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Technology Development, Expansion, And Copyright

Posted on:2009-07-03Degree:DoctorType:Dissertation
Country:ChinaCandidate:J X YiFull Text:PDF
GTID:1116360248451040Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
As the result of science and technology, Copyright has been kept expanding with the development of technology. However, no systematic examination on the process that technological development forces the expanding of copyright can be found up to now. To copyright, the process is just an important topic, in which the secret of the produce and change of basic theories such as work, author, originality, idea/expression dichotomy and reproduction is concealed. To disclose the secret is vital not only for grasping the theories and system of copyright but also for predicting the future of copyright as well as directing Chinese practice on copyright. What this dissertation deals with is just disclosing the process on the large historical background after breaking through the limitation of copyright itself, then realize the end of this dissertation: understanding copyright's basic theories from the angle of history, deciding the position on how to guide the future of copyright and if any, overcoming the lack on this topic at home.The dissertation, calculated 170,000 words, consists of eight chapters besides a preface. From Chapter One to Chapter Three, the author focuses on United Kingdom, examines the formation of the idea of modern copyright by the stimulation of press technology, including the produce of work, author, originality, idea/expression dichotomy and debates over the nature of copyright. From Chapter Four to Chapter Seven, taking early England as the beginning, then focusing on the United States as well as the trend of internationalization of copyright protection, the author examines how the analog technology and digital technology force the expanding of copyright after the realization of the idea of copyright, including the style of right extending from reproduction right to public perform right and adaptation right, the succession and development of British institution and idea on copyright in the United States, and the process of expanding and change of the basic theories of copyright, the style of right as well as the kind of work driven by new technology like photography, phonograph, piano roll, motion picture, broadcast, radio, TV set, xerography, home video-recorder, computer, internet and so on. Chapter Eight is the end of this dissertation. In this Chapter, the author depicts the puzzlement and thinking on the adaptability of copyright to new technology, sums up the expanding of copyright driven by technology and then determines the basic disposition to copyright: copyright has the adaptability to new technology and won't "die" in the foreseen future, but the trend of expanding of copyright today must be stemmed.Content of each chapter is summarized as follows:Chapter One: Printing Privilege and Stationers' Copyright. After William Caxton introduced the printing press in England in 1476, the government of England regarded the printing industry as emerging industry and took measures to encourage its development. However, the flourish of the printing and publishing industry made the dissemination of seditious and heretical material more convenient. For the purpose of controlling the printing of seditious and heretical material, the British rulers renewed censorship regulations originated from era of Henry IV(1399—1413) in House of Lancaster. In 1546, HenryⅧestablished a new frame of censorship, which made it possible that some entity already existed, which met certain conditions, boards the stage of history. The Stationers' Company, which met said conditions, boarded the stage of history in era of Queen Mary who continued the censorship. Subsequently Elizabeth I supported the Stationers' Company with greater intensity. The Star Chamber Decree of 1566 marked the beginning of the corporation between the British rulers and the Stationers' Company. Since then, the Star Chamber had been supported the management over the printing and publishing industry by the Stationers' Company. Resorting to the power already gained and the printing register regulations already established, the Stationers' Company created "Stationers' Copyright", an exclusive right of printing and publishing to non-privilege books, enjoyed by numbers of the Stationers' Company. Stationers' Copyright has been regarded as the former of modern copyright. The final lapse of the Licensing Act of 1662 in 1695 not only marked the end of the corporation between the British rulers and the Stationers' Company but also opened a new era of free printing. In order to maintain the monopoly status, the Stationers' Company tried another struggle.Chapter Two: the Statute of Anne. Besides making use of "the conger system" to maintain the monopoly status, the Stationers' Company continued to force the printing register regulation inside the company so as to maintain the effect of the Stationers' Copyright. Based on the primary term "booke or copie", the Stationers' Company created an new term "copy right" in 1701, through which emphasized the exclusive printing right to non-privilege books enjoyed by numbers of the Stationers' Company. In fact, booksellers had felt indistinctly that something existed in manuscripts is different from manuscripts and the right to it, which was called "copy right", should