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Adjustment And Development Of International Copyright Protection In The Information Age

Posted on:2007-05-03Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y Q ZhangFull Text:PDF
GTID:1116360182491386Subject:International Law
Abstract/Summary:PDF Full Text Request
As the global economy enters the information age, the use of the Internet and itsapplications has become the driving force of this new era. With the revolutionarydevelopment of information technology and the Internet, it has become more convenientthan ever before to obtain, distribute, store and utilize information. As a result, society'sway of life and the global economic condition begins to follow this new style or trend,which is produced by technological advancement and innovation of both application anddevelopment. Since most copyrighted works themselves can be categorized as a type ofinformation, digital works have become one of the most important trends of the 20thcentury. The Internet, by its functions and uses in today's world has completelyoverturned the traditional view of how copyrighted works were once published andconsumed. This change has prompted copyright laws to make necessary adjustments inaccordance with the digitization of the Internet. The Berne Convention is the earliest andmost important international copyright convention. Since 1886, the Berne Conventionhas been through 7 revisions, and every amendment to the bill increased the level of thecopyright protection in accordance with the technological development. Most ofcountries follow the principle thereof. For instance, at the present time, there are twotypes of systems for protection of copyrighted works, i.e., the creation doctrine and theregistration doctrine. The creation doctrine stipulates that the author obtains the copyrightprotection upon completion of the work, whereas the registration doctrine states that awork can be protected by the copyright law upon its duly registration. The BerneConvention, at its early stage, adopted the method of the registration doctrine. However,since the revision of 1908, which implemented the method of the creation doctrine, theBerne Convention has deeply influenced countries around the world to adopt the creationdoctrine. Although nowadays, a few countries still rely on the registration doctrine,such as the United States, their national registration procedures are mostly for evidentialpurposes.As a result of technological advancement, copyrighted works of the 20th century areno longer confined in the boundary of plane media. More and more, the works areshifting to the realm of multimedia. In the field of literature and artistic performance,although the originality of the performers, the producers of phonograms and thebroadcast organizations cannot compare with the originality of the authors, it isnonetheless a good economical necessity to protect their works. Under the InternationalLabor Organization's impetus, on October 26, 1960 in Rome, countries signed "TheInternational Convention for the Protection of Performers, Producers of Phonograms andBroadcasting Organizations", also known as "The Rome Convention". This Conventionentrusts copyright protection to those performers, producers of phonograms and thebroadcast organization similar to those of authors', but inferior to the neighboring rights.The Rome Convention is the world's first convention which protects the neighboringrights, and it stipulates that only those member countries from the Berne Convention andthe Universal Copyright Convention can join.In addition to the above mentioned conventions, there is the Trade RelatedIntellectual Property Rights (TRIPs), which is under the governance of the World TradeOrganization. The main purpose of TRIPs is to conform and complement otherinternational conventions that are associated with intellectual property rights, for instance,the Paris Convention, which is for the protection of the industrial property rights(including trademarks and patents), the Berne Convention (the protection of copyright),the Rome Convention (the protection of neighboring rights) and the WashingtonConvention (the protection of the IC layer out design). Moreover, another internationalorganization, known as the World Intellectual Property Organization (WIPO), in 1996concluded two treaties which related to copyright: the WIPO Copyright Treaty (WCT),and the WIPO Performers and Phonograms Treaty (WPPT), to supplement for the lack ofcopyright and neighboring rights, as well as the protection of databases in the digitalizedInternet and technological developments in TRIPs.After WCT and WPPT passed, not only did these two treaties have a significantimpact on the digital transmissions of the Internet, they also broaden the scope ofcopyright protection. These two treaties expand the protection from the Internet to thecommodities and the services which are byproducts of this new digital era. Thesebyproducts form a huge gap between copyright law that is based on tradition copyrightconcepts and what WIPO treaties described as the standard of protection of the authors.In order to narrow this gap, various countries started to collaborate with the WIPOtreaties to revise the traditional copyright law. Based on WCT and WPPT, the results ofthe collaboration requested all contracting parties to entrust the kind of copyrightprotection to performers and producers of phonograms that they never had, such asArticle 11 of WCT and Article 18 of WPPT require the contracting parties to provideprotection and remedies to technical measures. Because the traditional copyright lawdoes not have this added duty, it has cast many doubts and induced several controversies.In fact, these two treaties had already created a great dispute when they were brought intodiscussion in the WIPO diplomatic conference. In order to resolve the dispute, WCT andWPPT were made only to regulate on principle. For example, these two treaties onlyrequested the contracting parties to set circumvention as a standard, to regulateinfringement as prohibited, but certainly not to prohibit "preparation behavior" (forexample manufacture, sale, import and so forth). Regardless, each country has differentlegislation standards due to their individual considerations.Although WCT and WPPT had been enacted for several years, it is not until recentlythat the impact of the technology protective measures has finally been realized. The newor the revised versions of the law that are based on the WIPO treaties have just beencompleted one after another, and because of that, many new lawsuit cases have started tosurfaced, like the DVD and RealNetworks lawsuit in the US, and so on. Besides the US,other nations and political entities such as the European Union, Japan, South