新《著作权法》背景下非典型作品保护探究——以新型艺术创作成果为例

Research on the Protection of Atypical Works in the Context of The New Copyright Law—Taking the New Artistic Creation as an Example

摘要: 近几年来，国内外司法实践中出现较多涉及新型艺术创作成果保护的相关案件，在满足独创性、可复制性的条件下，这类新型艺术创作成果可归入美术作品进行保护，权利人也享有展览权等配套权利。由此得出非典型作品的保护启示，对作品类型的立法应当把握最本质的特征，使其具备适应社会发展的弹性解释空间；法院应避免兜底条款的滥用，优先进行作品类型的认定，若无法纳入现有作品类型，也应谨慎认定著作权人享有的专有权利范围。

Abstract: In recent years, there have been many cases involving the protection of new artistic creation in judicial practice at home and abroad. Un-der the conditions of originality and reproducibility, such new artistic creation can be classified into works of art for protection, and the copyright owner also enjoys the right of exhibition and other supporting rights. From this, we can draw the inspiration for the protection of atypical works. The legislation of types of works should grasp the most essential characteristics, so that it has a flexible interpretation space to adapt to social development; the court should avoid the abuse of the “bot-tom line” clause and give priority to the identification of the types of works. If it cannot be included in the existing types of works, it should also carefully identify the scope of the exclusive rights en-joyed by the copyright owner.