THE POTENTIAL DEMISE OF ANOTHER NATURAL MONOPOLY: NEW TECHNOLOGIES AND THE ADMINISTRATION OF PERFORMING RIGHTS

This is a second in a series of two articles in which I challengethe collective administration of performing rights. In the firstarticle, published in a recent issue of this journal, I questionedthe natural monopoly paradigm that dominates the analysis ofcollective administration of performing rights. In this articleI demonstrate how, by lowering many of the transaction costswhich previously purported to justify the practice, new digitaltechnologies further undermine the justification for collectiveadministration. I also discuss whether market forces alone wouldtransform the market into a competitive one, consider possiblecontinuing roles for existing performing rights organizations,and compare the Canadian and the U.S. regulatory approachesto determine how conducive they are to such change.     

Monopoly defeating mechanisms: Will they function in the digital world?

History reveals that ‘copyright’ was originally monopolistic (in the early fifteenth century) and remained so until the enactment of the Statute of Anne in 1709. Since then copyright has striven to maintain a delicate balance between incentive to authors and avoiding monopolistic stagnation. To achieve these goals, certain monopoly-defeating mechanisms have been adopted such as: fair use, public domain, the idea/expression dichotomy and the exhaustion doctrine. Recently, however, with the implementation of new laws: for instance the Digital Millennium Copyright Act (1988), the EU Copyright Directive (2001), and the implementation of the EU Copyright and Related Rights Regulation amending the Copyright, Design and Patents Act 1988, there is a growing concern that the mechanisms which were enacted to defeat the monopoly will not work in the digital medium. With the provision of affixing technological measures to copyrighted works and the non-application of the exhaustion doctrine in the digital world, arguably the monopoly defeating mechanisms have been disabled. The aim of this paper is to demonstrate the way monopoly defeating mechanisms are becoming non-functional in the digital world. Furthermore, the study also demonstrates how the European Copyright Directive and the UK implementation of the Directive has transgressed the boundary of exclusive rights set by the two World Intellectual Property Organization (WIPO) treaties – the World Copyright Treaty (WCT) and the WIPO Performers and Phonograms Treaty (WPPT) – and copyright law, thereby strengthening the copyright owner's rights in a way that was never intended by the WIPO treaties or by copyright law. Consequently, the new laws have also shifted copyright's attention from commercial pirates to non-commercial individual users. The study aims to demonstrate how the shift took place and finally, trace the recurrence of the monopoly; giving rise to a situation where there is no fair use/dealing, no public domain, no idea/expression distinction and no exhaustion doctrine.     

Holding Back the Tide— a Review of Recent Developments in Copyright Law in the United Kingdom

This article surveys recent developments in UK copyright law. It sets these developments in the context of broader trends in copyright law and policy. Significant decisions concerning subsistence of copyright, authorship, infringement, defences, remedies and collective licensing are analysed. The author notes that copyright, and other intellectual property rights, have been given extra force as a result of recent legislative developments. He argues that, against this background, it is possible to discern increasing judicial concern to ensure that such an expansion in monopoly power does not operate against the public interest.     

精神权利保护的一种法哲学解释

精神权利最初源于个人主义和浪漫主义对尊重个人创作和个性的要求。德国的先验唯心主义和法国的天赋人权学说从人的主观权利和自然权利的角度论证了这种要求的正当性,并进而涉及到人的主观权利和作者人格的联系。19世纪这种联系扩展到作者和作品之间的一般联系,并被确认为作者身份所因有的最高人格权。但在精神权利制度化的生长过程中,20世纪30年代以降,受实用主义哲学的影响,精神权利呈现弱化和软化处理的趋向,具有一种从纯粹的自然权利蜕化为某种制度安排工具的倾向。从权利制度化的角度看,这种趋向是对市民社会发展变迁的理性反应,对解决版权交易市场中经济权利和精神权利存在的紧张关系具有积极意义。     

Who’s Afraid of Property Rights? Rights as Core Concepts,Coherent, Prima Facie,Situated and Specified

Natural property rights are widely viewed as anathema to welfarist taxation, and are pictured as non-contextual, non-relational and resistant to regulation. Here, I argue that many of the major arguments for such views are flawed. Such arguments trade on an ambiguity in the term ‘right’ that makes it possible to conflate the core concept of a right with a situated or specified right from which one can read off people’s actual legal entitlements and duties. I marshal several arguments demonstrating this conflation. In particular, I examine the right to free speech, where contextualization and responsiveness to the requirements of other rights are assumed as a matter of course. I conclude that the existence of one natural right does not foreclose the existence of other natural rights. Arguments for or against welfare rights must be assessed, at least to some extent, independently of the assertion of a natural property right.     

