数字技术VS作者精神权利制度

一、问题的提出 长期以来,大陆法系著作权法都十分关注作者的署名权、发表权、修改权、保护作品完整权等精神权利,而英美法系的版权法则更注重作者财产权的保护.不少英美法学者担心作品精神权利的存在将对版权经济利益的开发利用产生负面影响,1数字技术又进一步加剧了这种质疑.有一些英美学者甚至已经断言,由于大部分精神权利从本质上不符合数字时代的要求,终将在数字技术的冲击下失去继续存在的理由.2无论如何,数字技术对精神权利的挑战的确不能忽视.     

Legal Rights and Moral Rights: Old Questions and New Problems*

Abstract. The author examines the discipline of moral rights and in particular the need to embed them in a consequential system. He argues that the widely held opinion that independence from consequential evaluation is the right way of guaranteeing individual freedom is based on an inadequate appraisal of the role of moral rights in the social context. In this perspective he examines two specific cases: (1) elementary political and civil rights, and (2) the reproductive rights of women in the context of poor countries with the problem of fast population growth. He argues that a coherent goal-rights system which accommodates rights among others goals, can overcome the non-consequential arguments and justify the force of moral rights fully within a consequentiality perspective.     

新媒体时代道德绑架特征分析

近年来道德绑架事件频繁出现,且每每发生都会引起广泛关注,造成不良社会影响。道德绑架主要是以道德为筹码来胁迫他人从事违背本人主观意愿的行为。从其产生根源来看,道德绑架与道德相伴而生,并非近年来新生事物。只是随着新媒体时代的到来,道德绑架的施众与受众在新媒体的催化下都呈现出新的特征;加之新媒介特殊的传播方式使得道德绑架事件愈演愈烈,不仅侵犯当事人权利更会弱化道德的社会调节作用。应对新媒体时代的道德绑架,既要加强社会道德教育提升公民道德修养,也应加强新媒体平台的管理规制,减少道德绑架发生的可能。     

Human Rights: Changing the Culture

The Human Rights Act 1998 is likely to come into force early year next year. It unquestionably has the potential for being one of the most fundamental constitutional enactments since the Bill of Rights over 300 years ago. While so much constitutional change in the United Kingdom has been achieved without resort to legislation, this is a deliberate part of a programme of constitutional change by legislation. The legislation has to be seen in the context of the government's wider programme of constitutional reform: the reform of the House of Lords, the promised Freedom of Information Act, devolution to Scotland, Wales, and Northern Ireland, and elected mayors. Any evaluation of a change in the way in which the constitution is perceived and imagined in the United Kingdom cannot ignore the interrelationship of these reforms. The scope of this collection of essays is, however, narrower. It is to consider what changes have brought about this particular constitutional reform and its potential for creating a 'human rights culture'.     

版权中精神权利不可让渡的多维论证

精神权利能否被让渡而成为交易对象,在版权制度发展过程中曾有过不少争议。本文从人格价值观、外部性及法律家长主义等理论视角,进一步论证了版权中精神权利不可被让渡,并应当被排除在版权交易范围之外。     

权利时代的理论景象

权利研究是理论法学研究领域的一个基本课题,是权利时代的理论景象。回顾和反思改革开放以来我国的权利研究,可以分为四个阶段:突破阶级斗争为纲的理论范式;确立权利和义务作为法学基本范畴的地位;确立权利作为法学基石范畴(权利为本位);权利本位范式的形成及其广泛运用。权利研究必将随着中国社会主义建设而深入展开和完善。     

The Future of FOIA: Course Corrections for the Digital Age

After the fiftieth anniversary of the Freedom of Information Act in 2016, criticism of the law is considerable. FOIA has failed to live up to its initial promise of peeling back the layers that too often shroud the federal government in secrecy, frustrating the news media’s efforts to contribute to an informed electorate. Issues with response rates, unorganized systems and subjective interpretations of the act’s exemptions are not uncommon. This article utilizes data gathered from 2008 to 2015 that indicate that across multiple metrics, FOIA has increasingly failed to provide records to requesting parties. The trends suggest that significant overhaul is necessary. Rather than prescribing more amendments that are little more than Band-Aids on a withering dinosaur, this article concludes with a detailed set of recommendations – highlighted by a crowd-sourced request database – that move far from FOIA’s original paper-based model that still rests at its analog core.     

Regulating E-commerce: Formal Transactions in the Digital Age

As digital transactions become more common the need to regulate the commercial frontier of cyberspace becomes increasingly urgent. This has been recognised by national governments, supranational bodies and international organisations. The regulations proposed have though been offered in a piecemeal fashion. National governments attempt to fit cyberspace within the four corners of their (familiar) domestic jurisprudence, and even supranational and international bodies have been guilty of simply extending previous rules to the realm of cyberspace. This paper suggests that a coherent approach to the regulation of electronic commerce may start with an identification and application of principles rather than with the transference of rules. It uses as a reference, proposals for the modernisation of land transfer systems introduced in Canada and Australasia, currently being evaluated by the Keeper of the Registers of Scotland and the Law Commission/HM Registry. Underlying these proposals is a central issue: how are traditional formal requirements for property transactions accommodated in cyberspace? More fundamentally, if that most formal of transactions, the transfer of real property, can be modernised to meet the challenge of a new digital age, can not all modes of commerce be similarly modernised for the digital era? This paper evaluates whether a principled approach to answering these questions can, more generally, provide a workable framework for approaching e-commerce regulation.     