Korea, andChina had also completed their own revision on their domestic law. As Internettechnology continues to reach maturity, the electronic application has become moreprevalent, therefore right now is the perfect opportunity to inspect internationalconventions as well as each country's own copyright law adjustments.Because of the knowledge-based economy in the new global era, intellectualproperty rights have become equally important. Data transmission success will bedetermined by speed and ease of use. As mentioned, most copyrighted works are a typeof information, therefore it has become an essential trend to take advantage of the recentinformation technology advances and digitally create and utilize these works. Thecreation, usage, and circulation of digital works are all closely related to copyright issues.However, the widespread application of digital technology has also affected change whenthe foundation of copyright law was being decided. As a result, it had altered the balancethat held for the past hundred years between the copyright holder and the copyright user,and serious changes had to be made. For example, several Internet applications haveplaced music online for free downloading in the MP3 format, such as Napster andGrokster in June, 2005. These are related to new technologies, such as P2P, and havecause new controversies. As well, these Internet applications brought about profoundeffects on the rights of the music phonograph producer who is holding the copyright forthose MP3 songs. From the development of the above mentioned cases, it is obvious thattechnical advancement will have a true impact on the way a work is being used. Themain purpose of this thesis is to discuss the possible controversies that will arise wheneach country is making its own adjustment according to the international conventionstandards. The main argument will be focused on discussing copyright transformation inthe information era, the relationship between the existed conventions and the new treaties,the way countries are revising their legal system in accordance with these new treaties,and the relevant case studies that occurred in the developed countries. This thesis willalso investigate flaws that existed within the international conventions themselves as wellas the controversies caused by developed countries abusing these conventions.The main scope of this thesis is to focus on how the forms of copyrighted works arechanging, and how each country is revising its laws to accommodate the change inaccordance to technical progression, and how the basis of the revision relies on themainframe of the WTO/TRIPs and WIPO related copyright protection standards. Theprimary research technique for this thesis is first to collect domestic and foreigncorrelations periodical papers, academic conference reports, international organizationconference reports, seminar materials, books specifically focusing on this issue, andstatistical reports, and subsequently perform deep analysis. In addition, the thesis willalso execute two main comparative analyses. The first is on the correlation betweenvarious international conventions, and the second is on the comparison of futurecopyright protection trends and development amongst several countries, and then todiscuss and elaborate on the kind of influence they have on international conventions.Moreover, this thesis will discuss the challenges that the copyright system will face underthe unique characteristics of digital technology, the possible controversies it will produce,such as the problems arising from making it easier to re-fabricate works, the pervasion ofwork creations, the proliferation of the works, the increase in storage capacity of thedigital storage medium capacity but decrease in production cost, as well as the fair use,anti-circumvention, the protection of databases and so on. All relevant cases to the abovewill be collected from various countries and a deep analytical comparison will be made.In particular, because copyright abuse originated in the US, this thesis will specificallyfocus on the related laws and regulations from The Digital Millennium Copyright Act of1998, also known as DMCA. This thesis will also present a comparative analysis on theaspects of dealing with this contingency for the European Union as well as several Asiancountries. This thesis is divided into six chapters: the First Chapter is the introduction: itincludes the research motive, the research goal and its significance, the main argumentand innovation point, the research technique and gateway, as well as the researchframework. The Second Chapter focuses on the relationship between technology andcopyright development: it reviews some of the historical events, and includes discussionson the original essence of a copyrighted works, early printing technology inventions,17th to 20th century technological developments and copyright, the impact that theInternet has on a work, and the controversies that arise from new Internet technology andcopyright. The Third Chapter introduces the copyright-related internationalconventions, which includes The Berne Convention, The Rome Convention, theWTO/TRIPs agreement, and WIPO's copyright related treaties. The Fourth Chapterdiscusses the impact of technology development on international conventions and theadjustments made by countries because of it: it includes a discussion regarding thestandardization from WTO/TRIPs and WIPO's copyright related treaties to thetechnology protective measures and rights management information, because these twokey points serve as the standard for change in copyright due to information science andtechnology development. This thesis will focus on the US, the first nation to amend itslaw according to the WCT and the WPPT. This thesis will also focus on researchconcerning the European Union's command to increase its member nations and thetransformation of its domestic law, as well as selected countries that are technologicallyadvanced and developed in Asia such as Japan and South Korea, to discuss the changesthey made to their respective domestic laws. The Fifth Chapter discusses the fair use ofworks in the information era, and the way technology development is altering the balancethat had stood for the past hundred years between the copyright holder and the copyrightuser. This Chapter will first analyze the development of the fair use principle and theregulations on this principle confined by the international copyright system, andafterwards, analyze a case study in the US. The last Chapter is the conclusion.
Keywords/Search Tags:Copyright, Information Age, Digital Technology, Technical Protective Measure, Rights Management Information, Fair Use, WTO, TRIPs, WIPO, WCT, WPPT
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