The contractual alternative to patents

A patent grants the holder a monopoly over the use of the patented invention for a specified time period. Although economists are generally opposed to monopoly, there seems to be a general consensus that the patent system is desirable.¹ The rationale for the patent system is that without ownership rights in inventions, there would not be optimal allocation of resources to inventive activities, just as with any other valuable resource over which there are not well-defined property rights. However, the patent system, since it confers monopoly rights, has its drawbacks as well. If independent parties are working simultaneously toward an invention, the first to produce the invention will receive a monopoly over its use, even though others may have been only a month behind. This may encourage inventors to work too intensively toward a patent, and could also have the effect of producing monopoly in a market that was characterized by competition before the patent was issued. In addition, competitors have an incentive to develop substitute processes to avoid infringement of the patent, when the use of the patented process would be more economical. A substitute for patents which provides ownership rights in an invention without governmental grant of a monopoly is the trade secret. The purpose of this paper is to introduce and develop the idea of the law of trade secrets as a contractual alternative to patents.     

政府对自然垄断行业的规制分析——一种行政法视野下的新解读

我国的自然垄断行业有着不同于西方自然垄断的特点,那就是我国的的自然垄断行业是与行政垄断交织在一起的,因此政府对自然垄断行业的规制从某种程度上而言,是一种行政行为。既然是一种行政行为,就应当符合行政行为的构成要件。文章主要从分析自然垄断的政府规制的方式入手,指出了现有几种规制方式的不足之处,并根据WTO的要求,指出我国对自然垄断行业的政府规制应当进行改革,包括进行国有化改革、积极引入激励性规制机制、扩大社会团体的作用等。     

THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD AND THE NEED FOR ITS INCORPORATION INTO A BILL OF RIGHTS

In this article I discuss the failure of most democratic countries to accept or properly implement the UN Convention on the Rights of the Child, despite, except in the case of the United States, having ratified it. I consider the domestic implementation of treaties. I discuss, from an Australian perspective, that country's failure to enact a Bill of Rights and argue that children in Australia have suffered as a result. I also discuss judicial approaches to international law and compare the situation in countries such as the United States, the United Kingdom, Canada, and New Zealand and suggest that even in those countries that do have a Bill of Rights, it is not oriented toward children and therefore does not properly recognize their rights.     

论著作权法的范式转换 从“权利”到“行为规制”

现行著作权法条文的构造具有浓厚的自然权理论色彩,重视对著作人身权的保护,且在处理著作财产权时拘泥于物权构造。静态思维的权利范式缺乏体系化思维,将著作权误解为对作品这一无体"物"享有的权利。然而,著作权的本质是行为规制,其对私人行动自由的限制程度较高。因此,著作权法的思维方式也需要从静态思维的权利范式转向动态思维的行为规制范式。动态思维的行为规制范式,既可以纠正政策形成过程中的利益倾斜问题,也可以弥补著作权法条文与使用者普遍认知之间的偏差。     

美国修改《数字千年版权法》的反垄断法解读——以Iphone智能手机的“越狱”“解锁”事件为例

美国修改《数字千年版权法》,使破解IPhone等智能手机,以便转换电信服务提供商;或者安装非IPhone应用程序都成为合法的事情。此事件在知识经济时代中对各国数字版权的保护,防止知识产权的滥用具有一定的代表性。从此事件中可看到,美国修改《数字千年版权法》,打破了原来的关于捆绑电信运营商,不允许兼容其他程序等限制性商业行为,使得以创新和竞争为特征的信息产业,具有继续向前发展的动力。美国修改《数字千年版权法》,对中国反垄断法的实施具有一定指导意义。即在网络经济时代,在保护知识产权的合法垄断权时,中国反垄断法应该禁止知识产权滥用,鼓励创新或动态效率的促进,消费者福利的保护。     