differ from the ownership to manuscripts. That "copy right" was introducing is an important event in the history of copyright. This means a new beginning of important change of idea since the introduction of "Stationers' Copyright" in the history of copyright. The direct measure aimed for the lapse of the Licensing Act of 1662 taken by the Stationers' Company was petition to the parliament for recover the Act. After many failures, the Stationers' Company understood the value of authors inspired by Daniel Defoe and replaced "copy right" with "literary property". Then, the Stationers' Company went ahead to petition to the parliament with the new excuse "for the encouragement of learning". Finally, in 1710, the parliament responded the petition of the Stationers' Company, passed the Statute of Anne. As a result of compromise, the Statute of Anne contains three kinds of "quasi copyright": Printing Privilege, Stationers' Copyright and Statutory Copyright. The true end of the Act is complicated: striking down the monopoly status of Stationers' Company and regulating the book trade order; protecting authors, encouraging writing and promoting the progress of learning; harmonizing all sorts of benefits, maintain the stability of the society and so on. There are lots of comments over the Act. In early 19th century, the opinion that the Statute of Anne is the first copyright act in the world was found. However, the idea of copyright has not been formed when the statute of Anne was introduced. What's more, the objection of copyright, i.e., work under the law, has not been produced. Besides, the Statute of Anne didn't use the term "copyright". The predication that the Statute of Anne is the first copyright act in the world is just the result that someone imposes the idea of copyright himself on the Statute of Anne. Yet, the providing about author and the encouragement of learning in the Statute of Anne is of vital in the history of copyright.Chapter Three: from Literary Property to Copyright. Affected by the Statute of Anne, William Hogarth, an engraver, with other artists petitioned the House of Commons for protection against the unauthorized copying of their engraved prints. In 1735, the Engravers Act was passed. The fact that it was artists that asked for legislation proved that authors have become an independent group, who earned their livelihood by their own skill and labor. They paid more and more attention to their own economic interest. Implied so many materials about idea of modern copyright, professor Deazley said, "With the passing of the Engravers Act a silent revolution had taken place. In this legislation, copyright, as we understand and appreciate it today, first began to take embryonic form." The emergence of the term "copyright" in this year can be seen as an evidence for the opinion of Deazley. The Engravers Act also reminded people that the Statute of Anne had been lapsed. When petitioning to renew the Statute of Anne, the Stationers' Company was frustrated. At the same time, literary property was seriously questioned—it was treated as forgery. On the contrary, the Stationers' Company argued that literary property was a common-law right, not on a statutory basis. The debates on literary property were provoked. Skill and labor which authors devoted into books was the central reason with which the Stationers' Company argued for the opinion.In Pope v. Curl, Chancellor Hardwicke decreed that Pope has right to letters he wrote. Curl has no right to print or publish these letters even if he owns them. Professor Rose believed that this is the critical moment of the birth of copyright. Having been abstracted from its physical basis in ink and paper, text substituted for book and became the object of literary property. An author is not merely a writer but more the subject of literary property. Transfers of manuscript not only have nothing to do with literary property but also have no effect to authorship. Here, the concept in modem copyright such as work and author began to take embryonic form.In 1743, booksellers of London sued booksellers of Scotland like Hamilton, Balfour to the Court of Session in Scotland. Debates on literary property broke out. In 1747, William Warburton published A letter from an Author to a member of Parliament Concerning Literary Property, a pamphlet that discussed the author's common-law right and provided the first theoretical treatment of literary property. In 1759, Edward Young published Conjectures on Original Composition, an essay that put forward the theory of originality, which connecting with Locke's theory of labor justified literary property. In Tonson v. Collins( 1761), problems on literary property were discussed sufficiently. Opened for the plaintiff, Blackstone divided a book into three parts: physical book, ideas or sentiments in a physical book and words. "Characters are but the signs of words, and words are the vehicle of sentiments. The sentiments therefore is the thing of value, from which the profit must arise." A pamphlet named A Vindication of the Exclusive Right of Authors, to their own works developed Blackstone's theory, and established the basis of idea/expression dichotomy. In Millar v. Tayor(1769), the Court of King's Bench, by a majority of three to one, ruled in favour of common law literary property. But in Donaldson v. Becket (1774), the House of Lords, on the basis of a different style of reasoning—the consequential modes of argument, reached the opposite