Judicial Culture and the Politicolegal Opportunity Structure: Explaining Bill of Rights Legal Impact in New Zealand

This article argues that the cultural self-understandings of the judiciary can exert a profound effect on legal outcomes under a bill of rights. Utilizing the case of New Zealand, it demonstrates that confinement of expansive case law under the New Zealand Bill of Rights (NZBOR) to the criminal law and freedom of expression arenas is most significantly explained by a British-descended judicial culture that prioritizes, first, those civil liberty values already cognizable by the common law and, second, rights connected with the policing of parliamentary and legal processes. Nevertheless, judicial culture does not operate in a vacuum. Rather, the opportunity structure facing potential public interest litigants under NZBOR depends also on their politicolegal resource set including the attitude of the political branches (legislature and executive) to the claim being forwarded.     

Rights and Rhetoric: The Politics of Asylum and Human Rights Culture in the United Kingdom

No assessment of the state of human rights today could be complete without some consideration of the situation of asylum seekers and the political trends behind it. Four years after the implementation of the 1998 Act, asylum seekers are perhaps more denigrated in rhetoric and harsh practice than they were even before the first promise that rights would be 'brought home' for all 'people' in the United Kingdom. This piece looks at the undermining of the very concept of asylum, dehumanizing policies such as forced destitution, and attacks on access to legal process for those making asylum claims. It goes on to consider judicial attempts at coping with the arena in which high politics and fundamental rights seem in greatest tension. Finally it considers potential implications for the broader aspiration of building a human rights culture in this country.     

Corporations as Moral Agents: Trade-Offs in Criminal Liability and Human Rights for Corporations

This article argues that a common way of defending corporate criminal liability creates a dilemma: it provides a strong justification for giving human rights to corporations. This result follows from approaches to punishment and human rights which predicate each on the status of moral agency. In short, if corporations are moral agents in a sufficient sense to attract criminal liability, they are eligible holders of human rights. The article also discusses the doctrinal application of this philosophical claim. Drawing on US jurisprudence, it illustrates how the European Court of Human Rights might deploy corporate moral agency as a theoretical foundation for its otherwise weakly-reasoned attribution of human rights to corporations. If proponents of corporate criminal liability are dissatisfied with these conclusions, they face difficult policy trade-offs: they must abandon the doctrine, or adopt alternative approaches to punishment or human rights.     

和谐人权:中国精神与人权文化的互济

根植于冲突与对立的传统人权观已不能应对现代社会文化多元的挑战,人权原教旨主义者的坚守、人权政治学的庸俗实用化、人权法理学的技术性进步都在戕害着人权本身固有的批判精神.以发乎和谐的中国精神化育西方文化本位人权观,并不是对其价值的抛弃或取代,而是对其精神的拓展与提升.基于和谐的人权不仅会使西方人权观超越其历史局限性而赢得其普遍性,也会使中国精神超越其民族性而赢得其世界性.     

Trade versus Culture in the Digital Environment: An Old Conflict in Need of a New Definition

Following the recent UNESCO Convention on the Protection andPromotion of the Diversity of Cultural Expressions, the firstwave of scholarly work has focused on clarifying the interfacebetween the Convention and the WTO Agreements. Building uponthese analyses, the present article takes however a differentstance. It seeks a new, rather pragmatic definition of the relationshipbetween trade and culture and argues that such a re-definitionis particularly needed in the digital networked environmentthat has modified the ways markets for cultural content functionand the ways in which cultural content is created, distributedand accessed. The article explores first the significance ofthe UNESCO Convention (or the lack thereof) and subsequentlyoutlines a variety of ways in which the WTO framework can beimproved in a ‘neutral’, not necessarily culturallymotivated, manner to become more conducive to the pursuit ofcultural diversity and taking into account the changed realityof digital media. The article also looks at other facets ofthe profoundly fragmented culture-related regulatory frameworkand underscores the critical importance of intellectual propertyrights and of other domains that appear at first sight peripheralto the trade and culture discussion, such as access to infrastructure,interoperability or net neutrality. It is argued that a numberof feasible solutions exist beyond the politically charged confrontationof trade versus culture and that the new digital media landscapemay require a readjustment of the priorities and the tools forthe achievement of the widely accepted objective of culturaldiversity.     

Criminalizing the Political in a Digital Age

Critical Criminology - There is an emergent interest by criminologists in theorising problems that arise when states breach conventional legal norms. This article considers the criminalisation of...