著作权保护期限标准的审视与重构

著作权的两类权利主体(自然人和非自然人)获得保护的正当性理由不同,相应的保护期限也应根据不同的标准确立。回顾著作权法的发展历史,二者没有被清晰区分。以自然人作者保护为前提发展而来的"照顾理论"是大部分国家现行时间标准的正当性理由。信息社会著作权法的保护范围和制度设计都有了深刻变革,要实现公平正义目标,著作财产权的保护期限应当重构:一方面,非自然人权利主体作品不应也不宜直接适用原有根据自然人作者设计的保护期限,而应根据"激励理论"参考专利法确定固定保护期;另一方面,应当审视"照顾理论"在现有背景下的合理性,对自然人作品建议采用原则上以作者生命为限结合最低保护期限的标准。现有保护期限都应缩短,在受国际条约所限该目标短期难以达成的现状下,可以调整著作权保护宽度,采用相对宽松的合理使用制度。     

On Some Difficulties of Putting in Dialogue Animal Rights with Anthropological Debates: A Historical View in Three Episodes

In this paper, I try to identify the reasons why the dialogue between sociocultural anthropology and animal rights theories and movements continues to be difficult and scarce. At first sight this weakness of communication is surprising, if one looks at the amount of anthropological studies on human/animal relationships, in most cases pointing to how animals are considered in many cultures as non-human subjects or persons. For understanding the roots of this state of affairs, I compare the ways anthropologists and animal rights theorists and activists have engaged with the issue of the differences and commonalities between human beings and nonhuman animals. For this aim, I contrast the search, among philosophers and activists, for a universal rational ethical foundation of animal rights, to which natural sciences’ findings can give support, with sociocultural anthropologists’ focus on the embeddedness of human/animal relationships in symbolic systems and in political relationships. In spite of the paradigmatic shifts intervened in a century and half of sociocultural anthropology, I show, through a critical review of the recent works of Ingold, Descola, Viveiros de Castro and Kohn, that even today this difference in approach is far to be overcome.     

著作权犯罪被害人研究

在对1387例自然人和591例法人进行调查的基础上,探讨著作权犯罪被害人的相关被害特征、被害人与犯罪人的互动关系、被害人对被害发生的促成性因素、被害人对其自身责任的认知状况、被害人被害之后的权利维护等问题,并从对被害进行控制的角度检讨现行的知识产权政策,力图以被害人为中心构筑控制著作权被害和保护著作权权利人合法权益的对策体系.     

Legal rights in data

It is now apposite to speak of the ‘data centric world’. Businesses are paying ever more attention to their own, and others’ data, as a way of adding value to the organisation and conferring competitive advantage. This in turn is focusing attention on legal rights in data across many business sectors, where we’re starting to see more disputes. Data is funny stuff in and of itself - effectively inert in legal terms. It is more precise to speak of ‘legal rights in relation to data’. Those rights are IP rights - copyright, database right, confidentiality, patents and trade marks - and contract rights. Each IP right has its own rules, and applying those rules to data leads to a complex, multi-layered analysis where the law is unsettled and uncertain. This means that data is an area where contract is very often king, so most businesses regulate access to data by means of a series of agreements. The most commonly contested points in negotiations are around licence scope, derived data, commingled data and post term use.     

The Trouble with Moral Rights

It is usually argued that moral rights are severely handicapped by their inconsistent entrenchment in common law and civilian legal systems. This article argues that the main trouble with moral rights protection is that the justifications for the existence of these rights are riddled with internal inconsistencies generated by the vagaries of copyright exploitation. Harmonising moral rights protection or using moral rights justifications cumulatively may not resolve the theoretical inconsistencies. Copyright protection must therefore be seriously overhauled if moral rights are to be widely perceived as vehicles for protecting authors' rights.     

YouTube时代的美国网络著作权问题新探

网络时代，美国的著作权问题也面临着许多前所未有的挑战和冲击。著作权人疲于花费大量时间和全钱来控制网络著作权侵权行为的发生，而用户生成内容的网络盛行，是否也应封用户上传到网站上的侵权内容负责？此类纲站在“安全港湾”的庇护下，著作权人如何才能捍卫自己的权益？著作权人的权益与社会公来的合理使用权之间的矛盾该如何平衡？笔者拟以案说法，探讨依法解决美国当今网络著作权问题的新途径。     

