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付继存在《学术交流》2017年第9期撰文指出,由于交织着公益与私益的博弈,法定许可业已成为我国著作权法历次修订中关注度颇高的制度之一。我国著作权法定许可立法不应当接纳“存在即合理”的观念,恰相反,应当采纳“合理才存在”的信条。立法争论的核心问题可以归结为在私法自治原则下,应当基于何种正当理由对著作权行使作出何种程度的限制,并使理由与限制程度的关系符合比例原则。法定许可的本质是对著作权人依照私法自治享有的优势包括知情权、同意权、
Fu Jiqian In “Academic Exchange”, Issue 9, 2017, the author points out that the statutory licensing has become one of the most concerned systems in China’s copyright laws in the past few years because of the game between public welfare and private interests. The legislation of our country’s copyright statutory permission should not accept the idea of “existence is reasonable”. On the contrary, we should adopt the creed of “reasonable existence”. The core issue of the legislative debate can be attributed to what kind of justification should be given to the exercise of copyright under the principle of private law autonomy and to make the relationship between reason and degree of restriction in line with the principle of proportionality. The essence of the statutory permission is that the copyright owner enjoys the advantages of autonomy in accordance with the private law, including the right to know, the right of consent,