数字音乐版权区块链技术保护的相关法律问题研究

在当今数字版权时代,区块链技术因具有去中心化、防篡改、数据可靠等特点,在很大程度上能够解决数字音乐版权的确权难、收益难、维权难的问题。但是,它面临诸如无法鉴别数字音乐作品独创性、版权证明效力有限、有关监管体制不健全等法律适用难题。本文通过深入分析探讨这些现存问题,对比借鉴国外的相关先进做法,从技术工具和法律政策两方面提出了数字音乐版权区块链保护的具体措施,以期望促进我国数字音乐版权保护的发展,加快建设法治中国的新征程。     

Legal origin and intellectual property rights: an empirical study in the prerecorded music sector

This article aims at identifying differences in copyright protection in prerecorded music markets, and more specifically the impact of the legal system on the demand for original music CDs. To this end, we use a panel of 28 OECD countries in the period 1999–2005. After testing alternative specifications, our results show that differences in legal origin lead to differences in intellectual property rights enforcement. Our results also consistent with previous studies that find that common law countries have more secure property rights.

To share is fair: The changing face of China's fair use doctrine in the sharing economy and beyond

Copyrighted works are greatly entwined with the concept of the sharing economy because of their status as informational public goods. Unlike commercial sharing models that address tangible goods such as bikes and houses, the sharing of which is limited by their physical nature, sharing models for intangible copyrighted works such as Google Books and live game webcasting must account for the comparatively unfettered ability for these to be shared. Accordingly, these models are more focused on exploiting such works to their full commercial potential. However, these sharing models are to a large extent based on the unauthorised exploitation of copyrighted works and will be unworkable if the related copyright issues cannot be solved. The interest that copyright owners have in exclusivity must thus be balanced with the public's interest in further exploitation of copyrighted works. Article 22 of the Copyright Law of China outlines an exhaustive list of copyright exceptions; such a restrictive list is incompatible with the sharing economy. The Chinese courts have realised this problem and have gone beyond the law in their judgments, taking a cue from their US counterparts. However, many of these decisions appear to be inconsistent with one another.To address the aforementioned problems, this paper examines the latest proposed amendment to the Copyright Law of China and proposes several legislative and judicial actions that could help promote the sharing economy. At the legislative level, enacting legislation based on a refined open-ended fair use model is necessary to promote the development of the sharing economy. At the judicial level, Chinese courts should employ the concept of transformative use to correctly interpret legislation based on the proposed open-ended model. With transformative use as the cornerstone of copyright policy, the public gains the freedom to share others’ works, participate in the innovation process, and create works with new value. Moreover, authors would retain an incentive to create works under such a legal regime because market substitution will not occur if a work is used for a different expressive purpose than that for which the work was originally created. Thus, a balance can be achieved between promoting the sharing economy and protecting the exclusivity of copyright in China.     

iCLIC Data Mining and Data Sharing workshop: The present and future of data mining and data sharing in the EU

Held at Southampton University's Highfield campus and hosted by iCLIC, an interdisciplinary core on Law, the Internet and Culture, the Data Mining and Data Sharing workshop brought together attendees and speakers from industry, government, academia and a range of disciplines alike. The workshop comprised two sessions, each with a keynote and an associated panel. The first session was chaired by Eleonora Rosati and dealt with copyright and database rights, data mining and data sharing. The second session, chaired by Sophie Stalla-Bourdillon, focussed on data protection, data mining and data sharing. The following report covers both sessions, associated panel discussions and the subsequent question and answer sessions.     

The ICO and artificial intelligence: The role of fairness in the GDPR framework

The year 2017 has seen many EU and UK legislative initiatives and proposals to consider and address the impact of artificial intelligence on society, covering questions of liability, legal personality and other ethical and legal issues, including in the context of data processing. In March 2017, the Information Commissioner's Office (UK) updated its big data guidance to address the development of artificial intelligence and machine learning, and to provide (GDPR), which will apply from 25 May 2018.This paper situates the ICO's guidance in the context of wider legal and ethical considerations and provides a critique of the position adopted by the ICO. On the ICO's analysis, the key challenge for artificial intelligence processing personal data is in establishing that such processing is fair. This shift reflects the potential for artificial intelligence to have negative social consequences (whether intended or unintended) that are not otherwise addressed by the GDPR. The question of ‘fairness’ is an important one, to address the imbalance between big data organisations and individual data subjects, with a number of ethical and social impacts that need to be evaluated.     