conclusion to that of the King's Bench in Millar v. Tayor. Donaldson v. Becket was taking as marking the end of debates on literary property. It is worth mentioning that during the hearing of Donaldson v. Becket, Francis Hargrave, a lawyer for Becket, published An Argument in Defence of Literary Property. In this pamphlet, Hargrave conducted a comprehensive exposition on literary property, almost answered all of the opponents' questions—at least it seemed so on the surface. Nevertheless, the House of Lords did not accept his views.Looking back on this argument, we can see that by 1774, all the essential elements of modern copyright including the subject author, the object work, the content printing and publishing and the basic theories originality and idea/expression dichotomy, were in place. The death of literary property was along with the birth of modern copyright.Chapter Four: Beyond reproduction. The initial right of copyright is reproduction. In early 19th century, the United Kingdom fell into financial difficulty; British theatres were also faced with a financial crisis. Accordingly, British playwrights' income has been greatly diminished, which made playwrights have a difficult life. Affected by what had done in France, British playwrights called for vesting them with public performance rights to their works so as to improve conditions of their living. Driven by Bulwer Lytton, a peer and also a playwright, the Dramatic Copyright Act was passed in 1833. Playwrights were vested with the public performance. After English became popular, it was necessary for the United Kingdom to protect its own works overseas. Continental European countries, such as France, also have such a need. In the early 19th century States began to hold bilateral negotiations on copyright protection. Because of the insistence of France, the United Kingdom promised to protect the right of translation. In 1852 the International Copyright Act of the United Kingdom provided for the right of translation while amended. So translating has become an important right of copyright. When bilateral negotiations on copyright protection developed into multilateral negotiations, the right of translation was primarily firmed in the Berne Convention in 1886. When the Berne Convention was revised in Berlin in 1908, the right of adaptation was provided in the fashion of forbidding the "unauthorised indirect appropriation" of works and especially took adaptation, musical arrangements, transformations of a novel, tale or piece of poetry into a dramatic piece and vice versa as examples. Driven by the Berne Convention and authors at home, the United Kingdom passed Copyright Act 1911, which provided for the originality, explicitly vested authors with the right of public performance, the right of translation and the right of adaptation. The system of copyright was expanded primarily.Chapter Five: Copyright in the Untied States. In this chapter, the author mainly introduces how the United States succeeded and developed the regime and theories of copyright. The intellectual-property clause in the United States Constitution of 1787 provides that the purpose of copyright is to promote knowledge and enhance public welfare; the protection of the rights of author is just a means of promoting the interests of the public. According to the Constitution of the United States, the Congress, in 1790, passed the first federal Copyright Act, which not merely deeply affected by the Statute of Anne but also have a strong character of the national: it only protected works of the United States citizens or residents and didn't protect works of foreigners at all. Authors of the United States played a great role in passing these acts. In Wheaton v. Peters(1834), the Supreme Court of U.S. made an authoritative interpretation on the nature of the copyright: copyright is merely a privilege in statute in the United States. Later, U.S. judges succeeded and developed the theories originality and idea/expression dichotomy in judicial practice. After works at home boomed, the United States, which had been a pirate printer for more than one century, passed the first International Copyright Act, i.e., the Chace Act, began to protect foreigners' works under strict limited conditions. From then on, the United States has stepped forward the international protection of copyright.Chapter Six: Analog Technology and Copyright Expanding. In this chapter, the author mainly deals with the effect of analog technology to the basic theories, kinds of works and the right regime of copyright. Photography makes people understand originality of works on a higher level. Phonograph, piano roll, tape-recorder, home video-recorder, xerography etc. promote our thinking about the right of reproduction. The reason that makes the right of reproduction become the basic right of copyright was disclosed by the stimulation of said technology. The emergence of motion picture, broadcast, radio, TV set, cable television etc. greatly expanded the realm of the right of public performance, which lowered the degree of importance of the right of production. What's more, responding new technology, the United States created new right of copyright: the display right. In this process of expanding, all kinds of stakeholders struggled and compromised each other, but public interests were gradually forgotten because of lacking negotiating representatives. Being the world's largest exporter of copyrighted works since 1980's, the United States