The directive on the legal protection of computer programs

Conclusion Other matters which are essentially left to national provisions include issues of fair use (apart from Article 5), moral rights, authorship and ownership. However, the bland terms of Article 2 (dealing with authorship) was only reached after one of the more controversial proposals was rejected. This was the suggestion that the ownership of a program which has been commissioned should belong to the commissioner rather than the author. This would have been a provision which would have been out of step with most countries' copyright legislation. In any case, it is probably a matter best dealt with by contract. The author, or his employer, will be able to negotiate so that their creativity can be retained in the organisation while the commissioner can ensure that the product can be fully and beneficially used in his organisation. if that requires a transfer of the full copyright then the assignment must be contracted.Article 10(1) requires that member states shall implement the provisions of the Directive by 1st January 1991. Given that many of the requirements are already in place in the Copyright, Designs and Patents Act 1988, it will be a nice matter of judgment for the United Kingdom to decide how that implementation is to occur. There are certainly a sufficient number of differences from our present law, and ambiguities as to their effect, to require some substantive modification of the scheme of the 1988 Act.     

On rights and responsibilities

Rights are commonly linked to responsibilities. One commonly hears remarks about the rights and responsibilities of teachers, parents, students, etc. This linking together of the two is the topic of this paper. The paper is divided into four sections. In the first section I distinguish three accounts of the relation between rights and esponsibilities any of which we could have in mind when linking the two together, and I single out the third account for further study. Unlike the other two, it seems to offer fresh material for the theory of rights. In the second section I develop this material. I explicate the general relation between rights and responsibilities as this third account represents it, and I specify the grounds for attributing such a relation to them. My aim here is to elucidate a conception of rights that certain legal and political rights can be taken to exemplify and that has been ignored or obscured in recent work in the theory of rights. In the last two sections I turn my attention to human rights. I argue in Section III that Locke's theory of natural rights can be interpreted as upholding the conception of rights elucidated in the preceding section, and I consider and criticize in Section IV an account of the relation between certain human rights and responsibilities that comes from Joel Feinberg's distinction between mandatory and discretionary rights. The arguments of these two sections are meant to strengthen the case for making room in the theory of rights for the conception elucidated in Section II.     

The Dematerialization of Print and the Fate of Copyright

This paper contends that copyright is a product of the invention of print. Before that time, writings were seen as part of the common heritage of humanity and if someone copied a book by hand they deserved the right to own the copy. The digitalization of not only print, but also intellectual products such as music, graphics and video has caused problems more deep-seated than many copyright lawyers would admit to. In fact, a paradigm shift has occurred with information at the core. The older paradigm comes from the world of Descartes and Newton and focuses on material things. The legal system of that era correspondingly focused on material things, making it impossible to own, possess or have any other real right in incorporeals. To cover intellectual property a special subsystem of law was designed which is now starting to show the strain. It is argued that information ages quickly and by over-protecting it one loses the value of the asset. Power and wealth will come from transmitting and adding value to information. In this regard personal rights might be more valuable than real or intellectual property rights, unless the latter adapts to change more rapidly.     

Kant, Copyright and Communicative Freedom

The rapid recent expansion of copyright law worldwide has sparked efforts to defend the ‘public domain’ of non-propertized information, often on the ground that an expansive public domain is a condition of a ‘free culture’. Yet questions remain about why the public domain is worth defending, what exactly a free culture is, and what role (if any) authors’ rights might play in relation to it. From the standard liberal perspective shared by many critics of copyright expansionism, the protection of individual expression by means of marketable property rights in authors’ works serves as an engine of progress towards a fully competitive ‘marketplace of ideas’ – though only if balanced by an extensive public domain from which users may draw in the exercise of their own expressivity. This article shows that a significantly different, and arguably richer, conception of what a free culture is and how authors’ rights underpin it emerges from a direct engagement with the philosophy of Immanuel Kant. For Kant, progress towards a fully emancipated (i.e. a ‘mature’ or ‘enlightened’) culture can only be achieved through the critical intellectual activity that public communication demands: individual expressive freedom is only a condition, not constitutive, of this ‘freedom to make public use of one’s reason in all matters’. The main thesis defended in this article is that when Kant’s writings on publicity (critical public debate) are read in relation to his writings on the legal organization of publishing, a necessary connection emerges between authors’ rights – as distinct from copyrights – and what Jürgen Habermas and others have named the public sphere. I conclude that it is the public sphere, and not the public domain as such, that should serve as the key reference point in any evaluation of copyright law’s role in relation to the possibility of a free culture.