pont’s careful proof reading, as well as very helpful insights provided by Michael Sandor on the current law of Hong Kong, who refereed this article.
Can the Moral Right be Transferred and Waived?
A Positive Research to the Chinese Copyright Law
关键词：著作权；署名权；发表权；修改权；保护作品完整权
时隔五年，放出硕士学位论文全文（其中部分内容业已发表），欢迎参考阅读，如需引用请遵循后面的引用方式指引。
云南大学硕士学位论文
互联网域名的法律性质及相关问题研究
姓名：董皓
申请学位级别：硕士
专业：法学·经济法
指导教师：徐中起
学位授予时间：2003.6
欢迎下载阅读，但禁止转载和任何形式的商业化使用（包括但不限于收录入收费数据库）。
点此下载全文（PDF）
本文引用方式：
董皓： 《互联网域名的法律性质及相关问题研究》，云南大学硕士学位论文（2003），第…页，文献获取自：http://www.blawgdog.com/article.asp?id=751。
目 录
文摘
英文文摘
引言
第一章回顾与反思——中国域名法律制度的产生和发展
一、中国域名法律制度的产生阶段
(一)互联网和域名在中国的出现
(二)《域名管理暂行办法》的出台和域名注册管理机构CNNIC的建立
(三)域名争端解决的早期司法实践
(四)小结和反思
二、中国域名法律制度的发展阶段
(一)域名司法解释的出台
(二)域名管理办法的修订
(三)域名争端解决机制的建立
(四)小结和反思
三、从中文域名和关键词风波反思CNNIC的地位
(一)中文域名风波
(二)关键词风波
(三)反思CNNIC的法律定位
(四)小结
第二章域名权利之辩——域名的法律性质问题研究
一、关于域名上权利的各种学说之评述
(一)暂时搁置说
(二)民事利益说
(三)知识产权说
(四)权利否认说
二、对域名上各种权利的再认识
(一)域名持有者通过与域名注册服务者之间的契约，获得了合同上的请求权
(二)域名持有者在成功注册域名之后，获得了解析使用域名的绝对权——域名权
(三)域名权的知识产权属性之界定
(四)域名持有者要想在域名上获得其它排他性的权利，则必须在域名的使用中符合各该权利的法定要件且不侵犯他人的在先权利
(三)小结：域名的法律性质
第三章从案例入手——澄清性质后的域名争议分类研究
一、基于主张商标权而发生的争议
(一)美国的域名权与商标权争议及解决途径
(二)中国的域名权与商标权争议及解决方式
(三)域名权与商标权冲突的平衡
二、基于商号权、姓名权、在先域名权而发生的域名争议
(一)基于商号权、姓名权而发生的域名争议
(二)基于在先域名权而发生的域名争议
三、小结
结语
英文词汇和略缩语简释
主要参考文献
后记
A revised version of this essay was published in The Standard (Student Edition), 17 September 2008, p. E05.
Is a Justice of the Peace a Judge?
Donnie DONG*
As an Andy Lau fan, I am delighted to hear that he was appointed a Justice of the Peace (JP, 太平紳士) by the Hong Kong government this July.[1] What exactly is a JP? Is a JP a Judge? Let’s review the story of JP and see what Andy is supposed to do in his new position.
In ancient Britain, the rule of law was not perfectly established, so the King had to look for reputable knights to keep the peace in unruly areas. Those knights, appointed as “Keepers of the Peace” (和平維護官),[2] were widely respected by the residents in their counties. In 1327, an Act referred to "good and lawful men" to be appointed in every county in the British land to "guard the peace".[3] They were called “Conservators of the Peace” (和平守護官).[4] As such they were authorized to curtail wanderers, dissipate all mutinous and riotous groups, and crack down on thieves and outlaws, and other persons disaffected to the peace. In 1361, their name was altered to “Justice of the Peace” because a statute authorized them to try (審理) the felonies (違法行爲) happening in their own communities.[5] We can conclude, therefore, that JPs were originally judges in the history of British judicial system.
During the colonial times (殖民時代), the British JP tradition had spread around the world. Many colonized countries and regions, such as Australia,[6] New Zealand,[7] Canada,[8] Malaysia,[9] certain states in the United States,[10] as well as Hong Kong,[11] had established their own systems of JP. However, the JP system in different countries began to evolve variously over time. In some countries, JPs still sit in the local courts hearing and judging cases,[12] while in other jurisdictions (法域) such as Hong Kong, the JP’s function of judging the cases has been taken over by full-time, legally-qualified magistrates (裁判官).The reason for this replacement is that the legal system has been more and more complicated, and only professional lawyers can ensure consistency in legal judgments. The result of this development is that in contemporary Hong Kong, JPs are actually not real judges.
Although the responsibility of hearing cases has been shifted to the magistrates, JPs are still very important to the peace of our society because they are all honourable persons with great influence over our communities.[13] According to the law, a JP may visit any custodial institution (羈押院所) or detained person (被羈押者) and receive complaints.[14] This is essential for protecting the human rights (人權) of the detained persons. In other words, as a JP, Andy Lau has the power to investigate any wrongful treatment of prisoners, juvenile offenders (少年犯) and mental patients, or he can refer the cases to the institutions concerned for follow-up actions.[15] That means he will not only act as heroes in movies, but also be a real guardian of justice for Hong Kong people.
“It was a great honour.” Andy said. Yes, indeed. I definitely agree with him, whether as his fan or as a lawyer.
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* Donnie DONG, PhD Candidate in City University of Hong Kong.
[1] G.N. (E.) 30 of 2008, in Gazette, No. 26 Vol. 12 (1 July 2008).
[2] James Birch Sharpe, An Inquiry Into the origin of the Office and Title of the Justice of the Peace (Shaw and Sons, 1841), p. ix.
[3] See Her Majesty’s Court Service, The History of Justices of the Peace (Magistrates) , available at http://www.hmcourts-service.gov.uk/aboutus/history/magistrates.htm.
[4] Sharpe, p. 108.
[5] Edward Hasted, The History and Topographical Survey of the County of Kent: Volume 1 (1797), pp. 215-221.
[6] See http://www.australia.gov.au/Justices_of_the_Peace.
[7] See Justice of the Peace Act 1957, New Zealand.
[8] See Justice of the Peace Act, R.S.N.W.T. 1988, c.J-3.
[9] The Justices of the Peace in Malaysia are appointed by states separately. See for example: http://www.jppenang.org/.
[10] Many states in the United States have their own system of Justice of the Peace, such as Arizona, Massachusetts, Connecticut, Vermont, New Hampshire, and so forth.
[11] See Justices of the Peace ordinance, Hong Kong.
[12] For example, In Ontario (Canada), a justice of the peace has judicial jurisdiction throughout the province. See Justices of the Peace Act, R.S.O. 1990, c. J.4, s. 17 (1).
[13] For a list of JPs of Hong Kong, see http://www.info.gov.hk/jp/eng/JPList_g.htm.
[14] See Art. 5, Justices of the Peace ordinance, Hong Kong.
[15] See Administration Wing of the Chief Secretary for Administration’s Office, 2007 Annual Report on JP Visits, p. 3, available at http://www.info.gov.hk/jp/eng/anreport07_eng.pdf.
A revised version of this essay was published in The Standard (Student Edition), 17 September 2008, p. E05.
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