began to greatly emphasize the importance of enhance the protection of copyright and joined the Berne Convention in 1988. By then, it had been more than 100 years since the conclusion of the Berne Convention. The international trend of protection of copyright has been irreversible.Chapter Seven: Digital Copyright. In this chapter, the author mainly examines the effect of digital technology to the basic theories, kinds of works and the right regime of copyright. Compared with the influence of analog technology, the influence of digital technology to copyright is overall and deep. After introducing the protection of software and database, the author focuses on the measures taken by copyright regime of the United States against the internet environment. Since declared the plan of Information Superhighway, the United States appointed a Working Group on Intellectual Property Rights chaired by Patent Commissioner Bruce Lehman, whose task was to study problems on intellectual property concerning the plan of Information Superhighway. Lehman was submerged the agent of copyright group. As the final report of the Working Group on Intellectual Property Rights, the White Paper greatly extended copyright. According to the White Paper, for example, temporary copy is within the realm of the right of reproduction, the first-sale doctrine shall not be applied in the internet environment, technical protection measures should be taken to control access to or use of works, not reason can be justified circumvention of technical protection measures, rights management information should be protected, and so on. The White Paper was resisted by all kinds of social stratums. After the conclusion of WCT and WPPT, Lehman forced the United States passed the implementation act of WCT and WPPT: Digital Millennium Copyright Act (DMCA). Except some strict limitation, DMCA is almost the clone of the White Paper. In the judicial practice implementing DMCA, the public felt inconvenience resulted from DMCA, which never receives the support from the public. The explosion of the "magnificent disaster" of the Sony-BMG rootkit incident incensed public finally. People began to rethinking the problem of technical protection measures. DMCA had to concede to the public. In November, 2006, new limitation of technical protection measures was provided in Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies.Chapter Eight: the Future of Copyright. In this chapter, the author firstly reviews the history of the expanding of copyright and draws some conclusions as follows: 1. The conflicts of interests are the motive force by which copyright produces and expands; copyright theories were just the tool of justification of stakeholders. 2. Inside the basic theories lies a deep contradiction. 3. Copyright is not a natural right but a statutory right. 4. The expanding of copyright is mainly driven by legislation; courts then usually keep the doctrine of Judicial Restraint. 5. The expanding of copyright is realized mainly by analogy and fictions. 6. Because of the expanding of copyright, the system of copyright is becoming more and more promiscuous and theories of copyright are becoming more and more weak. 7. Copyright's expanding is more and more depending on technical protection measures. 8. During the period of expanding, copyright is changing direction from creation to investment. 9. Copyright gradually deviated from its original purpose during the period of expanding. Secondly, the author introduces several opinions about copyright: 1.The existing copyright system can not adapt internet environment. 2. The existing copyright system can adapt internet environment. 3. It is necessary to reconstruct the copyright system. There are four designed mode for reconstructing the copyright system now: (1) mode of incentive-based; (2) mode of right of commercial exploitation; (3) right to control access or access right; (4) mod of right to disseminate or exploit.Finally, the author expresses his own opinion: 1. Prevent copyright from further expanding currently. To realize this, the movement of free software and open source and the open spirit embodied in it is of vital. Moreover, it is necessary to insist the numberus clauses of copyright. As to international treaties related, strictly interpretation should be insisted as international obligations would be fulfilled. As to judicial practice, the doctrine of Judicial Restraint should be carried out. As to the abuse of judicial discretion in some courts in China, we must keep vigilance. 2. Adjust current copyright system appropriately: cancel the foundation position of the right of reproduction in the copyright system; establish the foundation position of the right to disseminate in internet environment; take powerful measures to prohibit the invasion to public domain by technical protection measures.The author expects that, after adjusting, traditional copyright system and digital copyright system will be turned into an organic whole, which will adapt to the challenge of new technology. Restricted by and coexisted with the open spirit, copyright will encourage knowledge and promote public welfare excellently by matching with other elements such as technology, market and ethic. Future copyright will be more humble; copyright of the future will be better.
Keywords/Search Tags:copyright, technology, the expanding of copyright, the Statute of Anne, literary property, digital copyright
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