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电视节目的保护问题,在学界一直备受关注。尽管学界讨论热烈,但是在实践中,却没有司法诉讼先例。电视节目模仿现象在国内非常突出,但是被模仿者却难以依据著作权法保护其权益。此问题根源系思想表达二分法,即著作权仅保护思想的表达,而不保护思想本身。电视节目模板可能不完全受著作权法保护,但是电视节目本身、舞美场景、电视节目策划或脚本却均可作为单独的作品而受著作权法保护。关于电视节目模板的保护,学者多倾向于依据反不正当竞争法进行保护,而笔者则认为,反不正当竞争法尽管可为电视节目模板所有人提供阻止他人不正当地使用相同或近似的电视节目模板途径,但有很多困境。笔者认为,对电视节目模板的保护还应依据著作权法,其突破口应为对思想表达二分法重新认识,在理论和实践中确立“思想”非绝对地不受著作权法保护这一概念,而非单纯通过著作权立法来完成。
The protection of television programs has always been a concern in academia. Despite the heated discussions in academia, there is no precedent in judicial proceedings in practice. The imitation of television programs is very prominent in China, but imitators are hard to protect their rights under copyright law. The root of this problem is the dichotomy of ideological expression, that is, the expression of copyright protection only, but not the thought itself. TV program templates may not be fully protected under the copyright law, but the television program itself, theatrical scenes, television programming or scripting may all be protected as copyrighted works as separate works. Regarding the protection of TV program templates, scholars tend to protect against unfair competition laws. However, I believe that anti-unfair competition laws can provide the TV program template owner the right to prevent others from using the same or similar television programs illegally Template approach, but there are many difficulties. The author believes that the protection of the TV program template should also be based on the copyright law, and its breakthrough should be re-recognition of the dichotomy of ideological expression. In theory and practice, it has been established that “ideology” is not absolutely protected by the copyright law. Not just by copyright legislation to complete.