Empathy and objectivity in the legal procedure: the case of Swedish prosecutors

The role of empathy, the capacity to read someone else’s emotions, in the legal context has previously been studied in relation to primarily judges’ decision-making, often with a concern for objectivity. Our purpose is to study professional emotion management in the legal process through an analysis of Swedish prosecutors’ use of empathy. An ethnographic data collection took place between 2012 and 2015, including shadowing, observations and interviews with 36 prosecutors from 3 prosecution offices. The analysis shows that during the investigation, empathy helps identify the prerequisites of a crime and deciding if and how to prosecute. When preparing for trial, empathy is used to anticipate the situation in court. During the trial, the empathic process includes management of the emotions of others in order to stage credible testimonies, convince the judge and calm victims. The empathic process is oriented and restricted by the emotive–cognitive judicial frame through which prosecutors are rewarded by emotions of comfort and pride in demonstrating expertise of legal coding. We conclude that empathy is integral to prosecutors’ professional performance, including the requirement to be objective. The study points to the problems with silencing emotions and maintaining a positivist notion of objectivity in the legal system.     

Dismissal policies in the united states and europe: Employment at will versus just cause

This article presents employment termination as a question of social justice. Two main competing models for legal rules governing the dismissal of individual employees are detailed: The U.S. modified Employment at Will approach and the common European Just Cause approach. A method of moral analysis is proposed for assessing the conflicting arguments behind each model. A series of questions are identified that can serve as a research program for arriving at a normative judgment concerning the relative moral merits of the competing models.     

近代中国制宪中的“民权”与“人权”之争——以章渊若与罗隆基的一场论战为例

近代中国1930年代的民权与人权之争,发生在著名的宪政学家章渊若和著名的政治活动家罗隆基之间。这场战争以"人权"二字是否应当写入《约法》里为起因,在论争中论者就"人权"与"民权"的异同,"人权"与"天赋人权"的异同以及人权的实质等问题进行了辩论,反映了社会连带主义与自由主义的思想背景和不同的政治文化立场。我们只有从论者所处的时代背景和拥有的思想渊源中去理解这场论争,才能真正领悟语词背后蕴含的深刻意旨或理想。     

Globalization and regulatory change: The interplay of laws and technologies in E-commerce in Southeast Asia

Electronic commerce has brought about business and technological changes globally, and these global changes have given rise to major legal reforms across nations. In the fast-changing global digital economy, states need strategies to maintain competitiveness of their markets while simultaneously ensuring the secure and effective use of technologies involved in conducting electronic transactions. This paper examines how the use and recognition of electronic signatures are regulated in Southeast Asia – the region that has shown the most significant growth in global e-commerce in past few years. Based on a comparative analysis of the laws of four representative ASEAN member states – namely Singapore, Thailand, Malaysia, and Vietnam, this paper argues that there is a regional trend towards adopting more liberal and technology-neutral standards for electronic signatures. Electronic signature regulation in Southeast Asia is now built upon limited technological neutrality (or the so-called “two-tiered” approach) as a shared regulatory understanding, but this approach is operationalized differently in each state due to distinctive national contexts. Within the common legal framework, each state has developed its own system of control and management with respect to higher-level signatures (using advanced technologies). The principle of technological neutrality, a concept originally developed for the regulation of technologies in response to the liberalization of telecommunications market, has been the central theme of discussions on the e-transactions policy-making scene. As the author shows, in the process through which states localize the global standards of technological neutrality, ASEAN as a vehicle of regulatory change has played an essential role in translating this principle to the national context.     

Types of organised crime in Italy. The multifaceted spectrum of Italian criminal associations and their different attitudes in the financial crisis and in the use of Internet technologies

This paper discusses the opportunity to differentiate four different criminological types of organised crime in Italy by drawing on a subset of case studies and interviews to law enforcement officers and experts collected for two on-going research projects. We hypothesise that, since these types exploit different social opportunity structures for their criminal activities, they have different capacities of adaptation and react differently when confronted with different kinds of innovations and changes. We test these four types against two significant phenomena that have been deeply impacting Italian society, among others, recently: the commercialization of the Internet and the economic and financial crisis that has hit Europe since late 2008. We conclude that these types offer a valid help to guide our understanding of what organised crime is today in Italy, as well as to assess the capacity of the existing legal framework to properly face all them. These criminological types could also serve as lenses to filter the different experiences of organised crime in other European countries, thus facilitating comparative research.     

The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland

British constitutional legal discourse is structurally limited in its capacity to capture the complexity of the Good Friday Agreement. Rather than assessing the Agreement in narrow devolutionary terms, it should be seen as a hybrid domestic and international law instrument, making an important contribution to accepted international law norms in relation to self-determination. The Agreement transforms and partly transcends the Northern Ireland conflict by substituting political contestation for violent conflict, and by defining the modalities of conducting that contestation. This analysis complements classical international law perspectives, and opens up the application of legal discourses associated with 'transitional justice' to the legal and political transformation in Northern Ireland. These discourses focus on the problem of reconciling the demands of peace with the imperatives of justice. The Agreement sits squarely in this terrain with its provisions on 'dealing with the past' and 'institutional legacies'. The insights gained here challenge orthodox thinking about conflict-management and the ongoing political process.     

网络服务合同中不平等条款的类型及其法律规制——以虚拟财产权的保护为视角

网络服务合同是确立网络运营商与用户双方权利义务的协议,是用户行使及保护其虚拟财产权的重要依托。实务中由于网络服务合同缺乏完善的法律规范,导致其中存在大量不公平的争议条款,当法律纠纷出现时,严重不利于用户对其虚拟财产权的保护与行使。如何在法律上对网络服务合同进行规制以及在司法实践中如何认定部分争议类型条款的有效性将是保护网络虚拟财产的重中之重。正基于此,在分析网络服务合同与虚拟财产权保护的主要矛盾,探讨网络服务合同中部分争议类型条款之后,对网络服务合同的法律规范提出相关建议。     

Legislative genesis and judicial death of a directive: The European Court of Justice invalidated the data retention directive (2006/24/EC) thereby creating a sustained period of legal uncertainty about the validity of national laws which enacted it

The Grand Chamber has ruled that the data retention directive was invalid ex tunc since it seriously interfered with the fundamental rights to respect for private life and protection of personal data and exceeded the limits of the principle of proportionality which are provided for in the Charter. The scope and temporal effects of this ruling should be clarified, especially its legal impacts on national laws of Member States which enacted the directive. In addition, the findings of the Grand Chamber on geographical safeguards have far-reaching implications on the retention and storage of personal data in the EU.     

人与人格分离技术的形成、发展与变迁——兼论德国民法中的权利能力

人格是特定社会的准入条件,因而生物人与法律人的分离,乃是法律人格制度的基本模式。这个模式中核心的要素,就是法律人格的“适格判断”的标准。在法律文明的早期,血缘、地域、财产等身份要素,充当着法律人格的判别标准,由此所引起的身份人格必然带有不平等的色彩。近代法律人格的基本特点,就是个人的伦理属性成为了法律人格的适格标准,由此奠定了近代法律人人平等的基础。《德国民法典》上的“权利能力”概念,是由实定法所界定的法律人格的适格条件,这一实定法上的概念,仍然是建立在关于人的伦理性判断的基础之上的。     

The legal implications of student use of social networking sites in the UK and US: current concerns and lessons for the future

This paper provides a comparative snapshot of the current state of the law in the US and UK with respect to potential liability of university and college students for use (and misuse) of social networking sites. It reviews the limited case law on this topic, highlights the differences in the two nations’ laws of defamation and the various possible legal claims available to individuals allegedly harmed by postings on these social networking sites, and concludes that neither country currently offers a satisfactory legal or quasi-legal model for resolving these disputes.     

集体土地所有权的检讨及物权法上的制度重构——对《物权法(草案)》相关条款的评析

我国法律对集体土地所有权的权属规定不明确,集体土地所有权权能不完全,现实生活中存在很多弊端,因而要改革、完善农村集体土地所有权制度,赋予集体土地以一个明确的所有权主体。我国未来的物权法应当在承认农村土地集体所有的基础上,取消土地承包经营权的制度设计,构建农地使用权制度。     

Cognitive limitations and affirmative action: The effects of aggregate versus sequential data in the perception of discrimination

The present experiment examined whether or not relatively simple cognitive and information-processing limitations may prevent us from recognizing instances of organizational discrimination. It was hypothesized that the perception of discrimination would be more difficult when the relevant information had been presented in a case-by-case basis rather than in aggregate format. The obtained results provided strong support for the original hypothesis. Subjects who had been presented with company data in aggregate format provided significantly higher ratings of discrimination than those subjects for whom the information had been presented in sequential form. The implications of these findings to the policy of affirmative action are also discussed.     

China's new regulatory regime tailored for the sharing economy: The case of Uber under Chinese local government regulation in comparison to the EU,US, and the UK

Although Uber's arrival in China has resulted in disruptive competition for incumbent taxi companies, it offers an attractive alternative in China's supply-demand-imbalanced urban passenger transport system. China's regulatory regime for Uber has evolved in three stages: from the regulatory vacuum prior to 2015 to its official legalization in 2015–2016, and the enactment of numerous local regulations in 2016, with specific and more demanding requirements for Uber. This policy is a part of the Chinese approach to the gradual liberalization of the urban passenger transport market. Policymakers should consider ‘fair competition’ as the guiding principle to balance the interests of sharing firms and incumbent service providers, as well as between different sharing firms. The core value of this principle lies in the benefits it provides for consumers and the way it engenders a pro-competitive market environment. The labor protection arrangements for sharing firms’ laborers should be more flexible and diversified. In order to recognize whether an Uber-Driver is an employee or independent contractor, a new standard taking into account a range of factors should be established through collective negotiations between the participants of the sharing economy, and dialogues between members of the judiciary, academics, and the policymakers. Further, consumer protection law and personal data protection provisions should apply when sharing firms misuse their distinctive algorithmic management model to compete unfairly to the detriment of consumers and other users. Ex ante regulatory measures designed to protect the personal data of users should be introduced for deployment in the context of the sharing economy. When enforcing these rules, a balance should be struck ensuring free data flow that is essential to sharing firms’ innovation and competition, and the need to ensure the level of data security required to underpin a well-functioning sharing society.